author: Mr. Justice Walkek

text:
    Albert P. Oakes v. James A. Williams.

      Filed at Mt. Vernon June 16, 1883.

    1. Appeal—its effect on the judgment—as to the lien. An appeal from a judgment of the circuit court to the Supreme Court does not vacate the judgment, or destroy its lien on real estate, or its capacity to become a lien on land acquired pending the appeal. Its only effect is to operate as a stay of proceedings to enforce the judgment.
    2. Judicial sale—execution issued pending an appeal—irregular, but not void. An execution issued upon a judgment of the circuit court pending an appeal to the Supreme Court, is irregular, but not void, and a sale of land thereunder might be set aside on motion by the defendant therein; but if the levy and sale are not set aside in proper time, title to the land sold will pass by the sheriff’s deed.
    3. Same—irregularities—where to be corrected—and by whom, to be questioned. Irregularities in the sale of land on execution can only be corrected in the court from which the process has issued. If the defendant in execution tates no steps to have the sale set aside for an irregularity, however gross, it can not be questioned by any one else, especially in a collateral proceeding.
    4. So where an execution was improperly sued.out on a judgment of the circuit court, and levied upon the defendant’s land, and sale thereof made pending an appeal from the judgment, it was held that the proceedings were irregular, and might have been quashed, on motion of the defendant, in the circuit court, but that not having been done, the sale was valid, and passed the defendant’s title to the land to the grantee in the sheriff’s deed, and that the sale could not be questioned by a third person claiming title under the defendant in the execution.
    Appeal from the Circuit Court of Massac county; the Hon. David J. Baker, Judge, presiding.
    Mr. J. F. McCartney, for the appellant:
    No execution can issue against a defendant until his appeal is set aside. The appeal suspends all proceedings until it is decided or set aside. Pratt v. Canfield, 67 Mo. 48; State Bank v. Green, 8 Neb. 297; Bunckner v. Near, 26 Ohio St. 514; Burns v. Leadbetter, 54 Texas, 579; Hill v. State, 4 id. 559; Hall v. Jack, 32 Md. 252; Stuart v. Steinger, 41 Mo. 400; State v. Judge, 21 La. 64; id. 73; Suggs v. Suggs, 1 Overt. 2; Clay v. Noble, 11 Ark. 631; Gale v. Butler, 35 Vt. 449 ; Branigan v. Rose, 3 Gilm. 123; Ex parte Thatcher, 2 id. 169; Reynolds v. Perry, 11 Ill. 535; Haynes v. Hayes, 68 id. 265.
    . If the court from which the writ emanates has not, at the time, jurisdiction of the subject matter, the execution is void, and the purchaser takes no title. Borer on Judicial Sales, see. 709; Morris v. Bradford, 19 Ga. 27.
    Mr. John M. Lansden, also for the appellant, to show that the execution and proceedings pending the appeal were void, cited Owens v. McKethe, 5 Gilm. 79; Simpson v. Alexander, id. 210; Blackerby v. People, id. 266; Reynolds v. Perry, 11 Ill. 534; Ambrose v. Weed, 11 id. 488; Haynes v. Hayes, 68 id. 203 ; Patrick v. Johnson, 3 Levinz, 404; Smith v. Cave, id. 312; Freeman on Executions, secs. 32, 33.
    Messrs. Gkeen & Gilbebt, for the appellee:
    An appeal does not vacate the lien of the judgment. Curtis v. Root, 28 Ill. 367; Freeman on Judgments, sec. 382, p. 329.
    Even though an appeal is successful, and the judgment be reversed, the purchaser under the judgment from which the appeal is taken acquires a good title. McLagan v. Brown, 11 Ill. 519; Whitman v. Foster, 74 id. 147; Fergus v. Woodworth, 44 id. 374; Feaster v. Fleming, 56 id. 457; Hobson v. Ewan, 62 id. 146; Guiteau v. Wisely, 47 id. 433.
    Even when the process issues irregularly, the sale will be good if not set aside. Hernandez v. Drake, 81 Ill. 34; Morgan v. Evans, id. 585.
    None but a party can avoid sale for irregularity. Martin v. Judd, 60 Ill. 78; Herman on Executions, 80; Swiggart v. Harber, 4 Scam. 364.
   Mr. Justice Walkek

delivered the opinion of the Court:

