text:
    Albert R. Howe v. Francis Hutchison.

      Filed at Ottawa January 31, 1883

      Rehearing denied March Term, 1883.

    1. Contract—exchange of lands—furnishing abstracts of title—condition precedent. Where parties make a contract for the exchange of lands, each to exhibit to the other abstracts of title showing a good title to their respective lands, by a day named, this is a condition precedent to be performed before either party can call upon the other to perform the agreement; and if the abstract of either is not satisfactory, and fails to show the title agreed.to be made, the other may elect to consider the contract at an end, and if it is recorded in the proper county, have it set aside as a cloud upon his title.
    2. Same—must be performed on day named. Where an abstract is to be furnished, under a contract for an exchange of lands, showing a good title, by a day named, the party to furnish the same has no right to demand an extension of the time in which to furnish an additional abstract, the first not showing a good title; and if the other party refuses to give such extension, and refuses to perform for want of an abstract in proper time showing a good title, this will put an end to the contract.
    3. Same —forfeiture for not performing—liquidated damages. Where a contract for the exchange of lands provides that each party shall furnish the other an abstract showing a good title for his land, by a day named, and if either refuses to perform he shall forfeit and pay to the other S1000 as liquidated damages, and one fails to exhibit such an abstract of title, so that the other, who has furnished a satisfactory abstract, declines to perform the contract, neither being ready to convey to the other neither one can have a decree in his favor for the sum agreed upon as damages.
    4. Cloud on title—contract not recorded. A contract for the sale or exchange of lands, not recorded in the county where the land of one of the parties is situated, is no cloud upon his title.
    5. Costs— discretionary, i/n chancery. The costs in chancery cases, by statute, are within the discretion of the court rendering the decree, which, ordinarily, will not be interfered with by an appellate court.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hón. John A. Jameson, Judge, presiding.

      Messrs. Palmer & Durkee, for the appellant.
    Mr. F. W. S. Brawley, for the appellee.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

A full statement of the facts of this case appears in the opinion of the court delivered when the case was considered on a former appeal, (100 Ill. 11,) and it will not be necessary to restate them to an understanding of the questions raised on the present appeal. By reference to the former opinion it is seen the original bill was brought by Francis Hutchison, in the Superior Court, against Albert B. Howe, and the object was, to have the agreement between the parties in relation to the exchange of lands cancelled, as a cloud upon his title, and to have a decree in his favor for the sum agreed upon as damages in case either party failed to perform the contract. It is alleged by complainant .that he furnished proper proof of title to his land, and that he was ready and willing to carry out the contract, but that defendant failed to show good title to his lands on the 1st day of February, 1879, —the day on which the contract was to be performed,—and he thereupon refused to exchange property, for the reason defendant had not shown good title to his lands mentioned in. the contract. On account of such failure, it is alleged, defendant became liable, under the agreement, to pay to complainant $1000,—being the amount of damages agreed upon in ease either party failed to perform it. After filing his answer, in which he denied most of the principal allegations of the bill exhibited against him, defendant filed his cross-bill, in which he recited the substance of the original bill and his answer thereto, and alleged a compliance with the terms of the agreement on his part to be kept, and that he was ready and willing to perform the contract, but that complainant, without reasonable cause, refused to perform it. The prayer of the cross-bill was, that the agreement between the parties be cancelled, and that complainant be decreed to pay defendant the sum of $1000, as for a breach of such contract. On leave obtained of the court for that purpose, defendant afterwards amended his cross-bill, by alleging that on February 1, 1879, he was, and still is, ready to perform the agreement, and asked. that complainant be decreed to perform it. After replications were filed to the answers to the original and cross-bills, the cause was referred to the master in chancery, to inquire whether, on the 1st day of February, 1879, the parties had good titles to their lands mentioned in the agreement, and whether, on that date, they furnished abstracts showing good titles to their lands. The master reported the testimony submitted by the parties, and his conclusion as to their respective titles. Exceptions were taken by defendant to the master’s report, but complainant seems to have been satisfied with the conclusion reached as to the condition of the title to his lands proposed to be exchanged. On the final hearing of the cause the court dismissed the original bill, and sustained the exceptions taken by defendant to that portion of the master’s report not in harmony with the decree rendered on the cross-bill. As the court found complainant in the cross-bill had exhibited evidence of such title to his lands as he had covenanted to make, it was decreed defendant to the cross-bill should, at his election, either perform the agreement, or, in default there'of, pay complainant in the cross-bill $1000,—the sum agreed upon as liquidated damages in case of a failure to keep the contract. That decree was reversed by the Appellate Court for the First District, and the cause remanded to the Superior Court, with directions to that court “to dismiss defendant’s cross-bill, and enter a decree cancelling the agreement between the parties referred to in the complainant’s bill, and to remove the same as a cloud upon complainant’s title to the lands, but without any decree for the payment of the $1000 mentioned in the agreement.” Defendant to the original bill brings the case to this court on appeal.

On the former appeal the case was not considered on its merits, and it was not intended to express any opinion whether either party was entitled to the relief asked by their respective bills. The appeal was dismissed for want of jurisdiction in this court to hear it. As the original complainant has assigned no cross-errors, it must be understood he acquiesces in the decision of the Appellate Court that directs the Superior Court to enter- a decree cancelling the contract, and to further decree that neither party should have a decree for the damages in the contract for a failure to comply with its terms.

It will be observed that by the terms of the agreement both parties were to exhibit abstracts of title showing good title to their respective lands. This was a condition precedent before either party could call on the other to comply with the agreement. Unless the lands of defendant were satisfactory to complainant on examination, which he had the privilege to make, the contract was not to be binding upon him. But after examination he was satisfied, and so he wrote the word “satisfied” across the face of the contract, on the 1st day of December, 1878. By the terms of the contract it was to be performed in fifteen days after it should be accepted by complainant. But the time in which the contract should be performed was several times extended by mutual consent, in writing expressed, until it was finally agreed it should be closed on the 1st day of February, 1879. The master in chancery to whom the cause was referred found neither party had, on that day, such title as he had agreed to convey. When the parties came together on that day, both objected the abstracts presented did not show good titles to the property, or such as the contract obligated each to furnish. It is true, however, that defendant offered a deed for his lands to complainant, and demanded a performance of the agreement on his part; and it is also true that complainant refused to make the exchange of lands, for the reason the abstract presented by defendant did not show he had good title to the lands he proposed to exchange. As has been seen, the master found the abstract presented by defendant did not show such title to his lands in him as the agreement obligated him to convey. His conclusion in that respect is fully warranted by the evidence. Before defendant could call upon complainant to accept his deed and deliver a deed for his lands in exchange, the contract obligated him to present to complainant, on or before the 1st day of February, 1879, an abstract showing good title to his lands described in the agreement. That he did not do. Nor had he any right to demand any further extension of the time in which to" furnish other or additional abstracts. That complainant could allow or reject, as he saw fit. Complainant was not bound to perform the agreement at any other time, and his election not to do so put an end to the contract, so far as he was concerned. Defendant had no rightful authority thereafter to call upon complainant to specifically execute the agreement. As neither party was ready to perform the contract on the 1st day of February, 1879, it follows that neither party could have a decree in his favor against the other for the sum agreed upon as damages. So the Appellate Court held, and with that decision it must be presumed complainant is satisfied, as he has assigned no cross-errors. But as defendant was not ready, and could not perform the contract on the day fixed when the exchange of lands should be made, it follows he could never thereafter compel a specific performance of the agreement, and it was and is proper that complainant should have a decree annulling and cancelling the record of the agreement as a cloud upon the title to his lands, and to that extent, and no further, was he entitled to relief. As the agreement was not recorded in the county and State where defendant’s lands are situated, it is a matter of no consequence to him whether the contract is cancelled or,not. .Unless made a matter of record it would be no cloud upon .the title to his lands.

