author: Mr. Justice Scholeield

text:
    Arthur W. Windett v. Horace A. Hurlbut.

      Filed at Ottawa November 14, 1885.

    1. Forcible detainer—by purchaser under a trust deed—evidence to show there was no sale. In an action of forcible entry and detainer, brought under the sixth clause of section 2, chapter 57, of the Eevised Statutes of 1874, giving that remedy in favor of a purchaser under a deed of trust, the plaintiff' gave in evidence, on the trial, the deed of trust and the deed by the trustee to himself. The defendant offered parol evidence to prove that the trustee, in fact, made no sale, that the plaintiff paid nothing for the property, and that it was worth $30,000, and constituted defendant’s homestead, which the court refused to hear: Held,, that the ruling was clearly right.
    2. In an action at law, a trustee’s deed for land made under a power of sale in a trust deed, is conclusive evidence of the sale under the power, and it can not, in a court of law, be contradicted, and proved to-have been executed in violation of law, and therefore fraudulent and void.
    3. Fraud—remedy—impeachment of deed—when at law, and when in equity, only. In an action at law, fraud in the execution of a deed may be given in evidence, as that, through misreading, or the substitution of one paper for another, or by other device and trickery, the grantor was induced to seal it, believing, at the time, he was sealing something else, or the deed may be shown to be a forgery.
    4. But where a person voluntarily and knowingly signs a deed, although he do so in violation of his duty and of the law, or be induced thereto by the fraudulent contrivances of others, yet if it be such upon its face as will convey title, it can only be impeached and set aside, and parol evidence be received for that purpose, in a court of equity. •
    5. Error—evidence that works no injury. Where a plaintiff has made out his case by proper evidence, and all the evidence offered to show a defence is properly excluded, the admission of other irrelevant evidence by the plaintiff which neither strengthens nor weakens his right to recover, the error in its admission is harmless, and furnishes no ground of reversal.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.

      Mr. Thomas Shirley, for the appellant:
    The chancery proceedings being subsequent to the formation of the issue, were not competent evidence in this case. Wood v. Morton, 11 Ill. 547; Pitkin v. Yard, 13 id. 253; Joy v. Berdell, 25 id. 541; Holt v. Rees, 44 id. 30.
    The transfer by deed from Carter to Hurlbut being gratuitous and without value paid, is a gift, and not a sale, under the statute. Story on Sales, chap. 1, sec. 1; chap. 6, sec. 1; Corpus Juris, Eom. Dig. Lib. 19, tit. 1, 2.
    Hurlbut thereby became vested, under the decree, with the legal title, as trustee, subject to the same trust as Carter. Lewin On Trusts, chap. 11, sec. 3; chap. 26, sec. 1; Perry on Trusts, 220.
    The statute being in derogation of the common law, must, with all proceedings under it, be taken strictly. Schaumtoffel v. Behm, 77 Ill. 569.
    A sale in fact under the power must be shown to give the jurisdiction. Haskins v. Haskins, 67 Ill. 447.
    Without a sale the deed was void. Equitable Trust Co. v. Fisher, 106 Ill. 195; Burr v. Borden, 61 id. 395.
    Mr. George F. Westover, for the .appellee:
    In an action at law to recover possession of the premises, appellant can not defend by showing circumstances tending to prove that the trustee improperly or illegally performed his trust, and that therefore the appellee ought not to retain the title or recover possession. Such matters can be litigated in courts of equity, only. Reece v. Allen, 5 Gilm. 236; Graham v. Anderson, 42 Ill. 514; Dawson v. Hayden, 67 id. 52; Rice v. Brown, 77 id. 549; Chapin v. Billings, 91 id. 539; Equitable Trust Co. v. Fisher, 106 id. 189.
   Mr. Justice Scholeield

delivered the opinion of the Court:

This was forcible entry and detainer by appellee, against appellant, under the sixth clause of section 2, chapter 57, of the Revised Statutes of 1874, for the possession of certain real estate which appellee claimed to have purchased at a sale by a trustee, pursuant to the power in a deed of trust.

Appellee gave in evidence, upon the trial in the Superior Court, among other things, the deed of trust, and the deed by the trustee to himself. Appellant, in defence, offered parol evidence, to prove that the trustee in fact made no sale, that appellee had paid nothing for the property, and that it was worth $30,000, and constituted appellant’s homestead; but the court held the evidence inadmissible, and refused to hear it,—and this is the first and principal error for which it is contended the judgment below should be reversed. Very clearly the ruling was right. This is not a suit in equity to set aside the trustee’s deed, but an action at law, in which legal, as contradistinguished from equitable, principles, must control. Conceding, as contended by counsel for appellant, that it is the sale, and not the conveyance, of title which authorizes the recovery, still the deed is conclusive evidence of the sale. If the deed is not fraudulent and void, but conveys the title to the property, there must have been a sale; and hence it comes to the question whether the deed, in an action at law, can be contradicted, and proved to have been executed in violation of law, and so to be fraudulent and void.

The rule is familiar, wherever the distinction between law and equity is preserved, that in a trial at law, fraud in the execution of a deed, may be given in evidence, as that, through misreading, or the substitution of one paper for another, or by other device and trickery, he was induced to seal it, believing, at the time, that he was sealing something else; and it may also he proved that what purports to be a deed, is in truth not a deed, but a forged instrument; but it can not be proved that the transactions which preceded and induced the execution of the deed were fraudulent. Where a party knowingly and voluntarily signs a deed, although he do so in violation of his duty and of the laws, or be induced thereto by the fraudulent contrivances of others, yet if it be such, upon its face, as will convey title, it can only be impeached and set aside, and parol evidence be received for that purpose, in a court of equity. Kerr on Fraud and Mistake, (Bump’s ed.) 332; Story’s Eq. Jur. (6th ed.) sec. 437; Taylor v. King, 6 Munf. 358; 8 Am. Dec. 748, note. This rule has been repeatedly applied by this court to cases in nowise distinguishable, in principle, from the present case. Reece v. Allen, 5 Gilm. 236; Graham v. Anderson, 42 Ill. 514; Dawson v. Hayden, 67 id. 52; Rice v. Brown, 77 id. 549; Chapin v. Billings, 91 id; 539 ; Equitable Trust Co. v. Fisher, 106 id. 189; Kepley v. Luke, id. 395.