This was an action of ejectment. Both parties claim to derive title from MeBean as a common source, by judgments, executions, and sheriff’s and marshal’s deeds. Appellee claims under two judgments, one recovered in the circuit court of Massac county, in favor of McGrlanery & Co., recovered on the 1st day of May, 1875, for $75.50, and against MeBean. An execution was not issued on this judgment until the 3d day of January, 1878. The property in controversy was levied upon and sold under this execution, together with other lands. The time for a redemption expired, and the sheriff executed a deed to one Williams, from whom appellee derives title by mesne conveyances. He also claims title under a judgment recovered in the Circuit Court of the United States for the Southern District of Illinois, rendered on the 7th day of June, 1876, against MeBean, for the sum of $590.93, ’and costs, in favor of Alter, Winston & Co. An execution was issued on this judgment on the 4th of December, 1876. The property in controversy, with othqr lands, ivas levied upon and sold, and the redemption having expired, a deed was- made by the marshal to the assignee of plaintiff in execution on the 7th of February, 1879, and appellee derives this title from them by mesne conveyances. Appellant claims title under a judgment recovered by Jaques Bros. & Co., for $309.71, against MeBean, in the county court of Massac county. This judgment was recovered on the 12th-of, July, 1877. The property in controversy was sold by the sheriff under execution, and purchased by plaintiffs' in execution, and the sheriff executed to them a deed on the 2d day of December, 1878, and appellant derives title from them by mesne conveyances. It is thus seen that both judgments under which appellee claims are prior in date to that of appellant. It follows, that unless there is some irregularity that vitiates appellee’s title, he was. entitled to recover.

A number of objections are urged as rendering that title void. As to the first judgment in the circuit court an appeal was prayed and perfected to the Supreme Court, and was pending and undisposed of until the November term, 1882, and it is contended that as the execution, levy, sale and sheriff’s deed were all had pending the appeal, they are absolutely void, and conveyed no title. It is claimed that the judgment of the Circuit Court of the United States did not, by its rendition, become a lien on McBeau’s property in Massac county, and the marshal having failed to file a certificate of his levy in the office of the recorder of the county, under section 34 of the chapter entitled “Judgments and Executions, ” the levy never took effect, and the sale passed no title to the marshal’s grantee.

What was the effect of the appeal by McBean from the judgment of the circuit to the Supreme Court, recovered by McG-laneiy & Co. ? Did it render the execution issued upon it, and all subsequent proceedings under it pending the appeal, void or voidable ? That it operated as a stay of further proceedings during the pendency of the appeal has never been questioned. The appeal operates as a supersedeas granted on a writ of error, or the order of a circuit judge staying a judgment in the circuit court. That all proceedings under a judgment stayed by appeal, by supersedeas, or by such an order of a judge, are irregular, and may be set aside, on motion to quash, or other appropriate proceedings, there can be no question. But it is not every irregularity in issuing and executing process that will render the process void. An execution regular on its face, and supported by a valid judg'ment, will protect an officer in its execution. Brother v. Cannon, 1 Scam. 200, Bassett v. Bratton, 86 Ill. 153, Smith v. The People, 99 id. 445, and other cases in our court, might be cited, if so plain a principle needed support. If, then, this judgment was valid and not vacated, then it was sufficient to support the execution, however great the irregularity in issuing and proceeding to satisfaction under it.