As respects the question made as to the disposition of the costs of the case, it is sufficient to say, that in chancery causes, under the statute the costs attending the litigation are within the discretion of the court rendering the decree. No sufficient reason appears for interfering with the judgment of the Appellate Court in that respect.

No error appearing in the record, the judgment of the Appellate Court will be affirmed.

Juclgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Henry F. Eames v. William P. Rend et al.

      Filed at Ottawa November 20, 1882

      Rehearing denied March Term, 1883.

    1. Appeals—examination of questions of fact. In an ordinary action at law, where the Appellate'Court affirms the judgment pf the trial court, the decision of that court, so far as the controverted facts are concerned, is final and conclusive on this court, an,d it can not go into the evidence and determine whether it preponderates in favor of or against the verdict.
    2. Instruction—may be based on party’s theory of what evidence shows. Where instructions are given at the instance, of each party, based upon the theory that the evidence shows a certain state of 'facts, directing the jury, if they find the facts one way, to find for the plaintiff, and if they find the facts as claimed by the defendant, to find for him, it can not be said that the plaintiff’s instruction is misleading, as assuming a state of facts.
    3. Same—not improper, if based on facts of which there is evidence. Where there is evidence of a fact, an instruction based upon the finding of such fact by the jury from the evidence, and defining the law applicable to such state of fact, is not erroneous and misleading.
    4. Error in rejecting testimony cured by its subsequent admission in different form. The refusal of the court to admit testimony as to a given" fact, even if error, is no ground, of reversal if the court afterwards allows other satisfactory proof of the same fact.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding,
    Messrs. Sleeper & Whiton, for the appellant.
    Messrs. Walker & Carter, for the appellees.
   Mr. Justice Craig

delivered the opinion of the Court:

On the 8th day of April, 1874, Oliver H. Lee recovered a judgment in. the Superior Court of Cook county, against Samuel J. Walker and Joseph Young. On the 16th of November, 1874, appellees purchased the judgment, and it was duly assigned to them by Lee. At the time of purchase there was due upon the judgment $5168.12, besides interest and costs. Some time after appellees had purchased the judgment, appellant entered into negotiations to obtain control of the judgment, for the purpose of using it to perfect the title in himself to certain real estate in Chicago, which originally belonged to Samuel J. Walker. The result was, appellees, on the 2d day of May, 1876, assigned the judgment to appellant. In November following, the attorneys of appellant caused an alias execution to be issued on the judgment, and after the execution was placed in the hands of the sheriff a bill in chancery was filed in aid of the collection of the judgment. In January, 1877, a decree was rendered in said cause, and on the 27th day of March the real estate levied upon as the property of Walker was sold under the execution and the decree by the sheriff, and bid off by one Allen Jordan, for $5768.05, and a certificate of purchase delivered to him. This certificate was subsequently assigned to appellant. Upon the expiration of the time for redemption a deed of the property was made to him. At the time the judgment was assigned nothing was paid by appellant to appellees, and this action was brought to recover the amount realized upon the execution issued on the judgment by the sale of real estate, less $1000 allowed for collection. The trial in the Superior Court resulted in a verdict and judgment for appellees, and upon appeal to the Appellate Court that judgment was affirmed. To reverse the judgment of the Appellate Court appellant has prosecuted this appeal.

On the trial in the Superior Court it was contended by appellant that the only obligation he assumed when he procured the assignment of the judgment, was to pay Young therefor by a credit on Young’s indebtedness of whatever amount Ames might realize on the judgment. On the other hand, it was claimed by appellees that they assigned the judgment to Ames, and he wa.s indebted to them for the amount realized on the judgment by the sale of real estate belonging to Walker, less $1000 for collection. Certain facts were established on the trial in regard to which there is no substantial controversy by the parties. Among them are the following: The assignment of the judgment by Lee to appellees; the negotiation of appellant for the judgment; the delivery of a written request, signed by Young, to appellees, requesting the assignment of the judgment to Ames; the written assignment of the judgment; the filing of a bill by appellant, in aid of an execution issued upon the judgment; the decree of sale, and the indorsement upon the execution of the amount which the property brought on the sale under the execution. But the controversy between the parties on the trial was in regard to the terms and conditions of the" contract under which the judgment was assigned by appellees to appellant. The dispute arose in reference to what the contract was. This was purely a question of fact, which the jury determined in favor of appellees. It is true the verdict of the jury, and the judgment of the Superior Court upon it, were not conclusive upon the questions of fact, but the judgment of the Appellate Court affirming the judgment of the Superior Court was a final determination of these controverted facts. All the evidence introduced in the Superior Court was reviewed by the Appellate Court,—the only tribunal authorized to review the same,—and by the statute of the State the decision of that court, so far as the controverted facts are concerned, is final and conclusive. This court has no power to go into the evidence and determine whether it preponderates in favor of or against the verdict and judgment of the Superior Court. Much of the argument has been devoted to the discussion of controverted questions of fact, which, of course, was proper and very appropriate in the Appellate Court, but an argument of that character has no place here. It was the duty of the Appellate Court to determine whether the evidence introduced on the trial preponderated in favor of or against the verdict. If the* former, the judgment would be affirmed; if the latter, it would be reversed. That has been done in the Appellate Court, and the judgment was affirmed, and such errors of law as arise on the record only remain to be considered here.

Two instructions were given on behalf of appellees, and it is claimed they were erroneous. The objection made to the first instruction is, that it was misleading, and based upon an assumption of facts of which there was no evidence. We perceive nothing in the instruction .calculated to mislead the jury. Appellees claimed that the evidence introduced on the trial established certain facts, and the instruction in substance directed the jury that if they found, from the evidence, those facts were established, then the plaintiff was entitled to recover. The instruction presented to the jury merely the plaintiff’s theory of the case. The first instruction given for the defendant presented the defendant’s theory of the case, and the jury were in substance directed, if they should find, from the evidence, certain facts established, (being the fa'ets which defendant claimed the evidence did establish,) then the plaintiff could not recover. The jury, in considering these two instructions together, could not have been misled, as each presented the theory upon which each party claimed a verdict, and all that was necessary for the jury to do was.to determine what facts were established by the evidence, and render a verdict accordingly. Without entering upon a discussion of the evidence, we think there was testimony enough before the jury to justify the instruction.

The second instruction was as follows:

“The court further instructs you, that if you believe, frdm the evidence, that the defendant requested Joseph E. Young to procure from the plaintiff the assignment or transfer of the judgment described in the declaration, to the defendant, and that the said Young did, in pursuance of such request, procure such assignment or transfer, then the court -instructs you that the said Young was, in that transaction, the agent of the defendant. ”

Ames, on cross-examination, testified that he directed or authorized Young to arrange or procure an assignment of the judgment to him. ■ Appellee Walker testified that it was upon the written request of Young, which was read in evidence, that he made the assignment of the judgment to Ames, tinder this evidence we think the instruction was proper, and it could not mislead. Indeed, if the two instructions given-on behalf of appellees contained slight technical error, we can perceive no possible ground upon which it can, in justice, be said the jury were misled, as the court gave, on the request of appellant, ten instructions, which fully and completely presented for their consideration every phase of appellant’s case.

It is also claimed that the court erred in refusing to allow appellant to testify -that the title he acquired under the Lee judgment was not the only one which he sold when he made sale of the property. If this was an error, (which may well be doubted,) it was obviated at a subsequent stage of the trial, as the court allowed the defendant to show that he acquired title to the property by deed from Walker, and also through certain sheriff’s deeds, which were read in evidence.

