author: Mr. Justice Scholfield Scholeteld, J.:

text:
    D. B. Jackson et al. v. John Lynch.

      Filed at Ottawa May 16, 1889

      Rehearing denied October Term, 1889.

    1. Mobtgages-&emdash;of a deed absolute in form. A debtor conveyed real estate to his creditor by deed absolute in form, and also gave his note for the sum found due on settlement, payable in two years, with interest. The grantee at the same time gave the grantor a contract for a re-conveyance of the premises upon payment of the note and interest. This contract gave the creditor the right to possession, and to rent or lease the premises, and further provided that the creditor should pay all taxes and make necessary repairs from the rents received, applying-the surplus rents upon the note. It was held, that the deed, note and contract to re-convey, all constituted but one transaction, which was a mortgage, and not an absolute sale and re-sale, and that the relation of the creditor to the debtor was that of a mortgagee in possession.
    2. Same&emdash;clause of forfeiture&emdash;effect upon right to redeem. And in such case, although the defeasance,&emdash;that is, the agreement to re-convey,&emdash;shall make the time of payment of the debt of the essence of the-contract, so as to permit, by the terms of the defeasance, a declaration of forfeiture in case payment be not made within the time prescribed, the right to redeem will not be affected thereby. The fact that the transaction was a mortgage being established, it is elementary that the-mortgagor can not be deprived of his equity of redemption by any form of contract, however comprehensivé and unmistakable its terms-showing that such was intended to be its effect.
    3. Same&emdash;devise by mortgagee&emdash;what rights will pass. In a case where a deed absolute in form was in fact only a mortgage, the grantee devised the land described in his deed, to his son, and it was held, that-the son was not a purchaser for value, but only the recipient of a voluntary gift, and in respect to the property occupied precisely the same-position as that of the devisor.
    4. Same&emdash;limitaiion&emdash;bill to redeem, as against a mortgagee in possession. Where a creditor takes a deed absolute in form as a security for his debt, and enters into possession, receiving the rents and profits, the deed, in equity, being only a mortgage, the same rule of limitation will be alike applicable, in equity as at law, against the mortgagor.
    5. Same&emdash;mortgagee in possession&emdash;holding as trustee*-laches in seeking an■ accounting and redemption. Where a mortgagee takes possession of the mortgaged premises and receives the rents and profits, he will occupy the position of a trustee in respect thereto, and the mortgagor "will be authorized to rely upon his performance of the trust until he does some act unequivocally disavowing it; and the mortgagor can not be guilty of laches by merely delaying the bringing of suit for an accounting and for redemption.
    6. Acquiescence in a course of conduct inconsistent with the duties of a trustee can not be inferred until the cestui que trust has actual knowledge of the breach, for the reason that it is the duty of the trustee to execute the trust, and it is not the duty of the cestui que trust to make any inquiry.
    7. Same—bill to redeem, against mortgagee in possession—basis for the accounting. On bill against a mortgagee in possession, for redemption, it is proper to take an account of the sum due on the mortgage debt, and of the rents and profits received since the mortgagee has been in possession, after deducting taxes and necessary repairs. The account will not be limited to rents actually received by the mortgagee if it is shown that by reasonable diligence more could have been realized. If the reasonable rents and profits exceed the taxes, insurance and necessary repairs, the surplus at the end of each year should be applied upon the mortgage debt.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. Isaac Gf. Wilson, Judge, presiding.
    This was a bill to redeem from an instrument absolute on its face, but alleged to be a mortgage. The circuit court, on hearing, decreed that the bill be dismissed. That decree was, on appeal to the Appellate Court for the Second District, reversed, and the cause was remanded to the circuit court, with direction to enter a decree in conformity with the opinion then filed. The case is sufficiently presented in the opinion of the Appellate Court by Mr. Justice Smith, which is as follows:
    “This was a bill brought hy John Lynch, appellant, against D. B. Jackson and others, appellees, to redeem from a mortgage certain premises described, and for an accounting as to rents and profits.
    “The facts, as disclosed by the record, are these: o Prior to the 21st day of August, 1877, John Lynch, and S. L. Jackson, the father of D. B. Jackson, had business transactions, resulting in Lynch becoming indebted to Jackson upon different promissory notes, some of them secured upon the property now in controversy. These notes had become past due, and were doubled up on one or two occasions, and renewed, and constantly growing, and no part of principal or interest being paid until on August 21, 1877, they reached the sum of $1850, principal and interest. Samuel L. J ackson then notified Lynch that he would wait no longer for his money, and that it must be at once paid, or he would throw him out of the property covered by the mortgage in thirty days. Jackson proposed to Lynch to deed him the property in satisfaction of the debt. Lynch declined to do it, begging further time, which J ackson positively refused to give. Lynch and Jackson spent the whole of the twenty-one days of August trying to adjust the matter. They finally came together, and it was agreed that Lynch and his wife would execute an absolute deed for the premises to Jackson, and that Jackson would obligate himself to re-sell the property to Lynch at the expiration of two years, on condition of Lynch paying up the $1850, with interest. This contract, thus executed, was as follows:
    “ ‘Articles of agreement made this 21st day of August, in the year of our Lord one thousand eight hundred and seventy-seven, between Samuel L. Jackson, of the city of Aurora, Kane county, Illinois, party of the first part, and John Lynch, of the same city, county and State aforesaid, party of the second part:
    “ ‘ Witnesseth, that the said party of the first part hereby covenants and agrees that if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part will convey and assure to the party of the second part, in fee simple, clear of all incumbrances whatever hereafter accruing, by a good and sufficient warranty deed, the following lot, piece or parcel of land, viz., situated in the city of Aurora, Kane county and State of Illinois, and described' as follows: Commencing at a point twenty-two feet northerly from the south-easterly corner of lot No. 6, in block 5, of the original plat of West Aurora, as recorded, and running westerly sixty feet at right angles with River street; thence northerly along the east line of lands heretofore belonging to W. V. Plum, twenty-one feet; thence easterly to River street; thence southerly twenty-one feet to the place of beginning,—and being all and the same this day deeded from the said John Lynch and his wife to me, the said Samuel L. Jackson, and being the store and lands on said River street. And the said party of the second part hereby covenants and agrees to pay to said party of the first part the sum of one thousand eight hundred and fifty-two dollars ($1852) two years from the date of these presents, with annual interest at ten per cent per annum, according to the tenor of one certain promissory note executed by said John Lynch, and payable to the said party of the first part two years after date thereof, with annual interest at ten per cent per annum, dated the 21st day of August, 1877, and for the same sum above mentioned, to-wit, the sum of $1852. And in case of the failure of the said party of the second part to make said payments of interest or principal, or perform any of the .covenants on his part hereby made and entered into, this contract shall, at the option of said party of the first part, be forfeited and determined, and the party of the second part shall forfeit all the payments by him made on this contract, and such payments may be retained by the party of the first part in satisfaction and liquidation of all damages by him sustained. And it is further mutually covenanted and agreed by and between the said parties, that said party of the first part shall take, keep and retain the possession, occupancy and control of said lands and premises during the continuance of this contract, with a right to rent or lease the same. And it is further mutually agreed, that the said party of the first part shall pay all taxes due, past due and to become due on said premises, and also make all necessary repairs on said lands and premises, and shall, from the rents received from the same, pay and liquidate such repairs and taxes, and apply any surplus upon the note above described; and for any surplus of expenses for repairs and taxes over the rent that may be received, the party of the second part shall be liable to the party of the first part as a further indebtedness under this contract, to be paid, with ten per cent interest thereon, at the expiration of the time expressed for the payment of the principal of said note. And it is also mutually agreed, that the party of the first part may get the premises insured for his own benefit, to the amount not to exceed $1500, during said two years, and the costs and expenses of which shall be a further indebtedness under, and subject to, the terms of this contract.
    “ ‘It is mutually agreed that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties. S. L. Jackson, [L. S.]
    John Lynch. [L. S.]’
    “This contract and the deed and notes were all signed and delivered at the same time, and was all one transaction. It is manifest that the contract was a mere defeasance to the deed, and that the deed, though absolute in form, was intended only as a security for the debt, and was but a mortgage. The terms of the contract are so clear and conclusive upon that point that no discussion could make it plainer. The law upon this subject is so well settled that the citation of authorities in its support seems but a useless ceremony, and we shall content ourselves with the citation of a single case,—Snyder v. Griswold, 37 Ill. 216. Indeed, we do not understand appellees as making any serious contentions that this was not a mortgage. They rest their defense upon the ground of laches and estoppel. S. L. Jackson took possession, made repairs, paid the taxes and received the rents. At the end of two years Lynch failed to pay the note. Neither he nor S. L. Jackson gave the matter any attention. Jackson remained in possession until his death, which occurred about one year after the note became due. About a month before his death he made a will, dividing his property up among his children, and gave this property in dispute to his son, D. B. Jackson, who immediately went into possession, and remained in possession, treating the property in all respects as his own until this suit was brought.
    “Appellant, Lynch, filed this agreement of defeasance for record immediately after it was made and delivered to him. Taking the property as a gift, and chargeable also with notice of what the recorded contract contained, D. B. Jackson holds the property precisely as his father held it, and can claim no exemptions or rights in relation to the property which his father could not have claimed. This contract notified him, that he was holding and improving the property and collecting rents as a mortgagee, whose duty it was to apply all above repairs and taxes on appellant’s note. He went into possession under this mortgage, and remained in possession with full legal knowledge of the obligations to apply all in excess of taxes, interest and repairs, on this note. He can not claim that he was innocently and ignorantly making these improvements, and that appellant was standing by and permitting him to improve his property without informing him of his rights. Appellant contracted in this defeasance that his note might be paid by the rents unless Jackson elected to declare a forfeiture on failure to pay the note. There is no proof that such a forfeiture was ever declared. It is a maxim of the law, that ‘once a mortgage is always a mortgage until it is satisfied.’ Miller v. Thomas, 14 Ill. 428.
    “If this property had once passed into the hands of a stranger, for a valuable consideration, without actual or constructive notice of this defeasance, then very different questions would arise. But here the constructive notice to appellees, of the rights of appellant, is clear, and the strong probabilities are that he had actual notice of the nature of the transaction between his father and appellant. But constructive notice is as effectual to protect appellant’s right as actual notice. Appellee’s position, then, as well as that of his father before him, was simply that of a mortgagee in possession,—nothing more, nothing less,—the father with actual contract knowledge of that fact, and the son, being but a volunteer, took it chargeable with its burthens in his father’s hands, with the added constructive knowledge the record gave him,—that the only rights he had in the property were those of a mortgagee, and that under the defeasance he might declare a forfeiture and foreclose the mortgage, or he might waive the forfeiture and continue in possession, under the terms of the defeasance, until the note, with its accruing interest, was paid with the surplus rents over taxes and repairs, and then surrender back the premises to appellant. This, in our judgment, was the clear legal effect of that defeasance.
    “Finding, as we do, that this was a mortgage, the only remaining question for us to determine is, has anything intervened to prevent appellant having the. right to redeem. The appellees urge that he has lost this right by his delay in bringing his bill, and by estoppel. In this State no definite rule was ever laid down as a limitation of time upon the right of mortgagors to redeem from mortgagees in possession, until the case of Locke v. Caldwell, 91 Ill. 417, came before the Supreme Court, in 1879. Prior to that time the cases involving that question seemed to be determined, not so much upon any statute of limitations, as upon the circumstances and equities surrounding each particular case.
    “In the case above referred to, of Locke v. Caldwell, the court holds that the law of limitations as to the right of a mortgagee to foreclose, and that of a mortgagor to redeem, are mutual. The question there arose as to the right of a mortgagor to redeem a certain town lot, and also certain other lands, upon a bill filed for that purpose. The court uses this language: ‘It is the well settled general rule, that twenty years’ possession by the mortgagee without account or acknowledgment of any subsisting mortgage, is a bar to the equity of redemption, unless the mortgagor can bring himself within the provisions of the Statute of Limitations. (Demarest v. Wynkoop, 3 Johns. Ch. 129.) In Harris v. Mills, 28 Ill. 44, this court has held, that when the note secured by the mortgage was barred after sixteen years, the mortgagee would also be barred. The general rule which has been stated as to twenty years’ possession by the mortgagee barring the equity of redemption, is reciprocal, and the mortgagee be equally barred by the lapse of time.’
    “In this case the court quotes with approval the language of Chancellor Kent in Moore v. Cable, 1 Johns. Ch. 386, where he declares the rule to be, that twenty years’ actual possession by the mortgagee is necessary to bar the equity of redemption in the mortgagor. And the same doctrine was held in Bollinger v. Choteau, 20 Mo. 89. There a bill to redeem was filed thirty-six years after the mortgage was made, and sixteen years had elapsed after the mortgagee had taken possession. ‘In general, the respective rights of the mortgagee and mortgagor, with regard to foreclosure on the one hand and redemption on the other, are treated as mutual—that is, the existence of the former is held to involve that of the latter, and vice versa; and the fact that the one can not be legally enforced, under the circumstances, is regarded as sufficient to preclude a claim for the other. It is said the right to redeem and foreclose are reciprocal and commensurable. 2 Hilliard on Mort. sec. 2.’ And in this same ease the court refused to apply the doctrine of statenus and laches, which was there urged, as it is urged here, under the rule laid down in 2 Story’s Eq. Jur. sec. 1520, as being a defense peculiar to courts of equity, and founded upon mere lapse of time and the staleness of the claim, in cases where no statute of limitations directly governs the case.