In the ease of Curtis v. Root, 28 Ill. 367, this court said: “The appeal did not vacate or destroy the lien of the judgment. It merely suspended its execution. It was in full force all the time as a vital judgment, of. the court, not only capable of holding all liens to which it attached at the time of its rendition, but it was capable of attaching to other lands of which the judgment debtor might become the owner in the meantime, and thus subject such newly acquired property to • its influence.” This is decisive of the question that an appeal does not vacate a judgment of the circuit court,—that it is valid and binding, and a lien on the real estate of the debtor, not only on such as he held at the date of the judgment, but all that he might subsequently acquire,- until its satisfaction. The execution, then, was supported by a valid judgment, the execution of which was, by the appeal, only suspended during its pendency. The suing out of the execution was but an irregularity, which should have been corrected before the deed was made, by having the execution, levy and sale quashed; but the defendant in execution failed to do so, and must be held to have waived these irregularities, and others not parties to the record, and especially in a collateral proceeding, can not take advantage- of them. As illustrating the rule, we may refer to Morgan v. Evans, 72 Ill. 586, and Hernandez v. Drake, 81 id. 34. In those cases executions were issued and lands sold on judgments that had ceased to be a lien, without being revived, and it wTas held that it was a mere irregularity, that was waived by failing to take the proper steps to set aside and quash them before deeds were executed by the sheriff.

The case of Swiggart v. Harber, 4 Scam. 364, is full and conclusive as to the effect to be given to process merely irregular and not void. In that case it was held that a sale under execution, after a judge’s order staying further proceedings, is not a nullity, but is only voidable, and can not be set aside in a collateral proceeding. It is laid down as the correct doctrine, that where a defendant in a fieri facias has submitted to such irregularities, a stranger to the record can not avail himself of any irregularity in the writ in a collateral proceeding; that irregularities in the sale of lands on execution can only be corrected by the court from which 'the process issues, and when such court is not called upon by the defendant in execution to set such proceedings aside, they can not be disturbed by any one else in a collateral proceeding ; that although a judgment may be erroneous, and an execution thereon so irregular as to require it to be quashed on motion by the defendant, yet neither can be inquired into and declared invalid at the instance of a stranger. To enable him to do so they must be not only voidable, but absolutely void. That case, in principle, governs this. There the sale was made in defiance of the judge forbidding it. Here it was made in defiance of the stay of proceedings produced by the perfection of an appeal. The order of the judge in that case was authorized by statute. Here the stay was by the appeal, and both by operation of law. Both were of equal force, nor was either more prohibitory than the other. Their restraining power was the same in both eases. No distinction in principle can be made, and that ease is decisive of this.

This view of the case renders it unnecessary to discuss the question whether the judgment of the United States Circuit Court became a lien, or if it did not, whether the levy of its execution, without filing a certificate of the levy, created a lien. Appellee having title derived from the sale under McGlanery & Co.’s judgment, that is sufficient to maintain his judgment in this case.

Perceiving no error in the record, the judgment of the court below must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    The Peoria and Farmington Railway Company v. Orlando S. Barnum.

      Filed at Ottawa June 16, 1883.

    1. New trial—excessive damages—in proceeding to condemn right of way—presumption. On an assessment of damages for right of way, where the jury, at the request of both parties, view the premises, and no other evidence is offered, every presumption will be indulged in favor of the correctness of the verdict. In such case it can not be known the damages assessed are excessive, as it can not be known what the jury saw.
    2. Instructions—in proceeding to condemn right of way—as being without evidence in their support. Where the jury view the premises over which a right of way is sought to be established, and no other evidence is given, the instructions given can only be considered as- abstract propositions of law. But were this not so, there being no evidence preserved in the record, this court can not say whether' any of the instructions given were calculated to mislead the jury on the facts of the case.
    3. Practice—remarles of judge in hearing of the jury. The remarks of the judge presiding at the trial of a cause, addressed to counsel in stating an objection to an instruction asked, and giving the reason for modifying the same, which it is not shown the jury heard, and not of much consequence either way, will not be a ground for reversing a judgment which must be presumed to be warranted by the facts of the case.
    Appeal from the County Court of Warren county; the Hon. James H. Stewart, Judge, presiding.
    Mr. R. J. Grier, Mr. Wm. K. Stewart, and Mr. J. M. Kirkpatrick, for the appellant;
    Mr. Wm. C. Noroross, and Mr. A. Kidder, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