The same witness was asked whether he did not have quite a large number of suits involving title to the property which was sold on the Lee judgment. The question being objected' to, the objection was sustained, and this decision is relied upon as error. The record, however, shows that the defendant was permitted to introduce in evidence the files in pending suits, which showed that the title to the property was in litigation. This evidence established the same fact which appellant offered to prove, in a different way, and obviated the objection.

' In conclusion, so far as appears from the record a fair trial has been had, and we perceive no substantial ground for reversing the judgment. It will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Perry H. Smith, Jr. et al. v. The Chicago and Western Indiana Railroad Company.

      Filed at Ottawa September 27, 1882

      Rehearing denied March Term, 1883.

    1. Eminent domain—the petition—its office and effect. The statute having determined specifically what facts must appear on the face of the petition, in a proceeding under the Eminent Domain act, the court or judge is powerless to take any action in the premises until a petition is filed containing the statutory requirements, for it is by the petition jurisdiction is obtained of the subject matter.
    2. Same—what petition must contain, to confer jurisdiction. Every petition, properly framed, must contain all the statutory requirements, and will therefore, of necessity, show, in every case where such petition is sufficient to confer jurisdiction, the authority of the company seeking the condemnation to take the specific land sought to be taken, and the object or purpose for which it is required; and from this statement of facts it must clearly appear the use for which the land is sought to be condemned is a public one.

      3. Same—answer to petition for condemnation, not proper. There is no rule of law or practice authorizing the filing of an answer of any kind to a petition for the condemnation of land under the Eminent Domain>act, and it is not the proper practice to permit one to be filed in any case. If one is filed, the court may properly have the same stricken from the files. Hence, there is no error in striking out any portion thereof.
    4. Same—the truth of the facts necessary to a condemnation may be questioned without written pleadings. If the truth of any of the averments of the petition may depend upon the existence or non-existence of facts not appearing upon the face of the petition, and hence their truth or falsity is open to extrinsic proofs, this proof may be made on the part of the land owner as well without an answer as with it, for the inquiry in such case will be directed to the truth or falsity of the petition.
    5. Same—what land is necessary—how and by whom to be determined. Where the description of the land and the purpose for which it is sought to be taken are stated in the petition, as they must be in every case, whether the land is reasonably necessary for the purpose stated depends mainly upon the facts thus stated in the petition. But the court in passing upon this question, as it must before submitting the question of damage or compensation to the jury, should take into consideration the section of the country and the particular locality in which the improvement is to be constructed,— whether in an obscure country village, or in a great commercial center; and acting upon its own knowledge of the commerce and business necessities of the country, must, upon the facts stated in the petition, determine this question for itself. The jury impaneled can find no fact except what is just compensation to the owner.
    6. The law does not contemplate that when the petitioner has brought itself within the provisions of the statute, the right of condemnation can be defeated by simply showing, in the opinions of witnesses who have no interest in or connection with the objects of the proceeding, that the land sought to be condemned is not necessary for the purpose stated.
    7. Every company seeking to condemn land for a public improvement must, in a modified degree, be permitted to judge for itself as to the amount that is necessary for such purpose. This right is subject to all constitutional and statutory restrictions, and to the further limitation that the courts are clothed with ample power to prevent any abuse of the same.
    8. If the court can see from the facts stated, and its general knowledge of the locality and the public wants, that the lands sought to be taken are manifestly in excess of what is reasonably necessary for the purpose stated in the petition, it will be fully warranted in denying the application,—otherwise it will not.
    9. Same—of granting a new trial. Where the evidence is conflicting, in a case for the condemnation of land, as to the damages and compensation to be paid to the owners, and consists chiefly of the opinions of witnesses, some of whom sustain the finding and others do not, this court will not feel justified in reversing unless it is able to say the verdict is clearly against the weight or preponderance of the evidence.
    10. Instruction—as to the weight to he given to witness’ testimony. While a court may state, in a general way, what facts appearing in evidence may be taken into consideration in determining the weight to be given to witness’ testimony, it, in doing so, should always, and particularly in cases where the evidence is conflicting and nearly balanced, carefully guard against the use of any expression indicating or tending to indicate the extent of the weight to be given to such facts. While it is true it is the duty of the jury to consider such facts, after all it is left to them to say what credit the witness is entitled to receive.
    11. It is not proper for the court to single out some particular fact as affecting the value of the opinions of a particular witness or class of witnesses in a case where opinions are allowed, and then tell the jury that the opinions of such witnesses should not be permitted or “allowed to counterbalance or overcome the opinions” of witnesses not affected by the fact thus singled out, and an error in that regard is not cured by adding that such is the rule other things being equal.
    Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Mr. Francis H. Kales, for the appellants:
    The railroad company proceeded to condemn more property than it showed a necessity for, in this case. There is no law in this State making the corporation the final judge of the quantity of land necessary to a given purpose. It can not conclude the land owner by its- own mere assertion. Therefore the court erred in striking out that portion of respondent’s answer which made this an issue. Booker v. Venice and Carondelet R. R. Co. 101 Ill. 333; Rennselaer R. R. Co. v. Davis, 43 N. Y. 137.
    It is not proper to arrive at the value of the property taken by a comparison of opinions of the value of it and other property. Dana v. Fiedler, 12 N. Y. 40; Gouge v. Roberts, 53 id. 619; Blanchard v. Steamboat Co. 59 id. 300; Chandler v. Jamaica Pond Co. 122 Mass. 305.
    The usual mode of proving value is by a general question, without referring to actual sales, leaving that to the cross-examination as a test of the witness’ knowledge. Lafayette R. R. Co. v. Winslow, 66 Ill. 219; Illinois R. R. Co. v. Van-Horn, 18 id. 257; Snow v. Boston R. R. Co. 65 Maine, 230, Dwight v. Hampden, 11 Cush. 201; Pennsylvania R. R. Co. v. Bunnell, 81 Pa. St. 414.
    The fifth instruction, concerning the opinions of witnesses in estimating value, was misleading, and the last clause thereof, seeking to cure the infirmity, is equally objectionable. That clause seeks to limit the principle before announced to cases where, “in other respects, the witnesses were of equal credibility, knowledge, information and experience. ”
    Mr. Charles M. Osborn, for the appellee,
    contended, from the facts, that the land sought to be condemned was necessary for the purpose indicated. The clause in the answer was properly stricken out.
    It seems to be well settled that where the petitioner has the right to condemn, and the petition states the necessity of the exercise of that right within the terms of the statute, the courts will not inquire into the necessity for the exercise of that power. Booker v. Venice and Carondelet R. R. Co. 101 Ill. 333. See, also, In re New York v. Kip, 46 N. Y. 553; New York Central R. R. Co. v. Hudson River R. R. Co. 77 id. 259; Chicago, Rock Island and Pacific R. R. Co. v. Town of Lake, 75 Ill. 336; Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana R. R. Co. 97 id. 523; North Missouri Bank v. Galt, 28 Mo. 543; Mills v. County of St. Clair, 2 Gilm. 197; City of Galesburg v. Hankinson, 75 Ill. 153; Buffalo and New York R. R. Co. v. Brainard, 9 N. Y. 100; Miller v. Fowler, 53 id. 62; Wier v. St. P. and T. F. R. R. Co. 18 Minn. 155; Parks’ Appeal, 64 Pa. St. 137.
    Evidence of particular sales are now admitted in this and almost every other State, not only on cross-examination, but on direct examination, as original evidence, tending to throw light upon the market value of the property in question.
      Chicago and Western Indiana R. R. Co. v. Marony, 95 Ill. 182; St. Louis, Terre Haute and Vincennes R. R. Co. v. Haller, 82 id. 211; Jones v. Chicago and Iowa R. R. Co. 68 id. 384; Shattuck v. Stoneham R. R. Co. 6 Allen, 115; Edmunds v. Boston, 108 Mass. 535; Chandler v. Jamaica Pond Co. 102 id. 305; Searl v. Lack, and D. R. R. Co. 33 Pa. St. 63.
    The instructions were correct.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The Chicago and Western Indiana Eailroad Company, on the 31st of March, 1881, filed in the county court of Cook county its petition, praying for the condemnation of certain real estate therein specified, and making Perry H. Smith, Emma Louisa Smith, Anna E. McCormick, and Lucy N. McCormick, the appellants, parties thereto. The petition alleges that it has located the line of its road in accordance with its charter, and that it intersects and passes over the said real estate, and that the company “desires to appropriate and use the said property for the purpose of building and constructing its said line of railroad aforesaid, and that said property is necessary for the right of way, side-track, stations and appurtenances required by petitioner in constructing and operating its said road. ” The court allowed the petition, and caused a jury to be impaneled, and sworn to assess and report the appellants’ damages. The damages, as assessed and reported by the jury, amounted altogether to $35,477.76, upon the payment of which amount to the county treasurer, for the use of appellants, the company was authorized to enter upon and take possession of the premises in question,— from which order the appellants have prosecuted an appeal to this court, and a reversal is asked upon several grounds.

