text:
    The Illinois Central Railroad Company v. The People of the State of Illinois.

      Filed at Springfield June 17, 1887.

      1. Railboads—unjust discrimination—power of the State to regulate. The legislature has the undoubted power, under the constitution, to prohibit unjust discrimination in charges for the transportation of persons and freights by railroads, whether as between individuals, or localities or communities.
    2. Same—distinctive purposes of sections 1 and 6 of the statute. Section 1 of the act against unjust discriminations by railway corporations, is directed against discriminations between localities through unequal charges for the same transportation, in the same direction, over equal parts of their roads; and it is violated when all are compelled to pay for transportation for a shorter distance a rate equal to or greater than that charged for the same transportation in the same direction for a longer distance, as well as when one or a few individuals are compelled to do so.
    3. Section 6 of the act simply gives a light of action against a railway company to any person or corporation which has paid the company extortionate charges, or charges for receiving or handling freight in violation of the provisions of the act, and which has therefore been unjustly discriminated against by such railway company in its charges, for three times the amount of the damages sustained by the party aggrieved. That section has nothing to do with suits by the Slate, and its purpose is to afford a personal indemnity in cases of personal injury occasioned by the unjust discrimination.

      4. Same—discriminations as between localities, not involving the element of competition in trade. On a prosecution by the People, against a railway company, to recover the penalty imposed by section 4 of the act of Í873, for an unjust discrimination in charges between localities, it is not incumbent on the People to prove a personal discrimination and a personal injury as between individuals, but it is sufficient merely to prove a discrimillation as between localities, omitting specific evidence of its effect upon different individuals.
    5. So the fact that there may be no competition in a particular trade between two points upon a railroad, does not show that a discrimination in charges for transportation, as between such points, is not unjust.
    6. In this case it appeared that a railway company charged ten cents per hundred pounds for carrying green coffee in the sack from Chicago to Mattoon, a distance of one hundred and seventy-two miles, and on the same day charged another person sixteen cents per hundred for carrying coffee in the sack from Chicago to Kankakee, a distance of only fifty-six miles, the transportation in both instances being in the same direction and over the same road. In a suit by the State to recover the penalty for unjust discrimination, the defendant showed that there was no competition between Kankakee and Mattoon in the grocery trade, and claimed that the discrimination between these points was not unjust, and therefore allowable: Held, that the fact so shown constituted no defence to the action.
    7. Same —discrimination at competitive points. The fact that at a given point there is competition among railroads for the transportation of freights, and some of them are charging reduced or “ cut” rates, will not justify another railway company in discriminating in favor of such point as against other points on the line of its road.
    8. A reduced or “cut” rate by a railway company to meet a “cut” rate of a rival road, which reduced or “cut” rate discriminates against a non-competitive point, is not, of itself, within the meaning of the statute, a just discrimination.
    9. The rivalry at competing points, which the statute declares shall not justify a discrimination in charges, has not reference solely to such as competes for a common business to a. common market. It may apply to the same or different markets, and to roads having different termini.

    10. Same —instances where there may he a jxist discrimination. There may be some greater expense to a railway company in carrying goods a given short distance than for a longer distance per mile, owing to the stopping and starting of trains, loading and unloading, the wear of machinery, etc.; and •when it has full loads for its cars in each direction, it may carry more cheaply ■than when it is obliged to run its cars empty, or only partially loaded, in one direction, or only partially loaded in both directions. For these and other •reasons affecting the cost of carriage, a company may often afford to carry the longer distance to or from competitive points more cheaply, pro rata, than for the shorter distance. Discriminations made in good faith because of such ■circumstances, are just, and not within the statute.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

      Messrs. Palmers & Shutt, for the appellant :
    No discrimination can be unjust unless it is injurious to-some individual, and a discrimination in favor of Hennessy, at Mattoon, can not be unjust to Harrington, at Kankakee, unless it in some way operated to his injury; and unless injurious to Harrington, this discrimination can not be “unjust discrimination,” within the meaning of the statute. This-view derives force from the sixth section of the act, which gives a remedy to the party “so offended against,” and damages to the “party aggrieved. ” Therefore the discrimination must “offend” or “aggrieve” some one. Without injury to-some one, discriminations by the carrier are lawful.
    If the service or price is unreasonable and injurious, the unreasonableness is equally actionable whether it is in inequality, or in some other particular. A service or price that would otherwise be reasonable, may be made unreasonable by unreasonable discrimination, because such discrimination is in violation of the common right. There might be cases-where persons complaining of such a violation could have no-cause of action, because they would not be injured. There-might be cases where the discrimination would be injurious. In such cases it would be actionable. McDuffie v. Railway Co. 52 N. H. 430.
    The important point to every freighter is, that the charge shall be reasonable, and a right of action will not exist in favor of any one, unless it be shown that an unreasonable-inequality has been made, to his detriment. A reasonable-price paid by such party is not made unreasonable by a less price paid by others, or, as said by Crompton, J., to the plaintiff, on the trial of such a suit, “the charging of another party too little, is not charging you too much. ” Scofield v. Railway Co. 43 Ohio St. 571; Ragan v. Aiken, 9 Lea, 609.
    Harrington testifies that the difference in charges did not affect him in any way,—that Mattoon and Kankakee are so far apart that defendant’s charges had no influence upon his business. These facts disprove injury from the different rates. Dobie v. McFarlan, 17 Scotch Dec. (4th series,) 304; In re Railway Co. 1 C. B. (N. S.) 420; 87 E. C. L. 418; In re Ransom, id. 451; id. 450.
    The reduced rates of the other rival roads justified a temporary reduction in rates to and from the competing point.
    Competition, in the sense of the statute, is the rivalry which may, and perhaps always does, exist between railways which compete for a common business, to a common market.
    The railroads connecting Mattoon with Peoria, St. Louis, Indianapolis and Terre Haute, were in no sense competitors with the defendant for freight from Chicago. Their object was to create for themselves an independent, separate business. They did not go to Chicago as a common source of supply, and compete with the defendant for the Mattoon freight from that point. They did not seek to share the defendant’s business, but to destroy it.
    The statute refers to competition in transportation, and not in markets or sources of supply.
    The constitutional provision requiring the passage of laws to prevent unjust discrimination, gave no greater power than the legislature otherwise would possess. Vincent v. Railway Co. 49 Ill. 33; People v. Railway Co. 55 id. 111; Railway Co. v. People, 56 id. 365; Railway Co. v. People, 67 id. 11; Railway Co. v. Railway Co. 110 U. S. 667; Ruggles v. People, 91 Ill. 256.
    At common law, carriers were not allowed to exercise any unjust discrimination between individuals, in their rates of' toll. Railway Co. v. People, 67 Ill. 17.
    As to what lawful discriminations the carriers may make, see Twells v. Railroad Co. 3 A. L. (N. S.) 729; Nicholson v. Railway Co. 94 E. C. L. 366; In re Oxlad, 1 C. B. (N. S.) 453; Ransom's case, id. 437; Ragan v. Aiken, 9 Lea, 609.
    The business freedom recognized by the most rigid rule of equality, admits of special arrangements to meet special •emergencies of traffic, where the interest of the immediate parties is alone involved. In this case the interests of the railway companies, and the traders at Mattoon were alone ■affected by the reduction in the rate, and its effect upon the Mattoon trade must be assumed to have been beneficial rather than prejudicial. Messenger v. Pennsylvania Co. 8 Vroom, 531; Railway Co. v. Rust, 56 Texas, 98; Hays v. Pennsylvania Co. 12 Fed. Rep. 309; Ex parte Koehler, 23 id. 529 ; Menacho v. Ward, 27 id. 529.
    Not only w’ere the circumstances attending the reduction of the rate at Mattoon special and unusual, but the reduction was itself special, in the sense of being temporary.
    It is admitted that the regular or commissioners’ rate from Chicago to Mattoon was restored when, and as soon as, business resumed its normal and legitimate condition.
    In many of the cases upon this subject, the circumstance that the alleged discriminating rate is temporary in its operation, is, of itself, considered as very persuasive, if not conclusive, evidence of the absenceof a purpose to violate the rule against undue preferences. Menacho v. Ward, 27 Fed. Rep. 529; Camblos v. Railway Co. 4 Brewst. 563.
    Mr. George Hunt, Attorney General, for the People:
    Under the statute the fact that one point is a competing point, shall not be a sufficient excuse or justification for a discrimination.
    It is claimed by appellant, that the discrimination was not unjust, because the evidence does not show some one was injured. The law declares what shall be prima facie evidence of an unjust discrimination, and does not require proof of anything more. Prima facie evidence is merely evidence which creates the presumption that a fact exists, and that is conclusive unless rebutted. (Wharton on Evidence, sec. 371.) In Railroad Co. v. Ervin, 118 Ill. 250, no claim was made that injury to some person must be shown to establish a case of unjust discrimination.
    The law declares the facts shown to be proof of an unjust discrimination. The fact that Harrington says he was not injured, does not prove the discrimination was not unjust. The admitted facts show he was injured. It may be true that the less rate to Mattoon did not injure him, but very clearly the higher rate did.
    If a ten cent rate to Mattoon was a remunerative rate, the rate to Kankakee was highly exorbitant and extortionate. If the rate was extortionate, it was unjust; and if an extortionate rate was charged one, and a much lower or reasonable rate was given another, then the discrimination was unjust. If the rate to Mattoon was not remunerative, it was unjust to the stockholders; or if made up by charging other patrons correspondingly over-remunerative rates, then the discrimination is equally unjust.
    The statute does not make any distinction between competition for freight between two common points, and competition when only one point is in common.
    The attempt on the part of the defendant below to prove that there was no competition between Kankakee and Mattoon, was an attempt to prove a negative, and one which, from its very nature, is incapable of exact proof. And if that is a material question, how is it to be determined what point between Kankakee and Mattoon is the dividing line at which competition begins or ends ?
    The “cut” rates of rival companies did not justify the discrimination. The company is not entitled to a monopoly of the business at any station on its line.
    It is no answer to say that the discrimination in rates was only temporary. The influence claimed to justify the action may easily be made permanent. There is no reason why the excuse should be held good as a temporary matter, and insufficient for a permanent rate.
   Mr. Justice Soholfield