The Peoria and Farmington Railway Company, a corporation existing under the laws of this State, presented its petition to the county court of Warren county to condemn certain lands owned by Orlando S. Barnum, for the use of its road-bed. The petition is in the usual form, and describes with sufficient certainty the lands to. be taken, the plan on which the track will be constructed, and how it would affect the residue of the owner’s lands contiguous to that-taken. The jury impanelled to try the cause were permitted by the court, at the request of both parties, to view the premises, and. after the return of the jury both parties agreed to submit the cause to the jury without further evidence, and without argument, but the jury were to be instructed by the court as to the law’of the case. That was done, and on the verdict rendered by the jury the court entered judgment. Petitioner brings the case to this court on appeal.

As the bill of exceptions contains no evidence, every presumption will be indulged in favor of the correctness of the verdict. It is certain it can not be known it is excessive. What the jury saw when they went upon the premises, of course is unknown to this court, and there is, therefore, no ground for saying the verdict is contrary to the evidence. Nor can it be known whether the instructions given by the court were applicable to the facts of the ease as the jury discovered them to be from personal observation. The instructions, for that reason, can only be considered as mere abstract propositions of law. When that is done it is seen the whole series, considered together, are sufficiently accurate. But whether they are or not, there being no evidence preserved in the record, it can not be known whether any of the instructions were calculated to mislead the jury on the facts of the case as the jury understood them from viewing the premises, as they were permitted to do.

Some complaint is made as to the remarks made by the court, in the presence and hearing of the jury, in stating an objection to an instruction it was asked to give for petitioner, and the reasons for modifying it. What was said was a brief conversation with counsel, and although had in the presence of the jury it was not addressed to them. - It may be it was not heard by the jury. But if it was, it was not of much consequence one-way or the other, and it was not of sufficient importance to be made a ground of reversal of a judgment which it must be presumed was warranted by the facts of the case.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Thomas Garrity v. The People of the State of Illinois.

      Filed at Ottawa June 16, 1883.

      1. Gbiminal law—proving an alibi. It is well settled that the onus of proving añ alibi in a criminal case devolves upon the accused, and it must be clearly and satisfactorily established before it can avail, where the evidence otherwise makes out a clear case against him. This defence can not be made out in a case where the evidence to show the same is, in many important particulars, conflicting or unreliable.
    2. Same—finding stolen property in possession of the accused—not essential to conviction. Where a burglary has been committed, and money and other property taken, it is not indispensable to the conviction of one accused of the crime to trace the fruits of the crime to his possession. Convictions of this kind are frequently sustained without such ■ evidence, especially when the criminating evidence is strong.
    3. New trial—on the evidence—in criminal case. Unless this court is able to see that the jury, in finding a defendant guilty of the crime charged, have clearly erred in their conclusions of fact, it will not feel authorized to interfere with the verdict.

      Í. Practice—improper remarks of Slate’s attorney., Where the evidence of the guilt of one convicted of crime is strong and satisfactory, the judgment will not be reversed for mere improper remarks of counsel for the People tending to prejudice the jury against the accused.
    Writ of Error to the Circuit Court of La Salle county; the Hon. E. Goodspeed, Judge, presiding.