It appears from the record, that pending the proceeding in the county court, and before the submission of the cause to the jury for assessment of the damages, the appellants filed a formal answer to the petition, setting forth, among other things, that the petitioner, prior to the institution of the condemnation proceedings, had leased its road, franchises, etc., to the Wabash, St. Louis and Pacific Eailway Company, and also that the real estate described in the petition “is not required by the said petitioner for the purposes of its incorporation or the transaction of its business, or for its depots, station buildings, machine repair shops, or for right of way, or for any other lawful purpose connected with or necessary to the building, operating or running‘of said road by the said Chicago and Western Indiana Eailroad Company. ” Upon an exception to these portions of the answer they were stricken out by the court, and it is claimed by appellants that this was error.

We are aware of no rule of law or of practice authorizing the filing of an answer of any kind to a petition for the condemnation of land under the Eminent Domain act, nor do we think it the proper practice to permit one to be filed in any ease, and the cpurt might therefore with propriety have stricken the entire answer from the files; and if this might have been done, it follows there was no error in striking out a portion of the answer, as was done. The proceeding is purely statutory, and we look in vain through the various provisions relating to it for something to warrant such a practice. The 1st section of the statute contains the constitutional restrictions upon the right to take private property in any case, and is in these words“That private property shall not be taken or damaged for public use without just compensation, and that in all cases in which compensation is not made by the State in its corporate capacity, such compensation shall be ascertained by a jury, as hereinafter prescribed. ” The 2d section provides, “that in all cases where the right to take private property for public use without the owner’s consent, or the right to construct or maintain any public road, railroad, plank road, canal, or other public work or improvement, * * * has been heretofore or shall hereafter be conferred by general law or special charter upon any corporate or municipal authority, * * * and the compensation to be paid for * * * the property sought to be appropriated * * * can not be agreed upon by the parties interested, * * * it shall be lawful for the party authorized to take * * * the property so required * * * to apply to the judge of the circuit or county court, either in vacation or term time, where the said property, or any part thereof, is situate, by filing with the clerk a petition setting forth, by reference, his or their authority in the premises, the purpose for which said property is sought to be taken, * * * a description of the property, the names of all persons interested therein, as owners or otherwise, as ■ appearing of record, * *' * and praying such judge to cause compensation to be paid to the owner, to be assessed. ” The 3d section relates to filing petitions in vacation; the 4th section, to service of process; the 5th, to the hearing of causes, and the practice in such cases; the 6th, to the mode of selecting juries for assessments in vacation; the 7th, to the impaneling of the jury, and the mode of filling up the panel when exhausted; the 8th, to the oath of the jury; the 9th, to the form of the verdict, and a view of the premises by the jury; the 10th, to the judgment; the 11th, to cross-petitions; the 12th, to appeals; the 13th, to the appeal bond, and use of premises pending an appeal; the 14th, to the payment of the damages; the 15th, to the entry of the verdict by the court; and the 16th and last, to the repeal of former laws on the subject.

Thus it will be seen, that although the statute is very minute in all its details, specifically setting forth every step to he taken in the progress of a cause, from its inception to its final determination, yet it nowhere contains the slightest allusion to an answer by the defendants. Nor can we, on general principles, conceive the least necessity for such a pleading. The statute having determined specifically what facts must appear on the face of the petition, the court or judge is powerless to take any action in the premises until a petition is filed containing the statutory requisites, for it is by the petition jurisdiction is obtained of the subject matter of .the suit., Every petition, properly framed, must contain all the statutory requirements, and will therefore, of necessity, show, in every case where such petition is sufficient to confer jurisdiction, the authority of the company to take the specific land sought to be taken, and the object or purpose for which it is required; and from this statement of facts it must clearly appear the use for which it is sought to be condemned is a public one. If the right to take the land at all must affirmatively appear upon the face of the petition itself, as we hold it must, what necessity is there for an answer at all?

If it be suggested the truth of some of these averments might depend upon the existence or non-existence of certain facts not appearing on the face of the petition, and hence their truth or falsity would be open to extrinsic proofs, we submit, conceding this to be so for the purposes of the argument, this proof might be made, upon the part of the land owners, just as well without an answer as with it, for the inquiry in such case would be directed to the truth or falsity of the petition. But it is difficult to conceive of a case, where the petition is framed in conformity with the statute, in which such a question could be raised by extrinsic proofs, for when the description of the land, and the purpose for ■ which it is sought to be taken, .are stated in the 'petition, as they must be in every case, -whether the land is reasonably necessary for the purpose stated must,’ of necessity, depend mainly upon the facts thus stated in the petition. Of course the court, in passing upon this question, as it necessarily must, before submitting the question-of damages or compensation to the jury should take into consideration the section of country and the particular locality in which the public improvement is to be constructed,—whether in an obscure country village, or a great commercial city, like Chicago; and acting upon its own knowledge of the commerce and business necessities of the country, must, upon the facts stated in the petition, determine this question for itself. It certainly was never contemplated by the legislature that where the petitioner has brought itself within the provisions of the statute, the right of condemnation can be defeated by ■ simply showing, in the opinions of witnesses who may have no interest in or connection with the objects of the proceeding, that the land sought to be condemned is not necessary for the purpose stated. Every company seeking to condemn land for a public improvement must, in a modified degree, be permitted to judge for itself as to what amount is necessary for such purpose. This right, of course, is subordinate to all statutory and constitutional restrictions on the subject, and also to the further limitation that the courts of the State which are authorized to entertain applications of this character are clothed with ample power to prevent any abuses of this right by such companies. For instance, if in an obscure village a railway company, in the exercise of this limited right to judge for itself as to the amount of land necessary for its purposes, should attempt to condemn forty, or even twenty, acres of land for depot purposes, this would clearly be an attempted abuse of the right, and the court to which the petition was preferred would'be fully warranted in denying the application. On the other hand, the law having authorized such companies to take private property for public use, when one, by a proper petition, has brought itself strictly within the provisions of the statute, and the court can see, from the facts stated, the land sought be condemned is not manifestly in excess of what would be reasonably necessary for the purpose stated in the petition, the court will not be authorized to interpose on the ground suggested. And when it is considered that lands thus taken can not be used by such companies, or their assignees, for any other purposes than those for.which they were condemned, it is manifest the rule which we have announced in this case affords ample protection to private rights.

