author: Mr. Justice Craig

text:
    Michael Byrne v. The Town of La Salle.

      Filed at Ottawa January 19, 1888.

    1. Taxation—personal liability for taxes due on forfeited property. Under section 230 of the Revenue law, a judgment recovered by any county, city, town, etc., for the taxes due on forfeited land or town lots, is as binding as if recovered on a promissory note, and the plaintiff will have the right to collect it by execution, the same as any other judgment.
    2. After such judgment the tax debtor can not inaugurate a proceeding under section 203 of that law, and have his land or lots sold to the highest bidder, and thereby relieve himself from personal liability to pay his taxes. Such a proceeding will have no effect on the judgment.
    3. If the authorities intrusted with the collection of the revenue should proceed under section 203 of the Revenue act, and should cause the forfeited lands to be sold for the amount of the delinquent taxes due thereon, such might be a bar to an action afterward brought to recover a personal judgment against the owner under section 230, but such proceeding would not in any way impair the validity of a personal judgment already rendered.
    Appeal from the County Court of La Salle county; the Hon. Frank P. Snyder, Judge, presiding.
    Mr. R. D. McDonald, and Mr. James W. Duncan, for the appellant.

      Mr. S. P. Hall, and Messrs. Bull, Strawn & Bug-er, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This is an appeal from a decision of the county court of La Salle county, refusing to quash an execution issued upon a certain judgment rendered in the county court, in favor of the town of La Salle, against Michael Byrne, and refusing to vacate a levy on certain property, which had been made under and by virtue of the execution.

The facts upon which the motion was predicated may be stated in a few words. In 1869 Michael Byrne became the owner of certain lots in the town of La Salle, and continued to be the owner from 1869 to 1883, inclusive. During the period stated, Byrne failed to pay the taxes on the lots, and the property, from year to year, was forfeited to the State. The town of La Salle brought an action against Byrne to recover the amount of taxes due on the property, and at the March term of the county court, 1885, a judgment was rendered for $246.16. Upon this judgment an execution was issued and levied on the lots owned by Byrne, and he appeared in the county court and entered this motion to vacate the levy and quash the execution. After the judgment had been rendered, and in the month of September, 1885, Byrne presented an affidavit to the county judge, county clerk and treasurer of LaSalle county, to the effect that the taxes on the lots in question exceeded the actual value of the lots, and the officers to whom the affidavit was presented granted a certificate that the taxes exceeded the value of the lots. This certificate was presented to the county treasurer and collector of taxes, and that officer advertised and sold the lots at public vendue, and this sale, it is claimed, worked a satisfaction of the judgment.

The proceeding relied upon as a satisfaction of the judgment is predicated upon section 203 of the Revenue law, (Starr & Curtis’ Stat. p. 2095,) as follows: “Every tract or lot so offered at public sale, and not sold for want of bidders, shall be forfeited to the State of Illinois: Provided, however, that whenever the county judge, county clerk and county treasurer shall certify that the taxes on forfeited lands equals or exceeds the actual value of such lands, the officer directed by law to expose.for sale lands for delinquent taxes, shall, on the receipt of such certificate, offer for sale, to the highest bidder, the tract or lands in such certificate described, after first giving ten days’ notice of the time and place of sale, together with a description of the tract or lands so to be offered, and a certificate of purchase shall be issued to the purchaser at such sale, as in other cases in this act provided; and the county collector shall receive credit, in his settlement with the custodian of the several funds for which such tax was levied, for the amount not realized by such sale, and the amount received from any such sale shall be paid by such collector, pro rata, to the custodian of the several funds entitled thereto.”

Section 230 of the Revenue law provides, that “the county board may, at any time, institute suit in an action of debt, in the name of the People, * * * for the whole amount due on forfeited property; or any county, city, town, school district, or other municipal corporation, to which any such tax may be due, may, at any time, institute suit in an action of debt, in its own name, * * * for the amount of such tax due any such corporation on forfeited property, and prosecute the same to final judgment.” It was under this section of the statute that the town of La Salle recovered judgment against Byme. The judgment was rendered for a definite sum of money, and it was as binding and obligatory as if it had been rendered upon a promissory note. It differed in no manner from an ordinary judgment rendered in the circuit or county court in an action of debt or assumpsit. The plaintiff who recovered the judgment had the right to collect it by execution, in the same manner that any other judgment might be collected. It is not claimed that the judgment has been paid, and not having been paid, the plaintiff had the undoubted right to enforce its collection by execution, unless there is some provision of the statute which authorized the defendant, Byrne, to escape liability by some other method. The statute, however, contains no provision of that character. There is no provision of the statute providing that a personal judgment rendered for taxes, such as this was, may be discharged in any other or different mode from that in which ordinary judgments may be discharged. Section 203 is one method provided under which the State, county or municipal authorities may enforce the collection of the revenue, and.seetion 230 is another mode. It may be true, if .the State, county or town authorities intrusted with the collection of the revenue had instituted proceedings under section 203, and had caused the lands to be sold for the amount of delinquent taxes due thereon, that such proceeding might be a bar to an action subsequently brought to recover a personal judgment under section 230; but no such-case is presented by this record. Those whose duty it was to collect the revenue, did not proceed under section 203. No steps whatever were ever taken by the State, county or town authorities under that section of the statute. On the other hand, a suit was brought, and a personal judgment recovered, under a different provision of the statute. The proceeding inaugurated under section 203 was instituted and carried on by Byrne, whose duty it was to pay the taxes, and we see nothing in the statute from which it may be inferred that the legislature ever intended, by its enactment, to aid any person in escaping the payment of his share of the public burden. Such, in our opinion, was not its object. The proceedings taken by Byrne under section 203, in our opinion, had no bearing or effect whatever on the judgment which the town of La Salle recovered against him.

The judgment of the county court will be affirmed.

Judgment affirmed*


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    John Wolf, Exr. v. Jacob Beaird et al. Exrs.

      Filed at Mt. Vernon January 20, 1888.

    1. Action—to recover back money paid by mistake. Money paid by one to another by a mutual mistake of facts in respect to which both were equally bound to inquire, may be recovered back in assumpsit, under the count for money had and received.
    2. Same—oyer-payment by an executor or administrator—as, being in excess of pro rata distributive share. Where an administrator or executor, under the honest belief that the estate is solvent, pays a creditor in excess of his pro rata distributive share, he may recover back the over-payment in an action for money had and received for the use of the estate, and, after final settlement, for his own use. In such case it matters not to the defendant whether the plaintiff sues in his representative capacity or in his individual name.
    3. A recovery of an over-payment made by an executor, after his final settlement, will be for his own use, although he may have sued in his representative capacity. If sued by the heirs of the testator, he can plead as a set-off the sum advanced by him to the estate to make up the over-payment.
    4. Before the expiration of two years from the grant of administration upon an estate, the executor paid a claim in full, in the belief that the estate was solvent, and in ignorance of the existence of two other large claims, which, within the two years, were presented and allowed. On final settlement it was found that the assets would pay only sixty-one per cent of the seventh class claims. The creditor so paid in full died testate, and the executor of the first estate, in his representative capacity, filed his claim against the estate of the latter to recover back the over-payment. Before the final hearing of this claim, on appeal, the executor of the first estate made a full settlement of his administration, and was discharged: Held, that his right of action accrued upon his payment of the claim in full, and that upon his final settlement the over-payment was recoverable for his individual use, and that he was entitled to have the allowance, notwithstanding it was filed in his representative capacity. The striking of a dividend by the county court was not a condition precedent to his right of action, but only afforded evidence of the condition of the estate.
    5. Evidence—of payment of claim by executor. The order of the county court approving the final report and settlement of an executor, showing the payment of all claims in full except the seventh class, and a certain per cent of them, and discharging the executor, is evidence of such payment by him, in an action by him to recover an over-payment.

