text:
    Western Union Telegraph Company v. L. W. Dubois.

      Filed at Springfield

      April 5, 1889.

    1. Telegraphs—duty and liability—likened to common carriers. Telegraph companies are the servants of the public, and are bound to act whenever called upon, their charges being paid or tendered. They are, in that respect,like common carriers, the law imposing on them a duty which they are bound to discharge. The extent of their liability is to-transmit correctly the message as delivered.
    2. Same—mistake in telegram—rights and remedy of the person receiving the dispatch. In England the receiver of a telegraphic dispatch-can not sue the telegraph company for a mistake therein, on the ground that the obligation of the company springs entirely from the contract, and that the contract for the transmission of the message is with the-sender of it. ^
    3. But in this country it is well settled that the receiver of the dispatch may maintain an action against the telegraph company through whose negligence the message has been altered or changed, for such loss or damage as he may have sustained by reason of having been led to act upon the dispatch.

      4. Where there is no contract relation between the receiver of a telegram and the telegraph company transmitting the same, the former can not maintain assumpsit against the latter for a loss caused by a neglect to send the message correctly. In such case, the receiver is limited to an action on the case, of which a justice of the peace has no jurisdiction.
    Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Ford county; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Gross & Broadwell, for the appellant:
    Contracts may be created by an exchange of telegraphic-messages, as well as by letter or other writing. 6 Wait’s Actions and Defenses, 17, and cases cited.
    The acceptance of an offer or proposition transmitted by telegraph creates a contract between the sender and receiver, the terms of which will be evidenced by the messages. Duble v. Batts, 38 Texas, 312; Trevor v. Wood, 36 N. Y. (9 Tiff.) 307; Scott & Jarnagan on Telegraphs, sec. 347; Bishop on Contracts, sec. 322.
    A person selecting the telegraph as a means of communication makes the telegraph company his agent, and he is bound by the message as delivered to the person addressed. Telegraph Co. v. Harris, 19 Bradw. 347; Morgan v. People, 59 Ill. 58; Durkee v. Railway Co. 29 Vt. 127; Ayer v. Telegraph Co. 79 Me. 493; Telegraph Co. v. Shotter, 71 Ga. 760; Dunning v. Roberts, 35 Barb. 463; Trevor v. Wood, 36 N. Y. (9 Tiff.) 307; Wilson v. Railroad Co. 31 Minn. 481; Saveland v. Green, 40 Wis. 431; Howland v. Whipple, 48 N. H. 488; Scott & Jarnagan on Telegraphs, secs. 345, 347; Bishop on Contracts, sec. 328.
    The relation existing between the sender of a telegraphic message and the company is contractual. The telegraph company undertakes and agrees to and with the person presenting a message, in consideration of its reasonable tolls paid or to be paid, to transmit by telegraph, and to deliver to the person addressed, the words of the offered message.
    For a breach of contract the sender has his action against the telegraph company for all such damages by him sustained as are the direct, natural and necessary consequence of such breach, as contemplated by the parties, interpreting the contract in the light of the circumstances under which, and the knowledge of the parties for whom, the contract was made. Baldwin v. Telegraph Co. 45 N. Y. 744.
    The relation between the telegraph company and a person to whom a message is addressed, is not contractual. They are not in privity. It is only when the person to whom the message is addressed is the one interested in its correct transmission, and by whom the expense of sending it is borne, that he will be regarded as the one with whom the contract is made. De Rutte v. Telegraph Co. 1 Daly, 547; 30 How. 403.
    Messrs. Tipton & Moeeett, for the appellee:
    The company offering no excuse for the mistake in transmitting the message, it is attributable to its negligence. Pope T. Telegraph Co. 9 Bradw. 283; 14 id. 535; Telegraph Co. v. Harris, 19 id. 347; Telegraph Co. v. Valentine, 18 id. 58.
    Without regard to what the English rule may be, the American rule is, that there is sufficient privity of contract between •the receiver of the message and the company to enable the former to maintain an action against the latter for negligence, although the price of transmission was paid by the sender. ■6 Wait’s Actions and Defences, 17; Aiken v. Telegraph Co. 5 S. C. 358; Telegraph Co. v. Valentine, 18 Bradw. 57; Telegraph Co. v. Hope, 11 id. 289; Ellis v. Telegraph Co. 13 Allen, 226; May v. Telegraph Co. 112 Mass. 90; Ellwood v. Telegraph Co. 45 N. Y. 549.
    The delivery of the message by the company to the receiver amounts to a representation to him that it has been employed io transmit the intelligence it contains, which, if untrue, through the negligence of its servants, constitutes a misfeasance, for which the company is liable to the receiver. Bigelow on Fraud, chap. 1, sec. 3; May v. Telegraph Co. 112 Mass. 90; True v. Telegraph Co. 60 Me. 9; Wharton on Negligence, 757, 758, and authorities cited in note 5.
    Shearman & Redfield on Negligence, sec. 560, pp. 611, 613, take the same view and assert the same principle that is announced by Wall, J., in Telegraph Co. v. Hope, 11 Bradw. 289.
    There can be no question but that appellee is entitled to recover, and the circuit court so found, and the only remaining quéstion that we care to discuss is the question of damages.
    Y/hether appellee sustained any actual damages or not, appellee is still entitled to nominal damages. Doud v. Guthrie, 13 Bradw. 653; Mellor v. Pilgrim, 7 id. 306; Logan v. Telegraph Co. 84 Ill. 468; Smitt v. Telegraph Co. 7 Ky. L. 22; Cooley on Torts, 62, 63; 3 Sutherland on Damages, 298.
    Appellee could not get the bill of lading without paying the draft. He could not maintain replevin by a tender and demand. His only remedy for a breach of the contract would have been a suit against Moore. Low v. Freeman, 12 Ill. 469; Updike v. Henry, 14 id. 378; Haverstick v. Fergus, 81 id. 105.
    The alternative was presented of either paying the expenses of recovering back the $200 paid to, and damages for breach of contract against, Moore, or paying the extra twenty cents per barrel and bringing this action. Appellee, under the circumstances, thought that lesser damages would result by his paying the twenty cents per barrel extra. It was his duty, when damages would necessarily follow by the negligent act of appellant, to take such action in the matter as would cause the least damage possible. Having done so, his measure of damages,—the actual damage sustained by him,—was twenty cents per barrel, or $37.40; and this we say appellant is liable for in this action. Telegraph Co. v. Valentine, 18 Bradw. 57; Strausse v. Telegraph Co. 8 Biss. 104; Telegraph Co. v. Fatman, 73 Ga. 285; Rule v. Telegraph Co. 55 Texas, 308;
      Telegraph Co. v. Harris, 19 Bradw. 347; 6 Wait’s Actions and Defenses, 19, 20; 3 Sutherland on Damages, 298.
    Appellee was compelled to, and did, pay twenty cents per barrel more than his contract was. He had acted on the telegram as received, and sold out the car of apples he had on hand on the basis that he was to replace them at $1.55 per barrel. He was compelled to pay twenty cents per barrel more, by reason of the negligence of the appellant company.
   Mr. Justice Magruder

delivered the opinion of the Court:

In the fall of 1887 appellee kept a restaurant and hotel in Gibson, Illinois. He had bought a car-load of apples, at some time during the fall, from I. H. Moore of North Java, New York, at $1.50 per barrel. About October 1,1887, he wrote a letter to Moore asking if another car-load could be furnished at the same price. On October 5, 1887, Moore answered the letter by sending a telegram. The telegram so sent, when received by appellee, read as follows: “Letter received.' Can load car load of best winter fruit at $1.55—answer.” Appellee replied on the same day that he would accept the offer contained in the telegram, and sent Moore a draft for $200.00 to apply on the purchase, Moore requiring such a deposit to insure the consummation of the bargain.

The telegram, as delivered by Moore to the appellant company for transmission to the appellee, read as follows: “Letter received—Can load car-load of best winter fruit at $1.75— Answer.” The error, by which the figures were made to read $1.55 instead of $1.75, was the fault-of appellant. Appellee did not discover the mistake until after the $200.00 had been paid and after Moore had shipped the apples. When the car arrived in Gibson it contained 187 barrels of apples, which were green fruit. Moore sent to the bank at Gibson a draft for the balance of the purchase at $1.75 per barrel with the bill of lading attached. The bill of lading was to be delivered to appellee upon payment of the draft, so that appellee could not get the bill of lading, or possession of the apples, without paying the draft. Thereupon he paid the draft, which, with the amount previously paid, was twenty cents per barrel more than the price, at which he had bought the apples, as stated in the telegram received and acted upon.

Appellee brought this suit before a justice of the peace for damages resulting to him from the mistake of the appellant in transmitting the message, and recovered $37.40, being twenty cents per barrel on the 187 barrels. On appeal to the Circuit Court, where the trial was had before the court without a jury, judgment was entered in favor of appellee for one cent damages. Both parties excepted to the judgment of the Circuit Court and prayed an appeal to the Appellate Court, where errors were assigned on both sides. The Appellate Court reversed the judgment of the Circuit Court upon the cross-errors assigned by the appellee, and remanded the cause. Thereupon appellant made a motion to modify the judgment of reversal, so as to make said judgment final and with directions to the Circuit Court to render judgment against appellant for $37.40 and costs, which motion was allowed and judgment entered accordingly. Upon petition by appellant, the Appellate Court granted a certificate that the ease involves questions of law of such importance, on account of collateral interests, as that the same should be passed upon by the Supreme Court, and allowed an appeal to this court.