Outside of the absence of any provision in the statute authorizing the filing of an answer, it is clear, from the oath to be administered to the jurors, they are not required to pass upon any questions except such as affect the matter of damages. The oath prescribed by the statute is in these words: “You, and each of you, do solemnly swear you will well and truly ascertain and report just compensation to the owner (and each owner) of the property which it is sought to take, * * * and to each person therein interested, according to the facts in the case, as the same may be made to appear by the evidence, and that you will truly report such compensation so ascertained; so help you God. ” It is clear, from the wording of this oath, if the jury were required to pass on any questions of fact raised by an .answer, and not relating to the amount of compensation to be paid to the defendants in the petition, the jury would not be acting under .oath as to such additional matters, for the oath, by its express terms, is confined to the question of compensation.

None of the errors assigned question the sufficiency of the petition to bring the case within the provisions of the -statute, or the sufficiency of the proofs by which it is sustained. It only remains, therefore, to inquire whether any error intervened in .the receiving or rejecting of evidence, the giving or refusing of instructions, or in the refusing to set aside the verdict and grant a new trial. With respect to the latter question, it may be disposed of in a few words. The evidence, as usual in cases of this character, was very conflicting, consisting chiefly of the opinions of witnesses, some of whom sustain the finding and others do not. Under these circumstances we would not be justified in reversing on the ground suggested, unless we were able to say the verdict is clearly against the weight or preponderance of the evidence, and this we are unable to do.

The court, at .the request of appellee, gave to the jury the following instructions:

“5. The jury are further instructed, that while the opinions of witnesses are competent to be given in evidence on the question of the market value of the land proposed to be taken, yet that the weight which such evidence should have depends in some -measure upon the knowledge, information and experience which the witnesses had of the prices at which, actual bona fide sales had been recently made of similar property, (if it appears in evidence that there have been such sales,) and that the opinions of ,witnesses -who had not such knowledge, information or exjierienee ought not to be allowed to counterbalance or overcome the opinions of witnesses who had such knowledge, information or experience, if, in other respects, the witnesses were of equal credibility, knowledge, information and experience.
“6. The jury are further instructed, that all facts which the jury shall find, from the evidence, touching the knowledge of each witness of recent bona fide offers for sales, and also of sales and rentals of similar and other property, even if not recently made, or if the property was remote in position, are elements tending to throw light upon the knowledge and experience of the witnesses, and the value of the opinions expressed by them as to the value of the property taken. ”

—To the giving of which the appellants excepted. We are of opinion these instructions were calculated to mislead the jury, and that there is nothing in the other instructions given that relieves them of this objection. While courts may properly state, in a general way, what facts appearing in evidence may be taken into consideration in determining the weight to be given to a witness’ testimony, yet the court, in doing so, should always, and particularly in cases like the present, where the evidence is conflicting and so nearly balanced, carefully guard against the use of any expression indicating or tending to indicate the extent of the weight to be given to such facts. These -instructions were not sufficiently guarded in this respect. While it is the duty of the jury to consider such facts, after all it is left to them to say what credit the witness is entitled to. Nor do we think it proper for the court to single out some particular fact, as was done in this ease, as affecting the value of the opinions of a particular witness or class of witnesses, and then tell the jury that the opinions of such witness or class of witnesses should not be permitted or “allowed to counterbalance or overcome the opinions” of witnesses not affected by the fact thus singled out. Neither do we think an instruction of this kind is cured by adding in the conclusion of it that such is the rule other things being equal, or words of similar import. The two instructions, considered as a whole, moreover, tend to direct the attention of the jury to the comparative merits of particular witnesses or classes of witnesses rather than to the real question in controversy,—namely, the amount of compensation to be ascertained, and reported by them to the court. In addition to this, their probable tendency was to lead the jury to suppose there are certain artificial and arbitrary tests by which the value of witness’ opinions is to be determined, and in their efforts to apply such supposed tests injustice may have been done the appellants. Upon the whole, we think these instructions should not have been given, and that it was error to do so.

The judgment of the court below is therefore reversed, and the cause remanded for further proceedings in conformity with the views here expressed.

Judgment reversed.

Mr. Justice Walkeb : Had this petition been filed in the circuit court, according to uniform practice all pleadings must be in writing, unless dispensed with by statutory requirement. The practice is uniform, that all issues in original cases in that forum shall be in writing. This statute has not changed the practice, and had.the proceeding been instituted there, the pleadings should have been in writing, and the practice indicated in the opinion would be incorrect. As illustrating this necessity, the legislature has provided that on appeals from justices of the peace the trial in the circuit court shall be de novo, and without pleadings in writing. The legislature proceeds on the supposition that without such a provision the court would have required written pleadings.

I also hold that railroad companies do not have the right to take so much land as they may choose, but only so much as is necessary for corporate purposes, and that this is a question of fact upon which the owner has a right to have an issue formed, and a constitutional right to have it determined by a jury. I can not, therefore, concur in the foregoing opinion.


author: Mr. Chief Justice Scott

text:
    Samuel A. French et al. v. George A. Gibbs.

      Filed at Ottawa January 31, 1883

      Rehearing denied March Term, 1883.

    1. Appeals—reviewing questions of fact in chancery cases. In chancery cases questions of fact are open to reconsideration in this court on error to the Appellate Court, or on appeal...
    2. Reference to master. On a bill for an account of various loans made to the complainant, and the payments made from time to time thereon, and to be allowed for usury in the transaction, and also for an account of collaterals deposited with the lender as security for the advances made, where the evidence is voluminous and conflicting, the case should be referred to the master to ascertain the facts on the issues made by the pleadings, and it is error not to make such reference. Counsel will not be allowed, by stipulation or otherwise, to impose the labor upon an appellate court of making up complicated accounts.

      Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    The bill in this case was brought by George A. Gibbs, against Samuel A. French, Elizabeth A. French, and Garrie S. French, and was for an account, and other relief. It is alleged complainant made an agreement with Samuel A. French to make loans and advances of money to him as he might need them, amounting in the aggregate to $3000. Under that agreement it is charged Samuel A. French did, during a period of two years, advance to complainant certain sums of money, and that the notes taken as evidence of such loans were made payable to Elizabeth A. French and Garrie S. French, but that all of such loans were made by and on behalf of Samuel A. French. In his original bill complainant alleged he could not state the amount of the notes or collaterals deposited with defendants to secure the sums of money so borrowed of them, but stated the value to be at least $6000. It is.also alleged defendant Samuel A. French had power to, and did, make collections on such collaterals, and that after deducting the amount of such collections and payments made as usurious interest on the loans to him, complainant charges he does not owe defendants a sum exceeding $500. An amendment to the bill shows complainant conveyed to Samuel A. French certain real estate, as' collateral security for the money loaned to him, and asks to have a reconveyance to him, and accounting as to all col-laterals held by defendants. By another amendment to the bill, complainant avers he is not indebted to defendants in any sum whatever, but that defendants' are indebted to him in the sum of $3000. It is also alleged defendants, or some of them, have commenced suits at law on notes of complainant, which actions are now pending in the common law courts, and asks to have the. same enjoined. The hill also contains an allegation that while most of the notes which complainant gave, and which represent the amounts of the loans to him, were made in the names of Elizabeth A. French and Game S. French, yet, in fact, the loans were all made by Samuel A. French, using the names of his wife and son for the purpose of having their names appear as payees. ' A principal ground of relief is, that defendants “claim that they are entitled to receive for the sums so loaned an illegal and usurious interest, at five per cent a month, compounded, ” and that complainant is not entitled to have the payments made to them credited on his notes as payments of either principal or-legal interest thereon. The prayer of the original and amended bills is, that an injunction issue, restraining defendants from taking judgments on any of complainant’s notes, or from taking any other steps to collect the same; that an account may be taken, and for a decree against defendants for any sum that may be found to be due to complainant. The answer of defendants to the original and amended bills contains a general denial of the principal allegations, as respects usury in the transactions between the parties, either in the original inception of the indebtedness, or in reserving usurious interest thereon after the making of the notes. On the filing of her answer, Elizabeth A. French filed a cross-bill, in which she gives a full and specific account of all the dealings between the parties, and a full description of the collaterals taken to secure her and' the other defendants. The prayer of her cross-bill is, that an account may be taken of the amount due on the notes of complainant; that a receiver be appointed, with the usual powers; that the collaterals pledged for the indebtedness of complainant be collected and sold, under the direction of the court, unless defendant, Gibbs, shall pay her'in 'a short time, to be fixed by the court, whatever amount shall be found to be due her. To the cross-bill defendant, Gibbs, filed an answer, admitting that complainant in the cross-bill held his notes as stated in her bill, but averring, as he did in his amended bill, that such notes, with legal interest, had been fully paid, and that he was not then indebted to her in any sum, and that on an accounting it will be found she and the other defendants to his bill are indebted to him in a large amount. Beplications were filed to all the answers, and the cause'was submitted to the court for hearing on the evidence contained in the record. The court found defendants reserved usurious interest, in excess of lawful interest, on all the loans made to complainant, and that the name of Elizabeth A. French was used as payee in the notes, but that she had no legal or equitable interest in the money loaned to complainant; that complainant had fully paid all sums of money borrowed of defendants, or either of them, with interest thereon at the rate of six per cent per annum, and that there is nothing due defendants, or either of them, on the notes made by complainant, and thereupon decreed that defendants deliver to complainant all the collaterals delivered to them to secure his indebtedness, and reconvey all real estate conveyed to either of them for the same purpose; that all of complainant’s notes held by defendants, or either of them, be delivered to the clerk of the Superior Court, and that all suits at law pending on any of such notes be perpetually enjoined, and that the cross-bill of Elizabeth A. French be dismissed for want of equity. That decree was affirmed in the Appellate Court, and the unsuccessful parties bring the case to this court on error.
    Mr. Edgar L. Jayne, and Mr. Henry Decker, for the plaintiffs in error.
    Messrs. Bisbee, Ahrens & Hawley, for the defendant in error.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