      Mr. B. P. Bull, for the plaintiff in error:
    Leaving out of view all the defendant’s evidence, there is absolutely no evidence of his guilt. None of the property was found on him or the party with him, and no burglar’s tools. It is against the law and its policy to convict men upon suspicion. Campbell v. People, 16 Ill. 17; People v. Padillia, 42 Cal. 535.
    In criminal cases “new trials have been constantly granted by this court upon its conviction that the verdicts were not warranted by the proof.” Falk v. People, 42 Ill. 331; Rafferty v. People, 72 id. 37; Sargent v. People, 64 id. 327; Lincoln v. People, 20 id. 364.
    Counsel for the People, in the opening statement to the jury, said: “We will prove by the records of the penitentiaries of the States of Michigan and of Illinois that the man’s name is not Garrity,—that his name is Thomas Kelley. We will show by witnesses on hand and who have known him ;• we will show by a man who is well known in this city, —known as Frank Murray; we will show by Mr. Peck, from the State of Michigan, who conducted both Garrity and McGowan from Chicago to Grand Bapids, and from there to Jackson, Michigan,—that his real name is Kelley. ” Besides, an alibi was shown.
    Mr. James McCartney, Attorney General, for the People:
    The defendant failed to establish an alibi. A defendant who attempts to prove an alibi must cover with his proof the actual and exact time that the crime was committed. Creed v. People, 81 Ill. 565.
    “Where there is a conflict in the testimony of witnesses, it is for the jury to determine to whom they will give credence.” Peeples v. McKee, 92 Ill. 397.
    The jury, in case of a conflict in the evidence, are the judges of the credibility of the witnesses. Rogers v. People, 98 Ill. 581; Vanderstool v. Adams, 61 id. 368; Carey v. Hen
      derson, id. 378; Chicago City Ry. Co. v. Young, 62 id. 238; Lowry v. Orr, 1 Gilm. 70; Peeples v. McKee, 92 Ill. 397.
    All thelaw requires is, that the evidence shall, satisfy the understanding and conscience of the jury. Absolute metaphysical demonstration of guilt is not required. 1 Starlde on Evidence, see. 79; 2 Bussell on Crimes, 726.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the I2th day of February, 1882, John McGowan and Thomas Garrity were tried and convicted in the LaSalle circuit court for the crime of burglary, the jury fixing the term of their confinement in the penitentiary at four years and six months. A motion for a new trial having been overruled, they were severally sentenced by the court in conformity with the verdict. The accused bring the case here for review, and ask a reversal on several, grounds, but chiefly on the ground the evidence does not sustain the conviction. Since suing out the writ of error it has been dismissed as to McGowan, at his own request, so that Garrity alone is now before the court.