The objection pressed in argument to the ruling, of the trial court in admitting’ in evidence certain chancery proceedings and decrees, is not material, since all the evidence offered by appellant having been properly ruled out, his defence was gone,- and appellee was entitled to judgment. It is enough to say that nothing in the chancery suit militates against the legal title of appellee'. The primary object of that suit was to enjoin the sale, and that not having been done, as affected by the supplementary bill, its ultimate object was to set aside the sale and enjoin the present suit. The final decree confirmed appellee’s title, and the fact that a cross-bill by him, praying its confirmation, was dismissed, did not impair that decree. If it be conceded these chancery proceedings do not strengthen appellee’s legal title, it must also, at the same time, be conceded they do not weaken it. At most, they are but useless lumber in the record. At law appellee has the legal title, and by virtue of it the immediate right of possession, and it properly prevailed.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    The Wabash, St. Louis and Pacific Railway Company v. Edward Jaggerman et al.

      Filed at Mt. Vernon January 25, 1886.

    1. Oabbiebs—of the duty to deliver goods beyond their own lines, according to marks and destination. It is well settled in this State that when a common carrier receives goods to carry, marked to a particular place beyond his line, he is bound, under an implied agreement from the marks and directions, to carry to and deliver at that place, although it he a place beyond his own line of carriage.
    2. Same—words in bill of lading as overcoming implied agreement from marks of destination. Apples were shipped by rail at Staunton, under a bill of lading, by which the railway company acknowledged then' receipt, “to be forwarded to East- St. Louis station, on its line, ” and under the heading “Marks and Destination,” in the bill of lading, was written, “G-. A. Burton, St. Louis, Mo.:" Held, that the words in the bill of lading, “tobe forwarded to East St. Louis station, on its line, ” were not sufficient to overcome the implied undertaking, arising from the “marks and destination,” to carry to St. Louis, Mo.
    3. Same—right of consignee to change destination. Where the owner of goods ships them by rail under a contract to transport them to the consignee in St. Louis, Mo., and they are so carried, it is error, in an action by the shipper against the carrier for damages, arising from delay in the delivery of the goods, to permit the consignee to testify that he had notified the general freight agent of the defendant that he wanted the goods sent to him at East St. Louis, and to hold car lots there, and notify him, when there is no proof showing authority in the consignee to interfere and change the shipper’s contract.
    4. Same—limiting liability by contract. A earner may, by special contract with the shipper, limit his liability to such damage or loss as may arise on his own line of carriage.
    5. Notwithstanding a provision in a bill of lading that the carrier should not be responsible for “damage to perishable property of any kind occasioned by delays, from any cause,” he may and will become liable for delay as the result of actual negligence. But proof of delay, merely, is not sufficient to show negligence in transporting the goods.
    6. Same—evidence as showing shipper’s assent to a limitation of liability. In an. action by the shipper of apples under a bill of lading exempting the carrier from liability for damage to perishable property from delay, it is competent for the defendant to prove that prior to such shipment the plaintiff had filled up similar blank bills of lading for shipments which contained the same stipulation in regard to perishable property, as going to show plaintiff’s knowledge of "and assent'to such provision.
    7. Instruction—leaving construction of contract to jury. Where goods are received by a carrier for transportion, and a bill of lading given the shipper showing the contract, it' is error for the court, by an instruction, to leave it to the jury to say what the contract was. The court should tell the jury what, by the bill of "lading, the contract was. ' 1
    Writ of Error to the. Appellate Court for the Fourth" Dis-; trict;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Mr. George B. Burnett, for the plaintiff in error,:
    Under the bill of lading, the undertaking of plaintiff in error was to transport the apples to East St. Louis, and there deliver them to a connecting carrier, to be transported to St. Louis, Mo. Railroad Co. v. Copeland, 24 Ill. 332; Railroad Co. v. Johnson, 34 id. 339 ; Railroad Co. v. Frankenberg, 54 id. 88; Railway Co. v. Montfort, 60 id. 165; Field v. Railway Co. 71 id. 458 ; Railway Co. v. Smith, 74 id. 197; Railroad Co. v. Wilcox, 84 id. 239.
    The court erred in refusing to permit plaintiff in error to prove facts tending to show plaintiffs’ knowledge of the conditions printed in the bill of lading. Field v. Railroad Co. 71 Ill. 458; Transportation Co. v. Moore, 88 id. 136.
    Where the defendant could have shown, if it had been permitted to- do so, facts.from which .plaintiffs’ knowledge of the conditions of the bill of lading would have been presumed; then such conditions would havé been binding upon plaintiffs. Railroad Co. v. Morrison, 19 Ill. 136; Transportation Co. v. Newhall, 24 id. 466; Baker v. Railroad Co. 42 id. 73; Anchor Line Co. v. Dater, 68 id. 369; Field v. Railroad Co. 71 id. 458; Transportation Co. v. Theilbar, 86 id. 71.
    Messrs. Metcalf & Bradshaw,..for the defendants in error.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action originally commenced before a justice of the peace, to recover the sum of $140.25, damages, alleged to have been caused by the wrong delivery and unnecessary delay in the shipment of one hundred and sixty-five barrels of apples. There was a judgment before the justice for $133.25, from which the defendant appealed to the circuit court. The trial in the circuit court resulted in a verdict and judgment for plaintiffs for $140.25, wliich judgment, on appeal to the Appellate Court for the Fourth District, was affirmed, and the defendant brings this writ of error.