      “We understand the above case of Locke v. Caldwell, from which we have quoted, as holding that the right of redemption is not barred by a less time than the right of foreclosure,— which, under the statute in force when the note in question here was made, would be ten years. This bill was filed in a little over five years after the note was due.
    “Counsel for appellees cite us to a great number of cases where equitable relief has been denied on the ground of laches, and to many cases where the right to redeem has been refused for the same reason. It is said that Bush v. Sherman, 80 Ill. 160, is an authority against appellant. In that case the mortgagor executed a trust deed, with a power of sale, and then voluntarily went into the great rebellion, and joined himself to the enemies of his country, and while absent the premises were sold under the power. When he returned, after the war, he filed a bill to set aside the sale, alleging that the power was not executed in strict conformity with the deed of trust. There was no question of the right of redemption involved. The court held that his delay was inexcusable for the purpose of setting aside a sale for mere irregularity.
    “In Cleaver v. Green, 107 Ill. 68, it was held that five years’ lapse of time would bar a right to set aside a sale made under a trust deed, with a power of sale, for mere irregularities in the sale. No question of the right of redemption was made, further than that such right would result from setting aside the sale.
    “In Beach v. Dyer, 93 Ill. 295, the bill was to declare a trust and enforce specific performance, and complainant’s laches was held a bar.
    “In Williams v. Rhodes, 81 Ill. 572, the bill was to set aside an execution sale after the lapse of five years, and the relief was denied on account-of the lapse of time.
    “In Maher v. Farwell, 97 Ill. 56, the bill was filed, as in the case at bar, to redeem from an alleged mortgage, in the shape of a deed absolute on its face. The bill set up a parol agreement, made about the time of the conveyance between Maher and Farwell, to the effect that a deed absolute should be made to Farwell, and that upon the payment of a note of $1700, which Farwell held against Maher, the land should be conveyed back to Maher. The bill to redeem was filed some thirteen years after the date of the deed and the alleged parol agreement, and the relief was denied. The court, in that case, seems to place the chief ground for refusing the relief prayed for, on the failure of Maher to prove his bill by clear and satisfactory evidence after so great a lapse of time. It is true, -the court says that Maher had shown no sufficient reason for -the long and extraordinary delay in bringing his suit, and until the facts connected with the transaction had faded from the memory of the witnesses, or the witnesses died or left the country. So far as can be gathered from this ease, the attention of the court had not been called to its previous deliberate judgment in Locke v. Caldwell, 91 Ill. 417. The remark as to the lapse of thirteen years seems to be incidental to the main point of the decision holding that the parol defeasance was not sufficiently proven, and that it was dangerous to place too much weight on the memory of witnesses after the lapse of so many years. These observations of the court could have no application where the defeasance was in writing and under seal, and where there could be no question about the fact of the defeasance being made, as in the case before us. That and this case, in that important respect, are wholly different.
    “But aside from the grounds upon which we have so far considered the case, and found that appellant has the right to redeem, we are not disposed to hold that appellant would not have the right to redeem from the mere lapse of time. It is evident, from the record, that his financial condition made it difficult, if not impossible, for him to raise so large a sum of money, and that for him to have made application to redeem without the money to do so would have been an idle ceremony. He might well rest on the presumption that his debt was being paid by the rents, and that it was much better for him to let
      it remain in that condition until the debt was paid, than for him to repossess himself of it, and again begin the struggle to pay the debt himself, which he had so successfully failed to-do before he executed the-mortgage and let the mortgagee into possession. We think the delay was not so great or unreasonable, under the circumstances, as to justify a court of equity in now withholding the right to redeem on the mere ground of laches, even if there were no better ground upon which to place-the right to redeem. <=
    “For the reasons above given, we think the court erred in. dismissing complainant’s bill. The decree will be reversed, and the cause remanded, with directions to the court to set aside the order dismissing the bill, and to grant a decree allowing complainant to redeem, and to refer the case to the master to state an account of the amount due on the note, and also-of the rents and profits received by the appellees, together with taxes and insurance paid, and the reasonable and necessary repairs made, and at the end of each year to credit the note with the surplus, if any, of rents over taxes, insurance and necessary repairs, etc., or for each succeeding year. If there is any balance found due complainant he will be entitled to a decree for that amount, and if there be any balance found due appellant he will be entitled to a decree against the party having had possession of the property, for such balance.”
    Mr. Charles Wheaton, and Mr. M. 0. Southworth, for the plaintiffs in error:
    On the question and doctrine of laches, see Lloyd v. Lee, 45 Ill. 277; Brooks v. Record, 47 id. 30; Kane County v. Herrington, 50 id. 232; Cochran v. Harrow, 22 id. 345; Walsh v. Brennan, 52 id. 193; Donaldson v. Holmes, 23 id. 85; Anderson v. Frye, 18 id. 94; Dempster v. West, 69 id. 613; Brink v. Steadman, 70 id. 241; Munn v. Burges, id. 604; Hamilton v. Lubukee, 51 id. 415; Williams v. Rhodes, 81 id. 572; Beach v. Dyer, 93 id. 295; Maher v. Farwell, 97 id. 56.

