author: Mr. Presiding Justice Freeman

text:
    Heath & Milligan Mfg. Co. v. National Linseed Oil Co.
    X. Appellate Court Practice — Does Not Sit to Review Its Own Decisions — When Res Judicata. — The Appellate Court can not sit to review its own decisions, except in case of a petition for a rehearing. It is only its final orders or judgments which are, as between the parties to the suit, res judicata.

    2. Mistake of Facts — Recovery of Money Paid by. — Money paid under a mistake of facts may be recovered back in an action of assumpsit, but not when it has been voluntarily paid under a mistake of law, and without fraud or mistake of fact; and so, where money is voluntarily paid under a mistake as to the law, and under a claim of right, it can not be recovered back.
    3, Mistake of Law — Money Paid Under, Not Recoverable. — It is the established rule in equity, as well as at law, that money paid under a mistake of law, with full knowledge of the facts, is not recoverable, and that even a promise to pay upon a supposed liability, and in ignorance of the law, will bind a party.
    Assumpsit, on the common counts. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in the Branch Appellate Court on a remanding order from the Supreme Court, at the October term, 1901.
    Affirmed.
    Opinion filed December 24, 1901.

      Statement.— This cause was submitted to the Circuit Court upon an agreed statement of facts. A jury having been waived, each of the parties brought suit against the other. Appellant sued to recover back alleged over-payments for linseed oil purchased of and delivered by appellee, and appellee sued in turn to recover from appellant a balance claimed to be due. By agreement the causes were consolidated.
    The facts upon which the finding of the trial court was based are included in the stipulation, and may be stated substantially as follows: For more than five years prior to the commencement of the above entitled suit, the Heath & Milligan Manufacturing Company had from time to time purchased large quantities of linseed oil from the National Linseed Oil Company, under various written contracts. The contracts involved herein were made for linseed oil at certain prices per gallon; nothing was said in any of said contracts as to how much constituted a gallon, and nothing was said about “ statutory ” gallons. Deliveries were made in bulk. Bills were rendered to the Heath & Milligan Manufacturing Company charging it for said oil on a basis of seven and one-half pounds of oil per gallon.
    The weight of linseed oil varies according to its temperature. A statutory standard gallon of linseed oil at 50 degrees Fahrenheit, weighs 7.788 pounds.
    60 66 66 66 7.761 66 70 66 66 66 7.755 66 80 66 66 66 7.730 66 90 66 • 66 66 7.705 66 250 66 66 66 7.50 16
    It is agreed that the mean or average temperature of sixty degrees Fahrenheit shall be held to be the temperature at the time and place of the various deliveries involved herein.
    At the time of the respective deliveries made by the National Linseed Oil Company to Heath & Milligan Manufacturing Company, under the contracts involved herein, it was the custom among oil manufacturers or crushers, of which the National Linseed Oil Company was one, to charge seven and one-half pounds as a gallon of linseed oil in deliveries made by them. The Heath & Milligan Manufacturing Company knew this custom, and they also knew that in the various deliveries made under said contracts such deliveries were made on a basis of seven and one-half pounds to the gallon, but did not know that a statutory gallon of oil weighed 7.761 pounds. The exact weight of a gallon of linseed oil could have been ascertained by said Heath & Milligan Manufacturing Company at any time by weighing a gallon of such oil on delicate and accurate laboratory balances or scales. The shortage in weight would not ordinarily be discovered in weighing a single gallon measure on the ordinary commercial scales. The Heath & Milligan Manufacturing Company did not make such test, but believed that it was receiving a full gallon of such oil Avhen it received and was charged with seven and one-half pounds as one gallon by the said National Linseed Oil Company. About NoA'ember 5,1896, the chemist employed by Heath & Milligan Manufacturing Company, while conducting experiments, discovered and informed said company that a statutory gallon of such oil actually weighed 7.761 pounds. The National Linseed Oil Company tilled all of the contracts in question by delivering seven and one-half pounds as a gallon of oil, and said Heath & Milligan Manufacturing Company paid for the same (excepting a balance of $4,342.38, for which statements were rendered by the National Linseed Oil Company under contract dated August 31, 1896), believing that seven and one-half pounds did actually constitute one gallon of linseed oil.
    During the five years prior to the commencement of this litigation twenty-two contracts in writing were entered into between the parties. The first of these was dated February 24, 1892, for 1,000 barrels or'50,000 gallons of linseed oil. The last is dated August 31,1896, and ratified September 3, 1896, for “100,000 gallons of linseed oil.” The deliveries under this last contract Avere to be made in quantities of 20,000 gallons a month for five months beginning January, 1897, and ending Avith May, 1897.

      [November 5, 1896, appellant wrote appellee as follows:
    “ [National Linseed Oil Company, Old Colony Bldg.. City.
    Gentlemen: We hereby notify you that the weight of linseed oil which has been delivered, and which is still being delivered on contracts made with you has been found to be 7.76 lbs. per gallon as against your charge of 7.50 lbs. per gallon. This information has already been communicated by us to you through your city representative, F. E. Pettet. On contracts which have been completed (on your basis of weight) as well as on contract under which deliveries are being made at present, there is a very considerable overcharge for which we are properly entitled to rebate. Please advise us promptly what you propose to do regarding an adjustment of the above overcharge; also, what your intentions are regarding deliveries yet to be made on contract under which deliveries are now being made, as well as under contract per your letter of September 3, 1896, for future deliveries. Pending your early reply, we remit, according to your weight, but without waiving any of our rights, our check payable,” etc.
    To this appellee replied as follows :
    “ Relative to overcharge on deliveries made you and which are being made you to-day on contracts with this company, we have delivered and are delivering you linseed oil on a basis at which we sold you the oil, 7£ pounds to the gallon. Manufacturers in this country always sell linseed oil on a basis of weight and not by measure, and prices are made on that basis of weight. The commercial gallon of linseed oil is 7Í¿ pounds, which is now, and has been for half a century past, the commercial custom. Different temperatures affect the weight of a gallon of linseed oil and for this reason the commercial gallon of 7-¡¿- pounds was established. We hope the explanation will be satisfactory, and awaiting further favors, we remain.”
    The stipulation concludes as follows:
    “If the court holds that under the contracts hereinbefore described the Heath & Milligan Manufacturing Company was entitled to receive but 7£ pounds for a gallon of oil on all said deliveries it is agreed that the amount due from said Heath & Milligan Manufacturing Company to the [National Linseed Oil Company is $4,342.38.
    If the court holds that under said contracts said Heath & Milligan Manufacturing Company was entitled to receive 7.761 pounds for a gallon of oil on all said deliveries, it is agreed that the amount due said Heath & Milligan Manufacturing Company from the National Linseed Oil Company, after allowing all set-offs, is $12,012.43.
    If the court holds that the Heath & Milligan Manufacturing Company was entitled to receive 7.761 pounds for a gallon only upon such contracts as were being performed at the time it claimed shortage, it is agreed that the amount due said National Linseed Oil Company from said Heath & Milligan Manufacturing Company is $702.70.”
    Appellant submitted to the trial court several propositions of law which were refused. The questions therein presented are considered in the opinion of the court. The trial court held in accordance with the first of the three concluding paragraphs of the stipulation and entered judgment accordingly against appellant for $4,342.38. An appeal was taken to this court, which reversed the judgment (93 Ill. App. 13) and entered judgment de novo against appellee in accordance with the second of said concluding paragraphs of the stipulation for $12,012.43 with interest and costs. From that judgment appellee prosecuted its appeal to the Supreme Court, which reversed the judgment and remanded the cause with directions to this court “ to recite the facts as found in its judgment of reversal, or if it reverses the case for errors of law to remand it to the Circuit Court for another trial.” Linseed Oil Co. v. Heath & Milligan Manufacturing Co., 191 Ill. 75.
    Hollett, Tinsman & Sauter, attorneys for appellant.
    W. W. Gurley and H. G. Stone, attorneys for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is first contended by appellant’s attorneys, that this court has now no option under the remanding order, except to make a finding of the ultimate facts, and upon such finding enter a new judgment in favor of appellant in accord with its former action, or else to reverse the judgment of the trial court and remand the cause for that court to enter such judgment in accordance with the opinion heretofore rendered. (93 Ill. App. 13.)