Among the objections taken to the present decree is one that there is a variance between the decree and the case as stated in the original and amended bills in certain particular findings of the court, the argument being that no such case is stated in complainant’s bill as the court found by its decree from the evidence. Whether the objection is well taken or not, depends on the construction that shall be given to the transaction between the parties. Should it be ascertained the evidence warranted the court in treating the dealings between the parties as a single transaction, many of the notes given being simply renewals of the old indebtedness, there may not be anything in the objection. There might have been no usury reserved in the original loans by any illegal contract, and yet it might still be true, as alleged in the bill, that with the actual payments of principal, and payments of usurious interest, the original debt might be fully paid. In the view the court takes of the case, as it is now presented, it will not be necessary to pass upon this question definitely at this time. If it shall appear on another hearing of the cause there is any variance in the particulars suggested, the bill can be readily amended upon such terms as the court may deem equitable.

But the objection most confidently insisted upon is, that the findings of the Superior Court are not warranted by the testimony. Although this case has come to this court from the Appellate Court, as the practice now is all questions of fact are open for reconsideration in chancery cases, as this is. It is readily seen the questions of fact discussed can not be understandingly passed upon in the present condition of the record. The testimony is extremely contradictory on every controlling fact in the case. Ascertaining the facts in such a mass of contradictory testimony would be a severe task. Without great labor it would be impossible to ascertain the amounts of money actually loaned to complainant by defendants, or the amount of payments, either as principal or interest, made by complainant to defendants. Other facts having an important bearing on the decision are involved in the same obscurity, on account of the unsatisfactory character of the evidence. The court should have referred the cause to a master in chancery to ascertain the facts in contention between the parties on the issues made by the pleadings, and on the coming in of the report, had either party been dissatisfied with the conclusions reached, upon exceptions being filed the questions made could be readily determined by the court. In no other way can the facts of the case be so readily ascertained. The testimony found in this record is a confused mass, and it is impossible for the court, in any reasonable time, to pass understandingly on the objections to the findings of fact by the court in its decree. Indeed, it is a labor that counsel will not be permitted, by stipulation or otherwise, to impose on an appellate court. It is the appropriate work of a master in chancery. The rule of practice in this regard has been so often declared by this court it ought to be well understood. It is as stated in Moss v. McCall, 75 Ill. 190: “Where accounts involve large sums of money, and the testimony as to the rights of the parties is conflicting and unsatisfactory, in conformity with the rules of chancery practice the cause must be referred to a master to render a concise and accurate statement of the accounts, so that the same may be readily comprehended, and any objection taken passed upon understandingly. This is the well recognized and established practice in all cases of a complicated character, and should have been adopted in this case. (Steere v. Hoagland, 39 Ill. 264; Bressler v. McCune, 56 id. 475; Riner v. Touslee, 62 id. 266; Groch v. Stenger, 65 id. 481; Dubough v. United States, 7 Pet. 625.) The casé in hand falls precisely within the rule declared, and the Superior Court should have referred the cause to a master in chancery tp ascertain the facts in dispute, on the basis of an interlocutory decree. That must be done before an appellate court can properly pass on the rights of the parties.

The'judginent of the Appellate Court will be reversed, and the cause remanded, with directions to reverse the decree of the Superior Court and remand the cause for further proceedings.

Judgment reversed.


text:
    The Coalfield Coal Company, for use, etc. v. Ferdinand W. Peck.

      Filed at Ottawa November 20, 1882

      Rehearing denied March Term, 1883.

    1. Appeals—effect of reversal and remandment. The only effect of a judgment of this court reversing the judgment of the Appellate Court, and remanding the case to that court without specific directions, is to render null and wholly inoperative the decision of that court, and to reinstate the case before it in the same condition it was before that court had acted on it at all.
    2. Same—as to rulings of Appellate Courts on the law and the facts. Where the Appellate Court reverses a judgment of the circuit court for a supposed error of law when the record of the trial court discloses none, the judgment of the Appellate Court will be reversed for that reason; and if the Appellate Court reverses for an error of fact, that judgment will be reversed if that court fails to certify, in its final order, the facts as found by the court. Without such finding of facts this court can not know whether its judgment was warranted by its own finding or not.
    3. The Appellate Court being the final arbiter as to the facts established by the evidence in a certain class of cases, this court is concluded by its finding of the facts, and has nothing to do with the evidence or reasons which controlled that court in arriving at its conclusions of fact, and so far as this court is concerned, it matters not whether the evidence was much or little, or sufficient or insufficient.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Will county; the Hon. F. Goodspeed, Judge, presiding.

      Mr. H. L. Thayer, for the appellant:
    It is, in this State, a well settled rule of law that the finding and judgment of a court of last resort are res judicata as to all questions in controversy, including not only such questions as were considered, but also those which might have been presented, considered and determined. Clayes v. White, 83 Ill. 540; Reed v. West et al. 70 id. 479; Ogden v. Larabee, id. 510; Rising v. Carr, id. 596; Kingsbury v. Buckner et al. id. 514; Cook v. Norton, 61 id. 286; Rogers v. Higgins, 57 id. 247; Hollowbush v. McConnell, 12 id. 204; Semple v. Anderson, 4 Gilm. 561; Diversy v. Johnson, 93 Ill. 547; Chicago and St. Louis R. R. Co. v. Holbrook, 92 id. 297; Hough v. Harvey et al. 84 id. 308.
    Mr. S. W. Packard, and Mr. George S. House, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