In England, the doctrine is that the receiver of a telegraphic dispatch can not sue the telegraph company, on the ground that the obligation of the company springs entirely from contract, and that the contract for the transmission of the message is with the sender of it. This doctrine, however, has never prevailed in the United States. Here, it is well settled that the receiver of the dispatch may maintain an action against the telegraph company, through whose negligence the message has been altered or changed, for such loss or damage as he has sustained by reason of having been led to act upon the dispatch. Proof of the alteration or change is prima facie evidence of the negligence of the company. The burden rests upon the company to show that the error was caused by some agency, for which it is not liable. (Western Union Telegraph Co. v. Tyler et al. 74 Ill. 168). There is no doubt that appellee has a right of action against appellant under the facts above stated. The only question is as to the form of the action.

If the action must be in tort or ease, this suit was improperly brought before a justice of the peace, because, under our statute, justices of the peace have no jurisdiction in actions on the case for such an injury as is here involved.

The original contract for the transmission of the message was made between Moore and the company. It does not appear, however, that there was any contract, express or implied, between appellee and the company, nor was there any contract relation of any kind between them. Under some of the au-, thorities, where the sender of the dispatch is the agent of the party to whom it is sent, or where the contract between the sender and the company is for the benefit of the party to whom the message is sent, the latter may sue the company in assumpsit. But, here, the relation between Moore and the appellee was that of vendor and vendee. Moore wanted to sell his apples, and the proof shows that he paid for the telegram himself. He made the contract with the company for the transmission of the message in his own interest, and to effect a sale of his own property. We do not think, therefore, thatappellee was entitled to bring against the company any action based upon the existence of a contract relation between him and the company. His remedy is in tort.

Telegraph companies are the servants of the public, and bound to act whenever called upon, their charges being paid or tendered. They are, in that respect, like common carriers, the law imposing upon them a duty which they are bound to discharge. The extent of their liability is to transmit correctly the message as delivered. (Tyler et al. v. Western Union Telegraph Co. 60 Ill. 421). Hence, when the receiver of a dispatch suffers loss from the careless and negligent performance of its duty by such a company, he is entitled to recover damages for the tort, and the proper remedy is an action on the case.

The damages in such case should be for an amount which will compensate the plaintiff for his actual loss. They must be in satisfaction of the natural and proximate consequence of the defendant’s act. In the present suit, appellee would not have bought the apples if he had known that their price was $1.75 per barrel. The facts—that he did not discover the mistake until after the apples had been shipped, that he had already advanced $200.00 towards their purchase, that he could not obtain possession of them without paying the balance of the purchase price at the rate of $1.75 per barrel, that they were perishable property liable to be lost by the natural process of decay, if the delay in unloading them should be too great, and that appellee needed them in his. business, having already disposed of a car load on hand in order to make room for the present consignment—authorized him to pay the extra twenty cents per barrel and look to the appellant for reimbursement. He was justified in relying upon his own judgment to make the loss as small as possible. Under the circumstances as thus detailed his judgment was a reasonable one.

We think the Appellate Court did right in fixing the amount of damages at $37.40. But the distinctions between common law actions are still recognized in this State. The jurisdiction of justices of the peace is, in large measure, based upon and limited by such distinctions. It is our duty to recognize them. Inasmuch therefore as appellee has pursued the wrong remedy and before the wrong tribunal, the judgment must be reversed.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Shops

license: Public Domain

text:
    Samuel B. Raymond v. George M. Vaughn.

      Filed at Ottawa

      May 16, 1889.

      1. Partnership—one of thepcvrtners becoming insane—effect upon the partnership relation—rights and duties arising therefrom. The insanity ■of a partner does not, per se, work a dissolution of the partnership, but may constitute sufficient grounds to justify a court of equity in decreeing its dissolution. But this doctrine is applied, in equity, with appropriate limitations and restrictions, for while curable, temporary insanity will be sufficient, upon an inquisition, to sustain an adjudication of insanity in the county court, the appointment of a conservator, and commitment of the ward to an insane asylum, yet it will not authorize a court of chancery to decree a dissolution of a partnership if the malady be temporary, only, with a fair prospect of recovery within a reasonable time.
    . 2. An adjudication of insanity by the county court can have no effect in determining the partnership, and upon bill to dissolve the partnership it will have no other effect than to establish the insanity. Courts of equity will, as between the partners, look to the effect produced upon the partnership relations and business, and refuse to dissolve the partnership and apply its assets unless the insanity materially affects the capacity of the partner to discharge the duties imposed by his contract relation.
    3. The relation of a partner embraces the character of both principal and agent. As to the partnership concerns, for himself he acts as principal, and as agent for his partners. His power to act for them is coupled with an interest in all that pertains to the firm business. Therefore, if, for any reason, one member of the firm should assume control and management of the business and affairs of the partnership, he should, while so controlling it, manage it for all, and in the interest of all the partners. He will not be allowed to derive personal advantage from the use of the partnership assets, or business or good will of the firm.
    4. So where, after one of two partners had been adjudged insane, but his insanity was considered only temporary, and curable, and the other, without objection, or notice to any one, continued the business precisely as before, it was held, that the presumption was that he did not intend a dissolution of the firm, and, in the absence of evidence to the contrary, that he waited to determine whether the incapacity of his partner would prove temporary, merely, and it become practicable for him to resume business.

      5. In such case, as long as the sane partner thus continued to carry' on the business without taking steps to dissolve the partnership, there could be no dissolution, or he be excused from afterward accounting for the profits actually derived by him from the business of the firm.
    6. Same—accounting of conservator to county court—whether conclusive. A and B were partners in this State in the business of brokers, and the former was adjudged insane and the latter appointed his conservator, and continued the business precisely as before. The conservator did not inventory the partnership matters, and the profits of the business thereafter were not embraced in the final account of the conservator. Upon his recovery, A filed a bill in chancery for an accounting of the partnership matters and profits: Held, that the final accounting of the conservator partner in the county court was no bar to the relief sought by the bill.
    7. The judgment of the county court approving a conservator’s account and discharging him, without any notice, actual or constructive, to the ward, who was at the time in a lunatic asylum, is not conclusive upon the latter or his personal representative. A claim can not be barred by a proceeding in "which it was in nowise involved, and of which the party to be estopped had no kind of notice.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. T.-A. Moran, Judge, presiding.
    The following statement by the Appellate Court will be found sufficient to present the points determined:
    “This was a bill brought in the court below, October 11, 1880, by the appellee, Vaughn, against the appellant, Raymond, as partner and trustee, for an accounting. There was a hearing upon pleadings, proofs and master’s report, resulting in a decree in favor of the former, and against the latter, for the sum of $9586.28, from which the latter appealed to this court.
    “It appears that for several years prior to September 15, 1874, Vaughn had been representing, as broker in the wholesale sugar market of Chicago, the Franklin Sugar Refinery of Philadelphia, Pennsylvania, whose business was there conducted by Harrison, Havemeyer & Co., residents of that city, and that Vaughn had not only enjoyed the confidence of that firm, but from his business as such broker had realized a very satisfactory income by way of commissions. It also appears-that Raymond had for several years prior to said date been likewise engaged as broker in the wholesale sugar market of Chicago, he representing two or more sugar refineries in the-East, from which he had realized large sums by way of commissions; that about September 15, 1874, the two, by agreement, entered into a sort of co-partnership, and began business together; that by that agreement they were to occupy the-same office and conduct their respective agencies or business as such brokers in their individual names, as before; that no partnership name should be adopted; that no time for the-continuance of their relations should be fixed, but that, from time to time, the total amounts of their commissions should be divided between them, Vaughn receiving one-third and Raymond two-thirds, and they were to share losses and expenses-in the same proportion. A co-partnership relation is alleged in the bill, and expressly admitted by Raymond in his answer. It appears that the parties carried on their business together, under that arrangement, down to January, 1876; that during that period they had made several divisions of commissions received by them, respectively, but that they had no actual settlement of all their matters; that January 20, 1876, while-their relations were subsisting as formerly, Vaughn was, upon proceedings duly commenced in the county court, adjudged to be temporarily insane, and committed to the hospital for the insane, at Elgin, Illinois. It further appears that in the order adjudging Vaughn to be insane, Raymond was appointed custodian of his person until he should be taken to the asylum ; that on the same day of that order, Raymond filed and presented his petition to the county court for the purpose, 'and was appointed conservator of the estate of said Vaughn, with bond in the sum of $13,000; that letters of conservatorship were duly issued to him March 13, 1876, at which date he filed an inventory in said court, of the property of his ward. Yaughn was not discharged from the asylum until May, 1879, but it appears that on June 6, 1878, Raymond presented his final account to the county court, and was, upon consideration of it, discharged by the court from the duties of his trust as such conservator. It appears that in neither the said inventory nor final account did Raymond make any mention of said joint or partnership business. There was no evidence tending to show that Raymond, at any time between that of Yaughn becoming insane and his discharge from the asylum, signified, by any act or word, an election on his part to terminate the relations formed between them by the partnership agreement of September 15, 1874; but the evidence shows that from and after Yaughn had been declared insane, Raymond continued to carry on the business of said partnership, in all respects, as it had been carried on before, with the exception of Yaughn’s personal attention to it, until the discharge of the latter from the asylum, and it was shown by a preponderance of the evidence, that Raymond recognized the continuance of Yaughn’s interest in such business while he was so carrying it on, after the latter had become insane. It further appears that after Yaughn left the asylum, and some time in May, 1879, he met Raymond in Philadelphia, and that through the intercession of Harrison, Havemeyer & Go., an arrangement was made, by which Yaughn was to surrender, in favor of Raymond, the agency of the firm of Harrison, Havemeyer & Co., so far as related to Chicago, in the future, in consideration of which Raymond was to pay Yaughn $2500, in monthly installments, and Harrison, Havemeyer & Go. agreed to give Yaughn a like agency in the city of Baltimore, in place of that in Chicago, which he had formerly had. In making that arrangement, no mention was made of any matter relating to the business carried on in Chicago during Yaughn’s lunacy.”