It is apparent, we think, from that opinion, that this court did not find the material facts differently from the trial court; but rather that it then — erroneously as it now seems —regarded the agreed statement of facts made by the parties as settling such ultimate facts as were necessary to the determination of the cause; and that it reversed the judgment of the trial court for what were regarded as errors in the application of the law to the facts. That such was the ground of reversal is the presumption also of law where there is an omission to make a finding of facts by the Appellate Court. (Linseed Oil Co. v. Heath & Milligan Manufacturing Co., 191 Ill. 75, 77.) If this court had been correct in the view that the parties had agreed upon such ultimate facts as are material, the questions before the Appellate Court on appeal would have been only questions of law, and no. recital of facts found in the judgment of this court would have been necessary upon appeal or writ of error to the Supreme Court from the order of reversal and entry of final judgment here. (Linseed Oil Co. v. Heath & Milligan Manufacturing Co., supra, p. 78.) The Supreme Court having now given its opinion to the effect that the said agreed statement of facts did not constitute “ an agreement as to the ultimate or substantive facts upon which the determination of the case must depend,” it is the duty of this court to do what it now appears should have been done before, viz., recite the facts as found, or remand the cause to the Circuit Court, if we are still of opinion that the judgment must be reversed for errors of law. Purcell Co. v. Sage, 189 Ill. 79-82.

It is true the Appellate Court can not sit to review its own decisions, except in case of a petition for rehearing. It is, however, only “ final orders or judgments of the court,” which “ are as between the parties to the suit res adjudícala, and binding upon them whenever they again arise in that court between the same parties upon the same state of record.” (Henning v. Eldridge, 146 Ill. 305-309.) In the present case there is now no such final order or judgment of this court in force or effect. "W e are therefore at liberty, and it becomes our duty under the mandate of the Supreme Court, to consider Avhether the cause shall now be affirmed, or reversed, or reversed and remanded for another trial, as if it bad ne\er been here before. We have accordingly permitted the parties fco file additional briefs and have given a hearing upon oral argument. The case has thus been more fully presented and our views upon the questions involved have been in some respects modified.

It is first contended by appellant’s counsel that the money paid by it upon the contracts which have been fully performed by delivery of oil thereunder, and by payment of the contract price, was paid under a mistake of fact and can therefore be recovered back. It is no doubt true that money paid under a mistake of fact may be recovered back in an action of assumpsit. (Commercial Union Assurance Co. v. Scammon, 133 Ill. 627-632; Wolf v. Baird, 123 Ill. 585-690.) Hot so, however, when the money has been voluntarily paid upon a mistake of law, and Avithout fraud or mistake of fact. “ It seems to be Avell settled, as between individuals, that where money is voluntarily paid under a mistake as to the law and under a claim of right, it can not be recovered back.” (The People v. Foster, 133 Ill. 496-509, and cases there cited.) In Elston v. City of Chicago, 40 Ill. 514-518, it is said by Justice Breese: “Ho case can be found where money has been voluntarily paid with a full knowledge of the facts and circumstances under which it Avas demanded, Avhich holds that it can be recovered back upon the ground that the payment was made under a misapprehension of the legal rights and obligations of the party paying.” (See also Falls v. City of Chicago, 58 Ill. 403-407; Walser v. Board of Education, 160 Ill. 272-276; Fowler v. Black, 136 Ill. 363-378.) In Kerr on Fraud and Mistake it is said (p. 401): “It appears, from the authorities, to be established in equity as well as at law, that money paid under a mistake of law with full knoAvledge of the facts is not recoverable; and that even a promise to pay upon a supposed liability and in ignorance of the law will bind the party.” In Pekkins v. Eaton, 3 N. H. 152, it was held in the case of a wager, which was not a legally binding contract, that when the money has been paid over to the winner, no action lies to recover it back. In Nicholls v. Leeson, 3 Atkyns, 573, Lord Hardwicke held, where an annuity had been given by will and made a charge upon property left by the testator, and the annuity had been paid for any length of years without deduction for land tax, although subject to such tax, it will be presumed, in the absence of fraud, that the amount has been paid by mutual consent on both sides, and the payer can not recover back the overpayment.

Were the payments, made upon the first twenty of the contracts now in question upon which deliveries had been completed, and which were fully performed before appellant claimed the right to receive the statutory 7.761 pounds of oil for a gallon instead of 7.50 pounds, made upon a mistake of fact or a mistake as to the law ? It is stipulated that these payments were made by appellant before it discovered that the statutory gallon weighed 7.761 pounds, and “ under the belief that a gallon of oil actually weighed but 7.50 pounds.”

This belief was merely ignorance of the law which specifies what the weight of a statutory gallon of oil shall be. It. is not claimed that appellant was deceived or fraudulently imposed upon. The stipulation of facts states that it was the custom among oil manufacturers, including appellee, “ to charge 7.50 pounds as a gallon of linseed oil in deliveries made -by them. The Heath & Milligan Manufacturing Company knew this custom, and they also knew that in the-various deliveries made under said contracts such deliveries were made on a basis of 7.50 pounds to the gallon;” but they did “not know that a statutory gallon of oil weighed 7.761-pounds.” It thus appears that appellant knew when it contracted for the oil under said contracts that it would receive-only 7.50 pounds for a gallon, and made its contracts upon that basis; knew both when it agreed to pay and when it paid the price per gallon as specified, that it was to pay and was paying that price for as many times 7.50 pounds, as there were gallons called for by said contracts. It got what it paid for, and all it paid for. The only thing appellant did not know was that a statutory gallon weighed 7.761 pounds, and that under the letter of said contracts it would have been entitled to receive statutory gallons, instead of what, for distinction, we ma) call customary gallons, or, using the term employed by counsel, “commercial gallons.” This was clearly ignorance of the statute and of legal rights under the statute; a mistake of law but not of fact. It follows that the money thus voluntarily paid by appellant upon such contracts so far as completed, was paid without fraud, and not only without mistake of fact, but with full knowledge of the facts. Such payments can not be recovered back. It is not a mere presumption in this case, but is an agreed fact that the amounts referred to were agreed upon as the price to be paid for the quantity of oil actually delivered and received by mutual consent. Having so consented and ratified its consent by payment therefor with full knowledge of the facts, appellant was not entitled at the time it brought suit to receive the difference between 7.50 and 7.761 pounds of oil for a gallon on said completed contracts and deliveries thereunder, and is not entitled to recover in accordance with the second of the concluding paragraphs of the stipulation quoted in the preceding statement.

Was the Heath & Milligan Manufacturing Company entitled to receive 7.761 pounds for a gallon upon the remaining two contracts which were only partially performed at the time it discovered that a statutory gallon contained that quantity of oil ? It is stated that the last two of the said contracts between the parties were being performed at the time appellant claimed shortage. So far as such contracts had been carried out and payments made for oil delivered in pursuance thereof, what has been previously said is fully applicable. But by such acceptance of the deliveries made on said partially performed contracts and by payments thereunder upon the basis of 7£ pounds to a gallon, the parties had by mutual consent placed their own construction upon the meaning of the word “ gallon ” as in said contracts used. Thus they had settled the construction of the contracts in progress of execution by agreement among themselves, and are bound by their own agreement. It is not a question of the legal meaning of the word “ gallon.” As to that the statute is conclusive. But the question is, what meaning did the parties themselves give it; what did they intend by it; and by their agreed statement of facts and by their construction as shown by their uniform course of conduct, they have construed it as meaning 7-|- pounds of oil. It was too late to change their interpretation so far as the partially performed contracts were concerned after they had entered on performance and had by their conduct ratified the meaning previously accepted, with reference to which said contracts were made. That they were so made is shown by the stipulation of facts. It is stated that appellant knew the custom of charging 7-| pounds of oil for a gallon. The knowledge of this custom is evidence that the parties entered into their contract in contemplation of such usage. Hutchins v. Webster, 165 Mass. 439-441; Corbett v. Underwood, 83 Ill. 324-327-328. There is no reasonable doubt as to the intention on both sides that the word “gallon” as used in said contracts, should mean 7£ pounds, and such intention must control. It follows that appellant received all it was entitled to receive under said contracts, and the judgment of the Circuit Court was therefore correct and must be affirmed.


source: Caselaw Access Project

author: Mr. Justice Waterman

license: Public Domain

text:
    George Dearlove et al., Executors, etc., v. Sarah Ann Otis.
    1. Wills — Construction of, Where Real and Personal Estate Are Commingled in a Residuary Clause. — The general rule is, that where, in the residuary clause of a will, real and personal estate are commingled, the intention of the testator is that the residuary legatee shall take only that which is left after all other legacies have been satisfied, and in case the personal assets are not sufficient to satisfy the personal bequests, it will be presumed that it was the intention of the testator to charge them upon the real estate bequeathed under the residuary clause.
    2. Same — Inadmissibility of Evidence to Determine the Intention of the Testator. — Where the language of a will is free from doubt, no testimony, oral or otherwise, is admissible for the purpose of determining the intention of the testator.
    3. Same — Exception to the Rule that a Will Speaks Only from the Death of the Testator. — Although in this State a will speaks only from the time of the testator’s death, if his intention as communicated in his will is not clear, evidence of the condition of his estate at the time of making the will is admissible.
    4. Same — Rules of Construction. — In the construction of a will when there is room for doubt, the court will put itself as far as possible in the position of the testator by taking into consideration the circumstances surrounding him at the time of the execution of his will.
    Appeal from the Circuit Court of Cook County; the Hon. Robert B. Shirley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.
    Statement. — In June, 1890, Richard Dearlove, a bachelor, of Cook county, Illinois, died leaving a last will and testament in which he named as executors George Dearlove and Edwin D. Messinger, the appellants. He made his will on the 23d day of July, 1885, and it remained unchanged. Its first paragraph provided that his just debts and funeral expenses should first be paid. By the second paragraph a bequest of $4,500 in money was made to William Dearlove, a brother. By the third paragraph a bequest of $100 in money was made to another brother. By the fourth paragraph a bequest of $1,800 in money was made to a niece, Sarah Ann Otis, the appellee herein. By the fifth paragraph he devised to George Matterson Dearlove certain specific real estate, subject to a charge of $2,000, to be paid by him to the executors. By the sixth paragraph he devised to Richard Thomas Dearlove certain specific real estate, and by the seventh paragraph to Hannah Mabel Dearlove specific real estate. The residue and remainder of his estate was given to the three children of his brother George, the said George M., Richard T., and Hannah M. Dearlove.