It appears from the evidence, that on the night of Saturday, July 30, 1881, the front door of the hardware store of Thomas Drew, in the town of Lostant, LaSalle county, was forcibly entered, his safe blown open, and about $5500, in money, notes and accounts, taken therefrom,—the greater portion of it being money. On the 5th of August following, McGowan and Garrity were arrested by the chief of police in the city of La Salle for this offence, the former remarking at the time that he knew he was arrested for the Lostant robbery, but he could prove an alibi,—that he was at Leland, on the Burlington and Quincy road, at the time. Garrity, who was arrested about an hour later than McGowan, also claimed that he was at Leland at the time of the robbery. Eliza Bogers identifies the accused, and swears they took dinner at her house at Winona, six miles south of Lostant, at half past one o’clock in the afternoon of the day of the robbery. Hugh Larnéy,- a policeman of La Salle, testifies that he met McGowan and Garrity the evening before their arrest, in La Salle, when the former remarked, “he hadn’t ought to come here,—they might be on him for the Lostant scrape. ” Massey swears that he saw Garrity in Lostant Thursday before the burglary, between seven and eight o’clock in the evening, in the Fairfield House; that he met him again in Lostant about eight o’clock in the evening of the night of the robbery, on Front street, with two other men, and that he also met McGowan in the same place in the afternoon of the same day, McGowan being dressed in light clothes, and Garrity in' dark. It appears from the testimony of Conway and others, that on Sunday after the robbery a buggy was found in a field about a mile and' a half south of La Salle, near which were found some notes, and other fruits of the robbery, and about two o’clock in the afternoon of that day two men were seen crawling away from the buggy, one of whom had on dark pants, and the other gray ones; one a check shirt, the other white, and neither had on a coat. Charles Adams thinks he saw McGowan sitting on the platform of the railroad station on Thursday before the commission of the crime. Peter Mortenson testifies that he saw McGowan in Lostant on Thursday night preceding the robbery, and thinks Garrity was with him,—is not so positive as to Garrity; that McGowan had on light, and the other man darkish, clothes. Arthur Eeynolds testifies that on the 30th of. July last, between eight and ten o’clock in the evening, he saw Garrity, in company with two other men, in Lostant; that they walked under the driveway to his warehouse. It appears from the testimony of Maggie Kelley, that Garrity’s real name is Maurice Kelley. She swears, on behalf of the defendants, that Garrity came to Chicago the 11th or 12th of July last, and remained there the balance of the month; that she saw him last- in the evening of July 27, at home,—could not swear she saw him on the 28th; that McGowan came to their house on the 24th, and called for Garrity; that he was there, also, on the 22d. Edward Marsh states that he saw Garrity in Chicago on the 23d, and in the evening of the 28th of July. George Steadman swears that he saw Kelley and McGowan together in a saloon, in Chicago, between four and five o’clock in the afternoon of the 28th of July preceding the robbery. Nelly Donahue swears that the defendants called on her, at her house in Chicago, on the evening of July 27. John S. Kelley, brother of Maurice, the accused, testifies that he saw the latter in Chicago between one and two o’clock in the afternoon of the 28th, and thinks McGowan was with him, though he was not acquainted with the latter. On cross-examination he further states that he never knew him by the name of Thomas Garrity; that he received one letter from him from Joliet. John Howard swears to having seen the defendants together in Chicago on Tuesday, and Kelley alone on Thursday, about four o’clock in the afternoon. Lettie Reynolds swears she saw McGow'an in Sandwich about half past twelve or one o’clock of the 28th. Annie Thompson states that she lived one and one-fourth miles east of Leland last July; that two men came along on the last Saturday of that month, about six o’clock in the afternoon, and one came in and got a drink of water; that the man that came in was not the man with the light clothing,—referring to McGowan; that he had a black mustache, but looked a little heavier than Garrity. Ketchum swears that the defendants were in Leland on Saturday evening, July 30; that Garrity came into his grocery store and bought some crackers, and McGow'an stayed outside. It may be remarked here, that facts were drawn out on the .cross-examination of this witness, which we will not stop to detail, that tend strongly to cast suspicion on his testimony. Peterson, another witness for the defence, recognizes Garrity a.s one who stopped at his place of business in Leland “about ¿,he latter part of July last.” Oscar Raulp, a resident of Leland, testifies that the defendants, on Saturday evening of July 30, 1881, were in V. B. Ketchum’s store, of that place; that they were strangers, and he took particular notice of them. It appears from the testimony of Beecher, who was recalled by the People, that it is thirteen miles from Leland to Meriden, from Meriden to Mendota four and one-half miles, and from Meriden to Sandwich twenty-three miles. Fred Gilbert, the first witness introduced on behalf of the defence, states that he and one Robinson, since moved to Canada, were the two men seen at the buggy in the field, on Sunday evening after the robbery, but his description of himself and Robinson, and his account of the occurrence, do not accord, in some important particulars, with the account of the affair given by the People’s witnesses,, and upon the whole we do not regard his testimony as entitled to much weight.