      Messrs. Flower, Remy & Gregory, for the plaintiff in error:
    There was no partnership relation between the parties. There was no community of interest, except in the matter of the division of their separate earnings. The arrangement was a mere pooling of the earnings of the parties, and not the creation of a joint business. Blue v. Leathers, 15 Ill. 31; Snell v. DeLand, 43 id. 323; Adams v. Funk, 53 id. 219.
    Even though it should be conceded that the relation between the parties was a partnership one, it was dissolvable at will, as no time was agreed upon for its continuance.
    The general rule is, that “any member of an ordinary partnership, the duration of which is indefinite, may dissolve it at any moment he pleases, and the partnership will then be deemed to continue only so far as may be necessary for the purpose of winding up its then pending affairs.” 1 Bindley on Partnership, 220; McElroy v. Lewis, 76 N. Y. 373; Carlton v. Cummings, 51 Ind. 478; Lawrence v. Robinson, 4 Col. 567.
    A dissolution of a partnership at will may be inferred from circumstances, although no notice to dissolve has been given; and the rule applies although one of the parties be a lunatic. Wellerah v. Kean, 27 Beav. 236; Robertson v. Lockie, 15 Sim. 285; Southwick v. Allen, 11 Vt. 75; Grover v. Hall, 3 H. & J. 43; Bouche v. Pendergast, 3 id. 33; Emerson v. Parsons, 2 Sweeney, 447; Parsons on Partnership, 418, 419.
    So, also, a partnership at will, will be dissolved, ipso facto, by the withdrawal by a partner of that element which made him a partner. Smith v. Vanderburg, 46 Ill. 36.
    The general English rule as to the effect of insanity upon partnership relations seems to be, that while it is good ground for dissolution, it does not, of itself, operate as one. Where there has been no adjudication, the practice seems to have been to ascertain that fact by a commission of lunacy. Where the insanity has already been judicially ascertained, the English courts hold, that upon bill filed for dissolution and accounting, the partnership must be held to be dissolved. Kirby
      v. Carr, 3 Y. & C. 184;. Waters v. Taylor, 2 Ves. & Bea. 299; Jones v. Noy, 2 M. & K. 125; Milne v. Bartlett, 3 Jno. 358.
    The courts of this country have, however, extended the English rule on this subject, and hold that an inquisition of lunacy found against a member of a partnership, dissolves, ipso facto, the partnership. Parsons on Partnership, 484; Davis v. Lane, 10 N. H. 161; Isler v. Baker, 6 Humph. 85.
    The general rule laid down by text writers on this subject, and amply supported by authority, is as follows: In matters of probate and administration, the inquiry, as in other cases, is, whether the matter was exclusively within the jurisdiction of the court, and whether a decree or judgment has been passed directly upon it. If the affirmative be true, the decree is conclusive. Where the decree is of the nature of proceedings in rem, as is generally the case in matters of probate and administration, it is conclusive, like those proceedings, against all the world. 1 Greenleaf on Evidence, sec. 550; Smith v. Sims, 77 Mo. 269; Cecil v. Cecil, 19 Md. 79; Caujollie v. Ferrie, 13 Wall. 465; Chippen v. Dexter, 13 Gray, 330; 14 Pick. 280.
    A final report and settlement of an estate by an executor, administrator or guardian, which are approved by the probate court, and the executor, administrator or guardian discharged, are final and conclusive in a collateral proceeding. Dickson v. Hitt, 98 Ill. 300; Abbott v. Broadstreet, 3 Allen, 587; Hood’s Estate, 90 N. Y. 512.
    If the transaction in Philadelphia was a settlement, it will be presumed to embrace all matters in difference between the parties, unless it appears, from the proof, that some part thereof was expressly excepted. Straubher v. Mohler, 80 Ill. 21; Niles v. Harmon, id. 393; Railway Co. v. Fawsett, 56 id. 513.
    Mr. John Gibbons, for the defendant in error:
    Insanity of a partner is only a ground for the dissolution of the partnership. It does not dissolve the firm ipso facto. Jones v. Noy, 2 M. & K. 125; Berch v. Frolich, 1 Phil. Ch. 172.

      If Raymond carried on the business as before the insanity, using the assets of the firm and its good will, he can not appropriate the profits to his own use, but must account therefor. Brown v. Richardson, 133 Mass. 293; Freeman v. Freeman, 136 id. 260; Cranshay v. Collins, 15 Ves. 218; Cook v. Collingridge, 1 Jac. 608; White v. Gardner, 37 Tex. 407; Drury v. Conner, 1 H. & G. 220; Chaney v. Smallwood, 1 Grill, 367.
    A judgment operates as an estoppel only as to matters in issue on points controverted therein. Cromwell v. County of Sac, 4 Otto, 351.
    The cestuis que trust may still inquire into the administration of the trustee after his discharge. Clark v. Devereaux, 1 S. C. 172; Wright's Trusts, 3 K. & J. 419; 6 Ves. 455; 15 id. 218; 2 Abb. Pr. (N. S.) 375; 2 Ewell’s Bindley on Partnership, 859.
   Mr. Justice Shops

delivered the opinion of the Court:

This was a bill filed by defendant in error, Vaughn, against Samuel B. Raymond, plaintiff in error, to compel an accounting in respect of partnership affairs alleged to exist between them. The answer of Raymond expressly admits the formation of the co-partnership as alleged in the bill, and its continuance from September 15,1874, to the 20th day of January, 1876, when the complainant, Vaughn, was adjudged insane. It will therefore be unnecessary to discuss the question of the partnership, further than may become important in illustrating other branches of the case.

It is insisted by counsel for plaintiff in error, if the partnership existed, first, that it was ipso facto dissolved by the adjudication of the insanity of Vaughn by the county court of Cook county, on the 20th day of January, 1876, and that plaintiff in error, as conservator of Vaughn, accounted for all the property of Vaughn, and all his rights and credits accruing from the co-partnership prior to said date, in settlement of Vaughn’s estate, in said court, and that, the partnership being dissolved, Vaughn has no claim, legal or equitable, to ihe proceeds of the partnership business after such dissolution; second, if this is not so, the partnership being determinable at the will of either party, Raymond elected to determine the partnership, and did terminate it at the date of the adjudication of insanity, and that such dissolution can be inferred from circumstances, and that the circumstances proved show such election by him; third, that the discharge by the county -court, of Raymond, as conservator of Vaughn, upon his final report as such conservator, is a bar to the relief sought by the bill in this ease, so. long as it remains unreversed; and fourth, that in any event, by a settlement made between the parties, in Philadelphia, in June, 1879, Vaughn received of Raymond •$2500 in full satisfaction and discharge of his interest in the business and .profits of such co-partnership.

The first contention presents questions of the most difficulty. It is said in Parsons on Contracts, 465 : “There are not wanting strong reasons and high authority for the conclusion that insanity, certain, complete and hopeless, of itself and at once dissolves the partnership; but we think the decided weight of .authority, in England and this country, opposes this conclusion, and holds that the partnership continues until it is dissolved by decree.”

Chancellor Kent (3 Kent’s Com. 58) says: “Insanity does not work a dissolution of partnership ipso facto. It depends upon circumstances, under the sound discretion of the court of chancery. But if lunacy be confirmed and duly ascertained, it may now be laid down as a general rule, notwithstanding the decision of Lord Talbot to the contrary, that as partners are, respectively, to contribute skill and industry, as well as capital, to the business of the concern, the inability of a partner, by reason of lunacy, is a sound and just cause for the interference of the courts of chancery to dissolve the partnership, and have the account taken and the property duly applied.” And the same author (2 Com. 645) says: “In cases of partnership it would at least require a decree in chancery to dissolve the partnership on the ground of lunacy.”