      6. Pasties—in what capacity one may sue to recover over-payment by an administrator. Where the administrator of an insolvent estate pays one claim in full, or more than its pro rata share, under the mistaken belief the estate is solvent, the legal title of the money so paid being in him, he may recover the excess in the payment in his individual name. If he sues as administrator, those words may be treated as descriptive of the person, and disregarded as surplusage.
    7. Same—as to contracts with executor made after testator's death. An executor or administrator may sue, either in his representative or personal character, on contracts made with him after the death of his testator or intestate. And when an indebtedness grows out of a contract with the executor, express or implied, he may sue in his own name, and if the word “executor’^ is used after his name, it may be disregarded, as being immaterial.
    8. Costs—against am, estate—in suit by executor to recover over-payment. If an executor or administrator pays one creditor more than his distributive share, he will not be allowed to charge the estate with the expenses or costs of a suit brought by him, either in his individual name or in his representative capacity, to recover back such over-payment.
    9. County coubt—equitable powe^-s in the allowance of claims—forms of pleading. In the allowance of claims against estates, the county court is possessed of an equitable jurisdiction, and may disregard mere forms, and look to the substance. No written pleadings are required.
    Appeal from the Appellate Court for the Fourth District;—. heard in that court on writ of error to the circuit court of ¡Rich-land county; the Hon. William C. Jones, Judge, presiding.
    Messrs. Gibson & Johnson, for the appellant:
    Wolf had the right to pay Gharst’s allowance without any special order of the county court. Walker v. Craig, 18 Ill. 123.
    As 61.72 per cent was all that Gharst was entitled to receive under section 112, chapter 3, of the Revised Statutes, all that he received in excess of that amount, in equity and good conscience belongs to Wolf, and may be recovered. Watson v. Woolverton, 41 Ill. 241; Alderson v. Ennor, 45 id. 128; Belden v. Perkins, 78 id. 449; Barnes v. Johnson, 84 id. 95; Taylor v. Taylor, 20 id. 650; Bennett v. Conelly, 103 id. 56.
    Money paid by one party to another, through a mutual mistake of facts in respect to which both were equally bound to inquire, may be recovered back. City Bank v. Bank of Albany, 1 Hill, 287; Wheaton v. Olds, 20 Wend. 174.
    Money paid voluntarily, under mistake of facts, is recoverable, both at law and in equity, unless it be clear that the party making the payment intended to waive all inquiry into the facts. It is not enough that he may have had the means of learning the truth if he had chosen to make inquiry. The only limitation is that he must not waive all inquiry. Kerr on Fraud and Mistake, 415; Frambers v. Risk, 2 Bradw. 499.
    Money may be recovered which has been paid under a mistake, on the part of the payer, of a material fact,—that is, of a fact which, in the absence of mistake, would have made the person paying liable to pay the money. Chitty on Contracts, (10th Am. ed.) 694; 1 Chitty’s Pl. 355; Bank v. Mitchell, 88 Ill. 52; Stempel v. Thomas, 89 id. 147; International Bank v. Bartelott, 11 Bradw. 620; Bradford v. Chicago, 25 Ill. 411.
    When an administrator, supposing an estate solvent, pays a creditor of an estate more than his proper share, he may, in his individual character, recover back the excess. Walker v. Hill, 17 Mass. 380; Rogers v. Weaver, 5 Ohio, 536.
    The county court, in the allowance of claims, is clothed with both a law and equity jurisdiction. Dixon v. Buell, 21 Ill. 203; Hurd v. Slaten, 43 id. 348; Moline Co. v. Webster, 26 id. 239; Moore v. Rogers, 19 id. 348.
    An executor or administrator may sue, either in his representative or in his personal character, on contracts made with him, as executor, after the death of the deceased. Dicey on Parties, (Am. ed.) 233.
    The legal title to the money which Gharst received was in Wolf. Makepeace v. Moore, 5 Gilm. 474; Walker v. Craig, 18 Ill. 116; Neubrecht v. Santmeyer, 50 id. 74.
    A court of law will not inquire whether a plaintiff sues for himself, or as trustee for some other person. It is sufficient if he has the legal interest in the subject matter of the suit. Corbett v. Schumacher, 83 Ill. 403; Chadsey v. Lewis, 1 Gilm. 153; Manlove v. McHatton, 4 Scam. 95; People v. Stacy, 6 Bradw. 521; McHenry v. Ridgely, 2 Scam. 309; Laycock v. Oleson, 60 Ill. 31.
    The word “executor,” after plaintiff’s name, being merely descriptive of the person, may be treated as surplusage. Newhall v. Turney, 14 Ill. 338; McKinley v. Braden, 1 Scam. 66; Baker v. Ormsby, 4 id. 325.
    Messrs. Wilson & Hutchinson, for the appellees:
    Money voluntarily, paid can not be recovered back, and when an administrator pays a claim in full, without any order to do so, he can not afterward sue as such administrator, and recover it back, even if it turns put that he paid too much. Falls v. Cairo, 58 Ill. 403; Savings Institution v. Linder, 74 Pa. St. 371; Dunsan v. Benton, 5 Rob. (N. Y.) 457; Binmagin v. Tillingarst, 15 Cal. 165; Garrison v. Tillingarst, 18 id. 404.
    Over-payment of a claim, without authority by an executor, is a matter between the two individuals, and the estate should not be wasted in litigating such matters. When the executor finally settled the estate, and was discharged, the suit abated. Wolf could not maintain the suit in his individual name, because he had not then paid out any of his own money.
   Mr. Justice Magruder

delivered the opinion of the Court:

Edward J. French died testate on March 3, 1880. His will was admitted to probate in the county court of Bichland county, and letters testamentary were issued to the appellant, John Wolf, as the executor thereof, on March 8, 1880. The county court allowed two claims against French’s estate, one on May 18, 1880, and another on August 17, 1880, in favor of John B. Gharst. During the first year of the administration Wolf had money enough on hand to pay in full all the claims filed against the estate before the end of that year. He paidGharst thirty per cent of his two claims on August 17, 1880, and he paid him the balance of such two claims on October 15, 1880. On the latter date Gharst’s total claim against the estate was paid in full.

At the time Wolf paid Gharst’s claim in full, he and Gharst both believed that French’s estate was solvent and would not only be able to pay all the debts, but would have a surplus for the heirs. Both parties acted in good faith, the executor in paying, and the creditor in receiving the full amount of the claim. If the claims hereafter mentioned, which were not known to exist at that time, had not been filed, the surplus would have amounted to $1800.

Two large claims were allowed against the estate, one, on June 20, 1881, in favor of Robert Allyn, trustee, and another, on June 21, 1881, in favor of Lucy French, which made the estate insolvent as to the payment of claims of the seventh class. By the allowance of these latter claims, the assets were so reduced, that the estate was only able to pay 61.72 per cent of the claims of the seventh class, to which the Gharst claim and the Allyn and Lucy French claims all belonged. It thus turned out that Gharst had been overpaid by the amount of the difference between 100 per cent and 61.72 per cent.

Gharst died testate on September 4,1881, and the appellees are the executors under his will. Wolf, as executor of the estate of E. J. French, deceased, filed a claim against Gharst’s estate, in the county court of Richland county, for the excess of the amount so paid- to Gharst over the 'pro rata share to which he was properly entitled. On June 20,1882, this claim of Wolf against Gharst’s estate was allowed by the county court, and an appeal was taken to the circuit court, where the case was tried before the circuit judge without a jury by agreement. The circuit court ordered that the claim be allowed as a seventh class claim to be paid in due course of administration, and directed that its order be certified down to the county court for payment. The case was then taken by writ of error to the Appellate Court, which, at its February term, 1886, reversed the judgment of the circuit court and remanded the cause.'

A second trial was had before the circuit judge without a jury at the November term, 1886, which resulted in a judgment in favor of appellant against appellees. This judgment has been brought before the Appellate Court a second time and has been again reversed. It now comes before us by appeal from the Appellate Court, and upon certificate that the case involves a question of law of such importance, on account of collateral interests, that it should be passed upon by the Supreme Court.

Both Wolf and Gharst knew or were bound to know, that, under the law, Gharst could not lawfully receive his claim in full out of the assets of the French estate, unless those assets were sufficient to pay all claims of the same class with his own. There was a mutual mistake of facts in respect to which both parties were equally bound to inquire. They both believed that the assets were sufficient to pay the claims in full and acted upon such belief, but both were mistaken in regard to the fact. “Money paid by one party to another through a mutual mistake of facts, in respect to which both were equally bound to inquire, may be recovered back.” Canal Bank v. Bank of Albany, 1 Hill, 287; Wheadon v. Olds, 20 Wend. 174.

“The count for money had and received is also maintainable for the recovery of money paid under a mistake, on^ the part of the payer, of a material fact.” (2 Chitty on Contracts, (11th ed.) 928; 1 Chitty’s Pl. 355; Bank v. Mitchell, 88 Ill. 52; Stempfel v. Thomas, 89 id. 147.) Wolf was mistaken in a material fact. If he had not been mistaken in the fact, which he supposed to exist, that the assets were sufficient to pay the claims in full, in other words, if the assets had been sufficient to pay the claims in full, he would have been liable to pay Gharst the 38.28 per cent, so paid to him by mistake.

The filing of the claim by Wolf against Gharst’s estate was in the nature of an equitable action for money had and received, or money paid under a mistake of fact. If Wolf could have brought an action of assumpsit against Gharst in the latter’s lifetime for the excess of the payment over the proper pro rata share, then a claim for such excess was a proper claim to be filed against Gharst’s estate, so far as the nature of the demand is concerned.

It was held in Rogers v. Weaver, 5 Ohio, 536, that an administrator, who, under the supposition that the estate was solvent, had paid a creditor beyond his distributive share, might, upon final settlement, recover back the difference in an action for money had and received. See also Walker v. Hill, 17 Mass. 380.