delivered the opinion of the Court:

This is an action of debt for unjust discrimination, under the 3d section of the act to prevent extortion and unjust discrimination, approved May 2, 1873. (2 Starr & Curtis, 1962.) So much of the section as is pertinent to the question before us, reads as follows: “If any * * * railroad corporation shall charge, collect or receive, for the transportation of any passenger or freight, of any description, upon its railroad,, any distance within this State, the same or a greater amount of toll or compensation than is at the same, time charged, collected or received for the transportation, in the same direction, of any passenger or like quantity of freight of the same class, over a greater distance of the same railroad, * * * all such discriminating rates, charges, collections or receipts * * * shall be deemed and taken against such railroad corporation as prima facie evidence of the unjust discriminations prohibited by the provisions of this act; and it shall not be deemed a sufficient excuse or justification of such discriminations on the part of such railroad corporation, that the railway station or point at which it shall charge, collect or receive the same or less rates of toll or compensation, * * * for the greater distance than for the shorter distance, is a railway station or point at which there exists competition with any other railroad or means of transportation. ”

The alleged unjust discrimination is, that appellant, on the 5th day of February, 1884, carried over its railroad, from Chicago to Mattoon, a distance of one hundred and seventy-two miles, two sacks of green coffee for Patrick Hennessey, and charged and collected for such carriage, the sum of twenty-seven cents,—being at the rate of ten cents per one hundred pounds; and that, at the same time, appellant carried in the same direction, and over that part of its same railroad, from Chicago to Kankakee, a distance of fifty-six miles, two other sacks of green -coffee, of like weight, of the same ■class and quality of freight, for C. C. Harrington, and charged .and collected from him, for such carriage, the sum of forty-five cents,—being at the rate of sixteen cents per one hundred pounds for such carriage. Appellant gave evidence proving that there was no competition between Mattoon and Kankakee in the retail grocery trade, and that Harrington knew nothing, at the time, of the rate charged Hennessey, and that he was not personally injured by it.

The first question, then, to be considered is, was it incumbent upon appellee to prove a personal discrimination and a personal injury, as between individuals of a class, or was it sufficient merely to prove a discrimination as between localities, omitting specific evidence of its effect upon different individuals ?

The clause quoted, it will be observed, does not mention persons. It is, in effect, directed against discriminations between localities, through unequal charges for the same transportation, in the same direction, over equal parts of its road, and, obviously, it is as certainly violated when all are compelled to pay for transportation for the shorter distance a rate equal to or greater than that charged for the same transportation, in the same direction, for the longer distance, as where one or a few individuals are compelled to do so. Another clause of the same section is directed against discriminations between individuals, and for the present argument it may be conceded that to recover under that clause it is ■essential to show a personal injury.

Counsel refer to section 6 of the act, as sustaining their •contention that it was essential to a recovery, here, that it ■should have been proved that some person was injured by the discrimination of which complaint is made. But that section simply gives a right of action against the railroad company to any person or corporation which has paid to a railroad company extortionate charges, or charges for receiving <or handling freight in violation of the provisions of the act, and which has therefore been unjustly discriminated against by such railroad company in its charges, for three times the amount of damages sustained by the party aggrieved. It has nothing to do with suits by the State, and its manifest purpose is to afford a personal indemnity in cases of personal injury, without any regard to suits by the State 'for the statutory ■ penalty. This suit is for the penalty prescribed by section 4 of -the act. The language of that section is broader and more comprehensive than that of section 6. It is: “Any such railroad corporation guilty of extortion, or of making any unjust discrimination as to passenger or freight rates, * * * shall, upon conviction thereof, be fined in any sum not less than $1000 nor more than $5000, for the first offence.” There being nothing qualifying or limiting the words “guilty * * * of making any unjust discrimination as to passenger or freight rates, ” they, manifestly, comprehend discriminations, in these respects, on account of localities.