      As to whether the deed and contract constituted a mortgage, or sale and contract for re-sale, see 1 Jones on Mortgages, sec. 267; Rue v. Dole, 107 Ill. 275; Pitts v. Cable, 44 id 103; Hanford v. Blessing, 80 id. 188.
    Mr. E. Gr. Montony, and Mr. A. C. Little, for the defendant in error:
    As to whether the deed constituted a mortgage, see Glass v. Doane, 15 Bradw. 66; Sutphen v. Cushman, 35 Ill. 186; 4 Kent’s Com. 136; 1 Washburn on Eeal Prop. 505; Snyder v. Griswold, 37 Ill. 216; Taintor v. Keyes, 43 id. 332; 1 Jones on Mortgages, secs. 267, 241-245, 250.
    As to the Statute of Limitations and laches, see 2 Daniell’s Ch. PI. and Pr. 729, 732, 735; 2 Story’s Eq. Jur. sec. 1520; Smith v. Clay, Ambler, 645; Bond v. Hopkins, 1 S. & L. 429; Ryder v. Emrich, 104 Ill. 470.
   Mr. Justice Scholfield

delivered the opinion of the Court:

We have given careful consideration to the questions discussed upon this record, and we find no reason to disagree with the conclusions reached by the Appellate Court. We hold:

First—This transaction was a mortgage, and not an absolute sale and re-sale. It differs from the cases cited and relied upon by counsel for plaintiffs in error in these material respects : The original indebtedness is not extinguished, but it is put in the form of a promissory note, payable two years after date, with interest at the rate of ten per cent per annum. This note Jackson may sue upon and collect at anytime after maturity, notwithstanding anything that appears in the contract between them. Jackson is required to account for rents and profits, and, after payment for repairs and taxes, to apply the amount due on account thereof in liquidation of the note. He has no discretion in this respect, and should the amount ultimately equal or exceed the amount due upon the note, he would be compelled at once to reconvey to Lynch, thus occupying the relation to Lynch of a mortgagee in possession.

Second—The plaintiff in error D. B. J ackson is not a purchaser for value. He is the mere recipient of a voluntary gift, —a devisee for no other consideration than that of natural love and affection,—and as respects this property, therefore, he occupies precisely the same position as would the devisor, were he, instead of the devisee, the party to this suit.

Third—The doctrine of laches has no application to a case like the present. As between these parties, this is a mortgage, in nowise different from any other mortgage; and the same rule of limitation is alike applicable, in such case, in equity as at law. (2 Story’s Eq. sec. 1520.) The plaintiff in error D. B. Jackson, as mortgagee in possession, exercises a trust, and the defendant in error was authorized to rely upon his performance of the trust until he did some act unequivocally disavowing it. And the defendant in error, therefore, can not be guilty of laches, under the facts here in evidence, by merely delaying the bringing of suit, for acquiescence in a course of conduct inconsistent with the duties of a trustee, as is well said in Perry on Trusts, (2d ed.) sec. 850, can not “be inferred until the cestui que trust has actual knowledge of the breach, for the reason that it is the duty of the trustee to execute the trust, and it is not the duty of the cestui que trust to make any inquiry.” See, also, 1 Pomeroy’s Eq., concluding part of sec. 418, and authorities cited in note 1, on page 460.

Fourth—We do not think the cross-error well assigned. We understand the direction to be, in substance, that an account be taken of the amount due J ackson on his loan, and of the rents and profits which have been received since the mortgagee has been in possession, after deducting taxes and necessary repairs. There is nothing in the direction which recognizes that the account shall not include rents received by Samuel L. Jackson, or that will limit it to rents actually received, if it shall be shown that by reasonable diligence more could have been realized, as held in Mosier v. Norton, 83 Ill. 524, as counsel seem to suppose.

The judgment is' affirmed.

Judgment affirmed.

Subsequently, on the 7th day of October, 1889, upon an application for rehearing, the following additional opinion was filed:

Scholeteld, J.:

A petition has been presented to us, praying for a rehearing upon this point, contended for by plaintiffs in error in their original argument, and of which no notice is taken in the foregoing opinion, namely: Conceding that the relations between Jackson and Lynch were those of mortgagor and mortgagee, yet inasmuch as they expressly agreed, in the instrument witnessing the continuance of that relation, that in the case of the failure of Lynch to make payments at the time therein stipulated, Jackson was authorized to declare the right of Lynch to redeem forfeited, and Jackson did declare such forfeiture by devising the property to plaintiff in error D. B. Jackson, a court of equity can not relieve Lynch from the consequences of such declaration of forfeiture. Authorities were cited in the argument, and are repeated in the petition, to the effect that where the parties to a contract for the conveyance of real estate make time of the essence of the contract, a failure to perform at the time will absolutely preclude the party so failing, from having a performance of the contract,— that in such case such parties’ rights are forfeited and incapable of being enforced, in equity as well as at law.

The point was not noticed in the opinion, because it was not supposed it was intended to be contended that this doctrine is applicable to the case, save upon the hypothesis that it was found that the transaction was an absolute conveyance and a contract of re-sale. That, if such had been found to be the fact, the doctrine contended for would have been applicable, there can be no question. But it was found that the transaction was not an absolute conveyance and a contract of re-sale, but a mortgage of the property; and the fact of mortgage being established, it was assumed that it is elementary that the mortgagor can not be deprived of his equity of redemption by any form of contract, however comprehensive and unmistakable its terms showing that such was intended to be its effect. A court of chancery, when it ascertains t^at the object of a transaction is to give security for a debt, “will always relieve the mortgagor from the consequences of his failure to perform the condition.” 2 Jones on Mortgages, (2d ed.) sec. 1039; Bispham’s Bq. secs. 153, 154; 3 Pomeroy’s Bq. secs. 1193, 1219.

It is said in Jones on Mortgages, ubi supra: “The right of redemption is the creature of the law. It is not in terms expressed by the parties in the mortgage. But whatever be the form of the transaction, if intended as a security for money it is a mortgage, and the right of redemption attaches to it. Although a deed contain a condition that it shall be absolute and without redemption if a certain sum be not paid by the grantor at a fixed time, and the condition is not punctually performed, there is a right of redemption.”

It is said in note 1 to section 1193 of 3 Pomeroy’s Bq.: “This doctrine is based upon the relative situation of the debtor and the creditor. It recognizes the fact that the creditor necessarily has a power over his debtor which may be exercised inequitably,—that the debtor is liable to yield to the exertion of such power; and it protects the debtor absolutely from the consequences of his inferiority, and of his own acts done through infirmity of will. The doctrine is universal in its application, and underlies many special rules of equity. It extends to stipulations limiting the time of redemption, or the parties who may redeem. Notwithstanding all such stipulations, the time to redeem is general.” See the numerous cases there cited.

The prayer of the petition must be denied.

Rehearing denied.


source: Caselaw Access Project

author: Mr. Justice Bailey

license: Public Domain

text:
    Leonard Hodges v. Elizabeth Bearse.

      Filed at Ottawa May 16, 1889.