When this case was tried a second time before the circuit judge, at the November term, 1886, it was proven, that appellant had filed his final report, as executor, on July 15, 1886, and had been discharged by the county court. The order of the county court entered at that date found, that the assets were only adequate to pay 61.72 per cent of the claims of the seventh class; that the estate was insolvent as to those claims; that Wolf had paid 61.72 per cent upon all the claims of the seventh class, and the final report was, by such order, confirmed and the estate declared to be settled. Hence, it appeared affirmatively, that appellant had advanced out of his own pocket the 38.28 per cent overpaid to Gharst. Otherwise he could not have settled all the seventh class claims at 61.72 per cent of their amounts.

It is claimed that appellant could only sue in his individual capacity, and not as executor, for the over-payment to Gharst, and that he could not bring suit until he had advanced money enough out of his own means to make up to the French estate the amount of such over-payment, the amount, which was paid to Gharst by mistake, having been the money of the estate and not his own money. Upon these grounds it is urged that when the claim was first filed in the county court in 1882, the cause of action was not ripe for suit.

When the claim was presented to the county court in June, 1882, Gharst’s estate owed the amount which had been overpaid to him in his lifetime. Whether Gharst’s estate then owed that amount to appellant, as executor, or to appellant, as an individual, or to the other creditors of the French estate, matters not, so far as the existence of the indebtedness was concerned. The debt existed to somebody, and the same debt existed all the way through up to the last trial in November, 1886. It could make no practical difference to the Gharst • estate, who owned the claim against it. As Gharst had received more money than he ought to have had, his estate was liable to refund the amount. This liability remained the same from the beginning to the end, whatever variations there may have been in the ownership of the claim, or in the form of the evidence, by which it could be substantiated.

In adjudicating upon the claim the county court was possessed of an equitable jurisdiction. (Dixon, Assignee, v. Buel, Admr. 21 Ill. 203; Hurd v. Slatten, 43 id. 348.) Equity disregards mere matters of form and looks at the substance.

It is said, that, when the claim was filed against Gharst’s estate, the county court had not declared the French estate insolvent, and had not, by an order, fixed the amount of the dividend or pro rata percentage belonging to the creditors. Nevertheless, the amount of such percentage was capable of ascertainment in June, 1882. The proof showed at that time the assets of the French estate, the amount of Gharst’s claim and the amounts of all the other claims including those filed in June, 1881. From these data it was easy to figure the amount of the percentage the creditors were entitled to and the amount of the over-payment to Gharst. The subsequent order made on July 15,1886, was more certain and definite evidence, but, after aU, it was only evidence of what already existed. When the appeal was taken to the circuit court, the trial in the latter court in November, 1886, was de novo, and it was proper to introduce then, as evidence, the order of July 15,1886, though the same evidence had not yet come into existence in 1882. Thorp v. Goewey, Admr. 85 Ill. 611.

It is said, that this claim was improperly filed by Wolf as executor of the estate of E. J. French, deceased. The money was paid to Gharst after the death of French. The law created an implied contract on the part of Gharst with Wolf to pay back the excess. An executor or administrator may sue, either in his representative or in his personal character, on contracts made with him after the death of the deceased. (Dicey on Parties to Actions, p. 233.) Where the indebtedness thus grows out of a contract with the executor, he may sue in his own name, or, if the word “executor” or “administrator” is used after his name, it will be regarded as merely descriptive of the person, and as being immaterial. Laycock v. Oleson, 60 Ill. 30.

The legal title to the money paid to Gharst was in Wolf. (Neubrecht v. Santmeyer, 50 Ill. 74; Walker v. Craig, 18 id. 116; Makepiece v. Moore, 5 Gilm. 474.) The right of action was in Wolf. The statute does not require any written pleadings in the case of a claim presented to the county court. (Thorp v. Goewey, Admr. supra.) If the right of action was in Wolf, as trustee for the French estate, upon the trial in 1882, but was in Wolf, as an individual, in 1886, by reason of his advance to the French estate of the money over-paid to Gharst, this change could make no difference to the Gharst estate. Wolf was still the legal claimant, whether claiming for himself or in trust for another. He could not charge the French estate with any of the costs or expenses of prosecuting the claim against the Gharst estate, even though he sued as executor, because he was suing to recover back money improperly paid out by himself.

Although the judgment entered by the court in November, 1886, was in favor of Wolf, as executor, he was entitled to the money in his individual capacity. The mere addition of the word, “executor,” to his name would make no difference. Nor could the amount of the judgment be recovered from him by the French estate, as assets of that estate, because he could plead as an offset the amount advanced by him to the French estate to make up the over-payment to Gharst.

We think the judgment rendered by the circuit court was right. The judgment of the Appellate Court is, therefore, reversed.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    The East St. Louis Connecting Railway Company v. The Wabash, St. Louis and Pacific Railway Company.

      Filed at Mt. Vernon January 20, 1888.

    1. Pleading—cownt in assumpsit, when the writ is in ease. A declaration is irregular, -which is really a count in assumpsit, while purporting to follow the writ, which is in ease.

    2. Same—of the declaration—in action against carrier. A declaration in an action on the case against a common carrier which fails to disclose the real ground of complaint, and make known just wherein the defendant is guilty of a breach of its promise or duty, is substantially defective.
    3. Oabbiebs—liability for re-delivery of railroad cars—carrier as an insurer. Where a plaintiff delivers cars to the defendant, a carrier, to be delivered to a manufacturing company, and they are so delivered, and such company receives the cars of the carrier and places them upon an independent track of its own, out of the defendant’s reach, and where he can not rescue them from danger, and they are accidentally destroyed by fire while in such place, the defendant carrier will not be liable for the loss.
    4. A connecting railway company, having a line of road connecting with the tracks of various other roads, received loaded cars from another railway company to be delivered by it upon the track of a manufacturing company, and to return the same when unloaded by the latter company, and did so deliver the same in accordance with its previous course of business. The cars were burned before being unloaded and re-delivered: Held, the former company was not liable for the loss of the oars, or for its failure to return them. When so delivered to be unloaded, the cars must be held to have reached their destination, and the carrier’s liability as insurer ceased; but if they, after being unloaded, are returned to the carrier which brought them to their destination, its liability will'commence anew, and continue until the cars are returned to the original consignor.

      Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding.
    Mr. Charles W. Thomas, for the appellant:
    It was not possible, under the facts of this case, to draw a provable declaration that would support a verdict, and counsel for appellant, at the proper time, moved in arrest of judgment. Stearns v. Cope, 109 Ill. 340.
    The declaration alleges that the cars were delivered to appellant, to be conveyed by it, as a common carrier, to the glucose works, “and after the said cars should be unloaded,” to be safely returned by it to appellee. As the cars never were unloaded, they could not be returned. The declaration fails to show that the cars ever were unloaded, and hence fails to show the appellant neglected any duty,—in other words, fails to show any breach of the alleged contract.
    The declaration has another manifest weakness. It fails to show in what manner the appellant carelessly and negligently conducted itself with respect to the cars. It makes no definite charge of any particular neglect or default of appellant which in any manner contributed to the loss of appellee’s property. A general charge in an action on the case for negligence, that the defendant, intending to injure plaintiff, so carelessly and negligently conducted himself with regard to plaintiff’s property that it was wholly lost to plaintiff, would scarcely be considered good pleading under the decisions of our courts. Railroad Co. v. Harwood, 90 Ill. 425; McGanahan v. Railway Co. 72 id. 557.
    It is the province of a declaration in case, to notify the defendant of the particular neglect or default of which it is claimed he has been guilty, in order that he may prepare his proof to meet the specific charge made. It might be sufficient, in an action of assumpsit against a carrier for non-delivery of goods, to make a general charge of negligence, because in that form of procedure the mere failure to deliver is the gist of the action; but in an action on the case, where negligence is the gist of the action, and where there can he no recovery unless negligence or willfulness is shown, it is necessary to charge specifically what negligence the defendant has been guilty of.
    The right of recovery seems to have been based upon the case of Peoria and Pekin Union Railway Co. v. Chicago, Rock Island and Pacific Railway Co. 109 Ill. 135. That case differs so widely from this that it is no authority.
    Nor is the position tenable, that appellant can, under the circumstances, be held as an insurer. This liability only attaches while the carrier has charge and custody of the consigned goods in its capacity of common carrier. There is no such liability where the goods have reached their destination, and are stored by the carrier for the consignee, although they may still he in the custody of the carrier. In the case of Missouri Pacific Railroad Co. v. Chicago Railroad Co. 28 Am. and Eng. R. R. Cases, 718, it was held, that where a railroad company received loaded cars from another road for transportation, it is liable as a common carrier in case they are destroyed en route by fire. If destroyed by fire after delivery to the consignee, or after they have been tendered to him, the company is not liable, if not in fault.
    The fact that by the custom of railroads empty cars are always re-delivered to a consigning railway free of charge, has no effect. It might raise a question of liability if the cars should be destroyed in the carrier’s hands after a re-delivery by the consignee, and while it was returning them without compensation ; hut that question is not presented here. These cars were destroyed while in the possession of appellee’s consignee.
    Mr. Gr. B. Burnett, for the appellee:
    By pleading over after the demurrer to the declaration was overruled, the appellant waived all defects in the declaration.