The question whether it was competent for the General Assembly to prohibit unjust discriminations in charges for the transportation of persons and freights on account of localities, was settled in the affirmative in Chicago and Alton Railroad Co. v. People ex rel. 67 Ill. 11. That case was under the act in force July 1, 1871, which prohibited only such discrimination, as was expressly ruled in Indianapolis, Decatur and Springfield Railroad Co. v. Ervin, 118 Ill. 250. The information sought a forfeiture of the company’s charter, because the company had, in violation of the act of 1871, “repeatedly charged and received for transporting lumber from Ghicago to Lexington, a distance of one hundred and ten miles, the sum of $5.65 per one thousand feet, while, at the same time, it had only charged for transportation of like lumber from Chicago to Bloomington, a distance of one hundred and twenty-six miles, the sum of five dollars per one thousand feet.” There was no charge of individual injury. The constitutionality of the act of 1871 was discussed by counsel in the argument of the case, and the court, in the published opinion, after stating the respective contentions on that question, said: “Conceding, for the purposes of this appeal, all that is claimed by counsel for appellant in regard to the inviolability of railroad charters, regarded in the light of contracts, we are still of opinion that -the legislature has the clearest right to pass an act for the purpose of preventing an unjust discrimination in railway freights, whether as between individuals or communities, and to enforce its observance by appropriate penalties.” The opinion then shows why the legislature has the right to pass an act for the purpose of preventing an unjust discrimination between individuals, after which it proceeds thus: -“If, then, an unjust discrimination is not to be permitted, as between individuals, in regard to freights, is it any more permissible as between different communities or localities ? We are wholly at a loss to discover the slightest difference, in reason or principle. If a farmer, living three miles from the Springfield station, upon this company’s road, is charged fifteen cents per bushel for shipping his corn to Chicago, is it just that the farmer who lives twenty miles nearer Chicago should be charged a higher sum ? Certainly not, unless the railway company can show a peculiar state of affairs to justify the discrimination, and this must be something more than the mere fact that there are competing lines at one point and not at the other. The discrimination, in such a case, is as much a discrimination between individuals as it would be in reference to two persons living in the same locality and shipping at the same station, unless, as before stated, a satisfactory reason can be given for discrimination between the points of shipment,—and such a reason, in the case supposed, it is not very easy to conceive. ”

But the question occurs, does the fact that Kankakee and Mattoon are one hundred and seventeen miles apart, and that there is no competition between them in the retail grocery trade, show that this discrimination is not unjust? In ihe illustration quoted from Chicago and Alton Railroad Co. v. People, supra, we do not understand that the injustice to the farmer living twenty miles nearer to Chicago in being ■charged the higher sum, is affected by the circumstance that their respective stations are competing points for the grain trade to Chicago, but that the illustration would have been ns apropos had the farmers lived near the same railroad, hut the one more than a hundred miles nearer to Chicago than the other. The injustice spoken of is not that resulting from the destruction of local competition, but that resulting .from overcharging. Undoubtedly, injustice may result to a .given locality, and thus to every individual interested in its business, by giving rates to a fairly competing point, which will enable that point to take the business away from the .given locality. That, however, is not the only way by which .a given locality and its citizens may be injured by unjust •discrimination. It can hardly be necessary to argue that a discrimination against a given locality, where there is charged for the transportation of freights to or from it an amount which the law does not allow, is unjust, no matter whether ■other localities are only charged what the law allows, or are charged less than the law allows; and it must also be equally ■obvious, that in a case of this kind each individual shipper is, in fact, injured to the amount of the excess which he is xequired to pay beyond the amount which the law allows, .although he may, in fact, be ignorant at the time that the amount which he is required to pay is beyond the amount .allowed by law... The effect falls, in the first instance, upon him, although it is true that he may ultimately indemnify Mmself by charging the amount up to the purchasers of that which is shipped; but then it falls upon them, and is an unjust discrimination to their injury.

We are, in determining whether, in a given case, the amount charged by the railroad company is allowed by law, to keep in mind that it may not, like a qnivate individual, in the pursuit of his private business, exercise an unlimited discretion in this respect, but that, exercising a franchise of a public character, it is limited by the amount of. a reasonable remuneration. Now, in the present case, the remuneration exacted by the carrier and paid by the shipper, was sixteen cents per one hundred pounds .for carrying from Chicago to Kankakee, and ten cents per one hundred pounds for carrying from Chicago to Mattoon, a distance of one hundred and seventeen miles greater. The presumption is that the higher charge is not reasonable. Messenger v. Pennsylvania Railroad Co. 36 N. J. (7 Vroom,) 407. And this is in accordance with the reasoning in Chicago and Alton Railroad Co. v. People, supra. It was, further along in the opinion in that case than our former quotation, said: “The only issue to be made under a law properly framed would be, whether there was an unjust discrimination or not. If, on the trial of ;such an issue, the prosecutor proves a permanently established •discrimination, like, that disclosed by the present record, and rihe company can show no other reason for it than the exist•ence of a competing line at the favored point, the defence must he held unsatisfactory, notwithstanding witnesses may testify that they believe, as a matter of theoretical opinion, ihat the rates to Lexington are reasonable. They can not ¡be reasonable, and the discrimination must be unjust, if the .’lesser rates for the greater distance have been established -merely because, the company has ceased to exercise at that ;point a practical monopoly. It can not be supposed that •either of the competing lines would establish a permanent :rate of charges upon a scale that would not furnish a remunerative profit. The rates at Bloornington would be established under the influence of a fair competition, which, by the ■ordinary laws that govern commerce, might be relied upon as establishing a rate not unreasonably low. At Lexington, the rates would be established by the uncontrolled discretion of the company, and it should not cause surprise if they were fixed unreasonably high. If the rates are not unreasonably low at Bloomington, they are unreasonably high at Lexington. If they are unreasonably low at Bloomington and at all other points touched by competing lines, is it not certain that the company will indemnify itself by charging at the stations, where there is no competition, a rate unnecessarily high?”

This argument, it is true, assumes that the discrimination is permanently established; but we think that affects only the-strength of the presumption,—that, until explained, a temporary discrimination is equally within the logic of the reason.. Under ordinary circumstances, compensation is proportional to labor with reference to kind, quality and quantity, and the-kind and quality being in all respects the same, the greater compensation belongs to the greater quantity,—and hence, presumably, in ordinary cases, the longer carriage of the same-freight deserves the higher remuneration; but if, in any case, it is alleged that by reason of- exceptional circumstances the. fact is otherwise, the party so alleging must show it.

But it is contended, these facts which appellant proved, show that the discrimination is not unjust, namefy: “Mattoon. is a central interior point, one hundred and seventyrtwo miles from Chicago, with which it is directly connected by the Illinois Central railroad. Until just before February 5, 1884,. (the date of the alleged discrimination,) from the superiority of Chicago as a point of supply for green coffee and other fourth-class goods, the Illinois Central, on account of its direct connection, had a large and profitable business between Chicago and Mattoon, in the transportation of these goods,, at the rate of twenty-five cents per one hundred pounds, being the reasonable maximum rate fixed by the Railroad and Warehouse Commissioners. Prior to this date certain other-railroads which centered at Mattoon, had secretly made a. ‘cut’ rate of ten cents per one hundred pounds on fourth-class freight from Chicago to Mattoon, hauling such freight, a greater-distance than did the Central. The Indianapolis, and St. Louis railway, which connects Mattoon with St. Louis* a distance of one hundred and thirty-two miles, and with Indianapolis, one hundred and twenty-eight miles, and Terre Haute, fifty-seven miles, had, at the same time, made a ‘cut’ rate of ten cents per hundred from St. Louis and Indianapolis, and of six cents from Terre Haute. The Peoria, Decatur and Evansville railway, 'which connects Mattoon with Peoria, a distance of one hundred and twenty-one miles, had made a ■‘cut’ rate of six cents per hundred from Peoria. All these cities are points of supply of green coffee and other fourth-class goods, for the Mattoon market. The effect of these rates made by the railroads mentioned, was to divert the trade from Chicago to the other points of supply mentioned, •and, by consequence, to divert the traffic from the Illinois Central to the other railroad companies. As a result of these .low rates, merchants bought at Indianapolis, Terre Haute, St. Louis and Peoria, and the volume of business from Chicago was greatly diminished. The cut rate of the Illinois Central at Mattoon, from twenty-five cents to ten cents per .hundred pounds, wras made under the influence of these facts. ” But does this, in effect, amount to more than saying that Mattoon is, in the language of the statute, “a railway station ■at which there exists competition with * * * other railroads?” It would seem not. Webster’s definition of “competition” is, “The act of seeking or endeavoring to gain what ■another is endeavoring to gain at the same time; common strife for the same object.” Here, the details of the strife,— the competing acts,—are stated; but the gist is, simply, that the reduced or “cut” rate was made because of the competition with the other railroads,—precisely what the statute says “shall not be deemed a sufficient excuse or justification of ■such discrimination. ” These facts do not show that the reasonable cost or expense to the company of the carriage of goods from Chicago to Mattoon, was, at that time, temporarily, less than it was to Kankakee.