    1. Appeals—reviewing the facts. In an action on the case for a personal injury resulting from alleged negligence, if there is evidence tending to support the verdict of the jury, the propriety of their finding is not open to consideration in this court.
    2. Evidence—to rebut negligence—no previous accident had happened. In an action for a personal injury from negligence in the construction and operating of an elevator in a building, and in failing to employ a competent person to manage and operate the same, the defendant offered to prove that no accident of any kind had happened to the elevator, previous to the one in question, during the four and a half years it had been in use, which the court refused to allow: Held, that the •evidence was properly excluded, as it did not tend to rebut the evidence •of negligence in the particular instance.
    3. Pbactice—directing what the verdict shall be. Where there is •evidence tending to prove the plaintiff’s case, or sufficient to present a proper case to the jury, an instruction to find for the defendant will be jproperly refused.
    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. Stiles & Lewis, for the appellant:
    The court erred in not excluding the plaintiff’s evidence from the jury, and in refusing to instruct the jury to find for the ■defendant.
    The obligation resting upon an owner is, that reasonable •care and skill have been exercised to render the premises reasonably fit for the uses which he has invited others to make of them. Ritterman v. Ropes, 51 N. Y. 25; Lorney v. McLean, 129 Mass. 33; Henkel v. Murr, 31 Hun, 28; Manufacturing Co. v. Ballou, 71 Ill. 417; Cooley on Torts, 551.

      The refusal to permit the defendant to show that the elevator had run since the building was put up, a period of four-years and a half, without an accident of any kind, was error. This evidence was important, as bearing ón the question of' negligence. Sinton v. Butler, 40 Ohio St. 158.
    The action of the court below, in itself fixing the amount of damages, and compelling a remittitur to that amount, instead of granting a new trial, was error. Railway Co. v. Cummings, 20 Bradw. 333.
    Messrs. Brandt & Hoffman, and Mr. Joseph N. Barker, for the appellee.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was an action on the case, brought by Elizabeth Bearseagainst Leonard Hodges, to recover damages for a personal injury received by the plaintiff by means of the fall of a passenger elevator on the premises of the defendant. On the Uth day of December, 1886, the date of the injury, the defendant was, and for several years had been, the owner of a large five-story brick tenement house on the corner of Indiana avenue and Twenty-second street, Chicago. The upper stories of said building were divided into apartments, which were usually-rented to and occupied by tenants, and at the date of said injury, the plaintiff and her sister were tenants of the defendant-occupying rooms in the fifth story of said building. For the-convenience of his tenants and others desiring to use it, the-defendant had caused a passenger elevator to be constructed in said building, and the same was being operated.by one of the defendant’s employes. On the evening of the day above-mentioned, the plaintiff and her sister, for the purpose of being conveyed to the fifth floor of the building, entered said elevator, and while they were going up, the elevator proved to be unmanageable, so that the employe in charge was unable to stop. it, and it continued on until it collided with the works overhead, and then fell, seriously injuring the plaintiff.

The declaration charges negligence in the defendant in failing to provide a strong, substantial and safe elevator, with proper safety appliances and machinery attached, in failing to employ safe and trustworthy servants and agents to manage the same, and also negligence on the part of the servant in charge of the elevator in not using proper care and diligence in-running and operating it. The defendant pleaded not guilty, and on trial before the court and a jury, the issues were found for the plaintiff, and her damages assessed at $10,000. From this sum the plaintiff remitted $3000, and the court, after denying the defendant’s motion for a new trial, gave judgment-in favor of the plaintiff for $7000 and costs. On appeal to the Appellate Court said judgment was affirmed, and by a further appeal the record is now brought to this court.

The counsel for the defendant strenuously insisted in the trial court, and insist here, that there is no evidence which, when properly construed, has a tendency to sustain the charges of negligence made by the declaration. We have given their argument on this point careful consideration, and are clearly of the opinion that their contention can not be sustained. It would serve no useful purpose for us to analyze the evidence in detail, and we shall therefore content ourselves with saying that it was manifestly sufficient to present a proper ease for the jury, and that the trial court ruled correctly in refusing to instruct the jury to find a verdict for the defendant. The jury having found the defendant guilty, and there being evidence tending to support their verdict, the propriety of then-finding is not a question open for consideration in this court.

Counsel for the defendant, in their brief, suggest rather than argue two or three points arising upon certain rulings of the court during the progress of the trial. The first of these arises-upon the refusal of the court to allow the defendant to prove by his witnesses that no accident of any kind had happened to the elevator previous to the one in question, during the four and a half years it had been in use. We are unable to see how the evidence thus excluded could be in any degree, material. The evidence in relation to the negligent and improper construction of the elevator and its appurtenances would not be rebutted by proof that such construction had never before happened to result in an accident, nor would the evidence as to the want of skill or the negligence of the employe in charge of the elevator be met by proof that he had never before suffered any disaster. Such evidence would only tend to distract the attention of the jury by raising a multitude of collateral issues having no material bearing upon the questions to be decided.

It is also suggested that the court erred in refusing five of the instructions asked by the defendant, and in modifying two of those asked by him and giving them to the jury so modified. We are favored however with no argument on this point beyond the bare suggestion. In examining the instructions given, we find that seventeen were given at the instance of the defendant, including the two the modification of which is complained of. In those instructions the law was given to the jury with great fulness, and quite as favorably to the defendant as he had a right to ask. The instructions refused, so far as they enunciated correct propositions of law applicable to the case, are embodied, in substance, in those given. The modified instructions are undoubtedly correct as given. In one the modification does not materially change its legal purport, but only serves to make its meaning more perspicuous, while the other, before the modification was made, was erroneous.

None of the points made by counsel in their briefs can be sustained, and the judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Wilkin

text:
    The Illinois Central Railroad Company v. Belford Slater, Admr.

      Filed at Ottawa May 16, 1889.
    1. Negligence—railroad and highway crossings—signals required— power of legislature to change charter duties. The charter of the Illinois Central Railroad Company fixed its duties as to the giving of signals of trains approaching highway crossings. Afterward a general law was passed on the subject of such signals, prescribing different duties in that regard, and the new rule was made applicable to all railroads. It was contended by the company named, that its duties were fixed and governed by its charter, and could not be modified by subsequent legislation : Held, that the legislature had the power and right to impose these new duties upon all railroads, whether incorporated before or afterward. The right to impose such duties grows out of the police power, which may be exercised by the legislature at discretion, as the public safety requires.
    2. Same—evidence—as to omission to give signal on approaching highway crossing. In an action against a railway company to recover for an injury resulting from an omission of the engineer to give the statutory signal of warning as his train approached a highway crossing, the fact of such omission may be proved by other than positive and direct testimony.
    3. In such a case, the court instructed as follows: “It is not necessary, in order to enable the plaintiff to recover, that any witness should swear positively that no bell was rung or whistle sounded upon the train in question at the distance of at least eighty rods from the highway crossing. It is sufficient, upon that question, if the jury believe, from all the evidence in the case, that no bell was rung or whistle sounded at a distance of at least eighty rods from the crossing:” Held, that there was no error in giving the instruction, under the evidence in the case.
    4. Same—speed of train—evidence. In an action on the case by an administrator, against a railway company, to recover damages for negligence causing the death of the intestate, the declaration alleged various grounds of negligence, among which was, that the train of cars which collided with a wagon in which the person killed was riding at the time of the accident, while crossing the track, was running at a high and dangerous rate of speed: Held, that the plaintiff had the right to prove the rate of speed of the train under the allegation.

      5. And, independently of such allegation, it was proper to prove the rate of speed at which the train was running, as tending to show whether or not the deceased, under all the circumstances, exercised due care, and whether other alleged acts or omissions on the part of the defendant’s servants caused the injury. In other words, any proof of facts and circumstances immediately attending the accident was competent and proper.
    6. SAME'—the rule in respect to children—care required of them. The law of negligence applicable to children is, that they are required to exercise only that degree of care and caution which persons of like age, capacity and experience may reasonably be expected to naturally or ordinarily use in the same situation and under the like circumstances, provided the parents or persons having their control are not guilty of a want of ordinary care in allowing them to be placed in such circumstances of danger. This rule will not apply to minors or children possessing the knowledge and capacity of adults.
    7. Same—measure of damages—death of child from negligence—pecuniary ability of father. In an action by the father, as administrator of the estate of his deceased son, against a railway company, for negligence resulting in the death of the son, where there is no pretense that such son, on account of tender years or want of mental capacity, was incapable of taking care of himself, the defendant will not have the right to prove that the plaintiff was a man of wealth at and before the time of the accident.
    8. Same—prospective services of infant son, as an element of damages. In such case, the court refused to instruct the jury that the father is entitled to the earnings and services of his minor son until the latter is twenty-one years of age, and the jury has no right to allow for any loss of services or earnings of the son diming the period of his minority : Held, that the instruction was properly refused.
    Appeal from the Appellate Court for the Second District;— heard in that .court on appeal from the Circuit Court of Ogle county; the Hon. C. W. Upton, Judge, presiding
    Messrs. W. & W. D. Barge, for the appellant:
    If a child, though young, is capable of the care and discretion required of an adult, the rule applicable to adults is to be applied to him. Pierce on Railroads, (2d ed.) 336; Railroad Co. v. Becker, 76 Ill. 25; Ewen v. Railway Co. 38 Wis. 613; Reynolds v. Railroad Co. 58 N. Y. 248; McMahan v. New York, 33 id. 642; Shearman & Redfield on Negligence, (3d ed.) 50.