The apples were shipped from Staunton, in Macoupin county, Illinois, on the evening of September 28,1882, under a bill of lading, by which the railway company acknowledged their receipt, “to be forwarded to East St. Louis station, on its line, ” and under the heading “Marks and Destination, ” in the bill of lading, is -written, “G-. A. Benton, St. Louis, Mo.” The evidence shows that the apples arrived at East St. Louis at the usual time, September 29; that in the afternoon of the 29th they were transferred, at East St. Louis, to the Bridge and Tunnel Company, the connecting carrier between East St. Louis and St. Louis, to be sent to' St. Louis; that the consignee was hot notified of their arrival at St. Louis, and did not get them until the 3d or 4th of October, when they were received in a bad condition; and that the consignee had before given notice at the general freight office in East St. Louis, that he wanted goods sent 'to him at East St. Louis, and had given notice to hold car-load lots there, and notify him.

The circuit court, at the instance of the plaintiffs, instructed the jury, that if they believed, from the evidence, that the plaintiffs shipped on the railroad of defendant one car-load of apples, in good condition, at Staunton, to Benton & Co., at East St. Louis, and that the apples were not. delivered according to the contract, but were, carried beyond the place of delivery, to St. Louis, and that in consequence of the failure of the defendant to deliver said apples, said apples were injured and suffered damage, and that the consignees, Benton & Co., were compelled to sell said apples for less than what they were worth in market if delivered, as stipulated, at East St. Louis, then plaintiffs are entitled to recover the difference between the value of said apples when they were received and when they ought to have been received by Benton & Co.

. The defendant asked the court to instruct the jury, that “under the bill of lading read in evidence in this case, it was the duty of the defendant, upon the arrival of the apples at East St. Louis, to deliver them to a connecting carrier, to be transported to their destination; and if the jury believe, from the evidence, that the defendant transported said apples to East St. Louis without unreasonable delay, and there delivered to the St. Louis Bridge and Tunnel Company, a connecting carrier, for transportation to St. Louis, then the jury will find, for the defendant,”—which instruction the court refused to give. This action of the court is assigned for error.

It is the well settled doctrine in this State that where a common carrier ^receives goods- to carry, marked to a particular place beyond his line, he is bound, under an implied agreement, from the marks and directions, to carry to and deliver at that place, although it be a place beyond his own line of carriage. Illinois Central Railroad Co. v. Copeland, 24 Ill. 332; Illinois Central Railroad Co. v. Johnson, 34 id. 389 ; Illinois Central Railroad Co. v. Frankenberg, 54 id. 88 ; Chicago and Northwestern Ry. Co. v. Montfort, 60 id. 175; Erie Ry. Co. v. Wilcox, 84 id. 239.

It was said in the Frankenberg and other cases, that the carrier might, by special contract with the shipper, limit his liability to such damage or loss as might arise on his own line of -carriage, and;-it is contended that by force of the expression in the bill of lading, “to be forwarded to East St, Louis station, on its line, ” there was an express contract to forward to East St. Louis, which overcame the implied agreement, from the “marks and destination, ” to carry to St. Louis, amounting to a special contract to forward to East St. Louis, and no further. We can not give such force to this language of the bill of lading. East St. Louis being the end of defendant’s line, the agreement to forward to that place had that extent, and nothing further. It was consistent with the implied agreement, from the mark of • the place of destination, to carry and deliver at that place, which was St. Louis, and should not, in our opinion, be allowed to prevail over or in any way control such implied agreement.

It follows that there was error in giving the instruction for plaintiffs, and refusing the one asked by defendant. The instruction. given refers it to the jury to say what the contract was, whereas the court should have told the jury what, by the bill of lading, the contract was; and in its latter part the instruction intimates the contract was to carry to East St. Louis. The refused instruction, abstractly considered, may not have been strictly accurate in excluding any liability after delivery to the connecting carrier; but as applied to the evidence, we think the instruction should have been given.

This action originating before a justice of the peace, where there are no written pleadings, the verdict, it is said, may have been founded on the delay in the hands of the connecting carrier, the bridge and tunnel company, and therefore the judgment should be allowed to stand, notwithstanding such error as to instructions. It is a provision of the bill of lading, that the railroad company should not be held responsible “for damage to perishable property of any kind, occasioned by delays from any cause.” Nevertheless, there might have been liability in respect of delay coming from actual negligence. But there was here only the mere proof of delay, and no proof of negligence beyond the fact of delay. However, the jury should have been correctly instructed as to the contract. Their finding may have been for breach of contract, and delay"caused, by delivering at St. Louis, instead of at East St., Louis.

We .think the court erred in the exclusion, of proof that prior to the shipment in question plaintiffs had filled up similar blank bills of lading for shipments, which contained the same stipulation in relation to perishable property as the one in question, as that would have been evidence going to shoW knowledge of the provision in question, and plaintiffs’ assent thereto. And that there was also error in permitting the witness Benton .to testify that he had notified the general freight office of defendant that he wanted goods sent to. him at East St. Louis, and to hold car lots there, and notify him. He had no authority, from anything that appears in this case, to interfere, and change the. contract which had been made between the shipper and the defendant, as to the place of delivery of the apples..

The judgments of the Appellate Court and of the circuit court will be reversed, and the cause remanded to the circuit court. ...

Judgment reversed.


author: Mr. Justice Scott

text:
    Charles Weingærtner et al. v. Melchior Pabst et al.

      Filed at Mt. Vernon January 25, 1886.