Story, in his work on Partnership, section 295, says : “The common law, * * * upon grounds of public policy or convenience, holds that insanity does not ordinarily, per ser amount to a positive dissolution of the partnership, but only to a good and sufficient cause for a court of equity to decree a dissolution.” This writer, however, adds: “We say ‘ordinarily/' for when the insanity has been positively ascertained under a, commission of lunacy, or by the regular judicial appointment of a guardian to the lunatic, it may deserve consideration, whether it does not ipso facto amount to a clear case of dissolution of the partnership by operation of law, since it immediately suspends the whole function and right of the party to-act personally.” Mr. Justice Pabkeb, in Davis v. Lane, 10 N. H. 161, makes the same suggestion. That case was, however, upon the effect of insanity in revoking the power of an agent to act for his principal. Mr. Parsons also seems to be of the opinion that the courts would hold that where the insanity was determined by due inquest, it would, per se, operate as a dissolution of the partnership. Both Story and Parsons-refer in support of this latter suggestion to the case of Isler v. Baker, 6 Humph. 85, alone, to sustain the text. That case holds the doctrine indicated by Mr. Parsons, but stands, so-far as we have been able to find, unsupported by any adjudicated case, and none are cited by the court in support of its conclusion. Collier on Partnership, (b. 2, chap. 3, sec. 3,) and Gow on Partnership, (chap. 5, sec! 1,) each lays down the rule that a decree of a court of chancery is necessary to a dissolution of the partnership, notwithstanding there has been an adjudication declaring one partner a lunatic.

In Besch v. Frolich, 1 Phil. Ch. 172, one of the partners had been adjudged insane upon commission of lunacy. Upon bill filed to dissolve the partnership, it was insisted that it should be decreed dissolved from the time of the incapacity of the insane partner. This the court (Lord Chancellor Cottenham delivering the opinion) held could not he done, and says, “that there are three considerations between partners—the share of each in the capital stock, the share of each in the good will, and the labor which each undertakes to devote to the business. Tour argument is, that because one of these considerations (and that, perhaps, the least valuable of the three,) fails, you are entitled from that time to take to yourself the whole benefit of the other two. * * * Whatever delay has occurred is imputable to the plaintiff himself. It was competent for him to have filed his bill at any moment since the time when his partner first became incapable of attending to business."

In Jones v. Noy, 2 M. & K. 125, the partners were solicitors. One of them (Hardston) became insane and incapable of attending to business, and died two or three years afterwards. Noy, the other partner, carried on the business one or two-years, and then sold it out. Hardston’s executors filed a bill to compel Noy to account in respect to the partnership business and the proceeds of the sale. Sir John Leach, M. R., in determining the cause, said: “It is clear, upon principle, that the complete incapacity of the parties to the agreement to perform that which was a condition of the agreement, is a ground for determining the contract. The insanity of a partner is ground for the dissolution of a partnership, because it-is immediate incapacity; but it may not in the result prove to be a ground of dissolution, for the partner may recover from his malady. When a partner, therefore, is affected with insanity, the continuing partner may, if he thinks fit, make it a ground of dissolution; but in that case I consider, with Lord Kenyon, that in order to make it a ground for dissolution he must obtain á decree of the court. If he does not apply to the-court for a decree of dissolution, it is to be considered that he is willing to wait to see whether the incapacity of his partner may not prove merely temporary. If he carry on the partnership business in the .expectation that his partner may recover from his insanity, so long as he continues the business with that expectation or hope there can be no dissolution.” See, also, Griswold v. Waddington, 16 Johns. 57; Bagshaw v. Parker, 10 Beav. 532; Sadler v. Lease, 66 id. 624; Robertson v. Lockie, 15 Sim. 285; Pierce v. Chamberlain, 2 Ves. Sr. 33.

No further citation or analysis of authorities will be necessary. The rule, supported by the decided weight of authority and announcing the correct doctrine, is, that the insanity of a partner does not, per se, work a dissolution of the partnership, but may constitute sufficient grounds to justify a court of equity in decreeing its dissolution. But this doctrine must be understood, and is applied by courts of equity with appropriate limitations and restrictions, for while curable, temporary .insanity will be sufficient, upon an "inquisition, to sustain an adjudication of insanity in the county court, the appointment ■of a conservator and commitment of the ward to an insane asylum, yet it will not authorize a court of chancery to decree a dissolution of a partnership if the malady be temporary, only, with a fair prospect of recovery within a reasonable time. Story on Partnership, sec. 297.

Under our system, the adjudication of insanity may be had for the purpose of enabling those temporarily insane to avail of ihe facilities for treatment and cure provided by the beneficence of the State. In such case, the adjudication of the county court is necessary to their admission to the State Hospital for the Insane, where, in theory at least, the curable, only, are admitted. It is manifest that the adjudication by the county ■court can have no effect in determining the partnership, and upon bill filed to dissolve the partnership, it would have no ■other effect than to establish the insanity. Courts of equity will, as between the partners, look to the effect produced upon the partnership relations and business, and refuse to determine the partnership and apply its assets, unless the insanity materially affects the capacity of the partner to discharge the duties imposed by his contract relation. A partner embraces the character both of principal and agent. For himself, with respect to the concerns of the partnership, he virtually acts as principal, and as agent for his partners. His power to act for them is coupled with an interest in all that pertains to the business of the concern. It would seem, therefore, that if,, for any reason, one member of the firm should assume control and management of the business and affairs of the partnership, he should, while so controlling it, manage it for all, and in the interest of all, the partners. His duty would not, perhaps, be strictly that of a trustee, but would be analogous to it, and he would not be allowed to derive personal advantage from the use of the partnership assets or business or good will of the firm. This rule is universal in its application to fiduciary relations. (Brown v. Richardson, 133 Mass. 293; Freeman v. Freeman, 136 id. 260; Perry on Trusts, secs. 127, 128, 455-464.) At any time after the insanity of Vaughn, the continuing partner had, if he saw proper to exercise it, the right to apply for a dissolution of the partnership, or, as it was a partnership at will, might have dissolved it of his own volition.

There is much evidence in the record tending to show that some time prior to January 20,1876, Vaughn became deranged, but remained seemingly conscious of his own incapacity for business. Upon consultation with Raymond, they went together to an asylum near Chicago to consult a physician as to the best course to pursue, and it was agreed and determined that application be made to the county court to have Vaughn adjudged insane. Vaughn testifies, (and there is much in this record to corroborate his statement,) that it was agreed by Raymond, in view of his going to the asylum to be treated for his malady, that he (Raymond) would look after and attend to the business of the firm, and carry it on in his absence. It is not, however, necessary to put the case upon that ground, for it does clearly appear that Raymond, without objection or any notice to any one, continued the business precisely as before, and the presumption is that he did not intend a dissolution of the firm. It is to be presumed, in the absence of evidence showing to the contrary, that he waited to determine whether the incapacity of his partner would prove temporary, merely, and it become practicable for him to resume business. So long as he thus continued to carry on the partnership business without taking steps to dissolve the partnership, there could be no dissolution, or he be excused from afterwards accounting for the profits actually derived by him from the business of the firm. The circumstances relied upon as showing an election by Raymond to dissolve the co-partnership are wholly insufficient. On the contrary, it appears that these parties were brokers; that for a number of years prior to the formation of this partnership Vaughn had represented, as broker in the wholesale sugar market in Chicago, the Franklin Sugar Refinery of Philadelphia, Pennsylvania, whose business was there conducted by Harrison, Havemeyer & Co. It also appears that Raymond had been likewise engaged as a broker in sugars, in Chicago, he representing two or more sugar refineries in the East, each of the parties having realized considerable sums, by way of commissions, in the course of their business. By an arrangement between "them, they consolidated their business, Vaughn receiving one-third and Raymond two-thirds of the profits, and they were to share losses and expenses in the same proportion. Each, however, remained the broker of the refineries that they had previously represented,—that is, Vaughn represented the Franklin Sugar Refinery, and no change was made in the agency whatever. After' Vaughn was adjudged insane, instead of dissolving the co-partnership, or doing any act showing an intent so to do, Raymond continued to carry on the business, in all respects, as before. Vaughn still continued to be the broker of the Franklin Sugar Refinery, and that concern had no notice of any change in its brokers at Chicago. It is shown that a very large business was done by Raymond acting in the name of Vaughn, as broker of said refinery, and large profits were received by him therefrom. Vaughn had brought the business of the Franklin Sugar Refinery to the firm. No confidence had been reposed by this principal in Raymond, he at no time having acted as individual broker of that refinery. It was not until after Vaughn’s discharge from the asylum that Harrison, Havemeyer & Co. had any notice or intimation that Raymond pretended that a dissolution of the firm had taken place; and then, as it is clearly shown, to induce Harrison, Havemeyer & Co. to make him their broker at Chicago, and to induce Vaughn to give up and surrender the business in that city, Raymond paid Vaughn $2500. Negotiations were had between these parties through Mr. Harrison, of the firm of Harrison, Havemeyer & Co., and his testimony leaves no doubt that the payment of said sum of $2500 by Raymond to Vaughn, was for a surrender by Vaughn to Raymond of his (Vaughn’s) right to act as broker for the Franklin Sugar Refinery in the Chicago market. We can not undertake to review this evidence in detail, but it leaves no question in our mind that the dissolution of the firm did not take place at any time prior to the settlement before spoken of, in respect to the future conduct of the business.