At the October term, 1877, of the circuit court of Will county, H. Leroy Thayer recovered a judgment against.the Coalfield Coal Company, for $5963.21, and costs of suit. Subsequently, on the 25th of November, 1878, the company, in a garnishee proceeding under the 8tli section of chapter 32, of the Eevised Statutes, entitled “Corporations,” recovered a judgment, for the use of Thayer, against Ferdinand W. Peck, as garnishee, on account of an alleged indebtedness to the company for unpaid subscriptions to its capital stock, for the sum of $6087.87. On appeal by Peek to the Appellate Court for the Second District this judgment was reversed. The company thereupon appealed from the judgment of the Appellate Court to this court, where the latter judgment was reversed, and the cause remanded without special directions to that court. (See Coalfield Coal Co. v. Peck, 98 Ill. 139.) Peck filed a petition for a rehearing, which was considered at the March term, 1881, and this court, in denying the rehearing, then said, in a per curiam opinion:

“This is an application by Peck for a rehearing. The application must be denied. When the case was considered, we found that the circuit court had found the issues of fact against Peek, and rendered judgment thereon. The Appellate Court reversed this judgment, making no remanding order. On examination of the record of the Appellate Court we found that court did not ‘recite in its final order or judgment the facts found’ by that court. The statute provides, that ‘if any such final judgment of the Appellate Court shall be made as the result, wholly or in part, of a finding of facts * * * different from the finding of the court from which the cause is brought, * * * it shall be the duty of such Appellate Court to recite, in its final order, judgment or decree, the facts as found.’ In the absence of such recital this court could not properly decide the case upon the hypothesis suggested,—that the judgment of the Appellate Court was founded, in any respect, upon a finding of facts different from the finding in the court below. We therefore examined the questions of law found in the record of the circuit court, and found no error therein. Finding no error of law in the record of the circuit court, and no error of fact being shown in the only manner provided by law for showing the same, the judgment of the Appellate Court was necessarily reversed. * * * We therefore remand the. cause to the Appellate Court, without specific directions. If, when the case comes before that court, the facts are held by the Appellate Court to be different from the finding in the circuit court, that court may, of course, found its judgment upon such different finding, and the facts so found in such case must be recited in the judgment. If the facts be found by the Appellate Court in accord with the finding in the circuit court, in such case the judgment of the circuit court should, of course, be affirmed by the Appellate Court. ”

The cause having been thus remanded, the Appellate Court, upon a reconsideration of it, again reversed the judgment of the circuit court, and the company has prosecuted a second appeal to this court.

Upon an examination of the Appellate Court record it now appears, from the recitals in the judgment of that court, that it found the facts different from the finding of the circuit court, namely, that Peck, the garnishee, was not indebted to the company on account of subscription to its capital stock, as set forth in the affidavit of Thayer. Assuming the finding of the Appellate Court upon this vital fact to be true, as we are bound to do, it is clear the judgment of the circuit court was properly reversed, for the whole garnishee proceeding was based upon the assumption Peck was indebted to the company, and it being now conclusively settled, by the specific finding of the Appellate Court, that this assumption was and is unfounded, it irresistibly follows, however the case may be in every other respect, the action against Peck can not be maintained.

Counsel for appellant, however, seems to think that this and all other questions affecting the merits of the controversy were foreclosed and settled adversely to appellee by the reversal by this court of the former judgment of the Appellate Court, and the remanding of the cause without specific directions, as heretofore stated. This is clearly a misapprehension. The only effect of the reversal and remanding order' was to annul and render wholly inoperative the decision of the Appellate Court, and reinstate the case- before it in the •same condition it was before that court had acted on it at all. Upon the record then before us not perceiving any error of law in the proceedings before the circuit court, and no finding of facts by the Appellate Court having been certified to this court, we were unable to determine whether the judgment of the circuit court had been reversed for some supposed error of law or upon an error of fact. If for a supposed error of law, when the record of the proceedings in the circuit court disclosed none, the judgment of the Appellate Court should have been reversed for that reason. If for an error of fact, the judgment should have been reversed, for the reason the Appellate Court failed to certify, in its final order or judgment, the' facts as found by that court, for without such certificate of its finding this court could not know whether its judgment was warranted by its own finding of the facts, or not. So, under the circumstances, the judgment of the Appellate Court, upon either hypothesis, was properly reversed. But as already shown, such reversal did not, under the circumstances stated, preclude the Appellate Court from reconsidering the case in the same manner as if the case was before it for the first time.

It is also urged with great persistency, there were no controverted questions of fact in this ease. This is also a clear misapprehension. The whole case turned upon a single question of fact, namely, whether Peck had paid his subscription to the capital stock of the company. This was the vital issue in the case, and the Appellate Court has specifically found this issue of fact in favor of the appellee.

But it is said there is no controversy about the evidence, and that the same, as it appears in the record, is not sufficient to show such payment. So far as this court is concerned, it does not matter whether the evidence was much or little, sufficient or insufficient. It is the finding of the Appellate Court upon the issue of fact with which we have to deal, and not the evidence or reasons which controlled that court in arriving at its conclusion.

All questions relating to the sufficiency of the testimony, or to the alleged conspiracy, collusion and fraud, which have been pressed upon our attention with so much earnestness and zeal, were highly appropriate for the consideration of the Appellate Court, which, by law, is made the final arbiter of such matters; but this court clearly has nothing to do with them. The construction which we now give the statute relating to this subject has been so often repeated in the previous decisions of this court, it is difficult to perceive how there can be any misapprehension with respect to it.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    Albert Harzfeld et al. v. Edward W. Converse et al.

      Filed at Ottawa January 31, 1883

      Rehearing denied March Term, 1883.

    1. Appeals—evidence of grounds of decision of Appellate Court. Upon an appeal from an appellate court the opinion of that court can not be looked into to ascertain what that court decided. It must appear from the judgment or final order of the court.
    2. Same—reversal, when a final judgment. The judgment of the Appeliate q0U1.j; reversing the judgment of the trial court will be treated as a final judgment on the merits, independently of any action or ruling of the latter court on the trial of the case.

      Same—only from final judgments. No appeal will lie to this court from a judgment of the Appellate Court merely reversing the judgment of the court, unless it is a final one, disposing of the case on its merits. The Appellate Court may render final judgment on appeal or error, and cause execution to be issued thereon. .
    4. Same—/acts found by the Appellate Cowrt are conclusive. Where the Appellate Court finds the facts in an ordinary suit at law, upon which it bases its final judgment, this court is precluded by the statute from finding them otherwise, and will not consider any questions of law that may arise on a different state of facts.
    5. Rescission—purchaser must rescind in toto, or not at all. A party will not be permitted to affirm a contract in part, and rescind as to the residue. If he rescinds at all, he must do so in toto. The opposite party must be placed in as good a condition as he was before the sale by a return of the property purchased, unless it is entirely worthless.
    6. Where the plaintiff, in an action to recover back a portion of the purchase price of certain goods, had purchased of the defendant six cases of beavers under an entire contract, and upon receiving the same made no objection to any part of them, and did not, before suit, offer to return to the defendant all the goods, but confined his offer to return to a portion, and expressly elected to retain the other part, it was held, that the plaintiff could not recover, in an action for money had and received, the price of the goods objected to.
    • Appeal from the Appellate Court for the First District;—. heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Flower, Remy & Gregory, for the appellants:
    In the case of an executory contract of purchase of goods, or purchase by sample, the rejection of articles not answering to the terms of the contract 'does not stand upon the ground of rescission, nor does the right to return the. goods depend upon a warranty. Mansfield v. Trigg, 113 Mass. 350.
    In a sale with warranty the seller sells a certain article, and warrants its quality. In an executory contract to sell, he agrees to furnish articles of a certain quality. Unless he does so, the purchaser is not bound to receive them. Hubbard v. George, 49 Ill. 275.
    The right .to reject must be exercised before the title to the goods tendered has passed. After the goods have been accepted, or a reasonable time has elapsed after delivery for the purchaser to inspect, no right of rejection will exist, even though the goods are not such as were contracted for. Doane v. Dunham, 65 Ill. 512.
    In a case of this kind, where the purchaser is not held to a rescission, but to a mere rejection, a notice that the purchaser holds the goods subject to the seller’s order, or an offer to return, is sufficient, and actual return is not required to maintain an action to recover back the price paid for the goods not accepted, as not being such as the contract requires. Doane v. Dunham, 65 Ill. 512; Ellis v. Roche, 73 id. 280; Grimoldby v. Wells, L. R. 10 C. P. 391; Lucy v. Mowflet, 5 H. & N. 233.