      At the time he made his will he had no real estate other than that specifically devised in the fifth, sixth and seventh paragraphs of his will. He had, at that time, in addition to this real estate, $4,500 in cash, and owed no debts.
    After he made his will he acquired other real estate, and in the deed to him of one of the pieces he afterward purchased, he assumed and agreed to pay as part of the purchase money an incumbrance thereon of $3,500. He also, after making his will, borrowed $2,500 on one of the pieces of real estate he had specifically devised to Hannah M. Dearlove. Both of these incumbrances were unpaid and were subsisting obligations against him at the time of his death. He had also in the meantime become indebted, in various other amounts, to various persons. His personal estate, according to the inventory filed, amounted to only $3,853.47; so that at the time of his death his debts exceeded his personal property by several thousand dollars.
    In the course of the administration of the estate, it became necessary for the executors to file a petition in the Probate Court for leave to sell real estate to pay debts, which was done, and appellee was made a party defendant to the proceeding and duly served with summons. Preparatory to filing said petition the executors filed their just and true account, which showed a deficit of personal estate of $4,678.84. Pursuant to the decree entered in this proceeding to sell, the executors sold two pieces of real estate, each of which had been acquired by Richard Dearlove after he made his will; on one of which, at the time of the sale, there was an incumbrance of $3,500, which he had assumed and agreed to pay as aforesaid. The report of sale was confirmed by the court and in the final account filed by the executors the money received from the sale of said real estate is accounted for, as well as the $2,000 received from George Matterson Dearlove, devisee under the fifth paragraph of the will.
    It appears from the executors’ final account that there is in their hands a balance of $2,877.30. This balance is, in its entirety, the surplus left from the proceeds of the sale of said real estate, after the payment of all debts and costs of administration. From the sale of one of the pieces of said real estate $2,500 net was received, and from the sale of the other $1,025 was received.
    William Dearlove, the legatee named in the second paragraph of the will, died before the testator, and the executors regarded the legacy to him as a lapsed legacy, and declined to pay it. As to this there is no contest.
    The executors regarded the legacies in the third and fourth paragraphs of the will as also lapsed legacies, claiming that there was a deficiency of personal estate and that nothing appears in the will to show an intention of the testator that these legacies should be a charge upon real estate in case of such deficiency, and have declined to pay the same. When the executors filed their final account, appellee, who is the legatee named in the fourth paragraph of the will, filed objections thereto, one of the objections being that the executors declined to pay to her the said legacy of $1,500.
    On a hearing of the objections that the executors declined to pay the legacy of $1,500, an order was entered directing the executors to pay this legacy to appellee,, from which judgment the executors appealed to the Circuit Court. The court entered an order finding that the balance in the hands of the executors, according to their final account, was subject to the payment of said legacy of $1,500, and affirming the order of the Probate Court, and directed the executors to pay to appellee the said legacy within ten days, and entered judgment on the finding, from which judgment the executors appeal to this court.
    Charles Lane, attorney for appellants.
    Cutting, Castle & Williams, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

A specific devise of money will not be charged against a specific devise of real estate, although there be a deficiency of personal assets.

Prior to 1838, in England, a testator could only devise the real estate to which he was actually entitled at the time of making his will. From this was deduced the rule that every residuary devise, however general in its terms, is in its nature specific, being in fact the specific disposition of the lands not before given or not before expressed to be given in the will. 1st Jarman on Wills, 645; 5th Am. from 4th Eng. Ed.; Howe v. Earl of Dartmouth, 7th Ves. 147.

Our statute on wills confers upon every male person of the age of twenty-one years and every female of the age of eighteen years, of sound mind and memory, power to devise all the estate, right, title and interest in possession, reversion or remainder which he or she hath or at the time of his or her death shall have.

Doubt has been expressed whether this rule of the English law was ever adopted in Massachusetts and it would seem that under our statute it can have no existence here. Blaney v. Blaney et al., 1 Cush. (Mass.) 107-116.

The general rule is, that where, in a residuary clause, real and personal estate is commingled, the intention of the testator thereby expressed is, that the residuary legatee shall take only that which is left after all other legacies have been satisfied, and that consequently, upon a failure of personal assets to satisfy the personal bequests, it will be presumed the intentions of the devisor was that they should be charged upon the realty given under such residuary clause. Reid v. Corrigan, 143 Ill. 402; Brooks v. Brooks, 65 Ill. App. 326; Lewis v. Darling, 16 Howard, 1; Jarman on Wills, 5th Am. from 4th Eng. Ed. 605.

Upon the hearing, evidence was introduced for the purpose of showing what the intention of the testator was as to charging the particular bequest of money under consideration upon the realty bequeathed under the residuary clause.

If the language of a will is free from doubt, no testimony, oral or otherwise, is admissible to determine what the testator meant. In other words, evidence is not admissible to enable the court to depart from the unmistakable language of the will. 29th Am. & Eng. Ency: of Law, 339; Brasher v. Marsh, 15 Ohio State, 108; Tebbs v. Duval, 17 Gratt. (D. A.) 345; Still v. Spear, 45 Pa. State, 170.

Although in this State a will speaks from the time of the testator’s death, nevertheless, if his intention is, as enunciated in the will, not clear, evidence of the condition of his estate at the time of the making of the will is admissible. While evidence as to declarations by him as to what he intended is not admissible.

In the construction of the will, the court-will put itself as far as possible in the position of the testator, by taking into consideration the circumstances surrounding him at the time of the execution of the will. But this rule does not apply when the clearness of the language made use of is such that there is no room for doubt. 29th Am. & Eng. Ency. of Law, 340; Perry v. Hunter, 2 R. I. 80; Adamson v. Ayers, 5 N. J. Equity 353; Smith v. Bell, 6 Peters (U. S.), 68.

As is said in Bergman v. Bogda, 46 Ill. App. 351, it is difficult to see how a devise of the rest, residue and the remainder of the estate can be thought to be otherwise than subject to all that has gone before.

The judgment of the Circuit Court is affirmed.


text:
    Daniel R. Kendall et al., Trustees, etc., v. Neil A. Fader.
    1. Contracts — To be Governed by Laws in Force When Made. — The law in force when a contract is made must be deemed to have entered into and to have formed a part of it, and such contract is to be construed and enforced in accordance with the law as it then existed.
    3. Same — Laws Impairing the Obligations of. — To hold that a contract made under an old law is to be governed by subsequent legislation would be to construe such legislation as valid and not void, as impairing the obligations of contracts previously made.
    3. Same — Laws Which Provide Remedies Not a Part of. — It is well settled that remedies which the law provides to enforce a contract do not constitute a part of the contract itself and are within the control of the legislature.

      4. Solicitors’ Fees — When a Decree Allowing is Unauthorized.— When by the terms of a contract and the law which entered into and formed a part of it, no lien for a solicitor’s fee was allowed, the allowance of such a fee authorized by a law subsequently enacted is illegal.
    5. Words and Phrases — “ On or About” — When Surplusage in a Contract. — Where the words “on or about,” are used in a ^contract, while weakening the positive force of its terms, they may, under the contract, in this case, be treated as surplusage.
    6. Mechanics’ Liens — Errors in the Statement Filed Do Not Always Invalidate. — A mistake of fact in a statement filed under the statute, for a mechanic’s lien, where there is no wrong intention on the part of the party filing it and no one is prejudiced by it, does not necessarily constitute such a violation of the requirements of the statute as to render the notice invalid.
    Mechanic’s Lien. — Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1901.
    Affirmed in part, reversed in part, and remanded with directions.
    Opinion filed December 24, 1901.
    Burley & McSurely, attorneys for appellants.
    Francis T. Murphy and Thaddeus S. Allee, attorneys for appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an appeal from a decree in a mechanic’s lien proceeding. Appellee filed his cross-bill to establish a lien in his favor as general contractor, in a suit begun by the Tacoma Safety Deposit Company to foreclose a mortgage.