We recognize the right of railroad companies to offer special, inducements to shippers to obtain carriage of their freight; but such inducements, in our opinion, must not only be uniform to all in like situation, but also be reasonably justified by the expenses of the carriage to the company, and the anticipated profits resulting to the company from the carriage, presently and prospectively, in view of all the circumstances-affecting those questions. We concede that, as a matter of fact, there must be slightly less expense to a railroad company in carrying goods of the same quality and quantity by a • single continuous carriage, than by several disconnected and wholly independent carriages aggregating the same distance, because of the additional expense by reason of the more often loading and unloading, and of the additional labor and the-wear and breakage of cars and machinery by the more often switching and stopping and starting of cars, etc., in the latter-instance ; and we also concede that, as a matter of fact, where • a railroad company has full loads for its cars in each direction, it may carry the same freight more cheaply than where-it is obliged to run its cars empty or only partially loaded, in one direction, or only partially loaded in both directions,— and that, for these and other like reasons affecting the actual expense of carriage to a railroad company, it may afford to-carry the longer distance to or from the competitive point more cheaply, pro rata, than it can afford to carry the shorter • distance to or from the non-competitive point. Discriminations made in good faith, because of such differences in.' expense of carriage, and proportioned with reference thereto, are undoubtedly just, and not within the purview of the-statute. But it devolves upon the railroad company, relying - upon such facts as a defence to a suit for unjust discrimination, to prove them to the satisfaction of the court. A. reduced or “cut” rate of a railroad company simply to meet-a reduced or “cut” rate of a rival railroad company, is manifestly not necessarily controlled or materially affected by any of these considerations.

It is evident, first, if this reduced or “cut” rate is not below the point of reasonable remuneration, there being no proof that the proportionate expense of carrying the same goods toKankakee is so much greater than that of carrying them to Mattoon as to necessitate the greater charge therefor, the-charge of carrying them to Kankakee is above a reasonable-remuneration point, and the discrimination is therefore unjust ; and second, if it is below the point of reasonable remuneration, it must work injustice to the stockholders of the-corporation, and can not therefore be just.

This reduced or “cut” rate being but temporary, it is to be-assumed that its purpose is to compel its rival to return to-former rates; but we think, since the question concerns the-public as well as these corporations, it must be held that any reduced or “cut” rate by either of the roads, merely for the-purpose of coercing the action or obtaining an undue advantage over the other, is unjustifiable, and when it is found such rates are below the rates at non-competitive points, they are evidence of unjust discrimination, within the statute. If the reduced or “cut” rate of the rival road was below the point-of reasonable remuneration, it was unjust; but its injustice-affords no excuse for the appellants retaliating with another like injustice. Undoubtedly the public are benefited by competition in carriage, but it must be a healthy competition. A. competition carried on below a reasonably remunerative point,, it is obvious, must, sooner or later, end in the bankruptcy of some or all of the parties. The public are, in the end, injured instead of being benefited by this, for if some of the parties are bankrupted, those not bankrupted thereafter have a monopoly, and if all are bankrupted, the business is destroyed. A temporary reduction in prices below a reasonably remunerative point, manifestly must tend to unsettle values, and by producing a feeling of uncertainty and insecurity, injure trade affected by it, far more than it benefits it. But the tendency of a temporary reduction below a remunerative point is to be followed by a corresponding increase above that point, and since, in the very nature of things, it is impossible that this can fall equally upon the public affected by it, it works injustice. Some have had carriage for less than they ought to have had it, and others, in like situation, have had to pay more for carriage than it is worth.

It is contended, however, that the language of the clause under consideration, “that it shall not be deemed a sufficient excuse or justification of such discrimination on the part of such railroad corporation that the railway station or point at which it shall charge the same or less rates of toll or compensation for the transportation of such * * * freight * * * the greater distance than for the shorter distance, is a railway station or point at which there exists competition with any other railroad or means of transportation, ” has reference to that kind of rivalry which competes for a common business to a common market. But that is not the language employed. If the competition is for the carriage of the same freight, what possible difference can it make to the person having to bear the burden of paying for the carriage, and who is discriminated against, whether the markets are the same or not ? The fact that there is competition between different markets, has no tendency to prove that there is no competition in carriage between roads terminating at the different markets. It is, on the contrary, manifest that the competition in carriage between roads having different termini, is quite as great as that between different markets for the same commodity, and must often itself determine the market to be sought; and we feel authorized to take notice, as a part of the history of the times, that the discriminations because of competition at railroad crossings, had quite as much, if not more, influence in inducing the enactment of the statute under consideration, than discriminations because of the competition of parallel lines of railways, and this without regard to whether the respective roads had the same or different termini. The injury relieved against is that resulting by reason of the discrimination in the cost or price of carriage generally, and not solely that resulting by reason of the discrimination in carriage to the same identical market.

We have,'with much care, considered the able arguments on behalf of appellant, and while we have not herein noticed all the objections therein urged, in the same order, the views we have expressed necessarily lead to an affirmance of the judgment. It is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Shops

license: Public Domain

text:
    Samuel S. Hake v. Isaac J. Strubel.

      Filed at Mt. Vernon June 20, 1887.

    1. Bill oe exception's—o/ its office. The office or purpose of a bill of exceptions is to preserve in and make a part of the record such matters as transpired in the progress of a trial, that otherwise would not become a part thereof.
    2. Same—settling bill of exceptions, and signing and sealing the same, ■as judicial and ministerial acts. The settling and allowance, signing and sealing, a hill of exceptions, considered as a single act, is in its nature both judicial and ministerial. Determining its correctness is judicial, while the mere act of signing and sealing the same is purely ministerial.
    3. Same—extending the time in vacation for the filing of a bill of exceptions, or an appeal bond—and herein, when the ministerial act of signing may be done. Where the judge trying the case enters an order, giving sixty days in which to prepare and have signed and filed a bill of exceptions, he will have no power, after the close of the term, even within the sixty days limited, to extend the time, and if he approves and signs the bill of exceptions after the sixty days, the act of so' approving and signing will be treated as a nullity.
    4. The making of an order allowing an appeal, and fixing the amount of the appeal bond, and the time in which the bond and bill of exceptions shall be presented and filed, is a judicial act, which can only be performed by the judge in term time, and when sitting as a court. So an order extending the time for filing such papers is an exercise of judicial pow'er, and can be performed only in term time. ,
    5. It is not to be understood, however, that the mere ministerial act of signing and sealing a bill that has been presented to and settled and allowed by the judge in apt time, may not lawfully be performed out of term, or after the expiration of the time fixed in the order, and the same be.filed as of the time of its settlement and allowance, or that the rights of the exceptor, presenting his true bill in apt time, can be affected by the neglect or refusal of' the judge to perform his duty.
    6. But after the time limited in vacation for the sealing of a bill of exceptions has expired, so that the judge is powerless to act, he can not be vested, with the requisite power to settle and allow the bill, even by consent or agreement of the parties.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. F. G-. Cockrell, for the appellant.
    Mr. M. Millard, for the appellee.
   Mr. Justice Shops

delivered the opinion of the Court:

Final judgment in this case was rendered on April 21,1886,. in the St. Clair circuit court, and appellant prayed and was allowed an appeal, the bond and bill of exceptions “to be filed” within sixty days. The bill of exceptions appearing in the record was not presented to the trial judge, nor signed and sealed by him, within the time named in this order. Upon the-record being taken into the Appellate Court for the Fourth District, on motion of the appellee, the bill of exceptions was-there stricken from the record, and the judgment of the circuit court affirmed. On petition of appellant, the cause was. by the Appellate Court certified into this court, as presenting-questions of law of importance, that should bp passed upon by this court, “and the practice in this State in such cases, be thereby settled. ” The question submitted is thus stated :. “Whether a circuit judge, in vacation, under the facts stated in the bill of exceptions contained in this record, and the affidavits submitted to the Appellate Court on this motion to strike the said bill of exceptions from the record, has the power to extend the time for presenting and filing such bill of exceptions beyond the time fixed by the court when granting the appeal, and still make it a part of the record. ”

It appears from the bill of exceptions and the affidavits certified to us by the Appellate Court, that the evidence adduced at the trial W'as reported stenographieally; that about J une 2 or 3, the stenographer informed counsel for both parties that he was so engaged in reporting important criminal cases, and had so many transcripts to prepare, he could not possibly prepare the transcript in this case within the time fixed; that appellant’s counsel applied to the judge who tried the case, to extend the time, and on June 4, 1886, such judge wrote appellant’s counsel, that “the time to present bill 0f exceptions in the Hake v. Strubel case, will be extended fourteen days, as you desire, and you can have Judge......... to enter the extension on the Judge’s docket for me, and for so doing, this shall be his authority; ” that after the bill of exceptions had been prepared, and before its presentation to the trial judge, it was presented to counsel for appellee, who indorsed thereon, “0. K.—M. Millard;” that the bill was then, and within the extended time, presented to the trial judge; that before the bill was signed and sealed by the judge, the following words were therein inserted: “It having been presented to counsel for defendant, and the said attorneys agreeing that said bill of exceptions be considered as presented, signed^ and filed as of this 2d day of July, 1886;” and that the sixty days mentioned in the order for appeal expired on June 21, 1886.

The question we are asked to determine has relation to the-power of a circuit judge, out of term, to open and change the record of a court held by him, and- also to the character of the act of a judge in approving, signing and sealing a bill of ■exceptions in vacation, and whether the allowing and signing ■of a bill at such time thereby makes the matters contained therein part of the record. It' seems to us, the question of power is not an open one, or the rule of practice doubtful. When the February term, 18S6, of the St. Clair circuit court ended by final adjournment, the record was closed, and the presiding judge lost control over it. Up to that time the record had remained under his control, and might be changed by him according to his judicial will; but when once the term of the court ended, the record of the court, as made in term time, became fixed and unalterable, except as it might be changed in the modes and mariner known to the law. This principle is fundamental, requiring no citation of authority in its support, and any departure therefrom would inevitably entail consequences dangerous to the administration of justice and injurious to all litigants. In this ease, the term having been adjourned and the record closed prior to June 4, 1886, it seems needless to say that a mere private letter of a judge who had held the adjourned term of a court, addressed to an attorney, requesting another judge to change, in vacation, the judges minutes upon the docket of the court, whereby the time in which a bill of exceptions in a cause in that court might be filed should be extended beyond the time fixed in the order for appeal entered in term, could not effect the purpose intended. True, this letter of the judge was written, and the order of extension made, before the sixty days named in the order allowing appeal, and fixing its terms and conditions, had expired; but this could in no way affect the question under consideration. The question is not as to the power of the judge during the time named in the original order, and when he should be assuming to act under and in accordance therewith, but to his power, outside the order, to change the order itself. The statute (Practice act, sec. 67,) requires that appeals shall be prayed and allowed “at the term at which the judgment, order or decree was rendered, ” (National Insurance Co. v. Chamber of Commerce, 69 Ill. 22,) and that the bond shall be given for the amount and within the time fixed “by the court. ” The making of the order allowing appeal, and fixing the amount of the bond, and the time in which the bond and bill of exceptions in the cause shall be presented and filed, is a judicial act,.which can only be performed by the judge in term time, and when sitting as a court. The making of the order is an exercise of the judicial power vested in the presiding judge, but the order, when made, is the order of the court. If, then, the original order'of appeal, providing, inter alia, within what time the bill of exceptions in the cause might be presented and filed, was a judicial act, which could only be performed by the judge in term time, and when sitting as a court, as we have seen is the case, it follows, that the act of changing such an order by entering another order extending the time in which the bill of exceptions in the cause might be presented and filed, fourteen days, would be of the same judicial character,—an exercise of judicial power; and such an act could be performed by a judge only in term time.

But the question submitted involves, also, the consideration of the character of the act performed by a circuit judge in settling and allowing, signing and sealing, a bill of exceptions in vacation, and not within the time fixed by an order of court entered in term time, with a view to determining whether a bill so allowed and settled, signed and sealed, thereby becomes a part of the record of a cause. While the conclusion reached by us can be stated in few words, the legal principles upon which such conclusion rests, can not be so briefly given.

Bills of exceptions were first introduced into the English practice by the Statute of Westminister, (13 Edw. I, chap. 3,) whereby the judge signing the bill was required to come into the appellate court, and there confess or deny his seal to the bill. Exceptions, at common law, were required to be taken at the time the alleged erroneous ruling or decision was made, and the bill must have been presented, settled, signed and sealed before verdict, or before the jury were discharged,—and such was the early practice in this State. Clemson v. Kruper, Breese, 162; Swafford v. Dovenor, 1 Scam. 165; Gilmore v. Ballard, id. 252; Leigh v. Hodges, 3 id. 15 ; Gibbons v. Johnson, id. 61. By the statute of January 29, 1827, (Rev. Stat. 1827, p. 315, sec. 19,) relief against the onerous duty imposed by the common law upon the trial judge was afforded, and provision was made whereby either party alleging an exception was required to reduce his bill of exceptions to writing, and the judge to sign and seal it, and thereupon it should become a part of the record. And this act, without other change than the extension of the right of exception to cases tried by the court without a jury, overruling motions for new trials, etc., (Act of July 21, 1837, 1 Laws of 1837, 109,) has remained upon the statute books of this State to this time. Rev. Stat. 1833, 486; Rev. Stat. 1845, 416; 1 Gross’ Stat. 512; R ev. Stat. 1874, 782.

By an unbroken line of decisions it has been held by this court, that the exception must be taken at the time the alleged erroneous ruling or decision was made; and, also, that the bill of exceptions should show upon its face that the exception was taken at the time, and the bill signed, sealed and filed during the term. But to meet the varying exigencies, and for the convenience of bench and bar, the practice early obtained of allowing time in which to present the bill of exceptions, by an order entered of record in the cause, or by a written stipulation of parties filed in the case; and the time thus allowed often extended beyond the term, and the correctness of this practice has been repeatedly sanctioned by this court. See Evans v. Fisher, 5 Gilm. 453; Burst v. Wayne, 13 Ill. 664; Brownfield v. Brownfield, 58 id. 152; Goodrich v. Cook, 81 id. 41.