      The allegation of the declaration is, that through appellant’s fault the cars were destroyed, and that being so, it is immaterial whether they were unloaded or not. It is urged that the declaration fails to show in what manner appellant carelessly and negligently conducted itself, and said that a general charge of negligence is not good pleading. Such rule has no application to an action on the case against a carrier for a loss of freight. When sued, he can excuse himself by showing there was no negligence on his part. When, therefore, the charge is that the carrier negligently lost the goods, the act of negligence is sufficiently charged, because, as before stated, “everything is negligence in a carrier which the law does not excuse,” and the averment, that through the negligence of the carrier the goods were destroyed by fire, is a specific charge of the “negligence the defendant has been guilty of.”
    For a full and complete answer to all that is urged against the sufficiency of the declaration in this regard, see Hutchinson on Carriers, secs. 739-742.
    The case at bar is a much stronger case for the plaintiff than Peoria and Pekin Union Railway Co. v. Chicago, Rock Island and Pacific Railway Co. 109 Ill. 135.
    A carrier receiving freight marked to a particular place, undertakes and is bound to carry to that place, although beyond its own line. If the freight is transported in part over connecting lines, the latter are held to be the agents of the initial carrier in the performance of the carriage, and the owner may look to the latter in case of loss, whether occurring on its own line or a connecting line. Railroad Co. v. Johnson, 34 Ill. 389; Railroad Co. v. Frankinburg, 54 id. 88; Railway Co. v. Monfort, 60 id. 175; Field v. Railway Co. 71 id. 458; Railway Co. v. Smith, 74 id. 197; Railway Co. v. Jaggerman, 115 id. 407.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from the Appellate Court for the Fourth District, affirming a judgment of the City Court of East St. Louis, in favor of the Wabash, St. Louis and Pacific Bail-way Company, against the East St. Louis Connecting Bail-way Company, for the sum of $600 and costs of suit. The evidence tends to show that the plaintiff, on the 16th day of December, 1883, delivered to the defendant, in East St. Louis, two flat cars loaded with coal, to be by it carried and delivered to the East St. Louis Glucose Works, in the same place, and to return the empty cars to the plaintiff when they should be unloaded by the glucose company. The cars, with their contents, were properly and in due time delivered to the glucose company, and while in its possession, without any fault or negligence on the part of defendant, were destroyedUiy fire. Appellee thereupon brought the present action against the apqMumt, to recover damages for the loss of the cars. The cause was heard before the court without a jury, with the result already stated.

Upon the trial of the cause, the court was asked to1 hold, among others, the following proposition:

“1. The court is requested to hold, that if the evidence in this case shows that plaintiff delivered the cars in question to defendant, to be delivered to the glucose works, and they were so delivered, and that the glucose works received the cars of defendant and placed them upon an independent track of said works, out of the defendant’s reach, and where the defendant could not rescue them from danger, and that while in such place they were accidently destroyed by fire, plaintiff can not recover for their loss in this case.”

—Which the court declined to do, and this is assigned for error. We think the proposition, under the proofs, announced a correct principle, and should therefore have been held by the court as asked. The evidence shows, or at least tends to show, that the defendant, as its name imports, is what is known as a connecting railway; that its line of road connects it with all the railroads (a dozen or more) coming into East St. Louis, including the plaintiff’s; that its business was and is to carry cars containing consignments of grain, merchandise, material, fuel, etc., from the tracks or depots of any or either of these companies to the elevators, factories and other places of business on the tracks or side-tracks of the other roads, and to return the car or cars, after having been unloaded by the consignee, to the proper company. In this case, however, the defendant could not reach the glucose works by its own line of road or that of any of the other companies. Its only means of connection with that establishment was a turn-table connecting defendant’s tracks, and a private track of the glucose company extending to its business establishment, a distance of some three hundred feet from the turn-table. The defendant had no interest in or control over the track of the glucose company, and even if it had, it could not, by reason of the location of the track, and manner of its construction, have used it. All the defendant was accustomed to do, and, indeed, all that it could do, with consignments for the glucose company, was to run the cars upon the turn-table, then shove them off upon the private track of that company, and when by it taken to their destination, unloaded and run back to the turn-table, to return them to the consignor.

Assuming these facts to be true, and we must so regard them, in passing upon the propriety of the ruling of the court, the question arises, what duties did the law, under the circumstances, imply and impose upon the defendant with respect to the cars in question? We think, when the cars, with their contents, were shoved off the turn-table on to the private track of the glucose company, in conformity with their previous course of business, they had reached their destination,' and that consequently the defendant’s liability as an insurer ■of them, ceased. Had the glucose company unloaded and returned them, as it was accustomed to do, the defendant’s liability as a common carrier would have commenced anew, and continued until they were delivered to the appellee. This, is the view we take of the law of the case, and no additional words by us would probably make it plainer.

It is supposed that the ruling of the lower court finds support in the case of Peoria and Pekin Union Railway Co. v. Chicago, Rock Island and Pacific Railivay Co. 109 Ill. 135. We do not think so. It is true, general expressions are to be found in the opinion in that case, which, if considered independently of the facts and circumstances to which they related, possibly give color to this claim. But as has been said time and again by this and other courts, the language of an opinion must-always be construed with reference to the facts in the particular case in which the language is used. The difference between the ease referred to and the present one, is so radical and well-defined that it requires no discussion at our hands. That is sufficiently done in appellant’s brief, and anything we might pertinently say upon the subject would necessarily be more or less a repetition of what is there said.

• As the case must be reversed for the error indicated, it may be proper to add, in conclusion, that we regard the declaration not only irregular, as being really a count in assumpsit, while it purports to follow the writ, which is in case, but it is also, in our opinion, substantially defective in not disclosing the real ground of complaint. It seems to have been drawn with a view of covering up rather than making known just wherein the defendant was guilty of a breach of its promise.

The judgments of the courts below are reversed, and the cause remanded to the City Court of East St. Louis for further proceedings in conformity with this opinion.

Judgment reversed.


author: Mr. Justice Scholfield

text:
    The Commercial Insurance Company v. J. Y. Scammon.

      Filed at Ottawa January 19, 1888.

    1. Bight op trial by jury—and of the power of the court to control a/nd give direction to the action of the ju/ry. The constitutional guaranty as to the right of trial by jury is simply of the right as it was enjoyed at the adoption of the constitution.
    2. All real questions of fact must be tried by a jury when demanded, but it is for the court to say whether evidence offered is pertinent to the issue, and also whether there is sufficient evidence before the jury to present an issue of fact under the pleadings, and if there shall not be, to direct what verdict shall be returned.
    3. Same—action of the Appellate Court in finding the facts differently from, the jury, and giving the proper judgment. If the jury should find for a defendant when the evidence, with all the inferences that they could justifiably draw from it, is so insufficient to support the verdict that the trial court would have been warranted in directing them to find for the plaintiff, but failed to do so, an appellate court, in rendering the judgment that should have been rendered in the trial court, will no more invade the province of the jury than would the trial court if it had directed what verdict the jury should return.
    4. It is not within the province of the trial court to weigh the evidence and determine where the preponderance is. Its function is limited strictly to determining whether there is or is not evidence legally tending to prove the fact affirmed,—evidence from which, if credited, it may reasonably be affirmed, in legal contemplation, the fact affirmed exists, leaving out of view the effect of all modifying or countervailing evidence. That power which the trial court might have exercised on the trial, the Appellate Court may exercise on appeal or writ of error.
    5. Appeals—misapplication of the law by Appellate Court—upon the facts as found. If it shall appear from the facts found by the Appellate Court, and recited by it, that the law has been improperly applied by that court, in any respect materially affecting the judgment rendered, it will be the duty of this court to reverse the judgment of the Appellate Court.
    6. Same —finding of facts by the Appellate Court—and certifying the same—and herein, for what pun-pose this court may consider the evidence. Where the Appellate Court finds the facts in support of its judgment different from the trial court, the facts recited must include every material issue submitted to the trial court, to authorize the Appellate Court to render final judgment different from the one below. And this court may look to the record to see what were the issues in the case, and whether there was any evidence tending to prove them.
    7. This court is not authorized, however, to look into the record to find what the facts are upon an issue of fact, and determine therefrom how the Appellate Court should have found when that court fails to certify as to its finding in respect to such issue.
    8. On the trial of an action on a policy of insurance, to recover for a loss by fire, the issues of fact were, first, whether the property insured had been sold unáer'a certain mortgage, so as to effect a change of title, etc.; second, whether the notice and proofs of loss were sufficient, and served in time; and third, whether a policy of insurance upon the same property and for the same amount, issued by the defendant to a third person subsequent to the issue of the policy sued on, and the loss on which was fully paid, was issued in lieu of the former, with the consent of the plaintiff. The trial below resulted in a verdict and judgment for the defendant. The Appellate Court reversed the judgment, and entered one for the plaintiff, and certified to its finding of the facts only as to the first two issues: Held, that for the failure to find the facts as to all the issues, the judgment of the Appellate Court must be reversed.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Eire Hawes, Judge, presiding.
    Messrs. Miller, Lewis & Judson, for the appellant:
    The Appellate Court is not authorized to make a special •finding of facts, except when it is in part, at least, from the finding of the court below. Gammon v. Huse, 100 Ill. 239.
    The circuit court was not asked to make, and did not make, any finding of facts, and it can not therefore be said that the findings of fact by the Appellate Court are different from those of the circuit court.
    It may have been held that the sale and conveyances given in evidence operated as a change of title, and were a complete defence. This was a question of law, and the appellee asked for no ruling on that question, and whether the court was right or wrong, its decision can not be inquired into by either the Appellate or Supreme Court. Hobbs v. Ferguson's Estate, 100 Ill. 232.