The mortgage was itself subject to a prior lien in favor of appellants. The owner of the property contended that the building was not constructed in accordance with the contract, and claimed that he was damaged to the amount of $1,000 by the failure to construct in accordance with the plans and specifications. The Circuit Court allowed him $245.45 damages.

It is urged by appellants’ counsel that certain items included in the decree, are allowed in violation of the statute as well as contrary to the evidence. Objection is made to an allowance of ten per cent of the whole amount found due the contractor for solicitors’ fees, which appellee seeks to justify under the provisions of section 18 of the mechanics’ lien act of 1895.

The original contract was made October 25, 1894, and the work was begun, it is said, not long after that date. The mechanics’ lien act at present in force was approved June 26, 1895, and went into effect immediately. It contains a proviso that section 40 of said act, repealing former lien laws, “shall not be so construed as to affect any rights existing or actions pending at the time this act shall take effect.” The contract and the subsequent amendment thereto having been made under the prior statute, the law then in force must be deemed to have entered into and formed a part of such contract, and the latter must be construed and enforced in accordance with the law as it then existed. To hold that contracts under the old law can be governed by the statute subsequently enacted, would be to construe that statute as an act impairing the obligation of contracts, in violation of the constitution. Andrews & Johnson Co. v. Atwood, 167 Ill. 249; Culver v. Atwood, 170 Ill. 432; Weber v. Bushnell, 171 Ill. 587. In the last case it is said (p. 594), “ the remedy may be controlled by the law of 1895.”

It is urged for appellee in the case before us that section 18 of the act of 1895, providing for a reasonable attorney’s fee not exceeding ten per cent to be taxed as part of the costs, relates merely to the remedy, and is therefore properly applicable to suits for the enforcement of liens, even those arising under the prior statute. It is well settled that remedies which the law provides to enforce contracts, constitute no part of the contracts themselves, and are within the control of the legislature. Smith v. Bryan, 34 Ill. 376; Templeton v. Horne, 82 Ill. 491; Woods v. Soucy, 166 Ill. 407-414. But the decree in the case before us goes further than the mere allowance of solicitor’s fees. It adds the sum allowed for such fees, viz., §131.54, to the amount found by said decree to be due appellee, and decrees him a first lien upon the premises for the total so made up. This is in effect making a new contract for the parties which they did not make for themselves. It charges the property for payment of such fees. Under the contract and the law which entered into and formed a part of it when it was made, no lien for solicitor’s fees was provided. To hold that such lien could be given by the statute subsequently enacted would be not to extend appellee’s remedy, but to charge the property for his benefit with an additional incumbrance. The remed}'- remains the same with or without solicitors’ fees. The allowance of such fees as a lien compels the property to pay for the enforcement of his remedy, and it was not so nominated in the bond. The allowance was, we think, clearly improper.

It is urged on the part of appellants that the sworn statement of claim filed by appellee is insufficient in that it fails to show between what dates the work was done. It states that by the original contract, dated October 25,1894, and which originally provided for three houses, including the one involved in this controversy, the work was to be commenced on or before April 30,1895; that February 18, 1895, the contract was amended by a further agreement in writing,” so as to cover only one of said houses, and that “ immediately upon the execution of the said contract this claimant proceeded to erect the said building according to the terms thereof and completed the said building on or about the 20th day of November, 1895.” We regard the statement as sufficient in that respect. The contract was entire, and it states, we think, with sufficient clearness, that the work was immediately commenced upon the execution of the amended agreement of February 18, 1895, for the construction of the one instead of three houses, and that the building was completed November 20, 1895. The words “ on or about,” while weakening the positive force of the statement, do not contradict it, and may, in this connection, be treated as surplusage. The work was done under an entire contract. Certainty to a common intent is all that is required. Springer v. Kroeschell, 161 Ill. 358-365; Hayes v. Hammond, 162 Ill. 133-136.

It is urged as fatal to appellee’s claim that the sworn statement contains a charge for non-lienable items and extras. It appears to be true that the statement of the lump sum claimed to be due, was somewhat larger in amount than was allowed appellee by the decree. It does not appear but that appellee believed and still believes himself entitled to a lien for the whole amount, so claimed to be due, except that as to one item of $10 he admits that he failed to make a proper credit. But such a mistake, and the fact that the court upon the hearing disagreed with him as to another item of $60, for which in good faith he claimed a lien, do not necessarily constitute such a violation of the requirements of such statement as to make it invalid. Where there is no wrong intention, and where no party is thereby prejudiced, and especially where the item is easily separable from the residue of the indebtedness, the mistake is said, in Culver v. Schroth, 153 Ill. 437-446, not to be sufficient of itself to vitiate the statement and defeat the lien.

Other objections are urged to the decree, which we have carefully considered, but do not deem it necessary to discuss in detail. Finding no error, other than the allowance of solicitor’s fees, the decree will be reversed as to such allowance only, but otherwise affirmed; and the cause will be remanded to the Circuit Court with directions to correct the decree by striking out such allowance. Affirmed in part and reversed in part and remanded with directions.


author: Mr. Justice Shepard

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    Jackson Paper Manufacturing Co. v. Commercial National Bank.
    l. Corporations — Authority of the Superintendent to Indorse Checks Payable to Sis Company. — The authority of the superintendent of a corporation to indorse a check payable to his company is a question of fact under the circumstances of each particular case to be determined by the jury, and if there is evidence fairly tending to support the verdict it should stand as returned unless the law of the case as announced by the instructions has been disregarded or is fatally erroneous, or some instruction has been refused which was necessary to correctly place before the jury the law as applicable to the facts and circumstances of the case, or some evidence erroneously refused or admitted for the consideration of the jury.
    2. Same — Authority of the Superintendent to Indorse Cheeks Payable to His Company Need Not Be Express. — It is not necessary that the superintendent of a corporation should have express authority to indorse checks payable to his company; it is sufficient if shown that he was impliedly authorized to do so.
    3. Same — Authority to Indorse Checks May Be Implied. — Authority to indorse checks may be implied from the course of business and from repeated recognitions by the company of the superintendent’s acts.
    4. Burden of Proof. — Not Shifted by the Making of a Prima Pacte Case. — Upon the introduction of evidence sufficient to establish aprima facie case the burden of proof is not necessarily shifted, but remains throughout the trial with the party who holds the affirmative of the issue.
    Assumpsit, on a bank check. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.
    Bowen W. Schumacher, attorney for appellant; W. H. Wilkins, of counsel.
    Tenney, McConnell, Coffeen & Harding, attorneys for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

One Jackson was superintendent of the appellant company, located at Jackson, Michigan, and had been such about two years. His duties with reference to the company, were to superintend the mill, buy material, hire the men, look after the manufacture and sale of paper, and countersign checks, drawn by the treasurer of the company, for the payment of purchases he had made for the use of the mill, and at times to visit customers, adjust their accounts, make settlements with them and take from them checks or cash in payment.

In December, 1896, he visited Chicago on business for the appellant company, and while there adjusted an account of the company with the firm of J. Herz & Son, and received from them their check for the balance dile, §325.65, in settlement of the account. The check was drawn payable to the order of the Jackson Paper Manufacturing Company on the Commercial Bank of Chicago, and was dated December 18, 1896.

After Jackson received the check he took it to E. W. Copelin, also a customer of the paper company, and asked to have it cashed. He then indorsed the check, Jackson Paper Manufacturing Company, C. A. Jackson, Supt.,” and turned it over to Mr. Copelin, who, after having the check certified by the drawee bank, gave Jackson the currency for it. Copelin then indorsed the check over to the American Exchange National Bank, where he did his banking business and deposited it to his credit there, and the check went through the clearing house and was paid December 21,1896, by the drawee, the appellee bank, and the amount thereof was charged to the account of the drawer, J. Herz & Son. Mr. Copelin testified that on the day he cashed the check, Jackson told him that he found it would be necessary to make a more extended trip than he anticipated when he left home and had not provided himself with sufficient money; that he was going to solicit business for the appellant, and asked to have the check cashed. The next that was heard of Jackson was that he had committed suicide in New Orleans, a few days or weeks later.