      . As to the duty of one to stop and look for an approaching train before attempting to cross the track, see Railroad Co. v. Manly, 58 Ill. 300; Railway Co. v. Hatch, 79 id. 137; Railroad Co. v. Damerell, 81 id. 450; Railroad Co. v. Goddard, 72 id. 568; Pennsylvania Co. v. Frana, 112 id. 398; Railway Co. v. Neikirk, 15 Bradw. 172; Railroad Co. v. McKean, 40 Ill. 218 ; Railroad Co. v. Bell, 70 id. 102; Havens v. Railway Co. 41 N. Y. 296; Wilcox v. Railroad Co. 39 id. 358; Railroad Co. v. Houston, 95 U. S. 697; Railway Co. v. Hunter, 33 Ind. 264; Railroad Co. v. Miller, 25 Mich. 274; Railroad Co. v. Heileman, 49 Pa. St. 60; Railroad Co. v. Beale, 73 id. 504; Blaker v. Railway Co. 30 N. J. Eq. 240; Telfer v. Railroad Co. 30 N. J. L. 138; Brown v. Railway Co. 22 Minn. 165; Hines v. Railroad Co. 41 Iowa, 227; Salem v. Railroad Co. 13 Nev. 106; Fleming v. Railroad Co. 49 Cal. 253; Butterfield v. Railroad Co. 10 Allen, 532; Allyn v. Railroad Co. 105 Mass. 77.
    Affirmative testimony has greater force and weight than mere negative testimony. Railroad Co. v. Dickson, 88 Ill. 431; Railroad Co. v. Robinson, 106 id. 142; Railroad Co. v. Stumps, 55 id. 367; Railroad Co. v. Gretzner, 46 id. 74; Railroad Co. v. Still, 19 id. 499; Frizell v. Cole, 42 id. 362.
    There is no law that fixes the speed of trains at highway crossings in the country. At such places they may run at any rate of speed consistent with the safety of the passengers. Railroad Co. v. Lee, 68 Ill. 576; Railroad Co. v. Harwood, 80 id. 88; Warner v. Railroad Co. 44 N. Y. 465; Cohen v. Railroad Co. 14 Nev. 376; McKonkey v. Railroad Co. 40 Iowa, 205.
    The same rule should not be applied to persons dependent for support upon their labor, and to those whose means enable the parent to give a constant personal attention to the care of children, or employ a person for that purpose. Railroad Co. v. Gregory, 58 Ill. 226; Railroad Co. v. Bumstead, 48 id. 221; Walters v. Railroad Co. 41 Iowa, 71.
    In a suit by a father for an injury to his child, the Supreme Court ruled: “Had the child been a plaintiff to recover for the injury, the rule would have been different, as the same degree of care and diligence is not required of a child as from an adult. But where a father sues for an injury to a child, his conduct must be free from blame, or his negligence, at least, should be slight, and that of the defendant gross.” Hund v. Geier, 72 Ill. 393; Railway Co. v. Stratton, 78 id. 88; Smith v. Railway Co. 92 Pa. St. 450; Railway Co. v. Grable, 88 Ill. 441.
    The case at bar is by the administrator, who is the father of the intestate, and was charged with the duty of exercising reasonable care over him for his safety, without which there can be no recovery. Railway Co. v. Grable, 88 Ill. 441; Hund v. Geier, 72 id. 393; Railroad Co. v. Stratton, 78 id. 88; Smith v. Railway Co. 92 Pa. St. 450.
    Mr. James H. Cartwright, and Mr. James W. Allaben, for the appellee:
    The unusual and dangerous speed of the train at the crossing was negligence. Railroad Co. v. Lee, 87 Ill. 454; Railroad Co. v. Stables, 62 id. 213; Improvement Co. v. Stead, 5 Otto, 161; Railway Co. v. Hillmer, 72 id. 235.
    The evidence offered of the financial condition of the plaintiff was properly excluded.'
    If the intestate exercised such care as, under the circumstances, might be expected from one of his age and intelligence, it was sufficient. City of Chicago v. Keefe, 114 Ill. 222.
    Whether the question of the capacity of children of observing and avoiding danger be considered with reference to contributory negligence on the part of the child injured, or of parents or guardians, it is obvious that no definite rule of law can be laid down which should interfere with the jury judging each case on its own merits, and by its particular circumstances. If the child, from its age and experience, be found to have capacity and discretion to observe and avoid danger, it should be held responsible for the exercise of such measure of capacity and discretion as it possesses. Railroad Co. v. Becker, 76 Ill. 25.
    A child is not to be judged by the same rule as an adult. Railroad Co. v. Kelly, 31 Pa. St. 372.
    A boy is bound to exercise only such care as a person of his age, of ordinary prudence, would exercise. Reynolds v. Railroad Co. 2 N. Y. 644.
    The same strict rules as to negligence do not prevail as to children that are enforced as to adults. Railroad Co. v. Stout, 17 Wall. 657; Boland v. Railroad Co. 36 Mo. 484.
    Where witnesses testify that they were in a situation to have heard a bell ring or whistle sound if there had been any rung or sounded, and that they did not hear any, such testimony is not negative testimony. Railroad Co. v. Hillmer, 72 Ill. 235.
    Where witnesses are looking at a train, and their attention is directed to what is transpiring, and they hear no bell rung or whistle sounded, such evidence is not negative'in its character. Railroad Co. v. Lee, 87 Ill. 454,
    The instruction announced a correct rule of law. It is immaterial whether a fact is established by affirmative or negative evidence. It is sufficient if the jury believe, from all the evidence, that the fact is established. “The proof is what is required, and not the character of the evidence, so that it is legitimate and to the issue.” Duffield v. Delancey, 36 Ill. 258.
    The provision for giving signals at highway crossings is a police regulation for the protection and safety of citizens, and, no corporation is above the general laws enacted for the safety of the community. Railroad Co. v. Loomis, 13 Ill. 548; Railroad Co. v. Parks, 18 id. 460; Railroad Co. v. McClelland, 25 id. 140; Railroad Co. v. Appleby, 28 id. 283.
    The plaintiff was entitled to recover such damages as he sustained as next of kin, and the loss of his son’s services is an element of those damages. Chicago v. Hesing, 83 Ill. 204; Stafford v. Rubens, 115 id. 196; Railroad Co. v. Shannon, 43 id. 338.
   Mr. Justice Wilkin

delivered the opinion of the Court:

This case originated in the circuit court of Ogle county, and is an action on the case, by appellee, against appellant, for negligently causing the death of Arthur B. Slater, his son.

The deceased was about nine years old; When killed he was in a farm wagon, drawn by two horses, with an elder brother, thirteen years of age. The two boys were in charge of the team, and in attempting to cross the track of appellant, on the public highway, using due care, as is alleged in the declaration, the wagon was struck by a passing locomotive and both boys killed. The negligence charged in the declaration against the employes of appellant is, the omission to give the statutory signals, keep a proper lookout, running at a dangerous rate of speed, and failing to use reasonable diligence to stop the train in time to avoid the injury. Appellee recovered a judgment in the circuit court for $1000, which was, by the Appellate Court, on appeal, affirmed, and appellant again appeals.

The case is submitted in this court on the part of appellant on the same brief and argument filed in the Appellate Court. That court, by its judgment of affirmance, having settled all controverted facts adversely to appellant, we need give no attention to the lengthy review of the evidence contained in the argument, unless it is found necessary to do so in passing upon questions of law submitted for our decision.

On the trial, appellee was permitted, over objection, to prove the speed at which the train was running at the time deceased was killed, and this, appellant says was error. One of the acts of negligence charged in the declaration is, that the train was running at a high'and dangerous rate of speed at the time of the accident. Surely the plaintiff had a right to prove that averment if he could. But, independent of the allegation, it was proper to prove the rate of speed at which the train was running, as tending to show whether or not deceased, under all the circumstances, exercised due care, and whether other alleged acts or omissions on the part of appellant’s servants caused the injury. In other words, any proof of facts and circumstances immediately attending the accident was competent and proper. Chicago, Burlington and Quincy Railroad Co. v. Lee, Admr. 87 Ill. 454; Indianapolis and St. Louis Railroad Co. v. Stables, 62 id. 313; Rockford, Rock Island and St. Louis Railroad Co. v. Hillmer, 72 id. 235.