The duty imposed by the law upon the party alleging an • exception, and desiring tg have the erroneous ruling and judgment reviewed in an appellate court, to present his bill to the trial judge for settlement and allowance, signature and sealing, at the term when such alleged erroneous ruling or judgment was made, or within such time as the parties, by their agreement, made part of the record, might stipulate, or within the time allowwed by the court in its order to that effect appearing in the record, has been often affirmed by this court. The reducing of the exception to writing, and the tendering of it to the judge in the form of a bill of exceptions, was, by the statute, cast upon the exceptor, and being matter under his control, the law would not permit an excuse, for, as wre have seen, if for any reason there was not time during term for him to perform the requisite labor, the court could, on application, by its order, extend the time into vacation, or even to the succeeding term. By the statute it was made the duty of the trial judge to sign and seal every true bill so tendered, and when the judge neglected or refused to sign a true bill tendered in apt time, such neglect or refusal, it was held, in no way affected the right of the exceptor, for the reason he had done all that the law required him to do. Magill v. Brown, 98 Ill. 235.

The settling and allowance, signing and sealing, a bill of exceptions, under the law, considered as a single act, is, in its nature, both judicial and ministerial. It is judicial in this, that the trial judge must adjudge whether the bill presented is, under the law, a proper bill for him to sign, and he alone must decide whether, in its recital and contents, it conforms to the fact; while the mere act of signing and sealing a bill, after the judicial act of settling and allowing it has been performed by the judge, is purely ministerial. If this distinction has not heretofore been clearly and sharply defined by this court, it does, we think, appear in the reported cases. In Emerson v. Clark, 2 Scam. 489, the settling of a bill of exceptions,—that is, the determination and identification of what should be incorporated therein,—was said to be a judicial act. It was a judicial act, in that case, for the judge to identify the two papers as the two papers introduced in evidence on the trial, and this he could not delegate to the defendant or the defendant’s counsel. In People v. Pearson, 2 Seam. 189, it was said, “that the act of signing and approving the bill, is, in its nature, ministerial, though a legal discretion is, in some measure, to be used in determining the character of the bill to be signed, inasmuch as it is not every bill which may be presented, that the judge will be bound to sign.” And in Dent v. Davison, 52 Ill. 109, it was said: “It is for the judge to determine, in the first place, whether, under the law, he is bound to sign a bill of exceptions,—whether the party demanding it has conformed to the law in preserving the exceptions, and has made up and presented his bill as required by the law, and has, in other respects, a legal right to demand his signature to the bill. The signing of the bill is a solemn official act.”

The statute before referred to, read in the light of the history of bills of exceptions, and the former practice prevailing in this State, and taken in connection with the character of the act to be performed by a judge in settling and allowing, and signing and sealing, a bill, as a single act, when properly construed, requires ms to hold, as' we think, that the judge is powerless to perform this complex act except during the term of court at which the alleged erroneous ruling or judgment • was made, or within such time thereafter as the parties may have agreed in the record, or as may have been by the court, in term time, allowed by its order of record. The language of the statute itself would seem to forbid any other construction ; but when to this is added the consideration of the peculiar character of the act itself, the conclusion seems irresistible that such an exercise of judicial power can not be performed out of term, or beyond a time agreed or allowed of record, in the absence of a statute so expressly providing, and thereby make the matters contained in a bill of exceptions so allowed and executed, a part of the record. The office and purpose of a hill of exceptions is to preserve in and make part of the record such matters as transpired in the progress of a trial, that otherwise would not become a part thereof; and if a bill could be allowed and executed after term, or beyond a time agreed or allowed of record, and after the record of the court had become closed by operation of law, it would be, in effect, to open and change the record of a court at a time and under circumstances not recognized by the law,—and this, as we have seen, can not be done. See Evans v. Fisher, 5 Gilm. 453; Burst v. Wayne, 13 Ill. 664; Hance v. Miller, 21 id. 636; Dent v. Davison, 52 id. 109; Wabash, St. Louis and Pacific Railway Co. v. People, 106 id. 652; Magill v. Brown, 98 id. 235.

We do not intend to be understood as holding that the mere ministerial act of signing and sealing a bill that has been presented to, and settled and allowed by, the judge in apt time, may not be lawfully performed out of term or after the expiration of the time fixed in the order, and the same be filed as of the time of its settlement and allowance; nor to-hold that the rights of the exceptor presenting his true bill in apt time, can be affected by the neglect or refusal of the judge to perform the duty imposed upon him by the statute within the time limited; but to hold, that where, as in this case, the bill is not presented to the judge, nor settled and allowed by him, nor filed, until after the term has ended and the time fixed in the order has expired, the act of settling and allowing the bill is a nullity, and the matters contained in such bill do-not become a part of the record; and where this appears affirmatively from the record, as in this case, advantage may be taken thereof by motion to strike the bill of exceptions-from the record, as was done in the Appellate Court. Magill v. Brown, 98 Ill. 235, and cases there cited.

In view of what has been said, it is unnecessary to discuss-the effect of the act of appellee’s attorney in marking the bill. when presented to him after the sixty days, “0. K., ” and signing his name, or of any agreement entered into by the attorneys of the parties after that time, if any was made, further than to observe, that during the term, as the authorities clearly show, the parties may bind themselves by an agreement or stipulation of record, as to the time in which a bill may be presented and filed; but after term, and after the time for presenting the bill fixed in the order of appeal had expired, if the -judge was powerless to act in the premises, as we have seen he was, he could not be vested with the requisite power to settle and allow a bill by consent or agreement of the parties.

For the reasons presented, the question submitted by the Appellate Court must be answered in the negative, and the judgment of that court affirmed.

Judgment affirmed.


author: Mr. Justice Scholeield

text:
    George W. Powell v. Joseph T. McCord.

      Filed at Ottawa June 17, 1887.

    1. Appeal—reviewing questions of fact. The affirmance of a judgment •of the circuit court, by the Appellate Court, settles every question of fact against the party appealing therefrom, including all those depending upon the inferences or deductions to be drawn from the evidentiary facts.
    2. Evidence—whether a fact is admitted by an attempt to prove it. Evidence offered by one of the parties in a suit to prove a specified fact, and ruled out on the objection of the other, can not be relied on by the latter as proof, or the admission of anything.
    3. Same—relevancy—as, where a question of indebtedness alone is involved, to show that one of the parties employs convict labor. On the trial in an action involving the question of an indebtedness between the parties, and whether certain transactions involved gambling contracts for the purchase and sale of grain not expected to be delivered, the defendant, on cross-examination, was asked if he was not then employing convict labor, and how many convicts, and he answered that he was,—from one hundred and seventy-five ■to two hundred: Held, that the questions were highly improper, and had no relevancy to the case, and should not have been allowed.
    4 Practice—mode of objecting to evidence and preserving exception. A party must object to the asking of improper and irrelevant questions, and to evidence offered, so as to afford the trial court an opportunity of passing on the objection, before he can assign for error the propounding of such questions and the answers thereto. It is not sufficient to state, on the trial, that he saves the point on each of the questions, and that each one is overruled, and exception taken. The objection must be brought to the .attention •of the court. ■
    5. Biiiii of exceptions—taken as true. If the bill of exceptions fails to show that a party objected to certain evidence or questions, and that the • court overruled the same, he should, in the trial court, have the record thereof corrected in accordance with the facts, otherwise this court can not know of the fact of such objection and exception.
    6. Commission merchant—right to be reimbursed for advances, etc. If a customer employs a commission merchant in a city to buy or sell grain .for him on the board of trade, in pursuance of which employment the commission merchant pays out money or incurs liability for his principal, he will '.be entitled to be reimbursed the sum he may have paid for the latter, and this -without regard to the fact of any rule of the board of trade requiring the agent :to make such payment,
    7. Same—settlement for advances, etc.—amount due as a consideration for promissory notes given therefor. Where a commission merchant is employed to buy and sell grain on the board of trade for another, not to enter into gambling contracts or speculate in differences in the price of grain, and does in good faith actually buy and sell grain for his principal, and on his orders, at the market prices, and in so doing pays out money and incurs liability, under his contracts, for the principal, such advances and liabilities ‘incurred by the agent will form a good and sufficient consideration for promissory notes of the principal given to settle the same, and such notes will be .binding obligations.
    8. Error wiim not ahways reverse—admission of irrelevant testimony. The admission of merely irrelevant evidence against a party, or such •as tends to prove what the law presumes in the absence of evidence, is not .sueh. error as to call for a reversal, it working no injury.
    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. R. S. Williamson, Judge, presiding.