The question submitted to the jury was that of Jackson’s authority to indorse the check, ynder the circumstances. Such was a question of fact, and the verdict in favor of appellee was the answer the jury gave to it. If there was evidence fairly tending to support the verdict it should stand as returned, unless the law of the case as announced by the instructions was disregarded or was fatally erroneous, or some instruction was refused which was needed to correctly place before the jury the law applicable to the facts and circumstances of the case, or some evidence was erroneously admitted or refused for the consideration of the jury.

It was not necessary that Jackson should have express authority to indorse the check; it was enough if shown that he was impliedly authorized so to do. Mechera on Agency, See. 398. He was, concededly, the superintendent and general manager of the paper company. That of itself, gave no authority, express or implied, to Jackson to indorse checks; but the evidence goes far beyond the single fact that Jackson was superintendent of the company.

He was also authorized to visit customers and adjust their accounts, making allowances for discounts, commissions, etc., and to expend the company’s money in making such trips, and impliedly, at least, to collect money found to be due to the company from its customers. He had, also, on previous occasions collected moneys and checks from the company’s customers and applied them to his own use, making proper return thereof and having them charged to his account on the books of the company, and there is nothing to show that such a course would not have been pursued by him in this case if he had lived.

In his capacity as superintendent he had active charge of the company’s business, and all of it, except the matter of giving checks and indorsing the company’s name on such paper as was made payable to the company. Indeed, as to the giving of checks it seems that the countersigning of them by Jackson, as superintendent, was as much a part of the method pursued as the signing of them by the treasurer, and was an act the doing of which by Jackson, led Copelin, when he was in the company’s office a month or so before the check in question was cashed, to believe he was signing checks at the time. Copelin also had checks of his owm, which he had sent to the company in payment of bills for goods, and which were payable to the company by name, returned to him, as paid vouchers, bearing the indorsement of the treasurer’s name by Gale Jackson, an assistant and subordinate of C. A. Jackson, the superintendent.

In every other respect he, as superintendent, appears to have had the entire management of the business. The treasurer and managing director was the only other officer of the company who attended to its affairs, and according to his own testimony he went to the office of the company very irregularly. - Sometimes I would go there and spend all day, and then again not more than once a week, and sometimes not more than once a month. I only went as occasion required.” After describing what Jackson’s duties were, as superintendent, the treasurer in testifying said : “ When an account was considered in a dangerous condition Mr. Jackson would go to settle it. In that way he made some settlements and received some checks payable to the company.”

It thus plainly appears that Jackson had authority to make the adjustment and settlement with the drawer of the check which he did, and to receive the check in question. Now, had he the authority to collect the check ? If he had, then the authority to indorse it with the name of his company, to whom it was drawn payable, we think followed. The check was but a means of collection of the account, and its indorsement was something which necessarily resulted from the power to collect. Commercial National Bank v. Lincoln Fuel Company, 67 Ill. App. 166.

Daniel, in his work on Negotiable Instruments, Sec. 289, states with reference to proof of an agent’s authority to make and indorse negotiable paper, as follows:

“ Authority may be implied from the course of business and employment; from repeated recognitions by the principal of the agent’s authority. The circumstances which give rise to the implication of authority are for the jury to consider; and the jury will be warranted in holding the principal liable, if they produce a strong and reasonable belief that authority existed.”

And again, the same author at Sec. 290, says:

The authority to bind the principal in a certain character on a negotiable instrument can not be construed as an authority to make the principal a party in any other character. * * * But under certain circumstances, authority to bind the principal in one form, might be evidence throwing light on the question of authority to bind him in another. ‘It may be admitted,’ said Tindall, O. J., in a case quoted elsewhere in the text, ‘that an authority to draw does not import in itself an authority to indorse bills; but still, the evidence of such authority to draw is not to be withheld from the jury where they are to determine upon the whole of the evidence whether an authority to indorse existed or not.’ ”

So, here, the wide authority given to Jackson in the management and carrying on of the business of the company, and all the acts done by him in pursuance of such authority, were proper evidence for the jury to consider in arriving at a correct conclusion as to whether he was authorized to indorse the check in question and convert it into monej.

Probably no single act done by Jackson by authority of the company, and with its knowledge, could be held to be sufficient to authorize the act here in question, but taking them all together, the jury were not so clearly ivrong in concluding that he had authority, as to justify us in disturbing their verdict.

We think there was no error committed by the rulings of the court on the admission of evidence. The question before the court was whether or not the indorsement by Jackson was sufficient to transfer the title to the check to Copelin & Company, who cashed it, and the rulings of the court were in reference to testimony affecting that question, and were proper. If Copelin & Company got a good title to the check their transfer of it by their indorsement, carried with it a good title to their indorsee, even though such indorsee might have had express knowledge that Jackson had no actual authority to make the indorsement.

“ As soon as the paper comes into the hands of a holder unaffected by any defect, its character as a negotiable security is established, and the power of transferring it to others with the same immunity which attaches in his hands, is incident to his legal right and necessary to sustain the character and value of the instrument as property, and to protect the Iona fide holder in its enjoyment. To prohibit him from selling as good a right and title as he himself has, would destroy the very object for which they are secured to him — would, indeed, be paradoxical. And it has been justly said that this doctrine is indispensable to the security and circulation of negotiable instruments, and is founded on the most comprehensive and liberal principles of public policy.’ ” 1 Daniel on Negotiable Instruments, Sec. 803.

The instructions that are complained of, concerning where the burden of proof lay, were, we think, proper. They cast the burden upon the party asserting the affirmative of the issue, that is, upon him who was bound to introduce evidence on the issue before he could be entitled to a verdict. Smith v. Grant, 30 Ill. App. 150.

In this case, the affirmative of the proposition that the check indorsed by the superintendent of the company was unauthorizedly indorsed, was first asserted and was assumed and held by the appellant, and the burden of proof was upon it. It not infrequently occurs that to establish the affirmative of the issue involves the proof of negative allegations. Best’s Principles of Evidence, Sec. 271; Smith v. Grant, supra. Upon the introduction of evidence sufficient to establish a -prima facie case, the burden of proof is not necessarily thereby shifted, but the burden of maintaining the affirmative of the issue by a preponderance of evidence, remains throughout the trial, upon him who holds the affirmative of the issue. Fidelity and Casualty Company v. Weise, 182 Ill. 496; Heinemann v. Heard, 62 N. Y. 448; Farmers’ Loan and Trust Co. v. Siefke, 144 N. Y. 354; 5th Am. & Eng. Ency. of Law, pp. 23, 29-31; Simpson v. Davis, 119 Mass. 269.

The evidence being all submitted, both that for and that against the claim of authority, the burden of proof on the whole case on that question was upon the party who first asserted the want of authority as an essential part' of his case.

The remaining claimed errors in the instructions seem to have been sufficiently answered in what has been already said. We are not unmindful of the authorities cited by the appellant, but must content ourselves by saying that they appear to contain elements not included in the case under consideration, or omit some essential ones that are in the case before us. The question is one of much collateral importance and we will, if requested, certify it to the Supreme Court.

Upon the record before us the appellee ought not to be required to pay the check twice, and there being no substantial error pointed out, we will affirm the judgment, and it is so ordered. Affirmed.


text:
    Leopold Price et al. v. William W. Kohn et al.
    1. Notice — To Produce Original Letters. — In an action of assumpsit for goods sold and delivered, the evidence for the plaintiff being by depositions, contained, among other things, copies of letters written by the plaintiff to the defendants concerning the purchase and sale of the goods which resulted in the controversy under consideration. Objection was made to the introduction of the copies for the reason that notice to produce the originals was given upon the Saturday previous to the Monday when the case was called for trial. It was held, that whether such notice was sufficient was a matter properly submitted to the reasonable discretion of the court in view of what then appeared to it as to the situation of the parties and the place where the originals of said letters then were.
    2. Delivery — What is Sufficient to Establish, a Prima Facie Case of. — In an action of assumpsit for the sale and delivery of goods, the plaintiff introduced a paper which contained a statement of all the goods claimed to have been sold and shipped to the defendants, with the date of shipment, quantity, description and price, and testified that he personally saw all the goods in the list shipped to the defendants and that they were entered and regularly charged upon the books of the plaintiff when shipped. It was held, that this was not only prima facie evidence of the shipment of the goods, but of their delivery to the defendants as well.
    3. Sales by Samples — Implied Warranty. — When a manufacturer sells goods by sample there is by him an implied warranty that such goods contain no latent defect not discoverable by ordinary examination.
    Assumpsit, for goods sold and delivered. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.
    Newman, Northrup & Levinson, attorneys for appellants.
    Wood & Elmer and Gideon E. Newman, attorneys for appellees.
   Mr. Justice Waterman

delivered the opinion of the court.