Appellant offered to prove that appellee was a man of wealth at and before the time of the accident; but, on objection, the court refused to allow it to do so. It seems that the purpose for which the evidence was offered was to show that the father was able to employ others to perform the service deceased was •engaged in at the time of his death, and thereby have saved him from exposure to danger incident to that service, and it is insisted that such evidence was competent, under the ruling of this court in Chicago and Alton Railroad Co. v. Gregory, Admr. 58 Ill. 226, and other eases cited, where, in passing on the question of negligence of parents in the care of their children, it is said the same rule should not be applied to persons dependent for support upon their labor, and those whose resources enable a parent to give constant personal attention to the care of their children, or employ persons for that purpose. It is not pretended that deceased, on account of tender years or want of mental capacity, was incapable of taking care of himself, and therefore the ability of the father to watch over him, or employ others to do so, was wholly immaterial; and to say, as a matter of law, that because a parent may be able to raise his child in idleness, therefore he must do so, lest the child be exposed to danger in the performance of labor, would be monstrous. We find no error in admitting or excluding evidence.

The first, second, third and fourth instructions given on behalf of appellee are criticized by counsel for appellant, and a reversal insisted upon because they were given. We will notice them briefly in the order named. •

The first and second define the duty of railroad companies-in this State as to giving signals at public highway crossings, in the language of section 68, chapter 104, of our statute, and instruct the jury, that if, by reason of a failure of appellant’s servants to perform that duty, deceased was killed, he being free-from negligence, appellant would be liable. The principal objection urged to these is, that inasmuch as appellant’s charter defines its duty as to the giving of such signals differently from the statute, it was error in the court below to require of appellant’s servants a compliance with the statute. The question here sought to be raised is not an open one in this court. The right to impose these and other like duties upon railroad corporations, by statute, grows out of the police power which may be exercised by the legislature, at its discretion, as the public safety requires. (Galena and Chicago Union Railroad, Co. v. Loomis, 13 Ill. 548; Ohio and Mississippi Railroad Co. v. McClelland, 25 id. 140; Galena and Chicago Union Railroad Co. v. Appleby, 28 id. 283. See, also, 2 Redfield on Railways, 428.) It is of the first importance that these duties, in the running, and management of railroad trains, should be regulated by general statute, and that railroad employes be required to-conform thereto, thus avoiding the confusion and increased danger to life and property which would result from the application of different rules to the many different railroads throughout the State.

Objections are urged to the phraseology of these instructions, but we think they are unimportant.

The third instruction, which is, “it is not necessary, in order to enable the plaintiff to recover, that any witness should swear positively that no bell was rung or whistle sounded upon the train in question at. the distance of at least eighty rods from the highway crossing. It is sufficient, upon that question, if the jury believe, from all the evidence in the ease, that no bell was rung or whistle sounded at a distance of at least eighty rods from the crossing, ”—is not open to the criticism made upon it, in view of the evidence in the case. It simply informed thé jury that the fact in question might be proved by other than positive and direct testimony.

The fourth is as follows: “The jury are instructed that the rule of law as to negligence in children is, that they are required to exercise only that degree of care and caution which persons of like age, capacity and experience might be reasonably expected to naturally or ordinarily use in the same situation and under the like circumstances, provided that the parents or persons having the control of such children have not been guilty of want of ordinary care in allowing them to be placed in such circumstances.” The giving of this instruction is urged as error, and is said to be directly contrary to the law in this class of cases. We find, however, in Weick v. Lander, 75 Ill. 93, which was an action by a father, as administrator, for the wrongful killing of his son, twelve years of age, it was said: “It is not to be expected that a boy twelve years old will use the same degree of caution and care as a person of mature years; nor does the law require it. It was proper for the jury, in passing upon the negligence of the deceased, to take into consideration his age and experience.” In Chicago and Alton Railroad Co. v. Becker, Admr. 76 Ill. 25, (a similar action,) the deceased son being only six or seven years of age, it was again said: “The age, the capacity and discretion of the deceased to observe and avoid danger, were questions of fact, to be determined by the jury, and his responsibility was to be measured by the degree of capacity he was found to possess.” (See, also, same case, 84 Ill. 483.) So in City of Chicago v. Keefe, 114 Ill. 222, the deceased being a lad between ten and eleven years of age, an instruction, given at the request of the plaintiff, limited the degree of care required of the deceased to such as, “from his age and intelligence, under the circumstances in evidence, was required.” The phraseology was condemned, but it was held, that inasmuch as it was in effect the same as if it had been limited to “such care as might be expected of a person of his age and discretion,” there was no substantial error in giving it. And it was further said: “The circumstances in evidence are always to be taken into consideration in such cases, and if the intestate exercised such care as, under the circumstances, might be expected from one of his age and intelligence, it was sufficient.” These decisions are in harmony with those of other States on the same subject, and but recognize the rule laid down by approved text writers on negligence. Shearman & Eedfield on Negligence, sec. 49; Wharton on Negligence, sec. 309.

The instruction was proper, nor does it, as insisted, conflict with the twenty-fourth given on behalf of appellant, to the effect, that if said sons, or either of them, possessed the knowledge or the ability of adults, the law would exact the same degree of care and prudence of them as from older persons. The first announces the general rule as to negligence in children ; the latter that such general rule would not apply to the deceased and his brother, if the jury should believe, from the evidence, they possessed the capacity of adults.

It is to be borne in mind that this is not, as counsel for appellant assume in argument, a suit by a parent for injury to his child, nor is it a case in which the deceased is shown to have been an infant, incapable of negligence or exercising any degree of care, in which case the contributory negligence, if any, is that of the parent, and not of the child. Hence the authorities cited in support of the position that this fourth instruction is inapplicable to the case, are not in point.

Defendant asked, but the court refused, to instruct the jury, that “the father is entitled to the earnings and services of his minor son until such son is twenty-one years of age, and the jury has no right to allow any damages in this case for any loss of services or earnings of Arthur B. Slater during the period of his minority.” It is argued, with earnestness, that this instruction contained a correct rule of law applicable to cases of this kind in the admeasurement of damages. To the contrary are the cases of City of Chicago v. Scholten, Admr. 75 Ill. 470, Rockford, Rock Island and St. Louis Railroad Co. v. Delaney, Admr. 82 id. 198, and City of Chicago v. Keefe, 114 id. 222.

It is suggested, hut not seriously urged, that other instructions asked by appellant were improperly refused. Having examined them, and also those given, we are satisfied that no error was committed by the trial court, to the prejudice of appellant, in refusing instructions. Thirty-four were asked by appellant, many of them quite voluminous. Twenty-five were given. The issues in the case are few and simple. The trial court might, with great propriety, have refused many more than it did. Certainly appellant has no substantial ground for complaint that the jury was not fully and fairly instructed as to the law, on its behalf.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    Ralph Plumb v. Samuel Campbell.

      Filed at Ottawa November 15, 1888.

    1. Contbacts-—unilateral contract—question of mutuality•—of elements essential to its binding effect. A promise for a promise is not a good consideration unless there is mutuality, so that each party may hold the other to the performance of his engagement. But it does not follow that a contract in writing, to be complete, must show such mutuality on its face.
    2. In the case of a unilateral contract, the party making the promise is bound to nothing unless the promisee, within a reasonable time, engages to do, or else does or begins to do, the thing which is the consideration of the first promise. Until such engagement, or such doing, the promisor may withdraw his promise, because there is no mutuality, and therefore no consideration for it.

      3. But after an engagement on the part of the promisee which is sufficient to bind him, then the promisor is bound also, because there is then a promise for a promise, with entire mutuality of obligation. So if the promisee begins to do the;, thing in a way which binds him to complete it, there is also a mutuality of obligation. And if, without any promise whatever, the promisee does the thing required, then the promisor is bound, on the ground that the thing done is itself a sufficient and complete consideration, and the original promise to do something if the other party will do something, is a continuing promise until the other party does the thing required of him.
    4. A promise lacking mutuality at its inception becomes binding on the promisor after performance by the promisee, and other proof of assent on his part is not necessary. It is. sufficient if the required act is performed by him.
    5. Where one party gives another a written promise or offer to sell his bonds at a given price, or make them realize the promisee such price upon the latter doing certain other things, proof of an express acceptance of the offer is not necessary to bind the promisor. Performance or part performance by the promisee, in such a way as to compel him to complete it, is sufficient.
    6. Where a party was induced to do certain work, and accept in payment $50,000 of municipal bonds, upon the written agreemen t of a third person to sell the bonds for the former for a given sum on certain conditions, and if they should sell for less, to make up the deficit, and have all that might be realized above that sum for his services in selling, it was held, that the party so promising to sell for the amount stated could be held liable in either of three ways: First, by the other party engaging, within a reasonable time, to perform the contract on his part as to the conditions; second, by beginning such performance in a way that would bind him to complete it; and third, by actual performance.