      Mr. I. K. Boyeson, for the plaintiff in error:
    The purchases of grain being merely gambling contracts,, there being no delivery and acceptance expected or intended, the defendant in error, who made the contracts for the plaintiff in error, had no lawful right to charge any commissions;. and the contract to purchase the grain being void, the defendant in error had no right to pay any differences and charge-such payments to the plaintiff, and therefore .there was no valid consideration for • the notes given by the plaintiff in error to-the defendant in error in settlement of such illegal charges;.
    Although the burden of showing a want of consideration of the notes may be on the plaintiff in error, still, when it is-shown that the broker paid only a portion of the money whicli he had charged, and for which the notes were given, the-broker must show how much he has paid for the plaintiff in error. He can only recover what he has actually paid. Brand v. Henderson, 107 Ill. 141.
    McCord does not furnish a single item of cash expended by .him for the plaintiff in error. He admits in his evidence that, he has paid only a part of his liability on the purchases.
    The court erred in allowing the defendant in error to prove-on cross-examination of the plaintiff in error, that the latter employed convict labor. That fact was wholly irrelevant to the issues, and was highly calculated to prejudice plaintiff in error before the jury, and it should not have been allowed. Hennies v. Vogel, 87 Ill. 244.
    The instructions given on the part of defendant in error were misleading and erroneous. There was no evidence of the rules of the board of trade. They were in direct conflict, with the law as laid down in Brand v. Henderson, 107 Ill. 141.
    Messrs. Bisbee, Ahrens & Decker, for the defendant in error :-
    It is claimed by the plaintiff in error that the facts show an intention to settle on differences, merely, and that neither jparty had the ability or intention to receive the actual grain. The intention of these parties is one of fact, which has been found by the Appellate Court in favor of the -judgment, and .hence will not be inquired.into by this court.
    This case is not like Brand v. Henderson, 107 Ill. 141. There the action was brought on the account, before the broker had paid the loss. Here McCord, by executing Powell’s order, became a guarantor of Powell’s debt, and such guaranty and liability was certainly a consideration for the giving of the notes. (1 Daniell on Neg. Inst. secs. 183, 185.) The commissions earned by McCord, and due him, also entered into the consideration of the notes.
    The defence of partial failure of consideration must be ¡specially pleaded. Keith v. Moffitt, 38 Ill. 303.
   Mr. Justice Scholeield

delivered the opinion of the Court:

Assumpsit was brought by defendant in error, against plaintiff in error, upon four promissory notes executed by plaintiff in error, amounting, in the aggregate, to §3500, two of them payable to the order of S. A. Downer, and the other two to the order of J. C. McCord, and all endorsed to defendant in ■error. Plaintiff in error pleaded the general issue, and several special pleas, alleging, in substance, that the consideration for which the notes were given was wholly illegal, in that it was the settlement of losses under contracts for the purchase and sale of wheat and com, upon the board of trade in Chicago, for future delivery, and that it was, at the same time, expressly agreed between them that they should neither receive nor deliver any article purchased or sold, but should simply adjust such contracts on the differences, or profits or losses, etc. Eeplications were filed tendering issues upon the pleas, which were joined. Upon the trial, the jury returned a verdict for the defendant in error, and the court, after overruling a motion by plaintiff in error for a new trial, gave judgment upon this verdict. That judgment was, on error to the Appellate Court for the First District, affirmed, and the-present writ of error brings the last named judgment before-us for review.

It is agreed by the parties in their respective statements, that in 1881 John C. McCord was doing business in Chicago-in the grain and provision commission business, on the board of trade, in the name of McCord & Co. In the fall of 1881, one Fred Gould had an office at "Valparaiso, Indiana, and there-received orders for the purchase of grain, provisions, etc., on the board of trade, in Chicago, which he telegraphed toMcCord & Co. at Chicago, who made the requisite purchases- or sales on account of the persons for whom the orders were-sent. The parties, however, do not agree what relation existed, during that time, between McCord & Co. and Gould,, plaintiff in error affirming, and defendant in error denying, that it was that of principal and agent, and there was some evidence tending to sustain each contention. Plaintiff in. error testified that it was agreed between him and McCord that their deals would not be in “cash grain,” by which was-meant" they would not deal in grain to be actually delivered by the seller to the buyer, and paid for by the buyer, but-would only deal in future options, settling on the differences-between the prices of purchase and the prices of the com modifies on the board of trade when the transactions were-closed. McCord testified, denying that this was the agreement. Plaintiff in error sent orders to McCord, through Gould, directing the purchase and sale of corn and wheat,, etc., and in October, 1881, on a settlement then had between McCord and plaintiff in error, the former claimed that the-latter owed him, on account (of balances and commissions in these transactions, $7101.83. McCord threw off all above-$7000, and plaintiff in error then gave him, on account thereof, two drafts, one for $2000, and the other for $5000, but McCord being unable to collect these, subsequently compromised with plaintiff in error by taking $1000 in money, and three promissory notes, aggregating $4000. One of those notes was discounted by S. A. Downer, and the two notes now in suit, payable to him, were given in lieu of it, and the other two notes now in suit are the remaining two thus given toMcCord. Plaintiff in error denies that any grain was, in fact, ever bought by McCord to be delivered to plaintiff in error, and avers that this balance simply represents differences in-market values between the dates of the orders and the dates of “closing out the deals.” McCord testified that the grain was, in fact, bought, and was represented by warehouse receipts, which he was ready to deliver, as directed by plaintiff in error.

The finding of the Appellate Court settles every question of fact against plaintiff in error, and this includes all questions depending upon the inferences or deductions to be drawn from the evidentiary facts. (Sun Mutual Ins. Co. v. Saginaw Barrel Co. 114 Ill. 99; Illinois Central Railroad Co. v. Haskins, 115 id. 300; Wrought Iron Bridge Co. v. Commissioners of Highways, 101 id. 518; Edgerton v. Weaver, 105 id. 45.) And on this ground, we are relieved from inquiring whether the evidence proves that defendant in error has paid out money for plaintiff in error, or contracted to pay it, as questioned by plaintiff in error. We will, however, observe, because of contentions here urged, and in order that future misapprehension may be avoided, although, in the view we take, not necessary to the present decision, that the burden of the defence is here on the plaintiff in error, and that evidence offered by the defendant in error to prove a specified fact, and ruled out on the objection of the plaintiff in error, can not be relied on by plaintiff in error as proof or the admission of anything.