This was an action of assumpsit brought to recover the agreed price for which certain goods were sold and delivered. The testimony for the plaintiffs was contained in depositions. No motion to suppress the same or any portion thereof was made by the defendants, while substantially everything contained in the depositions was objected to upon the trial. Among other things, the depositions contained copies of letters written by plaintiffs to the defendants concerning the purchase and sale of the goods which resulted in the controversy under consideration. The defendants objected to the introduction of these copies because notice to produce the originals was given upon the Saturday previous to the Monday when the case was called for trial. Whether this was sufficient notice was a matter submitted to the reasonable discretion of the court in view of and what then appeared before it as to the situation of the parties and the place where the originals of said correspondence were.

At no time during the trial did the defendants complain that the copies introduced by the plaintiffs were not correct, or of their own accord introduce the originals, as they had a right to do.

Appellants also insist that in no instance was delivery of the goods sold proven, and that their motion made at the conclusion of the plaintiffs’ case to instruct the jury to find for the defendants should have been sustained. Among other evidence of delivery the plaintiffs introduced certain receipts by the Adams Express Company showing delivery to it by the plaintiffs for the defendants of certain packages of goods at times corresponding with the periods at which the plaintiffs claim to have shipped the purchases. And the plaintiffs also introduced in evidence a paper known as “ Exhibit W ” which contained a statement of all the goods claimed to have been sold and shipped to the defendants, with date of shipment, quantity, description and price of the goods. One of the plaintiffs testified that he personally examined the goods ordered and the shipment of the goods as per the orders, and personally knew that all the goods contained in the list were shipped to the defendants; that he personally saw the goods shipped to the defendants and that they were entered and regularly charged upon the books of the plaintiffs when the goods were shipped. This certainly was not only primafacie evidence of the shipment, but of the delivery of the goods to the defendants. Benjamin on Sales, Secs. 181-693.

if either in the court below nor here did or have the appellants made any reply to this testimony other than to insist that it did not make a prima facie case of delivery. The defendants themselves testified in the case, and all their testimony is to the effect that the goods were delivered, their defense being a complaint as to the quality of the goods and in no instance of a failure to deliver.

Despite what appellants term their strenuous objections urged in the court below and here to the introduction of the evidence produced by the plaintiffs, they fail to show that the correspondence produced against them was not in every respect correct and entire, or that there had been a failure to deliver anything for which the plaintiffs claim payment.

Outside of the very numerous and confidently urged technical objections, the position of the defendants was and is that goods received by them were not such as they bargained for, were worthless and of no value.

The position of the plaintiffs was and is that the goods were sold entirely by sample and were in accordance -with the sample. Appellants in their brief say:

“ Kohn & Feldman sued Price & Wolff for the price of the vestings and Price & Wolff set up as a counter-claim the rottenness of the goods.”

If there was no delivery, it is difficult to see how or why Price & Wolff insist that the goods sold were rotten. Appellants in their brief go on to say :

“ It is claimed that' the goods corresponded exactly to the samples. The defect to the counter-claim that the goods were rotten is that they were exactly as ordered; that there was no implied warranty that they should be of quality fit for any purpose.”

Upon the trial defendants testified that they told the plaintiffs that they used and wanted only the best goods, but otherwise than by this testimony they did not dispute the testimony of the plaintiffs that the goods were sold by sample, nor did they deny that the goods supplied were equal to the sample, nor did the defendants, other than by inference that might be drawn from their testimony as to telling the plaintiffs that they wanted the best goods, deny the evidence of the plaintiffs that there was no guaranty excepting that the goods should be equal in quality and in every respect to the samples. Wor was there any denial of the testimony of the plaintiffs that the orders of the defendants were all made in accordance with sample numbers and description on the samples sent out by the plaintiffs to the defendants.

It does not appear that in the court below the defendants claimed that the plaintiffs were manufacturers or that they bought the goods in question from them as such.

In this court they do urge that the plaintiffs are manufacturers, and that therefore, although the goods may have been sold by sample, yet the plaintiffs being manufacturers, warranted that there was in the sample as in the goods, no latent defect that could not be ascertained by ordinary examination, and in support of this contention they have cited Drummond v. Van Ingen, L. R., 12th appealed cases, 284; Hody v. Gregson, L. R. 4th Ex. 49; Bierman v. City Hills Co., 151 N. Y. 482.

These cases clearly set forth the position assumed by defendants, namely, that when a manufacturer sells goods by sample, there is by him an implied warranty that the goods contain no latent defect not discoverable by ordinary examination. The difficulty with appellants’ case is, not that they are wrong as to the law, but there are no facts in the present controversy to v'hich it can be applied. There is in the record no evidence that the plaintiffs are manufacturers.

Plaintiffs also urge that when goods are purchased of a manufacturer for a particular purpose of which he is informed, there is by him an implied warranty that they are reasonably fit for such purpose.

In the present case, not only is there no evidence that the plaintiffs are manufacturers, or that the defendants thought them to be, but the only evidence as to knowledge bj’- the plaintiffs of the purpose for which the goods were desired is, that they were to be used in the manufacture of shoes and that the defendants wanted the best goods.

Many kinds of shoes are made. It does not appear that the plaintiffs were informed that the defendants intended to use the goods in the manufacture of bicycle shoes, as for the greater part they did. That the goods were not reasonably fit for use in the best kind of some sort of shoes there was no evidence.

Upon March 14th the appellants wrote to the plaintiffs complaining of the quality of the goods. This was after all of the goods, with the exception of two orders amounting together to less than $13, had been supplied. To this letter the plaintiffs replied, among other things, “ We have made careful investigation and find that the whole cause of the breaking of the vestings arise in the backing, as the quality and strength of our goods are what they should be.

We can give you vestings as per your enclosure and should you favor us with an order will take special care to see that the same is properly backed.”

As before stated, the only goods thereafter ordered or supplied amounted to less than $13. The only guaranty of the plaintiffs shown by the evidence, other than that the goods should correspond with the sample, is contained in this letter of March 17th, in which they say they will take special care to see that goods sent upon any future order are properly backed.

The defendants testified that the defect which they say was in the goods, was one not discoverable upon examination of the sample. Counsel for appellants admit that in sales by sample, the rule is caveat emptor, "which rule they urge is not applicable to the present case, because the plaintiffs were manufacturers.

Complaint is made of all the instructions given by'the court. Appellants urge that while correct as an enunciation of general principles, they are not applicable to the case at bar.

Under the testimony by both plaintiffs and defendants that the goods were sold by sample, we do not think that the instruction given at the instance of the defendants was applicable; the other instructions we see no objection to. The defendants asked no instruction based upon their present theory that the plaintiffs were manufacturers.

The case is remarkable as showing how easy it is for learned and able counsel to differ upon every question involved, in that according to the insistence of appellants the court below, from beginning to end, erred in each ruling it made.

The judgment of the Superior Court is affirmed.


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    William Hill v. O. A. Oswald.
    1. Indemnitor and Indemnitee — Indemnitor, When Entitled to Notice to Defend. — When a party to a suit has a right to resort to another for indemnity upon his failure in the action, it is his duty to give full notice to his indemnitor of the pendency of the suit, and of what he requires him to do in the matter, and the consequences which may follow his neglect to defend. The mere knowledge of the existence of the suit is entirely insufficient to bind the indemnitor by the judgment.
    2. Remittitur — Suggestion of, in the Appellate Court. — When it appears from the record that the judgment appealed from ought to be sustained to a certain extent, the Appellate Court may affirm it to that extent and suggest a remittitur as to the balance; and unless such remittitur is entered according to such suggestion, reverse and remand it.
    Action on Appeal from a Justice of the Peace. — Appeal from the Circuit Court of Cook County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed on remittitur as suggested.

    Opinion filed December 24, 1901.
    Eugene Clifford and Wm. W. Fuller, attorneys for appellant.
    Geo. A. Brinkman and Lewis S. Dalton, attorneys for appellee.

       Remittitur filed and cause affirmed January 2,1902.

   Mr. Justice Shepard

delivered the opinion of the court.

The appellee, Oswald, was employed by the appellant to get from one Morris an option contract to buy some land of Morris. The contract was obtained in the name of Oswald, and the next day assigned by Oswald to Hill, by an instrument indorsed on its back, wherein Hill, the assignee, assumed “ all obligations laid upon me (Oswald) under the terms of said (within) contract.”

One of the provisions contained in the contract was, as shown in the abstract of record, as follows:

“ This instrument shall not be recorded, but is deposited by the said J. B. Morris and wife, by mutual agreement, with the said Otto A. Oswald, and in case the privilege * * * be not exercised * * * and written notice of such exercise given by J. R Morris and wife to Otto A. Oswald by April 1, 1891 — it shall wholly cease, etc., the abstract shall be surrendered, and the option paper returned to J. R. Morris and wife for cancellation. Instrument is binding on heirs * * * and assigns who may exercise the rights herein reserved and receive the surrender above mentioned.”