      1. Same—parol evidence to show performance. Where a party promised another, in writing, to sell for the latter certain municipal bonds within a specified time after they were placed in his hands, with certain evidences of their validity, for a certain per cent of their face value, and make up the deficit in case of a sale for less, and to have any excess above that price for his services, it was held, that parol evidence of the performance of the conditions by the promisee was competent.
    8. Measure oe damages—breach of contract for sale of securities at a stipulated price. The market value of property is resorted to for the purpose of obtaining the compensation to be paid to the injured party for a breach of contract, for the reason it is presumably the true value. If there is no market value, the real value is to be ascertained from such evidence of value as is attainable. The real value of municipal bonds may be shown by proof of the highest attainable selling price.

      9. So in an action for the breach of a contract, in which the defendant guaranteed the sale of bonds at a certain price, when they sold for less than the price guaranteed, the court instructed the jury, that if they found for the plaintiff, to allow him the difference between the highest attainable selling price and the amount guaranteed by the defendant, with interest at six per cent from the time fixed for the sale by the parties: Held, that there was no error in the charge.
    10. Same—interest—as an element of damages—on neglect to make sale ■of securities for (mother. Where a person employed to sell municipal bonds guarantees a sale at a certain price within a given time after they come to his hands, and they are sold for a less price, which was the highest attainable one at the time of the sale, the owner of the bonds will be entitled to recover of the guarantor the difference between the selling xn-ice and that guaranteed, with six per cent, interest on the difference from the time the sale should have been made.
    11. Guaranty—principal and agent—sale of securities—notice. Where an agent employed to make sale of bonds guarantees a sale within a given time at a certain price, and fails to perform on request, the princrpal may sell the bonds at the best xirice he can get, without notice to the agent, and hold him for the difference in the price, with interest.
    12. Limitations—whether a contract is verbal or written If an agreement, as set forth in writing, is so indefinite as to require resort to xiarol testimony to make it complete, it will be treated as an oral contract, in applying the Statute of Limitations.
    13. Where one party alone signs a written agreement to do a certain thing when the xiromisee shall do some other act or thing, if the latter relies alone upon his engagement to perform on his part, the contract will be treated as oral, and the cause of action will be barred in five years; but where he relies upon actual xierformance, the cause of action will be barred only within ten years.
    14. It does not follow because proof of performance is necessary to hold the promisor liable uxion his unilateral written contract, that such contract is xiartly in parol.
    15. Instbuction—must be based on evidence. An instruction based on a hypothesis, wholly unsupxiorted by the evidence, is properly refused.
    16. Hew tbial—newly discovered evidence. To obtain a new trial on the ground of newly discovered evidence the xiarty must show due diligence to discover and xiroduce the new evidence, and it must be decisive in its character, and not merely cumulative.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of La Salle -county; the Hon. Chables Blanchabb, Judge, presiding.

      Messrs. Bull & Strawn, for the appellant:
    The contract was not complete until acceptance, and oral evidence of that fact being necessary, the contract is to be regarded as resting in parol. Edwards v. Goldsmith, 16 Pa. St. 43; Goldsmith v. Dobson, 5 Whart. 398; Hurlbert v. Atherton, 59 Iowa, 91; Bishop on Contracts, secs. 164, 321, 326; Wright v. Weeks, 25 N. Y. 153; Smith v. O'Donnell, 8 Lee, 468; Vicary v. Moore, 2 Watts, 456; 2 Parsons on Contracts, 492, note b.
    If the bonds had no market value, and it was necessary to sell them to show the measure of damages, notice of the sale should have been given to appellant. Bagley v. Findlay, 82 Ill. 524; Thorne v. McVeagh, 75 id. 81; Mulloy v.Lord, 29 Barb. 454; Pickering v. Bardwell, 21 Wis. 562; Kadish v. Young, 108 Ill. 170; Tompkins v. Hass, 2 Pa. St. 74; Crooks v. Moore, 1 Sandf. .597; Dunlap v. McAndrew, 44 N. Y. 72.
    A contract partly in writing and partly oral, is, in legal effect, an oral contract. Bishop on Contracts, sec. 164; Railway Co. v. Maddox, 18 Kan. 546 ; Dwight v. Pomeroy, 17 Mass. 303; Lang v. Henry, 54 N. H. 57; Dana v. Hancock, 30 Vt. 619; Briggs v. Railway Co. 31 id. 211.
    Interest is not recoverable on unliquidated damages. Buckmaster v. Grundy, 3 Gilm. 626; 1 Johns. 315; Newell v. Griswold, 6 id. 44; Holliday v. Marshall, 7 id. 213.
    Mr. E. N. Rinehart, and Messrs. Duncan & O’Connor, for the appellee:
    Performance by the plaintiff is a good consideration, and removes the objection of want of mutuality. Railroad Co. v. Graff, 27 Iowa, 99; Willetts v. Insurance Co. 45 N. Y. 47; Train v. Gold, 5 Pick. 384; Miller v. McKenzie, 95 N. Y. 578; Angell on Limitations, sec. 113; Bishop on Contracts, secs. 87, 329; Ullmann v. Kent, 60 Ill. 271.
   Mr. Justice Wilkin

delivered the opinion of the Court:

This case originated in the circuit court of LaSalle county. The declaration is in assumpsit, to which appellant, who was defendant below, filed the general issue, and two special pleas interposing the five years’ Statute of Limitations. The first of these pleas avers that the contract sued on is not in writing, and the second, that it is partly in writing and partly by parol, to both of which appellee replied that the contract was in writing. Appellee recovered a judgment in the circuit court, for $14,000, which has been affirmed by the Appellate Court, and the record is brought before us by this further appeal.

The writing relied upon by appellee under the pleas of the Statute of Limitations, is as follows:

“August 17, 1875.

“This agreement witnesseth, that Ralph Plumb agrees to sell the fifty town bonds voted by the town of Douglass, in Effingham county, Illinois, to aid in the construction of the Bloomington and Ohio River railroad, for Samuel Campbell, unless prevented by some means which he can not control, within twenty days after said Campbell shall place said bonds under the control of said Plumb, properly issued and dated, and deliver to said Plumb the certificate of the supervisor of said town that the conditions upon which said bonds were voted have been complied with, so as to entitle said bonds to registry under the law, and out of the proceeds of said sale to pay said Campbell $45,000, and if said bonds shall sell for less than $45,000, said Plumb will pay said Campbell the deficit, and if they shall sell for more than $45,000, said Plumb may retain the excess for his fees for selling.

Ralph Plumb.”

This he maintains is a written contract, on which he might bring his action at any time within ten years, under section 16, chapter 83, of the Revised Statutes, whereas appellant contends that it could only become an agreement when aided by parol evidence, and is therefore an oral contract, governed by the provisions of section 15 of the same chapter, barring the action in five years.

If it be true that the agreement, as set forth in writing, is so indefinite as to necessitate resort to parol testimony to make it complete, the law is, that in applying the Statute of Limitations it must be treated as an oral contract. Both reason and authority support this view.

The contention of appellant is, that for want of an agreement on the part of appellee to do anything on his part, as shown by the writing, there is want of that mutuality which ■is necessary to every complete contract. A promise for a promise is not a good consideration, unless there is mutuality, so that each party may hold the other to the performance of his engagements. It does not follow, however, that a contract in writing, to be complete, must show such mutuality on its face. There is a seeming want of mutuality in many cases of contract which may be enforced by the parties on the same proof as would have been necessary had that mutuality fully appeared,—“as, where one promises to see another paid if he will sell goods to a third person, or promises to give a certain .sum if another will deliver up certain documents or securities, or if he will forbear a demand, or suspend legal proceedings, ■or the like.” (1 Parsons on Contracts, sec. 450.) In commenting on this class of eases, the author says: “Here, it is

■ said that the party making the promise is bound, while the other is at liberty to do anything or nothing. But this is a mistake. The party making the promise is bound to nothing until the promisee, within a reasonable time, engages to do, ,or else does or begvns_Jg_do, the thing which is the condition of the first promise. Until such engagement or such doing, the promisor may withdraw his promise, because there is no mutuality, and therefore no consideration for it. But after an engagement on the part of the promisee, which is sufficient to bind him, then the promisor is bound also, because there is now a promise for a promise, with entire mutuality of obligation. So if the promisee begins_ to_ do the thing in a way which binds him to complete it, here is also a mutuality of obligation. But if, without any promise whatever, the promisee does the thing required, then the promisor is bound on another ground. The thing done is itself a sufficient and a complete consideration, and the original promise to do something if the other party would do something, is a continuing promise until that other party does the thing required of him.”