Plaintiff in error objects that the trial court erred in admitting evidence, against his objection, that he was, in his business of manufacturing, using convict labor. The record recites that the following occurred, • in this respect, in the cross-examination of plaintiff in error:

Q. “You are manufacturing, where ?

A. “Michigan City.

Q. “You have the convicts of Michigan at work for you ?

A. “I have some of them.

Q. “About two hundred and fifty?

A. “No, sir.

Q. “How many ?

A. “I don’t know what the number is, now.

Q. “Guess at it, then.

A. “From one hundred and seventy-five to two hundred.

Mr. Boyesen—“I save the point on each of these questions. Bach one is overruled, and exception.

Mr. Bisbee—“You, then, you say that the point in doing this trading up here was to make some money?—that was your object?

A. “It was.”

This is all that the record shows. It nowhere appears that the court ruled on these questions, or that they were called to the attention of the court.

The questions were highly improper; they had no relevancy to any question before the court; their answers had no tendency to contradict or impeach the" witness, and their only purpose was to appeal to the prejudices of the jury, and thereby affect, improperly, the action of The jury as against plaintiff in error. Had the attention of the court been called to these questions and the objections to them, the objections should have been promptly sustained, and the jury informed that the questions were irrelevant. But the- court was entitled to an opportunity to pass upon them. It is not admissible that counsel can lie by and knowingly permit error to get into the record, without bringing it to the attention of the court, and then afterwards assign it for error.

Counsel say that the record is not accurately made up, in this respect,—that he, in fact, objected at the time, and the court overruled his objection. If this be so, then he should, in the trial court, have corrected the record. We can only-know what the record discloses. A recital in the record that the counsel assigning error said, at the time of the giving of ■obnoxious evidence by the witness, that the court overruled his objection,—there being nothing therein showing that the court heard and assented to his remark,—is not the equivalent of a recital that the court overruled his objection.

Objection is also made to the irrelevancy of the testimony of TenBroek. His evidence was to the effect that he had made an arrangement for McCord with a bank, to overdraw his account, until he could obtain warehouse receipts of grain to deposit, in order to meet his purchases. Concede that it was irrelevant, still we are unable to perceive how it qould have seriously prejudiced plaintiff in error. In effect, the testimony only tended to establish what, in the absence of proof, was the legal presumption, namely, that McCord was able to perform his contracts.

Objection is also urged to Hill’s testimony, but the record fails to show that any objection was taken to this testimony upon the trial.

The court, at the instance of the defendant in error, instructed the jury as follows:

“The court instructs the jury, that this is an action brought by Joseph T. McCord, the plaintiff, against the defendant, Powell, to recover the amount due upon the notes offered in ■evidence; and if the jury believe, from the evidence, that the defendant, Powell, employed said John T. McCord to purchase and sell grain on the board of trade in the city of Chicago, not to enter into gambling contracts or speculate in differ■ences in the price of grain, and that said John T. McCord, as such commission merchant, did actually, and in good faith, buy and sell such grain in the open market upon the Chicago board of trade, and at the market price, upon the orders of the defendant, and that by reason thereof said John T. McCord was, by the rules and regulations governing said board of trade at that time, obliged to pay and did pay out money or incur liability by reason of such undertaking, and did earn a commission for doing such business, and that the commission charged was reasonable, and that such trading was not illegal or in violation of any statute of this State, and such losses and commissions have not been paid, settled or adjusted, then the plaintiff is entitled to recover of the defendant in this suit the face of said notes, together with interest thereon, according to-the terms of said notes. And the court further instructs you, ■that in determining the question of whether or not the business between the said John T. McCord and said defendant was gambling, you will be governed by the following instruction:
“The jury are further instructed, that with reference to the defence of gambling, it makes no difference, in law, what the-secret intention of the defendant, Powell, was with relation to-settling his purchases and sales by the payment of the differences before the maturity of the contract, unless that intention was communicated to the said John F. McCord or his agent; and if you believe, from the evidence, that neither said John F. McCord nor his agent had knowledge or information of the intentions of the defendant in relation to the settlement, then such defence will not avail the defendant;. and if you so find, from the evidence, and if you further find, from the evidence, in all other respects, the orders were given and faithfully executed, and the losses paid out by said John. T. McCord, and incurred by him, and included in said notes, as claimed by the plaintiff, then your verdict should be for the-plaintiff, for the amount of said notes, with interest' theron, according to the terms of said notes.”

• It is objected by plaintiff in error that there is error here, because, first, the rules of the board of trade were not in evidence; second, the instruction tended to mislead the jury, in that it told them, that whatever the rules of the board of trade might be, if McCord paid out money or incurred liability under those rules, he could recover the face of the notes-sued on; third, that there is no evidence that McCord paid out any money whatever; fourth, that the second instruction is defective and misleading, in that it leaves out of consideration what McCord’s intentions were with regard to the transactions. In our opinion, neither of these objections is tenable.

First—Suppose that the words, “by the rules and regulations governing said board of trade, ” be omitted, will the sense be impaired ? We think not in the slightest. The reading will then be, “and if the jury believe, from the evidence, that the defendant, Powell, employed said John T. McCord to-purchase and sell grain on the board of trade in the city of Chicago, not to enter into gambling contracts or speculate in differences in the price of grain, and that said John T. McCord, as such commission merchant, did actually and in good faith buy and sell such grain in the open market upon the Chicago board of trade, and at the market price, upon the orders of the defendant, and that by reason thereof said John T. McCord was * * * obliged to and did pay out money or incur liability by reason of such undertaking, and did earn a commission for doing such business, ” etc. Manifestly, the reason why he was obliged to pay out money, under these circumstances, was of no consequence. It is sufficient that he did so, and that it was within the purview of his contract. Clearly, if plaintiff in error employed defendant in error to-buy and sell grain for him, and defendant in error, in complying with that contract, paid out money or incurred liability .for plaintiff in error, he is entitled to be reimbursed the amount, whether, under the circumstances, there was a rule of the board of trade requiring the payment or not. The requirement of the board of trade that he should pay the money, neither detracts from nor adds to the legal liability resulting from such a compliance with such a contract.

Second—The instruction does not assume that any money may have been paid out under the rules of the board of trade, except under the facts recited, and so it is impossible that an

improper state of case for the payment of money can be within .reasonable contemplation.

Third—There is evidence tending to show that McCord paid, out money, on these transactions, for plaintiff in error,—how much, is not important, since its weight was for the jury. Moreover, the evidence is undisputed, that McCord, in complying with the orders of plaintiff in error, incurred individual liability for the value of the grain he purchased, and that liability is a sufficient consideration for these promissory notes. (1 Daniell on Negotiable Instruments, secs. 183-185.) There is no question, here, as' in Brand et al. v. Henderson et al. 107 Ill. 141, whether an agent can recover, in an action of assumpsit, from his principal, on account of purchases made for his principal, for which the agent is liable to pay but has not paid,—the question is, only, whether the fact that the agent has incurred liability to pay, is a good consideration for the promise of the principal to pay the agent the amount for which he has thus incurred liability.

Fourth—What is called by counsel “the second instruction,” is, in truth, hut an additional paragraph, and must be construed in connection with what precedes, which is, “that John T. McCord did actually and in good faith buy and sell in the open market, ” and that such buying and selling “was not illegal or in violation of any statute. ” This paragraph is directed to the evidence of plaintiff in error with reference to his intention in making the contract, only.

The phraseology of the instruction is not so concise and perspicuous as we could desire, yet we do not think it could have misled the jury, and especially so when read, as it was, in connection with the instructions given on behalf of the plaintiff in error, immediately following it, in which the law, on the construction of the evidence contended for by plaintiff in error, was clearly and fully stated.

We find no cause to disturb the judgment below. It is therefore affirmed.

Judgment affirmed.