Hill, to whom the contract was assigned by Oswald, declined to exercise the privilege of purchasing the property, but on July 6, 1891, a considerable time after the option expired, filed it for record in the Cook county recorder’s office, in contravention of the agreement that it should not be recorded. Previous thereto, Hill had, by a later agreement with Morris, undertaken to obtain an abstract of title to the premises, which by the terms of the contract Morris was bound to furnish, and paid $65 for obtaining it. It became a matter of controversy between Morris and Hill as to whether Morris should pay Hill for the amount expended for the abstract, and Morris employed a lawyer to file a bill in equity to remove the cloud created on the premises by the recording of the contract. But before that case went to a decree the matter was settled by Morris paying Hill $50 for the abstract of title and by Hill executing a quit-claim deed of the premises back to Morris. Morris then brought suit before a justice of the peace against Oswald for his damages growing out of the recording of the contract, and recovered a judgment for §70 and costs, upon which an execution was issued and returned satisfied in full. And this suit of Oswald is brought against Hill, presumably to reimburse him for the amount of that judgment, and he has recovered the same amount paid by him to satisfy that judgment recovered by Morris.

The judgment recovered by Morris against Oswald did not bind Hill, for Hill was not given notice by Oswald to appear and defend that suit.

“If a party toa suit has the right to resort to another upon his failure in the action, * * * then it is clearly his duty to give full notice to his * * * indemnitor of the pendency of the suit, what it is he requires him to do in the suit, and the consequences which may follow if he neglects to defend; mere knowledge of the existence of such action is entirely insufficient to bind the party by the judgment.” Freeman on Judgments, Section 181.

While it is true it may be inferred from a letter appearing in the record that Hill had some knowledge of the suit against Oswald, still there was no such notice given as the law requires in order to make the judgment binding on Hill.

That judgment not binding Hill, it was necessary for Oswald to prove in this suit against Hill, what the damages were that he had sustained on account of the filing of the contract for record.

Except as to the item of $50 for attorney’s fees which Morris testified he paid to his attorneys in the chancery suit to remove the cloud created by recording the contract, and which amount seems to be reasonable, there is no such certain evidence as a verdict can be predicated upon. As .to that item he testified positively that he paid it and it is not contradicted.

This judgment ought to be sustained to that extent, but no more. We do not approve the instruction that was given for the plaintiff, but think the error in it is not of a character that requires a reversal of the whole judgment. If, therefore, Oswald shall, within ten days from the date of filing this opinion, come in and remit from the judgment all above $50, it will be affirmed for the balance; otherwise the judgment will be reversed and the cause remanded; but in either event at appellee’s costs.

Affirmed if remittitur be entered, otherwise reversed and remanded.


text:
    Robert Kelso v. Oak Park Building and Loan Association et al.
    1. Building and Loan Associations — Powers Under the Statute as to Mortgage Loans. — Building and loan associations, like other mortgage creditors, have power to purchase property sold under decrees entered upon mortgages given to them, and necessarily, power to sell and convey such property.
    2. Same — Power to Settle and Adjust Loans icith Debtors. — Like other creditors, building and loan associations have power to extend the time of payment of mortgage debtors and to settle and adjust with parties indebted to them, when such things are done with a view to the benefit and valid exercise of their powers, and not in any manner for the purpose of evading the restrictions placed upon them by the statute.
    3. Same — Effect of a Void Settlement. — When a mortgage given to a building and loan association in consideration of the satisfaction of a decree of foreclosure of a prior mortgage, is void and of no effect, the satisfaction of the decree is also void.
    B ill of Foreclosure. — Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.
    Samuel J. Lumbard, attorney for appellant.
    Pearson & Stookey and Farlin Q. Ball, attorneys for appellees.
   Mr. Justice Waterman

delivered the opinion of the court.

September 15, 1891, Salo W. Roth and his wife, Sarah P. Roth, being members of the appellees’ association, were granted by it a loan of $20,000, and to secure its payment executed their bond and a mortgage on certain premises in the city of Chicago.

The Eoths failed to pay various sums as was agreed by them in their bond and mortgage. Thereupon appellee filed a bill in the Circuit Court for the foreclosure of said mortgage and thereafter obtained a decree of foreclosure directing sale of the premises described in the mortgage deed. Some time subsequent to the decree a new agreement was made between the appellee and the Eoths, who had ceased to be members of the association. This agreement was by way of settlement and was in effect a giving of time to the Eoths for payment of the amount of the decree, which was then over $20,000. Under this agreement the indebtedness of the Eoths was put into the form of a new mortgage to run for a period of five years, with interest of six per cent per annum, payable semi-annually. This mortgage was upon the same premises as the preceding mortgage. The amount then due under the decree herebefore mentioned was a little over $21,000, and this was represented by three notes executed by Mr. and Mrs. Both, one for $16,000, one for $4,125.47 and one for $1,007. After the recording of this second mortgage, appellant purchased from the Eoths a portion of the premises covered by each of the said mortgages. Appellant not only had constructive but actual notice of appellees’ second mortgage, and in conjunction with the Eoths made several payments of interest to appellee upon this secon'd mortgage. Default having been made in the payment of the interest provided for by the notes and trust deed last executed by the Eoths, the entire amount thereof, pursuant to an option in the trust deed, was declared due and payable and the suit for foreclosure began, from the decree in which the appeal in this case is prosecuted.

Appellant says that the only question which he desires to urge is whether or not it was legal and competent for appellees to accept the notes and trust deed in controversy in sat- - isfaction of the decree of foreclosure which it had obtained against the premises in that trust deed.

Appellant insists that not only was the second loan made to persons who were among its members, but that the terms of the loan were not such as a building association is, under the laws of this State, authorized to make; that a building association has no power to make loans except in accordance with the statute, and only to its members; and can not make a loan, such as was the second, now under consideration, running for a period of five years, with interest at six per cent, payable semi-annually and without a contemporaneous agreement by which the borrower, as a member of the association, holds stock and continues to make monthly payments thereon, thus increasing all the while the security which the association holds and putting in its keeping a fund for the satisfaction of the indebtedness; that the transaction as regards the mortgage now under consideration, being outside the powers of appellees, such second mortgage was and is void and of no effect; and that neither the Roths nor appellant are or is bound thereby; that the doctrine of estoppel, because of the receipt of a consideration, does not apply, for the reason that the transaction being entirely unauthorized by the statute was beyond the power of the association, a nudum pactum under and by virtue of which the association could not and did not acquire any title, lien or claim upon the property described and purporting to be conveyed by the second mortgage.

The transaction which appellant urges is void, did not consist merely of the execution of three notes and a mortgage. A part of what was done was a release and satisfaction by the association of the decree it had obtained under the first mortgage for over $20,000.

If the mortgage given in consideration of the satisfaction of such decree is entirely void and of no effect, then the satisfaction of the decree falls with it, for it was only because of the execution of the second mortgage and the belief then entertained by all parties that it was a valid and binding instrument, that the first decree was satisfied.

Building associations, like other mortgage creditors, have power to purchase property sold under decrees entered upon mortgages given to it, and necessarily power to sell and convey such property. So, too, building associations, like other creditors, have power to extend the time of payment of mortgage debtors and to settle and adjust with those indebted to it, doing these things in. all instances with a view to an honest and valid exercise of its powers and not in any way or manner for the purpose of evading restrictions placed upon it by the statute. In the present instance, it does not appear that the officers of the building association had, in what they did, any purpose other than to act within the powers plainly conferred upon the association by the statute. There is nothing to show that what they did was an attempt to loan money to one not a member, or to loan money under conditions not permitted by the law of its creation. Honestly, in good faith and as a valid exercise of power, an extension of payment of an indebtedness to it was made and security taken therefor upon the property covered by the decree- — so far as appears at present, what was not only thought to be, but actually was for the interest of the association. Ho question of estoppel of a corporation arises in this case. The association is not endeavoring to repudiate any contract by it made; it is appellant who is insisting that, having with full knowledge purchased the property subject to a mortgage of over $20,000, and paid interest thereon, he is now entitled to hold, free and clear of such incumbrance, the property he obtained, but for the existence of which lien he would not have obtained upon the terms he did.

The decree of the Circuit Court is affirmed.