A promise lacking mutuality at its inception becomes binding upon the promisor after performance by the promisee. Willetts v. Sun Mutual Ins. Co. 45 N. Y. 45,—citing Train v. Gold, 5 Pick. 380; Hilton v. Southwick, 17 Me. 303; L’Amoreaux v. Golreed, 7 N. Y. 349, (6 Am. Eep. 31;) Des Moines Valley Railroad Co. v. Graff, 27 Iowa, 99, (1 Am. Eep. 256;) Boston and Maine Railroad Co. v. Bartlett et al. 3 Cush. 224; Langdell’s Select Cases on Contracts, 94.

These contracts are sometimes called unilateral contracts. Proof of assent is not necessary on the part of the promisee. It is sufficient if the required act be performed by him. Hare on Contracts, 304.

On these authorities, it is clear that appellant could be bound, under this writing, in either of three ways: First, by appellee engaging, within a reasonable time, to perform the contract on his part; second, by beginning such performance in a way which would bind him to complete it; and third, by actual performance* If appellee was relying upon the first, and was attempting to show his engagement by parol, he would be within the rule insisted upon by appellant, and decided in Hurlbut v. Atherton, 59 Iowa, 91. Such is not the case made by his declaration. He seeks, by the allegations of his declaration, to charge appellant, not because of any promise on his part, but because he, in fact, performed,—actually did the things to be done by him. Under the allegations of the declaration, and the pleas, the terms of the contract between the parties are as definite as though the promise of appellee had been written at length and the paper signed by both. No parol proof was necessary, or even admissible, to add to or take from the writing. It can not be maintained, that because proof of performance is necessary to hold appellant liable on his promise, therefore the contract rests partly in parol. The necessity for such proof is no greater than if the mutuality of the contract fully appeared upon the face of the writing. We perceive no reason for distinguishing this from an ordinary contract in writing, in applying the Statute of Limitations, and therefore hold that the action was not barred.

It is also contended by counsel for appellant, that certain parts of the testimony of appellee, and Anthony Thornton, who was a witness introduced on his behalf, were incompetent, and improperly admitted, over objection by appellant; and it is argued, that if such proof was necessary to establish the contract, then it must follow that it is but an oral contract, proven partly by the writing and partly by this parol testimony, but if not necessary for that purpose, then it was incompetent. The manifest object of the testimony objected to was to prove performance on the part of appellee. For that purpose it was clearly competent. We think it all tended to prove that fact. The objections to it were general, going only to the materiality of the evidence under the issues. We find no substantial error in the rulings of the trial court in admitting evidence.

The court refused instructions numbered 4, 6, 10, 12, 13 and 14, asked by appellant, and this is assigned for error. The fourth is objectionable, in that it requires the appellee, in addition to the introduction of the paper sued on, to “show, by a preponderance of evidence, that he accepted the proposition according to the terms therein stated, and that he in some way notified the defendant that he accepted the proposition made in such paper.” The sixth, in that it informs the jury that the plaintiff “must show, by the evidence, that he also agreed to place said bonds under the. control of the defendant, and that the defendant might retain for his fees, in selling said bonds, whatever they might sell for over the sum of $45,000.” As we have seen, proof of an express acceptance of such an offer is not necessary to bind the party making it, but performance or part performance, in such a way as to compel the promisee to complete it, is sufficient. The tenth was properly refused, because substantially given in others. The twelfth is subject to the same objection as the fourth and sixth. Besides, no attempt was made to prove an acceptance of the offer, oral or written, and therefore there is no evidence in the record on which to base it. The thirteenth improperly declares that the contract in question is not, in law, a contract in writing, and that the five years’ limitation must be applied. By an omission, the fourteenth is rendered meaningless. It reads as follows:

“14. That even if the jury find that the bonds mentioned in the paper dated August 17,1875, were delivered to the defendant, or placed in his control, for the purpose of sale, then the plaintiff would be entitled to recover what the evidence shows was the difference between the market value, or what the bonds might have been sold for on the expiration of the twenty days after they were left with the defendant, and the burden of proof to show what said bonds were worth or might have sold for at that time, rests upon the plaintiff.”

The intention evidently was to fix the plaintiff’s right to recovery in amount to the difference between the market value of the bonds at the expiration of twenty days, and the contract price. The Appellate Court having found that the bonds in question had no market value, the instruction must have been refused if it had been written as intended.

The question still remains, however, did the trial court, by its instructions to the jury, apply to the facts a correct rule for the measure of damages ? By plaintiff’s first instruction the jury are directed, in substance, if they find for the plaintiff, to allow him the difference between the highest attainable selling price and the amount guaranteed by the defendant, together with interest at six per cent from the lapse of twenty days from the delivery of the bonds. In every such case, the true purpose of the law is'to give compensation to the party injured by the breach of contract. The market value is resorted to in ascertaining such compensation, because presumably the market value represents the true value, and because, in ordinary cases of sale and purchase, the parties can go into the market and make themselves whole if given the market price. But if there is no market value, the real value is to-be ascertained from such evidence of value as is attainable. Sedgwick on the Measure of Damages, 314; Murry v. Stanton, 99 Mass. 345; Kountz v. Kirkpatrick, 72 Pa. St. 376, (13 Am. Rep. 691.) The real value of the bonds may be shown by proof of the highest attainable selling price. The difference between that value and what appellee would have received had appellant performed his contract, with legal interest from the time the money should have been paid, compensates appellee, and is the measure of his damages. As to appellee’s right to recover interest, his case is not distinguishable, on principle, from that of Driggers v. Bell, 94 Ill. 223, “otherwise appellee would not be indemnified.” Thomas v. Wells, 140 Mass. 517.

It is earnestly contended on behalf of appellant, by his counsel, that the sale of the bonds by appellee is to be treated as a re-sale, and that appellant can not be held bound thereby because he was not notified thereof. It was not in fact a resale. The bonds had never been sold. The contract between the parties was not one of purchase and sale, but rather an employment by appellee of appellant to make a sale, in which appellant guaranteed a sale within a certain time for a certain price, so that even if notice should be held necessary in cases of. re-sale, that doctrine would not apply here. We think, however, that the Appellate Court decided correctly in holding that pn appellant’s theory of the case, under the facts, no notice of appellee’s intention to sell was required. (Ullmann v. Kent, 60 Ill. 271.) The proof tends to show, and we must presume that the fact is established, that after the expiration of twenty days from the delivery of the bonds to appellant, he was requested by appellee to comply with the terms of the contract, and that he declined to do so. No farther notice to him was necessary. Appellee might then legally sell, and hold appellant liable for the loss sustained. Benjamin on Sales^ sec. 788, note e, and authorities cited.

One of the grounds relied upon by appellant, in his motion for a new trial, was that of newly discovered evidence. This ground could only bo availed of by showing due diligence on his part to discover and procure the evidence on the trial, and that the newly discovered testimony was conclusive in its nature, and not merely cumulative. Neither of these facts is shown by the affidavits filed in support of the motion. The only controverted fact on the trial was whether or not the bonds were placed under the control of appellant by appellee. To prove that they were, appellee introduced his own testimony and that of Judge Thornton, and perhaps other evidence. To the contrary is the evidence of appellant, Charles Iiidgvly, John T. Smith and "William- Bidgoly. The affidavit of these last three is filed in support of the motion, as showing what the newly discovered evidence is. The most that can be claimed from this showing is, that these witnesses, having refreshed their memories by examining certain books kept in their banking house, would, upon another trial, more directly and positively corroborate appellant, and would swear that the bonds were not left in then* hank subject to the control of appellant. Their testimony very strongly tended to prove that fact before, but against it was that offered on behalf of appellee. The newly discovered testimony is hut a newly discovered means of refreshing the recollection of these witnesses, not in any sense conclusive.

We find no substantial error in this record, and are of opinion that the judgment of the circuit and Appellate courts should be affirmed.

Judgment affirmed.

Mr. Justice Bakeb, having heard the case in the Appellate Court, took no part in the decision here.