    1. Specific performance—necessity of performance to entitle one to relief. The owner of land, being old and infirm, made a contract with his daughter and son-in-law, that if they would come and reside with him, maintain and support him and his wife during their lives, and improve the land, he would, by his will, devise the same to them, upon condition the son-in-law should, within two years after the death of the father-in-law, or that of his-wife, in case she should survive him, pay each of his other children a certain sum, but instead thereof, the owner devised the land to his other children: Held, that the son-in-law was not entitled to a specific performance against'the devisees without paying the other children the sums so secured to them by the contract.
    2. So a contract for the sale or transfer of land by will, to a party, in consideration that such party would support the vendor or testator and his wife for and during their respective lives, will not be specifically enforced when such party refused to perform his undertaking to support the vendor and his ?vife. The party seeking specific performance of a contract for the conveyance of land must have performed his part of it. If he refuses or neglects to do so he can not compel specific performance of it.
    3. Witness—competency of party. A party agreed with his son-in-law and daughter to leave them his farm, by will, if they would improve the same and support the owner and his wife during their several lives. The daughter died, and,the son-in-law being desirous of taking another'wife, refused to keep the owner and his wife, who were old and infirm, and they left, and lived with their other children, and the owner devised his land to the latter. The son-in-law and the heirs of his deceased wife filed a bill against the devisees to enforce the specific performance of the contract: Held, that the defendants were competent witnesses as against the son-in-law, and it was error to wholly disregard their testimony in the case.
    Appeal from the Circuit Court of Monroe county; the Hon. Amos Watts, Judge, presiding.
    Mr. E. P. Slate, for the appellants.
    Messrs. Winkelman & Rickert, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case is. for specific performance, and was originally brought by Melchior Pabst, against the widow and heirs at law of John D: C. Weingsertner, deceased. After-wards the hill, by leave of court, was amended so as to make the children of the original complainant, by his wife, Dorothea, since deceased, complainants with himself. In the amended hill it is alleged that John D. C. Weingsertner, since deceased, was the owner of the real estate in controversy, and that some time in the year 1871, .decedent, who then resided on the premises with his wife, Dorothea, being anxious to establish a permanent home for himself and wife, both of whom, it is alleged, were old and feeble in health, requested the original complainant, Melchior Pabst, who was then their son-in-law, having before that time married their daughter, and his wife, Dorothea, ■■ to take possession of the premises, consisting of forty acres,—only a portion of which had been cleared and made fit for cultivation,—and improve the same, and support decedent and his wife “for and during the balance of their days, ” and that prior to his death, he, the said John D. C. Weingasrtner, “would give and bequeath to said Melchior Pabst and Dorothea Pabst the said forty acres of land described, * * * with the further' condition, that after the death of the survivor of them, (the said John D. 0. Weingsertner, and Dorothea Weingsertner, his wife,) the said Melchior Pabst should pay the further sum of $-two years after the death of said survivor of them, ” to each child of decedent’s children a certain sum mentioned. It is then alleged that afterwards, on the 29th day of December, 1871, to assure complainants of the sincerity of his promises to them, decedent, in “what purported to be his last will and testament, reduced said promises and bequests to writing, and that thereupon complainant, by virtue of said provision in writing so made by the said John D. G. Weingiertner, • * * * the said Melchior Pabst, and Dorothea, his wife, did, on or about the 29th day of December, 1871, enter into and take possession of said forty acres of land, and cleared about twenty acres of said land, fencing the same, built a granary thereon, and made and dug a well on said premises, built a smoke-house, and made many other improvements.” It is also alleged that on the 29th day of December, 1871, decedent made, published and declared his last will and testament in writing, to be in accordance with the promises made and entered into with the original complainant, Melchior Pabst, by which he gave the land in controversy to his wife, Dorothea, during her natural life, and after her death, to his son-in-law, Melchior Pabst, and his wife, Dorothea Pabst, on condition they would pay to the other children of decedent certain sums of money within two years after his death, or within that time after the death of his wife, in case she should survive him. A copy of this paper is made an exhibit to the bill, and in that way is made part» of it. It is also alleged that “under and by virtue of the premises, ” and “according to the provisions of his said last will and testament, ” decedent, and his wife, Dorothea, remained with the family of Melchior Pabst from the year 1871 to on or about the 20th day of August, 1882, “when, by the solicitations and inducements of his other children, he, and his wife, Dorothea, without any cause given them” by complainants, “moved to St. Louis, * * * to live with them, his said children, and continued to live there until the death of” John D. C. Weingaertner, which occurred in the latter part of 1882. By way of performance on the part of complainant, it is alleged that since the autumn of 1871 to the present time, Melchior Pabst and Dorothea Pabst, and since her death, in the year 1881, her heirs-at-law, have been and still are in the undisturbed and peaceful possession of the forty acres of land, and that the whole time decedent and his wife so lived with them they treated them kindly, furnished them medicines and paid large doctor bills for them, particularly for decedent, “who was for and during the last several years blind, very feeble, and in failing health. ” After decedent and his wife left complainant’s house and moved to St. Louis, it is charged John D. 0. Weingsertner died testate; that in and by • his last will and testament, by him made at the request and under the influence of his children, he devised the land to defendants in this suit, subject to a life estate in his wife, Dorothea. That will was admitted to probate, and a copy of which is attached to and made a part of the bill. Although requested so to do by complainants in consideration of the premises, defendants have refused to convey the land to them, and to compel them to do so this bill was brought. The answers were not under oath, and they simply put in issue-the principal allegations of the bill.