Upon the questions remaining to be considered, the Appellate Court, by McAllister, J., said :

“The next position taken in argument by appellant’s counsel is, that the discharge of appellant by the county court, upon rendering his final account there as conservator, was a proceeding in rem, and, so long as it remains unreversed, is a complete bar to the relief sought by this bill, upon the principle of res judicata. That proceeding, so far as it relates to the adjudication as to the status of appellee, was, in our opinion, in the nature of a proceeding in rem. But the matters upon which the right to and claim for an accounting is based, were of a wholly different nature. This claim was not included in the inventory which appellant made as conservator, nor mentioned in Ms final accounting upon which he was discharged. Passing upon it was in no respect necessary to the exercise of the jurisdiction of the court in the first instance, nor was it directly involved, or a necessary incident to any adjudication made. It was a matter of mere private individual right between these two parties, over which a court of chancery has jurisdiction, and over which, if the county court had any jurisdiction, it was in no sense exclusive. Besides, appellee was, at the time, confined in a lunatic asylum, and had no notice, actual or constructive. The distinction between those matters which are necessarily involved in a proceeding in rem, or in one in the nature of a proceeding in rem, as to which the decree is eonclu- . sive against all the world, and matters inter partes, or of mere private litigation, is recognized by the authorities, and has its foundation in the nature of things. 2 Smith’s Lead. Cases, (7th Am. ed.) 632; 1 Greenleaf on Evidence, see. 550. To hold a claim barred by a proceeding in which it was in no wise involved, and of which the party to.be estopped had no kind of notice, would be to subvert and trample upon some of the most essential fundamental principles upon which the doctrine of the conclusiveness of judgments and decrees is based, because appellee never had his day in court as to this claim. We are of opinion that the transaction between the parties, in May, 1879, at Philadelphia, falls entirely short of a settlement of the claim so as to bar appellee’s right to an accounting. This claim, and the matters out of which it arises, were none of them mentioned by either party. ”

We are entirely satisfied with what is there said, and adopt the views of that court.

We find no error in this record, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

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


author: Mr. Justice Bailey

text:
    John Dayton v. Drainage Commissioners.

      Filed at Springfield

      April 5, 1889.

    1. Water-courses—surface waters—dominant and servient heritage —rights at the common law. The owner of a dominant estate has no right, at common law, to divert the waters of a slough therein into a channel wholly different from that in which they naturally flow.
    2. The owner of a higher tract of land has the right to have the surface water falling or naturally coming upon his premises by rains or melting snow, pass off through the natural drains upon or over the-lower or servient land next adjoining; and the owner of the dominant heritage has the right, by ditches and drains, to drain his own land into the channels which nature has provided, even if the quantity of water in that way thrown upon the next and adjoining lower lands i& thereby increased.
    3. But the owner of the higher lands has no right to open or remove natural barriers, and let on to such lower land water which would not otherwise naturally flow in that direction. That would be to subject the servient heritage to an unreasonable burden, which the law will not permit.
    4. Same—wnde-r Drainage law of 1885—rights of dominant heritage„ Under section 42 of the Drainage act of 1885, the owner of lands outside of a drainage district may connect with ditches of the district already" made, and thus drain his own lands; but by so doing he will virtually' annex his lands to the district, and subject them to at least the same burdens which they would have borne if they had been originally included in the district. But he can not, under that section, divert into the district the drainage of large tracts belonging to other proprietors, who have taken no action in the matter, and whose lands are not brought into the district and made to assume any of its burdens.
    5. Injunctions—to prevent wrong ful .diversion of surface waters. An injunction is the proper remedy to prevent the wrongful diversion of surface water upon the lands of another. In such case, the damages thereby occasioned are continuing or often recurring, and difficult of computation, and therefore an injunction is the only adequate remedy.
    Appeal from the Appellate Court for the Third District;—■ heard in that court on appeal from the Circuit Court of Douglas county; the Hon. C. B. Smith, Judge, presiding.

      Mr. Anthony Thobnton, Mr. C. W. "Woolveeton, and Mr. W. J. Ahmen, for the appellant:
    If any wrong has been done, the complainants had full and adequate remedy at law. 3 Starr & Curtis’ Stat. p. 210, sec. 10; 1 High on Injunction, sec. 28; Thornton v. Roll, 118 Ill. 363; Coughron v. Swift, 18 id. 414.
    Appellant had the right, under the statute, to connect his -ditch with that constructed by the commissioners. Sess. Laws 1879, p. 151, sec. 35; 1 Starr & Curtis, p. 151, sec. 133; -3 id. p. 219, sec. 42.
    The evidence largely preponderates, that the acts charged would not injure the drainage district. If no drainage district had been organized, appellant had the' right to drain his land, as he has attempted. Peck v. Herrington, 109 Ill. 612.
    The alleged injury is too uncertain to justify the interposition by injunction. The remedy sought is premature. See 1 High on Injunctions, secs. 734, 742, 743; Dunning v. City of Aurora, 40 Ill. 486; Lake View v. Letz, 44 id. 84; Bridge Co. v. Railroad Co. 6 Paige, 563; Kennerty v. Phosphate Co. 17 S. C. 411.
    Messrs. Eckhart & Mooee, for the appellees:
    Appellees have authority to sue as drainage commissioners. Hurd’s Stat. 1885, chap. 42, sec. 1.
    A drainage district is a municipal corporation. Commisioners v. Kelsey, 120 Ill. 482.
    After the completion of the work, the commissioners shall -thereafter keep the same in repair. Hurd’s Stat. 1885, chap. 42, sec. 41, p. 494.
    The courts will restrain the placing of obstructions in or upon public highways, streets, bridges, grounds and navigable -waters. Railway Co. v. Chicago, 96 Ill. 627; Watertown v. Cowen, 4 Paige, 510; Jacksonville v. Railway Co. 67 Ill. 540; Attorney General v. Cohoes, 6 Paige, 135.

      The remedy by injunction to prevent improper diversion of surface water, is clearly established. Hicks v. Silliman, 93 Ill. 255.
    Surface water can not be changed by artificial means, and if by such means the flow is changed, an injunction will be given. Railroad Co. v. Morrison, 71 Ill. 616; Railroad Co. v. Cox, 91 id: 500; Nevins v. Peoria, 41 id. 502; Mellor v. Pilgrim, 3 Bradw. 476; Johnson v. Rea, 12 id. 335.
    While the owner of lower lands shall receive all water that naturally flows from the next higher lands, the owner of the higher lands may not open or remove natural barriers, and let on such lower lands water that would not otherwise naturally flow in that direction. Anderson v. Henderson, 124 Ill. 164.
    An upper proprietor is liable in damages at law, or may, in case of irreparable injury, be restrained by injunction, if he so diverts the stream as to cause the water to be discharged upon the land or into the ditches or mines of a neighbor. Gould on Waters, p. 381.
    It follows from this, that where the injury may be reasonably expected to result, unless prevented, the plaintiff need not wait for damage to accrue before filing his bill. Gould on Y7aters, p. 701.
    The allegations were, that the defendants intended, as a part of a system of water works, to increase the volume of a stream flowing through the plaintiff’s lands; that the plaintiff was credibly informed, and believed, that such increase would cause the stream to overflow its banks and render his land valueless,—and these were accompanied by a statement of the facts upon which the bill was founded. It was held, that the allegations made out a sufficient case for equitable interference. Gould on Waters, p. 701.
    The diversion or obstruction of a water-course has been the subject of frequent equitable interference by injunction. High on Injunctions, (2d ed.) sec. 795; Gould on Waters, 715, 733 ; Laney v. Jasper, 39 Ill. 46.

      The injury complained of is such, that from its continuance the mischief is permanent, constantly recurring, and can not otherwise be prevented than by injunction. 2 Story’s Eq. Jur. secs. 925-927; 2 Hilliard on Torts, 94, note a; Angelí on Water-courses, p. 20, see. 4; Lyon v. McLaughlin, 32 Vt. 423.
    The statutory right of individual land owners to make connection with ditches of a district has no application in this case.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was a bill in chancery, brought by the Drainage Commissioners of Drainage District'number 2, in the town of Newman, Douglas county, against John Dayton, to restrain the defendant from digging a certain ditch on his land and connecting it with one of the ditches in said' drainage district. Said district was organized under the Drainage Act of 1879, embracing a territory of 4300 acres of land, and has constructed a main ditch and various lateral ditches, one of the latter being known as branch ditch number 3. The defendant is the owner of some 400 acres of land, of which an eighty acre tract, viz., the west half of the south-west quarter of section 17, township 16, north, of range 14, west of the second principal meridian, is included in and lies on the easterly border of the district, and is crossed in a northerly and southerly direction by said branch ditch number 3. The residue of the defendant’s land not included in the district also lies in said section 17, and adjoins the tract above described on the east. The lands lying east of the district constitute, as is alleged, another water-shed drained by a water-course known as Bolinger’s Slough, which takes its rise in section 4, about two miles north-east of the site of the defendant’s proposed ditch, and runs thence in a south-westerly direction to and across the east half of the south-west quarter of section 17, which is a part of the defendant’s land, and thence for several miles in a southerly direction to Bushy Fork Creek. Certain ditches and tile-drains have been constructed so as to drain portions of the land north into the slough, and so that the slough, as is alleged, drains about 1600 acres of land before it enters the lands of the defendant.

The bill alleges that the defendant, without authority of law, threatens and intends to construct and is constructing a ditch on the east half of the south-west quarter of said section 17 so as to connect said slough with said branch ditch number 3, and intends thereby to give an outlet to the waters from said large body of lands adjoining said district into said branch ditch; that neither said branch ditch nor the main ditch of the district is of sufficient capacity to carry off the increased flow of water from said lands, and that the diversion of said waters from their natural course into said branch ditch will cause irreparable injury to the lands in said district lying along said branch and main ditch.