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    Chicago & Alton Railroad Co. v. Thomas J. Murphy. Frederick P. Bagley v. Thomas J. Murphy.
    1. Railroads — Duty to Protect Passengers from Perils Not Incident to Ordinary Railway Travel. — It is the duty oí a railroad company to use ordinary and reasonable care and diligence to protect its passengers from dangers and perils not incident to ordinary railway travel.
    2. Practice — Pleadings After Amendments. — Where an action is brought by one person for the use of another, and after pleas are filed the declaration is amended by striking out the words “for the use of, etc.,” it is not necessary for the defendant to plead over to the declaration as amended.
    3. Malice— When the Gist of an Action — How Determined. —Whether malice is the gist of an action is to be determined by an inspection of the record.
    4. Pleadings — Defects, When Cured by the Verdicts. — Defects and omissions of pleadings, in substance or form, which would have been available on demurrer, are cured by the verdict, where the issues joined are such as necessarily require proof of the matters so defectively presented.
    5. Damages — Large Damages Rarely Sustained, When.— Large damages have rarely, if ever, been sustained in this State, except where a permanent injury has occurred.
    6. Remittitur — For Excessive Verdicts, Suggested in the Appellate Court. — When the Appellate Court is of the opinion that the verdict in a case under consideration is excessive, it may order the judgment affirmed on condition that a certain amount is remitted within a given time, otherwise that it be reversed and remanded.
    Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Axel Ghytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Affirmed in case a remittitur is filed as suggested, otherwise reversed and remanded.
    Opinion filed December 24, 1901.

    Mr. Presiding Justice Freeman dissenting.
    James H. Teller and Defrees, Brace & Ritter, attorneys for appellant.
    L. P. Wilcox and C. M. Hardy, attorneys for appellee.

       Remittitur filed and cause affirmed December 31* 1901,

   Mr. Justice Shepard

delivered the opinion of the court.

These two appeals are prosecuted separately, from the same judgment, on the same record. The appellee brought suit against both appellants to recover damages for a personal injury suffered by him while a passenger on the cars of the appellant railroad company, through the alleged negligence of appellants.

The appellee was a passenger on a passenger train owned and operated by the appellant railroad company, traveling from Chicago to St. Louis. The appellant Bagiev was the proprietor of a stoneyard adjoining the railway company’s right of way, in the city of Chicago, and at the time of the accident, by his workmen, was engaged in hoisting and unloading a large block of stone, about ten feet long, from a flat-car, by means of a derrick, chain and pulleys, in the doing of which the stone, when clear of the car, swung over the track on which the passing train was running and struck against and knocked in the side of the passenger car in which appellee was riding, inflicting the injuries appellee complains of.

A verdict of $6,000 was returned by the jury against the defendants jointly, and judgment was entered on the verdict.

The declaration consisted of three counts, one, charging the injury was produced by a wrongful act of both defendants; another, that it was produced by the wrongful act of the railroad company only, and the other that it was produced by the wrongful act of Baglej’' only. All' the counts charged that the wrongful acts complained of, were willfully, wantonly, maliciously, carelessly and negligently done.

Neither defendant demurred to the declaration, but each interposed a separate plea of not guilty. The negligence of both appellants, in the premises, is complained of. No claim is made that the appellee was guilty of any negligence contributing to the injury, but it is urged that the appellants, and especially the railroad company, was not guilty of any negligence for which the law affords redress to a person injured; that so far as the railroad company is concerned the injury sustained was the result of a sudden and unforeseen danger from an external'cause in no wise connected with the operation of the railroad, and the presence of which the railroad company was not bound to anticipate and guard against.

With reference to the duty of a railroad company to protect its passengers from “ dangers and perils not incident to ordinary railway travel, the carrier is only held to the use of ordinary and reasonable care and diligence.” Chicago and Alton R. R. Co. v. Pillsbury, 123 Ill. 9.

The duty of the railroad company is alleged in the declaration, to watch for and avoid impending dangers and dangerous structures and things upon and along the course of the railroad, and the breach of duty in such respect is alleged to be that the railroad company did not regard its said duty, but negligently ran its train in such manner as to bring it into contact and collision with the stone.

The evidence tending to support such allegation is that the railroad track at the place in question ran a long distance (about 1,000 feet) in a straight line, and that the car, stone and derrick used in removing the stone, could have been seen for the entire distance by any one who looked; that before the train came in sight the stone had been lifted from the car and was swinging in the air, and that in ample time to have stopped his train the engineer was leaning out of his cab window looking ahead along the track, and there is evidence tending to show that the engineer did actually see the situation, and waved his hand to the man guiding the swing of the stone to pull it around out of the way. The engineer denied that he saw the stone swinging in the air, but was looking ahead for a semaphore beyond it, and did not see it until at the moment of his engine passing it. The question is, however, whether there was any evidence fairly tending to show the engineer’s negligence, which required the case to be submitted to the jury, and we think there was. According to the testimony of the engineer, the train was running only at the rate of five miles per hour, which was a rate that would have enabled the train to have been stopped in a very short distance, by applying the air-brake. The declaration was originally by appellee for the use of a named assignee of the cause of action. On the trial the declaration was amended by appellee by striking out the words suing for the use of,” etc., and appellants were refused leave to plead over to the declaration. This was not error. West Chicago Street R. R. Co. v. Lundahl, 183 Ill. 284; Burnap v. Wight, 14 Ill. 301.

If the seventh instruction, given in behalf of Bagley, was erroneous, as modified and given, the error was cured by the ninth instruction, given by the court of its own motion, which told the jury “that as to each of the defendants the plaintiff must establish his case by a preponderance or greater weight of the evidence.”

It is claimed by the railroad company that the court erred in modifying an instruction offered by it, so as to make the degree of care to be exercised by the railroad company, in avoiding the stone, to be that of the highest “under the circumstances, in running its said train, consistent with the due operation of its road.” We think the modification was correct in the case, supposed by the instruction, of running the train after notice of the operation of the derrick and while there was yet time to stop the train.

There was no error in the refusal of instructions numbered from 11 to 15, offered by Bagley, on the subject of willfulness and wantonness, and proximate cause.

It is urged that, the declaration charging that the injury was the result of willfulness and wantonness, as .well as of carelessness and negligence, the appellee was bound to make good the more flagrant charge of the declaration. On the contrary, if there was no evidence to support the charge of willfulness and wantonness it may be treated as surplusage. Illinois Steel Co. v. Schymanowski, 59 Ill. App. 32.

There was here no proof of willfulness and wantonness, :and malice not being the gist of the action, no arrest on final process would be allowed. “ Whether malice is the gist of the action must be determined by inspection of the 'record.” Beckman v. Menge, 82 Ill. App. 228.

The tenth instruction, given, amply stated the law as to the subject of proximate cause, and it was not error to refuse the others that were asked upon the same subject, singling out different acts. Besides, it does not follow that though the railroad company was guilty of the negligence which was the proximate cause of the injury, Bagley might not also have joined in such act of negligence.

Both appellants next insist that the motion in arrest of judgment should have been allowed because the declaration fails to allege that appellee was at the time of the injury in the exercise of due care for his own safety; and because there was a misjoinder of counts.

We need not consider this objection because neither the sufficiency of the declaration in such respect, nor the alleged misjoinder, was raised by demurrer, and the alleged defects were cured by the verdict.

“ Defects and omissions in pleadings, in substance or form, which would have been available on demurrer, are cured by the verdict where the issues joined are such as necessarily require proof of the facts so defectively presented, and without which proof it is not to be presumed that the court would have directed, or the jury would have given the verdict.” B. & O. S. W. Ry. Co. v. Keck, 185 Ill. 400.

It is not, here, the joining of distinct causes of action against different defendants (Sleeper v. Banquet Hall Company, 166 Ill. 57), but is the case of the commission of a joint tort, for the commission of which, we apprehend, each wrongdoer may be sued separately, or both jointly, or both jointly and separately, in one declaration. The injury complained of was the result of the movement of the train with the movement of the stone at the same time.

We think a good case was made for a recovery by the appellee, against both appellants, but not for so much damages as he was awarded. Compensation is all he -was entitled to recover. The preponderance of the evidence is that he was not permanently injured and has entirely recovered from the effects of the injury sustained by him.

Large damages have been rarely if ever sustained in this State, except where a permanent injury has occurred. A careful examination of the record satisfies us that $3,000 will amply cover all the damages actually sustained by the appellee, and more he is not entitled to.

If, therefore, appellee shall, within ten days from the date of filing this opinion, file a remittitur of $3,000 from the judgment it will be affirmed for the balance, otherwise it will be reversed and the cause remanded for another trial.

Affirmed if remittitur of $3,000 be entered, otherwise reversed and remanded.

Mr. Presiding Justice Freeman, dissenting:

I am unable to concur in the judgment of affirmance against the railroad company. I fail to- discover any evidence tending to show negligence on the part of the engineer. The evidence does not, in my opinion, tend to show that the engineer, as he approached, was able' to have seen, in time to stop his train, that the stone was even swinging clear of the platform of the car on the switch track; and there is no evidence that I have found tending to show there was anything in the situation, which the engineer saw or ought to have seen, to indicate the existence of danger, at least until his engine was actually passing the stone which a moment later swung over against the cars of his train.