On the final hearing of thé cause, the court found that John D. C. Weingmrtner, in his lifetime, was the owner of the land, and that on the .5th day of October, 1871, he “bargained with and sold said tract of. land to the complainant, Melchior Pabst, and his then wife, Dorothea Pabst, for and in consideration that said Melchior Pabst and Dorothea, his wife, (would) then and there (take) possession of said land, occupy the same, make valuable improvements thereon, improve and put the land in cultivation, and support and maintain said - John D. C. Weingmrtner and his wife during their natural life. ” The court further found “that in compliance with said bargain and sale, said Melchior Pabst'and Dorothea, his wife, then and there entered upon said land, took full and complete possession of, made lasting and valuable improvements thereon, put said land in cultivation, supported and maintained said John D. C. Weingsertner and Dorothea, his wife, from the day and year last aforesaid until some time in the year 1882, when the said John D. C. Weingsertner and his wife willfully, and without cause therefor on the part of Melchior Pabst and his wife, Dorothea, left the residence of said Melchior Pabst, and moved to St. Louis.” 1 Other matters were found by the court as facts established by the evidence, but it will not be necessary to state them in order to an understanding of the decision to be rendered. The court decreed that defendants, except the widow, Dorothea Weingsertner, should, within a short period stated, convey their interest in the tract of land in controversy to complainants in the amended bill, and that they pay the costs of this suit.

There is one reason that is conclusive why the present decree can not stand. If it shall be conceded complainants made any such contract as that alleged in their bill, and that such a contract is valid in law, it was upon condition of paying to the other heirs of decedent certain sums of money within two years after his death, or that of his wife, in case she should survive him. Certainly defendants can not, in any event, be required to surrender the title that vested in them, unless the sums due to them as a part of the alleged purchase money under the alleged contract were secured to them on the land itself. That was not done by the decree, and in that respect it was plainly erroneous.

But the reversal of the decree may be placed on the broad ground that under the facts appearing in this record, complainants are entitled to no relief whatever. Construing the evidence most favorably for complainants, the contract was that complainants should “support the said John D. C. Weingsertner and Dorothea Weingsertner, his father-in-law and his mother-in-law, for and during the balance of their days.” This complainants did not do. Prior to the death of Dorothea Pabst, the father and mother were supported by, and no doubt kindly treated by, complainant and his wife; but after the death of his wife, Melchior Pabst wished to marry again, and that he thought he could not do while his father-in-law and mother-in-law, both of whom were advanced in life and had become infirm, remained in his family. Accordingly he wrote to his brother-in-law and sister-in-law at St. Jjouis, explaining to them his situation, and wished them to adopt some measures to relieve him of the burden of longer taking care of and supporting their father and mother. That letter is in evidence, and shows a clear refusal to further comply with his contract as he alleges it was made. Soon after receiving this letter, the daughter residing in St. Louis came and took her father and mother home with her, and since then neither of them ever lived with complainant. Shortly thereafter the father died in St. Louis, but it seems the mother is still living. Having refused to further perform the contract, there is no principle on which complainant can now compel a specific performance of it. In no event could complainant have relief unless he proved a substantial compliance with the alleged contract, and that he has not done. On this branch of the case the testimony of Lena Jungle and other defendants, heard by the court, and which it decided to “disregard,” was important, and should have been considered. The objection taken is the witnesses were incompetent under.the statute, because some of complainants prosecuted the suit as heirs-at-law of their deceased-mother, Dorothea Pabst. Conceding, as may be done, the correctness of the position taken, the testimony offered.wras admissible as against Melchior Pabst, the principal complainant, and as to him it should not have been disregarded. This evidence shows very conclusively complainant Melchior Pabst did not then understand he had any contract with decedent that he was obligated to perform, for after his removal to St. Louis, complainant bargained with him for the land, but his death occurred before the contract was consummated.

But disregarding, as the circuit court did,- all the testimony offered and given for defendant, no case is made by the evidence that would warrant a decree for a specific performance of the alleged contract in favor of any of the complainants. Whether the alleged contract was valid in law or-not, it is proved past all doubt from complainant’s letter, he refused further to perform: the agreement, and that itself is a complete bar to any relief. The finding of the court, that decedent .and his wife “willfully and without cause” left the residence of complainants and moved to St. Louis, is without a scintilla of evidence in its support.

There having been a clear breach of the contract by complainant himself, he is entitled to no specific performance of it as against the other heirs or devisees, and the decree of the circuit court will be reversed and the bill dismissed.

Decree reversed.


author: Mr. Chief Justice Mulkey

text:
    D. H. Baysinger v. The People of the State of Illinois.

      Filed at Mt. Vernon January 25, 1886.

    1. Discontinuance of township ■ obganiz ation—duty of town officers as to the disposition of the town records—and what is a town record. Section 25, of chapter 139, relating to township organization, imposes the duty upon all township officers who have in their possession any records pertaining to their respective offices, to deposit them in the county clerk’s office in case the township organization system shall be discontinued in their county, and this without any demand or request.
    2. Under that section, the town officer, however, is not required to deliver the records held by him, to the county clerk personally, but to deposit them “in the county clerk’s office.” A delivery to a party in charge of the county clerk’s office, whether the clerk himself, or a deputy, or even a temporary custodian, if made in good faith, will exonerate the officer making it from all liability under section 216 of the Criminal Code.
    3. Section 104-of the same chapter of the Revised Statutes, makes it the duty of each supervisor “to'keep a just and true account of the receipts and expenditures of all moneys which shall come into his hands by virtue of his office, in a book to be provided for that purpose at the expense of the town,” which “shall be delivered to his successor in office.” This makes the supervisor’s book a record of his town, which it is his duty, on the discontinuance of the township system, to return to the office of the county clerk, without a demand or request from any one.
    4. Same—criminal liability of town officer for withholding records—of the elements of the offence. By section 216 of the Criminal Code, the failure or neglect of a supervisor of a town, upon the discontinuance of the township system in his county, to deposit in the county clerk’s office the record or book in which were kept his accounts with the town, is made an indictable offence. It is not necessary to a conviction under this section, that any request or demand shall be made on him for such book by any person, and his neglect to return the same to the county clerk is sufficient to show a willful and unlawful withholding and detention thereof from the person entitled thereto by law.
    5. Same—of the indictment in such case. In an indictment under section 216 of the Criminal Code, against an officer for not returning a record of his office to the county clerk, it is sufficient to aver, generally, that on a certain day his office was abolished, without stating in what manner it was abolished, that being ii matter of proof.