The defendant answered denying each of the several allegations of the bill, and the cause being heard on pleadings and proofs, a decree was entered finding the allegations of the bill to be true, and perpetually enjoining the-defendant from digging or making the ditch connecting said slough with said branch ditch and thereby giving said slough an outlet into said branch ditch, but ordering that the defendant should not be restrained from draining his own land into said drainage district. This decree was affirmed by the Appellate Court on appeal, and by a further appeal the record is brought to this court.

Whether said slough is such a channel or water-course as is alleged in the bill is a question of fact upon which the evidence is conflicting. The testimony on behalf of the complainants tends to show that the natural drainage from a large territory lying north of the defendant’s lands is into said slough, and that drains and ditches have already been constructed by which a large portion of that territory is being drained through that channel, and that the construction by the defendant of his proposed ditch would divert the drainage of all that area from its natural course into the ditches belonging to said district, and also that the capacity of said ditches is insufficient to carry off such additional flow of water. The defendant, on the other hand, gave evidence tending to show that the natural drainage from the lands in question is towards the south-west and over the lands included in the drainage district; that the ditches in said district are amply sufficient to carry off all the water which would be brought to them by means of the ditch the defendant proposes to construct, and that such additional flow of water, instead of being a detriment, would he a positive benefit to the complainants’ drainage system. The finding of the Circuit Court upon these contested questions of fact is in favor of the complainants, and upon consideration of all the evidence we are unable to say that such finding is not fully warranted.

Assuming the facts to be correctly decided, the decree restraining the defendant from diverting the waters of Bolinger slough into the ditches of the drainage district would seem to follow as a necessary result. The defendant has no right at common law, as the owner of the dominant estate, to divert the waters of the slough into a channel wholly different from that in which they would naturally run. The rule undoubtedly is, that the owner of a higher tract of land has the right to have the surface water falling or naturally coming upon his premises by rains or melting snow pass off through the natural drains upon or over the lower or servient lands next adjoining, and the owner of the dominant heritage has the right, by ditches and drains, to drain his own land into the channels which nature has provided, even if the quantity of water in that way thrown upon the next adjoining lower lands is thereby increased. But the owner of the higher lands has no right to open or remove natural barriers and let on to such lower lands water which would not otherwise naturally flow in that direction. That would he to subject the servient heritage to an unreasonable burden which the law will not permit, and against which the owner ought reasonably to have protection. Anderson v. Henderson, 124 Ill. 164.

But the defendant claims the right to construct said ditch by virtue of section 42 of the Drainage Act of 1885. That section provides that the owners of land outside of a drainage district may connect with the ditches of the district already made, by the payment of such amount as they would have been assessed if originally included in the district; or if such connection, by increase of water, requires an enlargement of the district ditches, then the outside owners of the land so connecting are required to pay the cost of such enlargement. And it is further provided that, if individual land owners outside of the district shall so connect, they shall be deemed to have voluntarily applied to be included in the district, and their lands benefited by drainage shall be treated, classified and taxed like other lands within the district. Laws of 1885, page 91.

Doubtless, under these provisions, the defendant has the right to connect ditches draining his own lands with the district ditches, but by so doing he will virtually annex his lands to the district, and subject them to at least the same burdens which they would have borne if they had been originally included in the district. This right however was fully recognized and protected by the decree, the injunction being so modified as to permit the defendant to drain his own lands into the drainage district.

But the ditch the defendant is endeavoring to construct involves much more than the drainage of his own lands. Its effect will be to divert into the district ditches the drainage of large tracts of land belonging to other proprietors. But it will not bring those lands within the jurisdiction of the district or subject them to any of its burdens. That the defendant has no power to do, and as the owners of these lands are taking no steps in the premises, they are not brought within the provisions of section 42 of the Drainage Act and can not thereby be included in the district. The construction of the defendant’s proposed ditch therefore would give to large tracts of outlying lands all the benefits of the drainage system provided by the district without subjecting them to any of its burdens. It is very clear that such results are not within the contemplation of said section 42. Under that section the defendant has a right to drain his own lands into the district ditches, but he has no right to construct a ditch which will only serve as a channel through which to convey to said ditches the drainage of lands not included in the district and belonging to other proprietors.

It is insisted with much earnestness that the complainants had an adequate and complete remedy at law, and that a court of chancery therefore should not have assumed jurisdiction. That an injunction is the proper remedy to prevent the wrong- • ful diversion of surface water is clearly established. Hicks v. Siliman, 93 Ill. 255; Gould on Waters, 715. The evidence clearly shows that the proposed diversion of surface water was wrongful, and that the damages which would be occasioned thereby would be continuing or often recurring and difficult of computation, and an injunction therefore was the only adequate remedy.

We find no error in the decree, and the judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.

\


author: Mr. Chief Justice Craig

text:
    The Cheltenham Improvement Company v. William H. Whitehead.

      Filed at Ottawa

      May 16, 1889.

    1. Mortgages—foreclosure—allegations and proofs—as to removal ■of tax title by mortgagee. A bill to foreclose a deed of trust alleged that the mortgagor, for himself, etc., covenanted that he and they would pay all taxes, etc., levied or assessed against the lands mortgaged until the mortgage debt was paid, but that owing to the neglect and default of the mortgagor or his assigns, a large amount of taxes and assessments are now due and owing on the premises and are a lien thereon, and that taxes and assessments have heen allowed to go to judgment and sale, and deeds have been issued on said real estate, or a part thereof still remaining as security. To the bill was attached a copy of the trust deed, which provided that all payments by the holder of the notes should he added to the mortgage indebtedness: Held, that the allegalions in the bill, taken with the trust deed, were sufficient upon which to predicate evidence of the complainant’s payment of $1000 with which to purchase an outstanding tax title. "
    2. Same—solicitor’s fees—in whose favor allowable—clause in deed of trust construed. A deed of trust given to secure notes, provided that on default of payment, etc., the trustee might, in his own name or otherwise, file a bill to foreclose, and further authorized such trustee to take from the proceeds of the sale under the foreclosure, five per cent thereof for solicitor’s fees. A bill was filed to foreclose, by the holder of the notes, and the court allowed the same solicitor’s fees as if the hill had heen filed in the name of the trustee, for the reason that it mattered not to the mortgagor to which of the parties he paid the solicitor’s fee.
    3. Same—■ allowance for abstract of title. The party foreclosing a deed of trust will not be entitled to have allowed, in addition to the debt, interest, costs and attorney’s fees, for an abstract of title and expenses incurred in procuring data to foreclose, in the absence of any clause in the trust deed which, by reasonable construction, gives the right. A clause authorizing the trustee to pay “also all other expenses of this trust,” will not authorize the court to charge the trust estate for such abstract, etc.
    4. Chancery—exceptions to the master’s report—whether necessary, Where a cause is referred to the master in chancery to take the evidence and report his conclusions of fact, if the evidence before the master is incompetent, or insufficient to establish a claim or fact against the defendant, he must file exceptions to the master’s report, and if overruled, renew the same in the trial court, otherwise he can not afterward call in question the sufficiency of the evidence. The master’s report, where no exceptions are taken, is conclusive on the parties.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    This was a bill in equity, brought by defendant in error, William H. Whitehead, to foreclose a deed of trust. The facts are fully stated in the opinion of the Appellate Court, as follows:
    “On the 29th day of November, 1880, Ira N. Herrick executed two promissory notes, for $17,040 each, payable to the order of Franklin H. Watriss, in one and two years after date, with interest, and to secure their payment executed a deed of trust to George W. Smith, as trustee, conveying six separate parcels of land. The first note was paid at maturity, and two of said parcels of land were thereupon released from said deed of trust. Partial payments were made on the other note, and the present bill was brought to foreclose the deed of trust for the residue remaining unpaid.
    “The deed of trust contained, among other things, a covenant that the grantor would, in due season, pay all taxes on said lands, and in ease of his refusal or neglect so to do, the grantee, or his successors in trust, or the holder of said notes, or either of them, might pay such taxes, and that the moneys thus paid, with interest thereon at the rate of eight per cent per annum, should become so much additional indebtedness secured by said deed of trust, to be paid out of the proceeds of the sale of said lands, if not otherwise paid by the grantor. Said deed of trust also contained the following provision:
    “ ‘In case of default in the payment of said promissory notes, or either of them, or any part thereof, according to the tenor and effect of said notes, * * * or in case of waste or non-payment of taxes, * * * or in case of the breach of any of the covenants or agreements herein mentioned, then and from thenceforth it shall be lawful for said party of the second part, or his successor in trust, or the person who may be appointed by the court to execute this trust, on application of the legal holder of said promissory notes, or either of them, to enter into and upon and take possession of the premises hereby granted, or any part thereof, and to collect and receive all rents, issues and profits thereof, and in his own name, or otherwise, to file a bill or bills in any court having'jurisdiction thereof, against the said party of the first part, his heirs, executors and assigns, to obtain a decree for the sale and conveyance of the whole or any part of said premises, for the purposes herein specified, by said party of the second part, as such trustee, or as special commissioner, or otherwise, under order of said court, and out of the proceeds of any such sale to first pay the costs of said suit, all costs of advertising, sale and conveyance, including the reasonable fees and commissions of said party of the second part, or person who may be appointed to execute this trust, and five per cent on the amount of such principal, interest and costs, for attorneys’ and solicitors’ fees, and also all other expenses of this trust, including all moneys advanced for insurance, taxes and other liens or assessments, with interest thereon at eight per cent per annum, then to pay the principal of said notes, whether due and payable by the terms thereof, or at the option of the legal holder thereof, and interest due on said notes up to the time of said sale, rendering the overplus, if any, unto the party of the first part, his legal representatives or assigns, on reasonable request.’
    “Prior to filing the bill, William H. Whitehead, the complainant, became the owner of the unpaid note, by purchase, and Herrick conveyed all of said parcels of land to A. B. Meeker, who in turn conveyed three of the four tracts not released from the deed of trust, to the Cheltenham Improvement Company. The bill makes the Cheltenham Improvement Company, George W. Smith, the trustee, Herrick, the maker of the notes, and various other parties who had or claimed some interest in the premises, parties defendant. The default of the Cheltenham Improvement Company was duly entered, and on reference to the master it was found that the balance (principal and interest) due on said note was $13,182; that the complainant had been compelled to pay out the sum of $1000 to redeem a portion of said premises from a tax sale; that he had paid out for an abstract of title, and for the procurement of certain information or data necessary to be used in preparing and filing the hill, the sum of $260. To this the master added five per cent of the amount found due, being $719, for solicitors’ fees, thus making a total of $15,161. The master’s report was approved, and a decree entered fixing the amount due on the deed of trust at the last mentioned sum, and awarding a sale of said premises therefor.”
    The Cheltenham Improvement Company appealed to the Appellate Court, where it was held that the decree was erroneous in allowing the attorney’s fee and the item of $260 for abstract. The cause was reversed, with directions to the circuit court to enter a decree for the amount found due complainant by the decree, less the two items mentioned above. To reverse the judgment of the Appellate Court the Cheltenham Improvement Company sued out this writ of error, and ihe complainant in the bill, William H. Whitehead, has assigned cross-errors, calling in question the decision of the Appellate Court in regard to the two items above mentioned.
    Mr. Frederic Ullman, for the plaintiff in error:
    The circuit court erred in allowing $260 for an abstract of title, and for “obtaining the information provided for in the said trust deed and in the preparation of this cause.” There is no authority in the deed of trust for such allowance.
    It was error to allow $1000 paid out for an alleged tax title, and to provide that the same should be a lien on the land of the plaintiff in error. The bill fails to show that appellee had paid out any money for taxes, and he had not done so, in fact, as the evidence shows. Adams v. Payson, 11 Ill. 26; Augustine v. Doud, 1 Bradw. 593.
    It was error to allow appellee $719 as solicitor’s fees. The deed of trust provides for the payment of the solicitor’s fee only'in ease of a foreclosure by the trustee. Such a provision is to be construed strictly.
    Messrs. Whitehead & Piceard, for the defendant in error:
    In stating a claim of the complainant in chancery, it is only necessary to do so generally. A general charge or statement of a matter of fact is sufficient. Story’s Eq. PI. see. 28.
    Having had the right to file exceptions to the master’s report, but having failed to do so, either before the' master or in the court below, the plaintiff in error is precluded from making such objections in this court, and the master’s report must be taken, in this court, as “conclusive of the questions covered by it.” Pennell v. Insurance Co. 73 Ill. 303; McClay v. Norris, 4 Gilm. 370; Clark v. Laughlin, 62 Ill. 278; Brockman v. Aulger, 12 id. 277; Jewell v. Paper Co. 101 id. 57; Hurd v. Goodrich, 59 id. 450; M. E. Church v. Jacques, 3 Johns. Ch. 77; Prince v. Cutler, 69 Ill. 267.
    It is contended that the provision for an attorney’s fee covers the case only of a bill filed by the trustee. The deed says, “in his own name or otherwise.” The word “otherwise,” will cover a sale by the master.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