      The Appellate Court, upon appeal, can not try the case de novo, and render a judgment against a defendant, and any statute which attempts to confer such power is unconstitutional and void. The party has the right to a trial hy jury. Const. 1870, art. 2, sec. 5; Sedgwick on Construction of Statutory and Constitutional Law, 483, 484, 486, note; Whitehurst v. Cohen, 53 Ill. 247; Ross v. Irving, 14 id. 171.
    The Appellate Court may grant a new trial, but under the constitution it can not be invested with power to find the facts of a case. Baylis v. Insurance Co. 113 U. S. 316; Benlow v. Robbins, 72 N. C. 422.
    Where the constitution provides for the creation of courts with appellate jurisdiction only, an act of the legislature designed to invest such courts with power to try a case de novo, is unconstitutional. State of Florida v. King, 20 Fla. 399.
    Where a jury is waived, and the cause submitted to the court for trial, the same force and effect are given to the finding of the court as to the verdict of a jury. Wood v. Price, 46 Ill. 435; Travers v. Wormer, 13 Bradw. 39; Field v. Railroad Co. 71 Ill. 458.
    Mr. Charles F. White, and Mr. Martin L. Wheeler, for the appellee:
    A court can not properly submit to a jury facts on which the testimony is all one way. Wisner v. Davenport, 5 Mich. 501; Mining Co. v. Brady, 16 id. 332; Medina v. Perkins, 48 id. 67; Seligman v. Ten Eyck, 49 id. 104; Chadwick v. Butler, 28 id. 349; Pardee v. Davis, 103 Pa. St. 451.
    Where the only conflict in the evidence is upon irrelevant and immaterial matters, the court may properly direct a verdict without assuming the functions of a jury. James v. Fowler, 90 Ind. 563.
    It is error to submit undisputed facts to a jury as if they were in issue. Lange v. Perley, 47 Mich. 352; Scott v. Clayton, 54 Wis. 499.

      By implication it has been held by the United States Supreme Court, that a case should be withdrawn from a jury when the testimony is of such a conclusive character as to compel the court, in the exercise of. a sound legal discretion, to set aside a verdict in opposition to it. Life Ins. Co. v. Lathrop, 111 U. S. 613; Insurance Co. v. Dexter, 106 id. 32.
    It is a usual practice in all courts to direct a verdict when the facts are undisputed. Brown v. City of Aurora, 109 Ill. 166.
    The power conferred upon the Appellate Court by section 88 of the Practice act, to incorporate in its judgment a finding of facts different from those found by the trial court, is not unwarranted by the constitution.
    Section 11, of article 6, of the constitution of 1870, provides for the creation of inferior AppeHate Courts, to which such appeals and writs of error as the General Assembly should provide, might be prosecuted.
    The question whether the Appellate Courts or the Supreme Court shall examine questions of fact, is simply one of practice, and this court has held that parties have no vested rights in the practice governing courts, except as the right of trial by jury is concerned. Kerfoot v. Mound Co. 115 Ill. 502.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was an action in the circuit court of Cook county, on a policy of fire insurance. The issues were tried, by agreement of parties, by the court, without the intervention of a jury, and judgment was rendered for the defendant. The plaintiff appealed to the Appellate Court for the First District, and that court reversed the judgment of the circuit court, and rendered final judgment for the plaintiff. This appeal is from that judgment.

Appellant contends that the judgment is void, because the court had no authority to render a final judgment contrary to the finding of the court acting in the place of the jury. It is provided by section 81 of the amended Practice act, (2 Starr & Curtis, chap. 110,) that “in all cases of appeal and writ of error, the Supreme Court or Appellate Court may give final judgment and issue execution.” It is not denied that this language is broad enough to justify the judgment as rendered, but it is contended that it can not have been intended by the General Assembly to authorize final judgment to be rendered contrary to the verdict of the jury, because that would be to deny to the party the right of trial by jury, as guaranteed by section 5, article 2, of the present constitution. But that guaranty is simply of the right of trial by jury as it was enjoyed at the adoption of the constitution. Pryor v. Irving, 14 Ill. 171.

The question of fact, when there is in the evidence a real controversy of fact, must be tried by the jury, but it is for the court to say whether evidence offered is pertinent to the issue, and also whether there is sufficient evidence before the jury to present an issue of fact, under the pleadings, and if there shall not be, to direct what verdict shall be returned. Bartelott v. International Bank, 119 Ill. 259; Lake Shore and Michigan Southern Railway Co. v. O'Conner, 115 id. 254; Simmons v. Chicago and Tomah Railroad Co. 110 id. 340; Frazer v. Howe et al. 106 id. 563; Randall v. Baltimore and Ohio Railroad Co. 109 U. S. 478; Herbert v. Butler, 97 id. 319. And so, if the jury were to find for the defendant, when the evidence given at the trial, with all the inferences that they could justifiably draw from it, is so insufficient to support their verdict that the court would have been warranted in directing them to find for the plaintiff, but failed to do so, an appellate court, in rendering the judgment that should have been rendered in the circuit court, no more invades their province than would the circuit court, under those circumstances, had it directed what verdict the jury should return. As we said in Frazer v. Howe et al. supra, as to the function of the judge in the trial court, it is not within the province of the judge to weigh the evidence, and ascertain where the preponderance is. His function is limited strictly to' determining whether there is or is not evidence legally tending to prove the fact affirmed,—evidence from which, if credited, it may reasonably be inferred, in legal contemplation, the fact affirmed exists, laying entirely out of view the effect of all modifying or countervailing evidence. So we say in regard to the appellate tribunal. That power, in this respect, which the trial court could and should have exercised on the trial, the Appellate Court may exercise on appeal; and in order that the Appellate Court may not arrogate to itself the exercise of arbitrary or capricious power in this way, it is provided by section 87 of the present Practice act, (2 Starr & Curtis, chap. 110,) that “if any final determination of any cause, as specified in the preceding sections, shall be made by the Appellate Court, as the result, wholly or in part, of the finding of facts concerning the matter in controversy, different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite, in its final order, judgment or decree, the facts as found, and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause.” Necessarily, therefore, if it shall appear, upon the facts recited, that the law has been improperly applied by the Appellate Court, either in the respect we have just considered, or in any other respect materially affecting the judgment rendered, it will he the duty of this court to reverse the judgment, but otherwise it should be affirmed.

But the question still remains, does the recital of facts in this record conform to the statute ? It is obvious that the facts recited should include the facts concerning every material issue submitted to the trial court, otherwise a judgment might be rendered for the plaintiff by the Appellate Court on one issue, while on an issue not considered by that court the trial court decided, and properly so, in favor of the defendant-. We may look to the record to see what were the issues in "the case, and whether there was any evidence tending to prove them. Bank of Montreal v. Page, 98 Ill. 109.

On looking into this record, we find that it was contested, on the trial, first, whether the property insured had been sold under a certain mortgage, so as to effect a change of title, in violation of one of the clauses of the policy; second, whether the notice and proofs of loss were sufficient, and served in apt time; third, whether a policy of insurance, upon the same property and for the same amount, issued by the defendant to one Babcock, subsequent to the issuing of the policy upon which this suit is brought, and the loss upon which was fully paid before this suit was brought, was issued in lieu of the policy upon which this suit is brought, with the consent of Scammon.

We think it too plain for argument, that if the latter question should be answered in the affirmative, the policy upon which suit is brought was extinguished, and there can be no recovery upon it. We can not know that the circuit court did not render its judgment upon that finding of fact, and if so, the ruling of the Appellate Court upon the questions discussed by it is inconclusive. Nor are we allowed to look into the record and find for ourselves what the facts were upon that question, and determine therefrom how the Appellate Court should have found. Since the present-record only certifies the facts found as to the first two issues, it is insufficient, and the judgment should be reversed, and the cause remanded with direction to the Appellate Court to render a judgment de novo,- and if that court shall still be of opinion that on the record before it the judgment of the circuit court should be reversed and final judgment should be rendered in that court for the plaintiff, that such judgment be rendered, and that the facts found upon which their judgment is predicated, as respects all the questions contested in the circuit court, be certified. This conforms to what we held in Fitzsimmons v. Cassell, 98 Ill. 332, and what we believe to be the proper practice.

The judgment is reversed, and the cause remanded to the Appellate Court for the First District for further proceedings in conformity with this opinion, and leave is given to withdraw the record of the circuit court filed in this court, for the purpose of refiling it in the Appellate Court.