      6. A count of an indictment framed on that section of the Oiiminal Code, charged, in substance, that the defendant was holding the office of supervisor in and for the town of G., etc., on the first day of. January, 1883; that on that day his said office was abolished by law; that the defendant so being supervisor, kept a book which was a part of the records of the town; that he was the lawful custodian of said book, and that the same contained an account of the receipts and expenditures of all moneys which came into his hands by virtue of his office of supervisor of the town of G.; that the defendant “did then and there feloniously, willfully and unlawfully withhold and detain said book from the office of the county clerk of the said county of,” etc., “the said office of county clerk then and there being the lawful depository of said book:” Held, that the count was substantially good, and that the latter clause was equivalent to a direct averment that the defendant withheld and detained the book from the county clerk.
    7. It is a principle of pleading that whatever is included in or is necessarily implied from an express allegation, need not be otherwise averred. So an allegation in an indictment of the detention of a record from the office to which it belongs, necessarily implies a detention of it from the officer or lawful custodian of the same. ,
    8. Practice—improper remarles of State’s attorney in argument to the jury. On the trial of an indictment of a supervisor for unlawfully withholding a record from the proper custodian, the State’s attorney, in his closing remarks to the jury, charged the defendant with stealing an affidavit made by him at a previous term of court for a continuance, and reiterated the same after objection by defendant and being warned by the court that it was improper, and stated that the defence was all a sham, and that defendant had fled from justice and never surrendered himself until he found a witness was dead, and then hatched up his rotten defence. There was no evidence upon which to base such remarks, and they were reiterated after being informed by the court that they were improper: Held, that such remarks were clearly improper, and a breach of both professional and official duty.
    Writ of Error to the Circuit Court of Jackson county; the Hon. Egbert W. McCartney, Judge, presiding.
    This was an indictment found December 13, 1883, against D. H. Baysinger, under section 216 of the Criminal Code. A trial was had, resulting in a conviction of the defendant. The defendant filed an affidavit in support of a motion for a new trial, showing newly discovered evidence, and that “the State’s attorney, in his closing speech, untruthfully charged defendant with stealing an affidavit made by affiant at a previous term of court for a continuance, and although defendant, by his counsel, objected to said statement, said attorney, after being warned by the court that it was improper, reiterated the statements in the presence and hearing and to the jury; that said State’s attorney also went outside of the evidence, and stated to said jury that the defence of defendant that his son had delivered said book to Don Johnson, was all a sham, as they (the jury) could see, for the reason that the name of Don Johnson was originally on the back of the indictment, and that said Don Johnson was one of the principal witnesses upon whose evidence the grand jury found said bill of indictment; that the name of said Johnson could not be placed upon the back of said indictment as a witness by the foreman of the grand jury or State’s attorney, unless he (said Johnson) had been a -witness before said grand jury ; that said State’s attorney also stated that defendant had fled from justice, and never surrendered until he found that said Don Johnson was dead, and then hatched up this rotten defence ; that each and all of said statements, as made, were wholly outside of the evidence, and without any evidence whatever even tending to support said statements that Don Johnson was before the grand jury, or ever gave evidence, or that defendant stole said affidavit; that defendant, by his counsel, called the, court’s attention, and objected, but that said attorney, after being told by the court that such statements were improper, kept on making them; that they were wholly untrue, greatly prejudiced the jury that convicted defendant, and largely contributed toward producing the unjust verdict rendered by them. ”
    The court overruled a motion for a new trial and also a motion in arrest of judgment, and defendant excepted.
    Mr. Pi E. Albright, for the plaintiff in error.
    Mr. Robert J. MoElvain, State’s Attorney, and Mr. William A. Schwartz, for the People.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

On the 29th day of August, 1885, D. H. Baysinger, the plaintiff in error, xvas tried and convicted, in the Jackson county circuit court, for a violation of the 216th section of the Criminal Code, the jury fixing the term of his confinement in the penitentiary at one year. The accused was formally sentenced in conformity with the verdict, and the present writ of error is brought to reverse that sentence.

Numerous errors are assigned in the record, some of them presenting objections of a highly technical character, and clearly not tenable. Others are of a more serious character.

It appears that the defendant had been elected to the office of supervisor of Grand Tower township, in said county, and that subsequently, by a vote of the electors of the county, township organization was abolished, and that his office as such supervisor, by operation of law, thereupon ceased; that upon his office being thus determined, the county authorities made various ineffectual efforts to get possession of the “supervisor’s book, ” being the same in which the defendant kept his accounts with the town, and which it is claimed would show him to be in arrears with the .town $107.05. These efforts having failed to secure a return of the book to the clerk of the county court, the defendant was thereupon presented to and indicted by the grand- jury, under the section of the statute above stated.

The only question about which we have had any serious doubt, is the sufficiency of the indictment. The section upon which it is founded is as follows: “If any person whose office, shall be abolished by law, * * * shall willfully and unlawfully withhold or detain from his successor, or other person entitled thereto by law, the records, papers, documents, or other articles of property appertaining or belonging to such office, * * * the person so offending shall be imprisoned in the penitentiary not less than one year nor more than five years.” This section, however, must be considered in connection with section 25, chapter 139, of the Be vised Statutes, which provides that “where township organization is discontinued in any county, the records of the several towns shall be deposited in the county clerk’s office,” etc. This section obviously imposes the duty upon all town officers who have in their possession any such records pertaining to their respective offices, to deposit them in the county clerk’s office. The 104th section of the same chapter requires a supervisor to “keep a just" and true account of the receipts and expenditures of all moneys which shall come into his hands by virtue of his office, in a book to be provided for that purpose at the expense of the town, and said book shall be delivered to his successor in office. ” From this section it is clear that the book mentioned in the indictment is one of the records of the town, and that it was the duty of the defendant, on the discontinuance of township organization, to return it to the office of the clerk of the county court. The duty to return it was imperative, and absolute, and in no sense dependent upon a demand or request from any quarter.