No fault whatever is found with the amount due on the note secured by the trust deed, as determined in the decree, but it is insisted that the allowance of $1000 for money paid in the purchase of an outstanding tax title is erroneous, upon two grounds: First, because it was not claimed in the bill; and second, it is not a proper allowance under the evidence.

Upon an examination of the bill, the following allegation in regard to tax claims will be found:

“And further, your orator says, that in and by said trust deed the said Ira N. Herrick, for himself and his heirs", executors, administrators and assigns, covenanted that he and they would pay all taxes and assessments levied or assessed against the real estate in the said trust deed described, until the indebtedness secured thereby should be fully paid; but your orator shows, that owing to the neglect and default of the said Ira N. Herrick, or his assigns, a large amount of taxes and assessments is now due and owing on the said premises, and are a lien thereon, and that taxes and assessments have been allowed to go to judgment, sale, and deeds have been issued on said real estate, or a part thereof still remaining as security under said .trust, and for the indebtedness due your orator, as aforesaid.”

In addition to this allegation, the trust deed was attached to and made a part of the bill. If the bill had contained an allegation of the amount of the tax lien, and that the same had been paid by the complainant, it would not be subject to criticism; but the allegation, in connection with the terms of the trust deed, which is a part of the bill, is, in our judgment, sufficient upon which to predicate the evidence of the payment of the $1000 item embraced in the decree.

As to the sufficiency of the evidence to support this item in the decree, plaintiff in error is in no position to raise the question. The cause was referred to the master in chancery to take the proofs and report to the court. The evidence was taken and a report filed, but no exception was taken to the report of the master in regard to tax liens and payment of tax liens, either before the master or in the circuit court. If, in the opinion of the plaintiff in error, the evidence offered before the master was incompetent or insufficient to establish the claim, he was required to file exceptions before the master, and, if overruled there, renew the exceptions in the circuit court. Had this course been pursued, the objection now relied upon might properly be considered; but aá1 no exception was taken before the master, or in the circuit court, plaintiff in error is precluded from making the objection here. The master’s report must be held conclusive of all questions covered by it not excepted to. Pennell v. Lamar Ins. Co. 73 Ill. 303.

As has been seen, the court, in the decree, allowed complainant $260 for an abstract of title and expenses incurred in procuring data to foreclose the trust deed. We find no •clause in the trust deed which can, upon any reasonable construction, be held to authorize a claim of this character, and, in the absence of authority in the trust deed, the court had no power to allow the amount. It is true that the trust deed contains a clause which authorizes the trustee, upon sale of the mortgaged premises, in distributing the proceeds, to pay -certain specified claims, and “also all other expenses of this trust.” Whatever expenses the trustee might necessarily incur in making a sale of the property under the power or decree, such as advertising, or perhaps procuring an auctioneer, would be a legitimate charge on the fund derived from the sale; but we do not think the obtaining of an abstract was any part of the expenses of the trust. An abstract might be useful to the •attorneys who were employed to foreclose the mortgage, to furnish the names of persons who might have liens on the mortgaged premises; but at the same time, the mortgagor ought not to be charged with and compelled to pay for such information, unless it clearly appeared, from the mortgage, that he had agreed to do so, which is not the case here.

One other question remains to be considered, and that is, whether the solicitor’s fee of $719 was an element proper to be embraced in the decree. As heretofore stated, the trust deed provides, in case of default in the payment of the debt, or in case of the breach of any of the covenants of the deed, the party of the second part (the trustee named in the deed) is authorized, in his own name or otherwise, to file a bill to foreclose the mortgaged premises and to obtain a decree of sale, and from the proceeds of the sale the deed provides that five per cent of the amount of the debt shall be paid as solicitors' fees. It is not denied, if the bill had been filed in the name of the trustee, that the amount provided in the decree for solicitors’ fees would be a proper charge, under the terms of the deed of trust; but as the bill was filed in the name of the holder of the mortgage indebtedness, and not in the name of the trustee, it is claimed that the allowance was not authorized. We do not assent to this construction of the language used in the trust deed. The object in providing for attorneys’ fees in the trust deed was, in the event that the mortgagor should fail to pay the debt, and the holder of the indebtedness should be compelled to foreclose the trust deed in order to collect the debt, then solicitors’ fees should be allowed. What difference could it make with the mortgagor whether the bill should be filed in the name of the trustee or in the name of the holder of the indebtedness ? We do not see that the liability of the mortgagor could in any manner be changed, whether the bill was brought in the one name or the other. Moreover, the language of the deed of trust, giving it a fair construction, will not admit of the meaning attempted to be placed upon it. The solicitors’ fees are payable upon the filing of a bill in the name of the trustee, or otherwise. Some meaning must be given to the word “otherwise.” It can not be arbitrarily rejected. And we are of opinion that a fair and reasonable construction of the contract will fully authorize the allowance of solicitors’ fees, whether the bill was filed in the name of the trustee or some other person.

The judgment of the Appellate Court will be reversed as respects the solicitor’s fee named in the decree. In all other respects it will be affirmed.

Judgment affirmed.

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


author: Mr. Justice Scholfield

text:
    Joseph Baylies v. Josephine M. Curry.

      Filed at Ottawa

      May 16, 1889.