      Messrs. McCagg & Culver, for the appellees:
    The goods not having been returned to the appellees in New York, or offered to be returned to them there, appellants were not entitled to recover the purchase money in this form of action, based upon a rescission of the contract. A rescission of a contract must be in toto, and the other party placed in statu quo. Buchenau v. Horney, 12 Ill. 336; Downer v. Smith, 32 Vt. 1; Tisdale v. Buckmore, 33 Maine, 461; Kimball v. Cunningham, 4 Mass. 504; Conner v. Henderson, 15 id. 319; Norton v. Young, 3 Greenlf. 30; Carter v. Walker, 2 Rich. (S. C.) L. 40; 1 Chitty’s Pleading, 355; Stevens v. Lyford, 7 N. H. 360; Wolf v. Dietzsch, 75 Ill. 205.
    But the goods, in fact, were of the kind and quality purchased by appellants’ agent, and they have no just ground of complaint in any form of action.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

Originally, this action was commenced in attachment, by Albert Harzfeld and others, against Edward W. Converse and others, and the writ served on garnishees. A declaration . in assumpsit, containing only the common counts, was filed, and by agreement of parties the persons served as garnishees were discharged, and defendants filed a plea of the general issue. On the trial in the Superior Court plaintiffs obtained a verdict for $1997.56. A motion for a new trial was made by defendants. Before that motion was decided, plaintiffs remitted from the verdict in their favor the sum of $317.72, and thereupon the court overruled the motion for a new trial, and rendered judgment on the verdict for $1679.84. That judgment, on the appeal of defendants, was reversed by the Appellate Court, and the cause remanded to the Superior Court, “for such other and further proceedings as to law and justice shall appertain. ” Afterwards, on motion of plaintiffs, and without objection from defendants, the Appellate Court struck out the remanding order in their judgment previously rendered, and after finding certain facts, to he incorporated in its judgment and .final order, as amended, allowed plaintiffs’ motion for an appeal to the Supreme Court, on giving the usual bond in a sum fixed by the court, which was done.

The errors assigned in this court are: First, the Appellate Court erred in holding the third instruction given for the plaintiffs in the circuit court to be erroneous; second, the Appellate Court erred in holding plaintiffs were prevented from rejecting the five cases of beavers inferior to sample, because they had previously accepted one case as up to sample; and.third, that the court erred in reversing the judgment of the Superior Court. . There is nothing in this record, as it comes before this court, that-shows the Appellate Court held the third instruction given for plaintiffs in the trial court was erroneous. Nor is there anything that shows that court held, as a matter of law, that plaintiffs were prevented from rejecting five cases of beavers inferior to sample, because they had previously accepted one case as up to sample. According to the decision of this court in Coalfield Coal Co. v. Peck, 98 Ill. 139, the opinion of the Appellate Court may not be looked into to ascertain what that court decided. It must appear from the judgment or final order of the court. It is therefore clear, that on this appeal all that can be considered'is the third error of the series,—that is, did the Appellate Court err in reversing the judgment of the Superior Court.

The action of the Appellate Court in refusing to remand the cause must be treated as in effect rendering a final judgment in that court on the merits of the case, independently of any action or Ruling of the Superior Court on the trial of the case,—otherwise there could be no appeal from its decision. If it. were merely a judgment of reversal, and not a final judgment, in the sense that term is used in the statute, it is plain no appeal would lie to this court. Under the Practice act, the Appellate Court, in cases of appeal or writ of error, may render final judgment, and cause execution to be .issued. Unless that was done in this case no appeal would lie, and as the parties themselves have treated the judgment of the Appellate Court as final, this court may so regard it.

It will be seen the Appellate Court found the facts in the case to be as follows: “That the contract of sale and purchase of the goods in question, the purchase price of which plaintiffs sought to recover back as money had and, received by defendants to the use of plaintiffs, was an entire contract for six cases of beavers, and further find as' a fact that plaintiffs, after receiving said goods upon such contract, did not object to all of them as not being of the kind or quality contracted for, and further find as a fact that plaintiffs, at no time between that of the delivery to them of said goods and the commencement of this suit, offered to return to defendants all of said goods; but that they confined their offer to return to only a portion of the goods, and that they expressly "elected to return a portion of said goods. ” The context shows the word “return,” as last written.in the transcript of the final order of the court, must have been inadvertently written for “retain, ” and it will be regarded as if written “retain. ” It is apparent the only error that can be considered on the present appeal is, whether the Appellate Court erred in rendering final judgment for defendants, on the facts as that court found them to be. It is unnecessary to say .more than that the statute forbids, in cases of this kind, any assignment of error that will call in question the finding of the inferior or Appellate Court on controverted questions of fact. Assuming, then, as must be done, the facts to be as the Appellate Court •has found them to be, the correctness of the judgment of that court can not be seriously questioned. The rule of law is as well settled as any can be, that a party ’tfill not be permitted to affirm a contract in part, and rescind as to the residue. If he rescinds at all, he must do so in toto. The opposite party must he placed in as good a position as he was, before the sale, by a return of the property purchased, unless it is entirely worthless. (Wolf v. Dietzsch, 75 Ill. 205.) The facts as found by the Appellate Court bring the case precisely within the principle of the case cited and other cases in this court. It was found - plaintiffs purchased of defendants six cases of beavers under an entire contract; that after receiving the goods no objection was made to a part of them, and no offer was made, before the commencement of this suit to recover back the purchase price paid for the same, to return to defendants all the goods, but they confined their offer to a portion, and expressly elected to retain a part of the goods. That they could not do. The law is, as has been seen, if they undertook to rescind an entire contract, they must do it in toto, if at all.

Counsel insist the evidence given on the trial proves the goods in question were bought for plaintiffs on examination of a ease of goods on sample, and from that ease as a sample bought the six cases of beavers involved in this litigation; that one of the cases was immediately shipped to them, and was received and accepted by them as in part fulfillment of the contract, but by agreement the other five cases were not shipped to them, or in any manner set apart for them, until some three months after the date of the purchase; that upon their receipt they were found to be an inferior lot of goods, and that plaintiffs wrote to defendants expressly rejecting the goods, and advising them the goods were held subject to defendants’ disposition. Upon that state of facts counsel base their principal argument,—that by accepting one case of beavers delivered to them at the time of the sale, they were not thereby precluded from rejecting the other five cases shipped .to them some three months after the original purchase, and that were not equal to the sample. The difficulty does not lie so much in the argument on this branch of the case as it does as to the facts upon which it is based. The Appellate Court found the facts, on which is based its final judgment, to be very different from what counsel assume them to be, and this court, under the statute, is not at liberty to find them to be other or different from w'hat they are stated to be in the judgment or final order of the Appellate Court. The provision of the statute in that respect is imperative, and may not be disregarded. It is therefore wholly unnecessary to enter upon any consideration of the questions of law, so elaborately discussed by counsel, that are supposed to arise on a state of facts other or different from those incorporated in the judgment or final order of the Appellate Court, and it will not be done.

Whether this-court is satisfied or not with the' judgment of the Appellate Court, no question arises that can be reviewed on this appeal. On the facts as found and incorporated in the judgment or final order of the Appellate Court the law is so manifestly with defendants, it can not be a matter of dispute.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.