In the light of the several provisions of the statute above cited, we will now turn our attention to the indictment. The first count alleges, in language not to be misunderstood, the following facts, namely: That the defendant was holding the office of supervisor in and for the town of Grand Tower, etc., on the 1st day of January, 1883; that on that day his said office was abolished by law; that the defendant, so being supervisor, kept a book, which was a part of the records of the town; that he was the lawful custodian of said book, and that the same contained an account of the receipts and expenditures of all moneys which came into his hands by virtue of his office as supervisor of the town of Grand Tower, and that the defendant “did then and there, feloniously, willfully and unlawfully, withhold and detain said book from the office of the county clerk of the said county of Jackson, and State of Illinois, the said office of county clerk then and there.being the lawful depository of said book. ” A motion to quash was sustained as to the second count, and the third is substantially like the first.

The first and third counts which were sustained by the court are, in some respects, very inartificially drawn, yet on a careful consideration of them we think they severally contain all the facts essential to a good indictment under the statute. The concluding averment in the first count, which is set out in hcec verba in the above summary of what that count contains, is the one that has given us most trouble, and given rise to most serious doubts. It will be observed the statutory offence consists in the defendant willfully and unlawfully withholding or detaining a record, or other article of property, pertaining to his office, from “his successor, or other person entitled thereto by law.” The present case of course falls within the latter clause, and it will be observed that it is not expressly averred in the concluding part of the count set out in hcec verba, nor, indeed, in any other part of it, that the book in question was detained from any person. The averment is that the book was detained from the office of the county clerk. Now, to sustain the count, we must be able to say that the averment, as made, was, in legal effect, equivalent -to a direct charge that the defendant detained or withheld the book from some one; and as the court will judicially take notice that the person to whom the delivery should have been made was the clerk of the county court, the question resolves itself into this: Is the charge in the indictment, in legal effect, equivalent to a direct averment that the defendant withheld and detained the book from the county clerk? It is a principle of pleading, that whatever is included in or necessarily implied from an express allegation, need not be otherwise averred. Now, as the detention of a record from the office to which it belongs of necessity detains it from the officer or lawful custodian of the record, we have, on this principle, reached the conclusion that the averment is sufficient. This view is certainly strengthened by the language of the 25th section of chapter 139 of the statute above cited. By that it will be perceived the defendant Avas not required to deliver the book to the county clerk personally, but he was required to deposit it “in the county clerk's office.” This form of expression was doubtless used to enable parties to comply with the laAV by making the delivery to the party having charge of the office for the time being, whether it Avas the clerk himself, a deputy, or even a temporary custodian of the effects of the office. A delivery of a record to any one in apparent ■ control of the office, if made.in good.faith, would clearly exonerate the party making it from all .liability under the 216th section of the Criminal Code, and would be a strict compliance Avith the requirements of the 25th section of the Township Organization act. The averment, therefore, that the defendant withheld and detained the book from the office, not only negatives a delivery to the county clerk personally, but also a personal delivery to a deputy, or even to a third party having a temporary control of the office, and in this respect it is really more comprehensive than if the charge had been that the defendant withheld and detained the book from the county clerk.

But conceding the indictment might not be sufficient according to the strict rules of pleading as they exist at common law, Ave are of. opinion there is little, if'any, ground to doubt that it fully meets the requirements of the 40Sth section of the Criminal Code, which declares that “every indictment and accusation of a grand jury shall be deemed sufficiently technical and correct Avhicli states the offence in the terms and language of the statute creating the offence, or so plainly that the nature of the offence may be easily understood by the jury. ” Noav, that the defendant, court and jury all well understood, from the indictment, that the offence Avith which he was charged was his failure to deposit' the book in the county clerk’s office,—or, in other words, was his failure to deliver the book to the county clerk,—is too clear to admit of serious doubt. As we have already seen, to have deposited it with any one having charge of the office, would, in legal effect, have been a delivery to the clerk, hence a failure to so deposit it was a failure to deliver it to him.

It is also claimed the indictment is defective in not averring the book was demanded of the defendant, and section 93 of the Township Organization act is referred to as sustaining that view. This is clearly a misapprehension. That section, as well as the two immediately succeéding it, apply only to cases where there is a successor in office. In that case the successor is required to make a demand. Here there was no successor, and could be none, for the office was abolished. As already stated, the duty of the defendant to deliver the book to the county clerk, or to deposit it in his office, which means the same thing, was imperative and absolute, independent of a demand or request from any one. There is no law making it obligatory upon the county clerk or any one else to make a demand in such case.

It is further objected that the indictment should have shown, -by express 'averments, the manner in which the defendant’s office was abolished. There is nothing in this objection. That was matter of proof, and that the people are not in default so far as that is concerned, is fully shown by the stipulation of the parties in the record.

Complaint is also made of the instructions. We perceive no serious objection to them, nor is any pointed out. On the whole, we think they fairly laid down the law to the' jury as applicable to the ease before them.

The point is also made that the People’s attorney indulged in improper remarks in his closing address, calculated to prejudice the jury, and place the defendant at a disadvantage before them. - The remarks-, to which exceptions are taken were clearly improper, and a manifest breach of both professional and official duty; yet, under the circumstances, we do not regard them of so gross a character as to warrant a reversal of the cause for that reason.