    1. Golobed pebsons—civil rights—access to theaters, etc.—discrimination on account of race or color. All persons in this State are entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of theaters, etc., subject only to the conditions and limitations established by law, and applicable to all citizens, and an action will lie against any one who shall deny another such rights and privileges on account of his race or color.
    2. So if the proprietor of a theater shall deny a colored person access to his theater, or to the several circles or grades of seats therein, on account of his race or color, he will be liable to such person so aggrieved in an action for damages.
    3. In an action by a colored woman, against the proprietor of a theater, for denying her equal privileges, etc., the only case her evidence tended to prove was, that after having paid, through another, for a ticket to the first balcony, she was first denied admission thereto, and afterward denied admission to any part of the theatei', on account of her color. On the trial, the defendant offered to prove that he had adopted a rule requiring colored people to sit in the same row, separate from white people, and that it was the rule of his theater that colored persons were given the same advantages, for the same price, in all parts thereof, that whites had, except that the former were assigned a particular row of seats,—which the court refused to allow: Held, that the court ruled properly, as the .proposed evidence was irrelevant to the issue.
    4. Same—constitutionality of the act. It can not reasonably be contended that the provisions of “An act to protect all citizens in their civil and legal rights, and fixing a penalty for violation of the same,” approved June 10,1885, in so far as they give an action against the proprietor of a theater for denying a colored person access thereto, are void, as being repugnant to the constitution of this State or of the United States.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. A. N. Waterman, Judge, presiding.

      This was an action brought in the circuit court of Cook county, by Josephine M. Curry, a woman of color, against Joseph Baylies, proprietor of the People’s Theater of Chicago, for denying her the full and equal enjoyment of the accommodations, advantages, facilities and privileges of the theater whereof he was proprietor, under the act entitled “An act to protect all citizens in their civil and legal rights, and fixing a penalty for violation of the same,” approved June 10, 1885. (Laws of 1885,-p. 64.) The defendant pleaded not guilty. The jury found the defendant guilty, and assessed the plaintiff’s damages at $100. The circuit court overruled a motion for a new trial, and gave judgment upon the verdict of the jury, and this judgment, on appeal to the Appellate Court for the First District, was affirmed. The case is now brought to this court by appeal from that judgment.
    Messrs. McCurdy & Job, for the appellant :
    Under the common law, common carriers could not separate negroes and white persons from mere caprice or race prejudice; but if the intention was to prevent conflicts, and' to preserve order and decorum, a rule by which colored persons were required to occupy seats separate from white persons, equally desirable and comfortable, has been held to be reasonable and lawful. Railroad Co. v. Williams, 55 Ill. 186; Railroad Co. v. Miles, 55 Pa. 211; “The Sue,” 22 Fed. Rep. 843; Logwood v. Memphis, 23 id. 319; Hall v. DeCuir, 95 U. S. 487.
    As to the construction and constitutionality of the act in question, see Desty on Federal Procedure, (6th ed.) 781; Hall v. DeCuir, 96 U. S. 499; DeCuir v. Benson, 27 La. Ann. 5; Sauvinet v. Walker, id. 14.
    The rule of the theater does not discriminate against colored * people, but operates upon both whites and blacks. Chase v. Stephenson, 71 Ill. 383; People v. Board of Education, 101 id. 310; People v. Gallagher, 93 N. Y. 341; State v. Duffy, 7 Nev. 345; Ex rel. Hobbs & Johnson, 1 Wood’s C. C. 537.

      Appellant filed in the court below a motion in arrest of judgment, which the court overruled. We insist this was error. The record discloses a declaration in ease, of four counts, each of which is framed upon the statute in question, concluding against the form of the statute. This statute is penal. St. Louis v. Hill, 11 Bradw. 248.
    Debt will lie on a penal statute where the form of action is not therein specified. Vaughan v. Thompson, 15 Ill. 39; Kerr v. Davis, 38 Tenn. 73; Blackburn v. Baker, 7 Port. (Ala.) 290.
    In the ease of the party grieved, where a statute prohibits the doing of anything, under a penalty, to be paid to the party aggrieved, and does not prescribe the mode of recovery, it shall be recovered in an action of debt. Espinasse on Penal Actions, 57.
    Case will not lie on such a statute. Mount v. Hunter, 58 Ill. 247.
    Mr. Edwabd H. Moeeis, for the appellee:
    Appellee’s cause of action arose from the act of appellant in absolutely refusing to sell her any seat in his theater because of her color, and not, as contended by appellant, in denying her a particular one; and because of this, so far as this case goes, the question so ably discussed by counsel, as to the right of appellant to provide colored people with seats equally as good as the ones given to white persons, does not arise.
    The statute is a just and proper exercise of the police powers vested in the State, and in no way violates the property rights protected by the constitution. Joseph v. Bidwell, 28 La. Ann, 382; Cooley’s Const. Lim. 734.
    Providing accommodations equally as good, is not a compliance with a statute which provides that there shall be no discrimination or exclusion on account of color. , It is merely 41 an ingenious attempt to evade a compliance with the obvious meaning of the requirements” of the law. Railroad Co. v. Brown, 17 Wall. 445.

      Such was the construction placed upon an act of Louisiana, which provided that proprietors of street cars, stage coaches, etc., should make no discrimination on account of race or color. DeCuir v. Benson, 27 La. Ann. 1; Sauvinet v. Walker, id. 14; Hart v. Hoss, 22 id. 517.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The case made by appellee’s evidence, as stated in the printed argument presented to us by appellant’s counsel, is : “On Sunday evening, June 6, 1886, appellee (who is a colored woman) applied to the box-office of appellant’s theater for tickets, and was refused them; that she then procured a white customer of her husband to get tickets for her; that with these-tickets she and her husband entered the theater and ascended to the balcony, where they were refused seats by the usher because the seat coupons had been torn from their tickets, which was done by the door-keeper; that the usher referred her to the door-keeper, the door-keeper to the box-office, and that at the box-office her money was returned and she and her husband went away.” To this must be added, appellee testified that the gentleman in the ticket office, who, she says, “looked like Mr. Baylies, throwed the money at me, swore, and said he didn’t want no damned niggers in there; told me to-take my crowd and get out.” This, it is true, is contradicted by evidence on behalf of appellant; but since there is no evidence tending to show that appellee was otherwise deprived of the “full and equal enjoyment of the accommodations, advantages, facilities and privileges” of the theater than as thus-detailed by her, the jury must have found that the evidence preponderated in behalf of her statement, and the judgment of the Appellate Court, affirming the judgment of the circuit court, requires us to accept that view of the facts.

Appellant, upon the trial, offered to prove that he had, in order to avoid collision between the races, adopted a rule, (and that such rule was necessary,) to the effect that the colored people should have one row to themselves in each part of the house, or as many rows as the tickets which they bought would call for; but the court refused to allow the evidence to be given. He also offered to prove that it was the rule of his theater that colored persons were given the same advantages for the same price, in all parts of this theater, that white persons had, with the exception, only, that the colored persons were assigned to a particular row of seats; but the court refused to allow the evidence to he given. Appellant also asked the court to give to the jury, among others, the following instructions, but the court declined to do so, namely:

“3. The jury are instructed that the defendants were legally justified in assigning colored persons to seats in the theater of defendant, Baylies, separate and apart from the seats of white persons, provided the seats to which such colored persons were assigned were equally comfortable and well situated.
“5. You are instructed, as a matter of law, that the proprietor or manager of a theater has the right to make such reasonable rules as he may see fit, regarding the seating of the occupants of his theater, or the disposition, arrangement or classification of tickets sold to different persons or classes of persons, provided such rules are reasonable, and do not discriminate against any certain class or race of people as regards the prices and location of such seats.”

Exceptions to these rulings present the only question that we are now required to consider.

It would seem too plain to admit of serious controversy, that the circuit court ruled properly, because the evidence offered and the instructions asked were irrelevant to the issue being tried by the jury. Appellee offered no evidence tending to-show that appellant or his servants seated or offered to seat her in the same row with other colored people, against her objection, nor did appellant introduce or offer to introduce such evidence. The only case her evidence tended to prove was, that after having paid, through another, for the requisite ticket to the “first balcony,” she was first denied admission thereto, and afterwards denied admission to every part of the theater, because of her color. The rule requiring colored people to sit in the same row, separate and apart from white people, manifestly had no tendency to justify either of these exclusions.

Beyond all question, sections 1 and 2 of the “Act to protect all citizens in their civil and legal rights, and fixing a penalty for violation of the same,” approved June 10, 1885, (Laws of 1885, p. 64,) prohibit the denial of access to the theater and to the several circles or grades of seats therein because of race or color, for such is, in effect, the language.employed. The first section says: “All persons within the jurisdiction of said State shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of * * * theaters, * * * subject only to the conditions and limitations established hy law, and applicable alike to all citizens.” The second section says: “Any person who shall violate any of the provisions of the foregoing section, by denying to any citizen, except for reasons applicable alike to all citizens of every race and color, and regardless of color or race, .the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, * * * shall for every such offense forfeit and pay a sum not less than twenty-five (25) dollars, nor more than five hundred (500) dollars, to the person aggrieved thereby.”

It would be difficult to employ more comprehensive and sweeping language to abolish all distinctions in accommodations, facilities, privileges or advantages in theaters on account of race or color, than that thus employed. But it is enough for the present that it includes denial of access to the theater, and denial to the first balcony of the theater, and that it is not contended, nor, in our opinion, can it reasonably be contended, that these sections are inoperative by reason of repugnance to provisions of the constitution of this State or of the United States.

The judgment is affirmed.

Judgment affirmed.