Judgment reversed.


author: Mr. Chief Justice Sheldon Per Curiam :

text:
    Phebe A. Woodburn v. James H. Woodburn et al.

      Filed at Ottawa November 11, 1887

      Rehearing denied March Term, 1888.

    1. Consideration—swrrender of claim to- land devised, as a consideration for an agreement by a beneflcia/ry to relingwish am interest in the fund. Where a residuary legatee, who in good faith claims the title to or an interest in land directed by the will of his father to be sold to make a provision for the payment to the testator’s widow of the yearly sum of §1000 from the interest on the proceeds, gives up his claim, and agrees to quitclaim to the purchaser all his interest in the premises, this will form a sufficient consideration for an agreement by the widow to relinquish, in his favor, her right to the interest upon a stipulated portion of the fund.
    2. Administration oe estates—trust fund created by will, to be hept intact. A testator directed his executor to sell land claimed by him, and that the proceeds should constitute a fund, the interest of which, to the extent of §1000, was to be paid to his widow during her life, and after her death was to go to his son for his use during his life, and at his death to his children. The son became the purchaser for the price of $15,150, for which he gave his notes to the executor. The son sold a part of the premises to the widow for $2180, for which she gave her notes to the executor, who credited that amount on the son’s notes. On bill by the widow, the court directed the cancellation and surrender of these notes to her, in payment of the debt due her from the executor: Held, that the notes of the widow were a part of the trust fund, and should have been held and kept intact by the executor, and that it was error to order them to be surrendered, and that the error was not cured by an order that when the amount of the notes should be collected of the executor, it should be re-invested in securities to be held as a part of the fund.
    3. Interest—rate, when not fixed by contract. Where interest, simply, is named in a contract, the rate of interest, where nothing appears to the ■contrary, will be six per cent, the rate fixed by the statute, where there is no contract as to rate.
    4. Purchaser—at executor’s sale—purchase by one owning a part interest. A sale of land by an executor, to a son of the testator, will not be set aside at his instance, merely for the reason that at the date of the sale he was the beneficial and real owner, when it appears, from a decree in partition, that he was the owner only of an undivided half thereof. Such a •decree, however erroneous, can not be disregarded in a collateral proceeding.
    5. Donatio mortis causa—delivery to a third person. A testator, while his will was being drawn, a few days before his death, handed a note held by him on his son, to the executor, who was writing the will, saying, ■“You give that note to James (the son) in case he does not contest the will,” and directed that if he did, to collect the same. The executor then handed the note to the widow, and told her to take care of it, who returned it to the place from which it was taken, but he afterward received it from
    ■ the widow and gave it to the son, who did not contest the will: He Id. that there was a complete and valid donation of the note mortis causa. The ■delivery in such case may be to a third person, for'the donee.
    6: Practice in the Supreme Court—assigning error upon a decree against mother. A decree in chancery, in settling the rights of parties in -an estate, charged against the executor of the estate the amount of a certain promissory note which had been given to his testator in his lifetime by a son of the latter. The executor resisted the charge on the ground that the testator had made a gift of the note to the maker of it, the son, mortis causa. The charging of the note against the executor was a determination against such a gift. The beneficiary of the gift was a party to the suit, and was enough of a party in interest, as respects the subject matter of the gift, to entitle him to assign as error the rendering of the decree for the amount of this note against the executor, in favor of the estate.
    . Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of White-side county; the Hon. John V. Eustace, Judge, presiding.
    This is an appeal by Phebe A. Woodburn from the judgment of the Appellate Court for the Second District, rendered upon a writ of error sued out of said court by James H. Wood-burn, wherein was reversed, in part, a decree of the circuit court of Whiteside county in favor of said Phebe A. Wood-burn.
    George W. Woodburn, father of James H. Woodburn, and late husband of Phebe A. Woodburn, died on or about June 19, 1872, leaving a will, wherein Peter Ege was appointed executor. The will directed the executor to sell all the testator’s real estate,—being the farm on which he lived,—or so much thereof as might he necessary for the payment of his debts, “also to sell an amount sufficient to raise a fund sufficient to pay of interest to my beloved wife, Phebe Ann Woodburn, $1000 per year, which amount shall be for her support during her lifetime, and at her death this fund shall go to my legal heirs in the order below mentioned,—that is, to my son, James H. Woodburn, if living, for his use during his lifetime, at his death to go to his children,” etc. The residue of the testator’s property was to go to his son, J ames H. Woodburn, in fee simple. Another direction was, that until such sale the widow should receive for her support the proceeds of the farm. The last clause directed “that in case the proceeds of the farm do not make one thousand ($1000) dollars, as in item above stated, my executor pay, or cause to be paid, to my beloved wife, Phebe Ann Woodburn, the difference,—it being my will and desire that she should have $1000 per year for her support, both before and after the fund is created by sale, as my executor is herein directed to do.” James H. Woodburn was the only child and heir of George W. Woodburn.
    The executor had advertised the sale of the real estate, in pursuance of the will, and on the morning of the sale, March 13, 1873, an agreement in writing, under the hands and seals of Phebe A. Woodburn and James H. Woodburn, was entered into between them, which, after reciting the provision of the will that Phebe A. Woodburn should have for her support, during her lifetime, the interest of a fund sufficient to make of interest a sum of $1000 per annum, out of the real estate of George W. Woodburn, and that there appeared to be a cloud upon the title of said real estate, by reason of a claim set up by James H. Woodburn, the agreement proceeded, that therefore, in consideration of one dollar in hand paid, “and for the further consideration that the said party of the second part (James H. Woodburn) shall join in making a clear title to said real estate, the said Phebe A. Woodburn, party of the first part, does waive and relinquish, in favor of said James H. Wood-burn, party of the second part, all the interest of said fund except the interest on the sum of $8000 per annum.” The sale at public auction afterward, on the same day, took place, and all the real estate, except twenty acres of timber land, was sold to James H. Woodburn, for $15,150. The terms of the sale were, one-third cash, and the residue, in equal sums, in one and two years, at ten per cent interest. The widow afterward bought of James H., as of the day of the sale, the homestead part of the premises, consisting of two and one-fourth acres, for the sum of $2180, and, by agreement of parties, made her notes for the latter sum, and mortgage securing them, direct to the executor, bearing ten per cent interest; and thereafter, for several years, there was paid to the widow $800, as her annuity, James H. paying $600 annually to the executor as interest on his purchase money, and $200 additional was counted by the executor as interest, retained by the widow on her own mortgage.
    All the real estate claimed'as belonging to George W. Wood-burn at the time of his decease was a part of two hundred and twenty acres of land, the state of the title to which two hundred and twenty acres appears as follows: On July 8, 1848, the legal title to the two hundred and twenty acres was in James G. Woodburn, a brother of George W. On that day James O. made a deed of trust of the land to John Galt, which contained recitals as follows: “Whereas, the said James 0. Wood-burn holds the title in fee simple of certain lands in Whiteside county, State of Illinois, purchased by him from the people of the United States, agreeable to directions from Agnes Wood-burn, of the county of Cumberland, and State of Pennsylvania, who supplied the said James C. Woodburn the purchase money. * * * She directed James C. Woodburn to invest it in public lands in Whiteside county, State of Illinois, the one-half of said investment to belong to J ames Henric Woodburn, the sole heir of G-. W. Woodburn, and the other half to remain in the hands of some suitable person for other heirs of said George W. Woodburn, should he have any such, otherwise to belong to the said James Henric Woodburn also, and that the net proceeds belong to J. H. Woodburn in full as long as he is sole heir, and should he die before coming into full possession, and there being others at his death, the property should belong to those heirs. Agreeable to the above directions, James 0. Woodburn purchased the lands, which he now deeds to John Galt in trust for said heirs. (The deed then proceeds to convey the lands to John Galt, describing them.) The whole containing two hundred and twenty acres, * * * to have and to hold, receive and take the same to the said John Galt, his heirs, executors and administrators, in trust, however, and to the intent and purpose that he, the said John Galt, shall hold the estate to the sole use and benefit of the heirs of G. W. Wood-burn, or that he shall sell the same, if need may require, for the benefit of said heirs, and render and pay over to said heirs their respective shares, as directed by said Agnes Woodburn in her direction to said James G. Woodburn,” Agnes Wood-burn was the mother of James C. and George W. Woodburn.
    On November 23, 1871, George W. Woodburn filed his bill for partition in the -circuit court of Whiteside county, against James H. Woodburn and others, praying for a partition of the lands described in the trust deed from J ames G. Woodburn to John Galt, in which bill he averred that he, George W. Wood-burn, was seized in fee simple of the one undivided half part of the lands, and that Susan Woodburn, wife of James H. Woodburn,' appeared to be of record the ovmer of the other undivided half part. The order of partition found that George W. Woodburn was entitled in fee to one undivided half part of the premises, and that James H. Woodburn was entitled to a like one undivided half part, and partition was made accordingly, at the March term, 1872, of the court.