• As to the claim the evidence does not support the finding of the j ury, it is sufficient to say it was the peculiar province of the jury to pass upon the weight of evidence and the credibility of witnesses, and to render such a verdict as their own judgments and consciences, under the law, approved. ■ This duty has been performed, and we must presume honestly; and after a careful consideration of the whole of the evidence, we are -unable to say that the finding of the jury is so clearly wrong as to warrant a reversal of the judgment on that ground.

The other points made by defendant’s counsel we do not think are well taken, or- of sufficient importance to require special notice.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

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

      Filed at Ottawa January 25, 1886.

    1. Payment—by check. Where a debtor gives Ms creditor a check on a bank, having no funds in bank to be drawn upon, under an arrangement that it is not to be paid, and gives a new note for the sum due at a less rate of interest, no money passing between the parties, such check is no payment of the original debt.
    2. The giving of a check, when the drawer has funds in the bank to meet the same, is not originally regarded as payment, but is treated as the means to procure the money. The holder in such a case becomes the agent of the drawer to collect the money.
    3. A party owing $800(1 on notes secured by mortgage, without having any funds in bank drew his check on the bank in favor of his creditor for that sum, and procured the cashier of the bank to say it was good, the intention being that it should not be presented for payment. The creditor then made a new loan of the same amount,-taking the' debtor’s note for the same sum bearing a less rate of interest, and surrendered the check, but retained the old notes, no money, in fact, having changed hands: Held, that as no money was to be paid on the cheek it was no payment of the old notes, and that their payment could be enforced, notwithstanding this transaction.
    Appeal from the Appellate Court for the Second District; —heard in that court on writ of error to the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.
    Messrs.'C. J. & C. C. Johnson, for the appellant:
    The notes were paid by the'check of the maker, and should have been surrendered, and this discharged the mortgage. Again, the taking of a new note for the amount of the old notes, with a mortgage securing its payment, was a complete payment of the original notes.
    Messrs. J. & J. Dinsmoob, and Messrs. Bennett & Gbeen, for the appellees:
    The drawing of the check without having funds to meet it, was a fraud. Heartt v. Rhodes, 66 Ill. 351; 2 Parsons on Contracts, 623.
    A check, even when drawn in good faith, is not a payment of a debt due from the drawer to the payee, but is only a means of payment. The holder becomes an agent of the drawer to collect the money. Brown v. Leckie, 43 Ill. 497.
    The giving of a new note of the debtor or of a third person for a preexisting debt, is no payment unless expressly so agreed, or unless the creditor parts with the note, or is guilty of laches in presenting it for payment in due time. He may return it when dishonored, and resort to his original demand. Tobey v. Barber, 5 Johns. 72; 2 Parsons on Contracts, 624; Burdick v. Green, 15 Johns. 247.

      In order to have constituted the new note a payment of the four old notes, there must have been an agreement to accept the new note as payment for the old ones. Simmons v. Clark, 56 Ill. 96; Yates v. Valentine, 71 id. 643.
   Mr. Justice Craig

delivered the opinion of the Court:

Peter Ege, executor of the estate of George W. Woodburn, deceased, held four promissory notes against James H. Wood-burn, all dated March 14, 1873, one for the sum of $2000, due in one year, one for $2000, due in two years, one for $2376.50, due in two years, and the other for the sum of $2376.50, due in one year. The notes all drew interest at the rate of ten per cent per annum, and were secured by mortgages executed on the same date that the notes were made: On the 14-th day of March, 1875, Woodburn paid on the notes all interest to that date and $753 on the principal, leaving a balance due on the principal of $8000. On the 13th day of March, 1880, there was due on the four notes the principal sum of $8000, and Woodburn claims that on that day he paid Ege said sum of money in full payment of the notes. He also claims that on the same day he made a new loan to Ege, of $8000, for one year, with interest at the rate of eight per cent. To secure the payment of this latter sum a note was executed by Woodburn, dated March 13, 1880, due in one year, and secured by mortgage on certain real estate, executed on the same day. The original four notes were never surrendered to Woodburn, nor was the mortgage given to secure them cancelled, and the only question presented by this record is whether they were paid.

The evidence of payment is in a small compass, and is substantially as follows: Woodburn called on the cashier of the First National Bank of Sterling, and made an agreement with him to answer his check for $8000. The understanding was that the money was not to be drawn from the bank on the check, but when Woodburn’s check on the bank should be presented, the arrangement was that the cashier of the bank should notify the holder that the check was good. After this arrangement Woodburn drew a check for $8000 in favor of Ege, on the First National Bank of Sterling. Ege called af the bank and was informed that the check was good. Then Ege loaned Woodburn $8000, at eight per cent interest, and took the new note and mortgage. There was no money paid over to Woodburn by Ege when this new loan was made,—he merely returned him the check.which he had previously received. If appellant’s theory is correct, here was a debt of $8000 paid and a new loan made of a like amount, and not a single dollar changed hands, nor did either -of the parties have a dollar in money. The truth is, the whole arrangement was a mere subterfuge, resorted to for the purpose of changing the rate of interest from ten to eight per cent. The drawer of the check on the First National Bank had no money in the bank, and it was expressly understood between him and the cashier that no money was to be drawn on the check. Under such circumstances the check was worthless, and could not be treated as payment of the notes. Indeed, the giving of a check where the drawer has funds in the bank to meet the check, is not ordinarily regarded as payment, but it is treated as the means to procure the money. The holder in such case becomes the agent of the drawer to collect the money. (Brown v. Leckie, 43 Ill. 497; 2 Parsons on Contracts, 623.) Ege, the holder of the four notes, never received any sum of money whatever in payment of the $8000 conceded to be due on the. 13th day of ■ March, 1880, and the debt remains unsatisfied. The scheme devised by Woodburn and Ege, the holder of the notes, and the cashier of the bank, was a nullity, and binding upon no one.

It follows that the decision of the circuit court holding that the four notes were unpaid, was correct.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.