      In the warranty deed of the homestead of two and one-fourth acres, from James H. Woodburn to Phebe A. Woodburn, there was a mistake in the description, it not covering the premises, and at the March term of court, 1880, Mrs. Woodburn brought an action of covenant against James H. Woodburn on his deed of warranty. He then filed his bill in chancery against her for the correction of the mistake and to enjoin the suit at law. This bill in chancery is the first of the series of suits in this litigation. Mrs. Woodburn answered the bill, and then filed a cross-bill, setting up that the aforesaid agreement of March 13, 1873, between herself and James H. Woodburn, was fraudulently obtained by said James H. from her through false and fraudulent representations, and praying that the same might be set aside.
    At the March term, 1881, there were pending in the circuit court of Whiteside county this bill and cross-bill, a bill in chancery filed by Mrs. Woodburn against the executor, Peter Ege, for an accounting, and two appeals by Peter Ege, executor, from the county court,—one in the case of an order to pay over to Mrs. Woodburn a certain sum found to be due from him, and the other in the case of a final report made by Ege, as executor. At said March term, on motion of Mrs. Woodburn, and against the objection of James H. Woodburn and Peter Ege, an order was entered consolidating these several cases, and that they be heard together, which was done.
    The decree of the circuit court set aside the agreement of March 13, 1873, as made without any good and valuable consideration; ordered payment to Mrs. Woodburn, out of the estate, of the sum of $2859.78, of which sum there should be paid to her $2180 by the surrender to her of her promissory notes for that sum. The mistake in the deed from James H. Woodburn to Mrs. Woodburn was corrected. There was a matter of contention in regard to a promissory note from James H. Woodburn ’to George W. Woodburn, for $3050,— whether there had been a valid gift of the note from the latter to the former as a donatio mortis causa,—and the circuit court found there had not been.
    The Appellate Court reversed the decree of the circuit court in so far as it set aside the agreement of March 13, 1873, but ordered that Mrs. Woodburn should be paid for her annuity $800 per annum, instead of “the interest on $8000 per annum, ” as provided by the terms of said agreement, and also reversed the decree in respect of the disposition it ordered to be made of the notes of Mrs. Woodburn for $2180.
    Messrs. J. & J. Dinsmoor, for the appellant:
    There was no consideration for the agreement of March 13, 1873, and it should have been set aside.
    Appellees’ counsel cite authorities to the effect that the settlement of a doubtful right is a sufficient consideration. To make those cases applicable, James H. Woodburn must have honestly thought he had some claim to this land.
    As to the donation of the notes to James H. Woodburn, see Grymes v. Howe, 49 N. Y. 17; Sims v. Sims, 8 Porter, 449; Tillinghas v. Wheaton, 8 R. I. 536; Sheedy v. Roach, 124 Mass. 472; Drury v. Smith, 1 P. Wms. 404; Sessions v. Mosely, 4 Cush. 87; 3 Redfield, 329, note.
    Woodburn can not assign errors in behalf of Ege. Van Valkenburg v. Trustees, 66 Ill. 103; Meyer v. Pfeiffer, 50 id. 485; Wright v. Bishop, 88 id. 302; Worden v. Crist, 106 id. 326; National Bank v. King, 110 id. 254; Van Pelt v. Dunford, 58 id. 145; Bowman v. Railroad Co. 102 id. 459.
    Messrs. Manahan & Ward, for the appellee James H. Wood-burn :
    As to the reformation of the contract for mistake, see Sutherland v. Sutherland, 69 Ill. 481; Nevins v. Dunlap, 33 N. Y. 676; Levyard v. Insurance Co. 24 Wis. 496; Gordere v. Downing, 18 Ill. 492; Palmer v. Converse, 60 id. 314; Kerr on Fraud and Mistake, 421; Story’s Eq. Jur. sec. 152.

      When interest is mentioned in a contract, and no specific rate is mentioned, legal interest is meant. Ford v. Hixon, 49 Ill. 142; Bond v. Lockwood, 33 id. 212; Prevo v. Lathrop, 1 Scam. 305.
    Mr. G. J. Johnson, and O. F. Woodruff, for the same appellee :
    It was error to decree null and void the agreement of March 13, 18T3. The compromise of a doubtful right is a sufficient consideration. McKinley v. Watkins, 13 Ill. 140; Sigsworth v. Cutter, 18 id. 204; Miller v. Hanker, 66 id. 185; Honeyman v. Guardian, 79 id. 318; Huston v. Epling, 81 id. 172.
    So is the waiver of any legal right at the request' of another. 1 Parsons on Contracts, 144; Chitty on Contracts, 33, 35; Miller v. Hanker, supra.

    The court erred in ordering cancelled the .note and mortgage made by Phebe A. Woodburn to Ege. Perry on Trusts, see. 539.
    The court erred in consolidating the several eases. 1 Tidd’s Pr. 614; Miles v. Danforth, 37 Ill. 156.
    There was a valid gift, mortis causa, of the notes. The following cases hold that the gift may be valid without an actual delivery: Grymes v. Howe, 49 N. Y. 17; Sims v. Sims, 8 Porter, 449; Grover v. Grover, 24 Pick. 261; Westerlo v. Dewitt, 36 N. Y. 340; Darland v. Taylor, 52 Iowa, 503; Camp’s Appeal, 36 Conn. 88; Hill v. Stevens, 63 Me. 364; Sheedy v. Roach, 124 Mass. 472.
    Mr. C. J. Johnson, for the appellee Ege.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

It is solely the judgment of the Appellate Court which the appellant, Phebe A. Woodburn, complains of as erroneous, and that is in the respects, first, in ordering that Phebe A. Woodburn should be paid her annuity provided for by the will of George W. Woodburn, upon the basis of $800 per annum, in place of $1000 per annum, as directed by the will; second, in the disposition it ordered to be made of the notes and mortgage of Phebe A. Woodburn, for $2180.

The purport of the first assignment of error is, .that the Appellate Court erred in sustaining the agreement of March 13, 1873, between Mrs. Woodburn and James H. Woodburn, whereby she relinquished all the interest of the fund provided by the will for her support except the interest on the sum of $8000. The cross-bill of Mrs. Woodburn sought to have the agreement set aside on the ground that it had been fraudulently obtained from her by James H. Woodburn. Neither of the lower courts appears to have found there was any fraud in the transaction, and we concur in the same view, not finding the charge of fraud to be sustained by the evidence. But the circuit court did find that the agreement was without any good and valuable consideration, and on that ground set it aside. Waiving any question as to the variance of this finding from the allegations of the cross-bill, we will consider as to the correctness of the finding.

The evidence shows that upon the death of George W. Wood-bum, all his interest in the real estate in question ceased, and the whole title was in James H. Woodburn, except for the technical estoppel of the partition proceeding which had been had between George W. and James H. There was no evidence in the record of that proceeding to sustain the decree therein; but the decree was by default, and no evidence may have been necessary. The time for suing out a writ of error had not expired, so that there was yet opportunity to question the correctness of the partition decree on writ of error or by bill of review. There was, to some extent, a cloud upon the title, in the public mind, and this was manifested at the time of the .public sale at auction, by inquiry upon the subject, in response 'whereto James H. Woodburn, before the commencement of the sale, made public announcement that he had made arrangement with Mrs. Woodburn, and would quitclaim to the purchaser at the sale all his interest in the land. The question is not whether James H. Woodburn had actual title or interest in the land, but whether he honestly claimed an interest, or there was a cloud upon the title the removal of which by James H. would tend to promote the sale and enhance the price which the land would bring. We think, from the evidence, there did exist such a cloud upon the title; that its removal by James H. was of benefit to Mrs. Woodburn, in its tendency to enhance the price to be obtained for the land, and thereby increase the fund from the interest on which her annuity was to come, and that it would be of inconvenience to him in making a deed of relinquishment of his interest. We are of opinion there is found sufficient to furnish a consideration for the agreement made by Mrs. Woodburn.

As respects the notes for $2180, of Mrs. Woodburn, the proceeds of the sale of the real estate ($15,150) constituted, under the will of George W. Woodburn, a fund, the interest of which, to the extent of $1000, was to be paid to Mrs. Woodburn during her life. After her death this fund was to go to James H. Woodburn, for his use during his lifetime, and at his death to go to his children. Of the land bought by James H. at the executor’s sale, he sold a portion—the homestead—to Mrs. Woodburn, for which she gave her notes to the executor for $2180. He took these notes and held them, by the understanding of all the parties, as a part of this fund. He gave credit for that amount on the notes of James H. Woodburn, which he had given to the executor for the purchase price of the whole land. Mrs. Woodburn, in her answer, states that she gave the executor two notes, of $1250 each, and secured the same by mortgage, “of which said sum so secured by said mortgage, defendant (Mrs. Woodburn) is informed and believes that $2180 was to be regarded as a part of said fund, and to be substituted for the notes and mortgage that said complainant (James H. Woodburn) was to have executed and delivered to said Ege, as executor, as aforesaid.” So, then, these notes were a part of this trust fund, and should have been held and kept intact, and it was improper to cancel them, and order them to be surrendered up to Mrs. Woodburn in payment of her individual debt due from the executor. Nor was the error relieved by the direction that when the amount of the notes should afterwards be collected from the executor it should be re-invested in securities to be held as a part of the fund. We are of opinion the Appellate Court ordered rightly in respect to these notes.

The appellee James H. Woodburn has assigned cross-errors in this court, as follows: That the Appellate Court erred in holding that under said agreement James H. Woodburn should pay Mrs. Woodburn $800 per annum, instead of “the interest on the sum of $8000 per annum,” as the agreement reads. Where interest, simply, is named, the rate of interest, where nothing appears to the contrary, will be six per cent, the rate fixed by the statute, where there is no contract as to rate. It is not unlikely, from all the attendant circumstances, that the parties intended the rate of interest here to be ten per cent, and that the agreement, as it reads, fails to express the understanding of the parties in that regard. It was probably ten per cent interest that was in their minds. The notes James H. gave for the land he bought, bore that rate of interest. The notes Mrs. Woodburn gave for the part she purchased from James H. bore ten per cent interest. It was ten per cent interest ($800) which was paid to Mrs. Woodburn, under the agreement, for several years. In a letter of James H. to Mrs. Woodburn, he alludes to it as $800 which she was to have under the agreement.

But it is said that this order of the court, in this respect, amounted to a reforming of the contract by the Appellate Court, and that there was no allegation in the cross-bill to warrant it, there being in it no charge of any mistake in the contract, or prayer for the correction of any mistake. This may be a debatable question, and as there is to be a reversal on another ground, there will be afforded opportunity to amend the cross-bill in this respect, and we will dismiss this question without further remark. We can not say the court erred in ordering the costs of the entire consolidated suits to be paid from the trust fund. Manifestly, the sale of the real estate to James H. Woodbum should not be set aside, as is insisted, for the reason that at the date of the sale he was the beneficial and real owner of the lands sold. He could not be said to be such owner in the face of the partition decree. That decree can not be put aside and disregarded in this collateral proceeding.

A further assignment of cross-error is in respect of the note of James H. Woodburn to George W. Woodbum, the testator, for $3050, which was claimed to belong to James H. as a donatio mortis causa made to him by the testator. In respect of this note the circuit court rendered a judgment against Peter Ege, as executor of the last will of George W. Woodbum, deceased, for the face of the note and interest, amounting to the sum of $8604.52. The testimony of Ege is, that at the time he was writing the will, a few evenings before the testator’s death, this note, at the testator’s request was brought to him, the testator, by Mrs. Woodburn; that the testator afterward handed the note to Ege, saying: “You give that note.to James in case he does not contest the will. * * * If he contested the will I was to collect the note, if I could, for the benefit of Mrs. Phebe A. Woodburn. I handed the note over to Mrs. Phebe A. Woodburn, and told her to take care of it. I next saw the note a long time after that. Mrs. Woodburn gave it to me, and told me that everything was satisfactory, or had been satisfactory, and for me to give it to James H. Wood-burn, which I did.” The note remained with the latter, who produced it at the hearing. The executor charged himself with the note, and also gave himself a credit .for it, doing this, he says, to show what was done with, the note in case of any question concerning it.

James H. Woodburn testified that he had a conversation with Mrs. Woodburn in regard to the note, after the testator’s death; that she asked him if he knew what had become of the note, or what was to be done with the note. He replied he did not, whereupon she said that it was to be given up to him; that she said: “Tour father left the note to be given up to you in case you did not contest the will.” “I said it ought to be given up to me.” Mrs. Woodburn, however, denies that she handed the note," at the time the will was being drawn, either to her husband or Ege, and denies that she gave the note to Ege after the death of her husband, directing him to give it to James H.

The master to whom the cause was referred to take the testimony in the case, and report his finding of facts, by his first report found, from the testimony, the fact to be as testified to by Ege, as regards the delivery by the testator of the note to Ege, and the latter delivering it to Mrs. Woodburn, the master stating further, the note was put back by her (Mrs. Woodburn) in the pocket-book from whence it was taken, and was among the papers of George W. Woodburn, deceased, Avhen Col. Ege took possession of them as executor. Exception was taken to this finding of the master, but does not appear to have been passed upon by the court. At a subsequent term the case was re-referred to the master, under specific directions. The second report of the master, which was approved, charged the note against Ege in his account with the estate; but this may have been but the master’s conclusion of laAY from the facts which had before been found by him. The master’s former finding of fact does not appear ever to have been disturbed. The surrender, by the executor, of the notes to James H. Woodburn, goes to the strengthening of his testimony. Upon consideration of the whole evidence, our conclusion is, that the statements of Ege and James H. Wood-burn in the matter should be accepted as to the facts; and according to their testimony, we think there was here a complete and valid donation of the note mortis causa. The delivery, which in such case is essential, may be either to the donee or to another person for him. There was, here, according to the testimony of Ege, an absolute delivery of the note to Ege, to be given to James H. Woodburn in case he did not contest the will, and if he did, then to collect it for Mrs. Woodbum. The testator never afterward resumed possession of the note or revoked the delivery, or manifested any intention or desire to do so. If the note was afterward placed back by Mrs. Woodbum in the pocket-book from whence it was taken, as found by the master, this was not a resumption of possession by the testator, but it was done by one of the conditional donees of the note, for its safe keeping.

It is said that James H. Woodbum can not assign this as cross-error, because it affects only Peter Ege, and that Peter Ege, one of the appellees, is not entitled to make this objection to the decree, as he did not assign cross-errors in this court. But he did assign this as a cross-error in the Appellate Court, and we think this was sufficient to entitle him to insist upon it here.

We think there was error in not finding that there was a gift mortis causa of this note to James H. Woodburn, and in decreeing against the executor the payment of the amount of the note.

The decree and judgment of the -courts below will be reversed, and the cause remanded to the circuit court for further proceedings conformable to this opinion. Leave is given to amend the cross-bill touching the matter of mistake referred to in the written agreement between Phebe A. and James H. Woodburn, and to introduce any further evidence in that particular. The appellant will pay the costs in this appeal.

Judgment reversed.

Subsequently, on March 23, 1888, on an application for rehearing, the following additional opinion was filed:

Per Curiam :

After a careful consideration of the petition for a rehearing in this case, we find no sufficient reason for changing the conclusion which we reached in our former opinion, and a rehearing will be denied. The language of the opinion, however, in some particulars requires modification.

It was said in the opinion, that Peter Ege, executor, filed cross-errors in the Appellate Court to the finding that there was due from him, as executor of the estate of George W. Woodburn, deceased, the sum of $8604.52. Upon an examination of the record, we find that Peter Ege did not assign such cross-error in the Appellate Court. We were led into this misapprehension from the statement of the counsel for Ege that he did assign that cross-error in the Appellate Court. James H. Woodburn did assign in the Appellate Court that finding against Ege as error. The question then is, whether James H. Woodburn’s assignment of error will justify us in reviewing this finding.

The resistance of Ege against being charged in his final report as executor with the amount of this $3050 note of James H. Woodburn to George W. Woodburn, was upon the ground that there had been a gift of the note.from the latter to the former mortis causa. The charging of Ege with the amount of this note as due from him to the estate of George W. Wood-burn, was a determination against such a gift. If there was not such a gift, then James H. Woodburn would be liable over to Ege for the payment of the note. Ege’s appeal from the charging of this $3050 note against him in his final report as executor, "was consolidated in the circuit court with the chancery suit between James H.Woodburn and Phebe Woodburn, and James H. Woodburn, after such consolidation, actually participated in the defence made by Ege against being charged as executor with said $3050 note, as the record shows that he filed exceptions to the master’s report made in such consolidated suit with respect to said note, wherein he insisted the report should state specifically that the note should he given up to him. If there had been no valid gift of the note mortis causa, James H. Woodburn would ultimately be liable for its payment; and in any further action against him upon the note, by Ege, as executor, we are not prepared to say that this charging of Ege, as executor, with this note and judgment against him for the amount of the note, would not be conclusive evidence against James H. Woodburn that there had been no valid gift mortis causa of the note to him, under the principle, that where one is liable over in the case of a judgment against another, and he defends or had notice to make defence in the action wherein the judgment was rendered, such judgment, in a subsequent suit against him, will be conclusive evidence of his liability. (See Drennan v. Bunn, 124 Ill. 175.) We think James H. Woodburn was enough of a party to the suit, and of a party in interest, to entitle him to assign as error the rendering of the judgment for the amount of this note against Ege, as executor, in favor of the estate of George W. Woodburn.

We may have misapprehended that the amount, $8604.52, with which Ege was charged, as executor, and for which judgment was rendered against him in favor of the estate, was made up wholly of the principal of this $3050 note, and interest on it. We decide nothing more against the indebtedness found due from Ege, as executor, to the estate of George W. Woodburn, than in respect of this note—that he should not have been charged therewith.