The foregoing is the substance of all the testimony in the ease. Much of the minor details we have omitted, for the reason we regard them as unimportant. For the same reason we have not noticed the testimony of several of the witnesses at all. It is apparent, from this review of the testimony, that the greater portion of it is directed exclusively to the question of alibi. This, indeed, was the controlling and absorbing issue on the trial in the court below. It is well settled that the onus of proving this defence devolves upon the accused, and it must be clearly and satisfactorily established before it can avail, where the evidence otherwise makes out a-clear case against the accused. (1 Wharton on Crim. Law, 708, 7M.) We do not think the defence is made out in this case. A careful analysis of defendant’s own testimony on this question, without regard to the evidence for the People, will show that, in many important particulars, it is conflicting, and therefore unreliable. But outside of this, the decided weight of evidence upon this question is with the People. That there are many criminating circumstances tending to connect the accused-with the offence charged, is clear beyond all question, and it is also equally clear that there is no evidence pointing to any other persons as the perpetrators of the offence, except, -perhaps, some tending to show they had an .accomplice. The only real trouble about this case is, the absence of any evidence tracing the fruits of the crime to the possession of the accused. But while the conviction would have been much more satisfactory if evidence of this character had been adduced, still, we are unable to say that it was indispensable. Convictions in this class of cases are frequently sustained without such evidence, and to hold otherwise, as an inference of law, would lead to the gravest consequences, and often defeat the manifest ends of justice. But while the case for the People might have been greatly strengthened by evidence of the character suggested, it is, nevertheless, a strong case without it. ■ At any rate, it is not, in our opinion, so weak, by reason of its absence, as to justify us in reversing it for that reason. We can not say the jury have clearly erred in their conclusions of fact, and unless we were able to do so we would not be authorized in interposing.

It is also assigned for error that the court gave improper instructions for the People. No specific objections have been pointed out by the learned counsel for.the accused, nor are we able to perceive any. Doubtless, if they were subject to any'substantial objections, counsel would have pointed them out.

It is also objected that counsel for the-People indulged in improper remarks in the presence of the jury which were not pertinent to the case,- and tended only to prejudice the jury against the accused. Conceding the conduct of counsel in the respect stated may be subject to criticism, yet it can not be regarded of so gross a character as to require a reversal of the judgment.

Upon the whole, we are of opinion the judgment should be affirmed, and it is so ordered.

Judgment affirmed.


author: Mr. Justice Scholeield

text:
    William B. Werden et al. v. Hugh Graham et al.

      Filed at Ottawa June 16, 1883.

    1. Specific performance—not decreed when it subserves no useful purpose. Courts of equity never decree the specific performance of a contract when the decree will be a vain and imperfect one.
    2. So a contract to assign an interest in letters patent for an invention will not be specifically enforced, on bill filed only a short time before the patent expires.
    3. Chancery—;jurisdiction—remedy at law—to recover damages for breach of contract—and to compel the assignment of an interest in a patent. Á. court of equity has no jurisdiction of a bill seeking solely to recover damages for a breach of a contract to perform services, and to assign an interest in letters patent, when’ there is no partnership account to be adjusted, and the contract is a personal one between the parties, not as partners, hut as individuals. The remedy in such case is complete and adequate at law upon the covenants of the contract.
    Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Appellants exhibited their bill in chancery against appellees, in the Superior Court of Cook county, on the 25th day of October, 1881, wherein they alleged that on the 25th day of November, 1865, they entered into an agreement, the substance of which is set out, and 'which is made an exhibit to the bill, as follows:
    “This indenture, made and entered into this 25th day of November, A. D. 1865, between Alvaro B. Graham, in the county of Lake, and State of Illinois, party of the first part, and William B. Werden, of county and State aforesaid, and Cyrus A. Werden, of the county of Berkshire, and State of Massachusetts, party of the second part:

      “Witnesseth, that whereas, the said party of the first part has invented a combined reaping and mowing machine, known and called the Champion Machine, for which invention an application is about to be made to the patent- office at Washington, D. C., for letters patent; and whereas, the said party of the first part is desirous that the party of the second part shall engage in the manufacture of said machines:
    “Now, therefore, the party of the first part hereby covenants and agrees to and with the party of the second part, that the party of the second part shall and may have the exclusive right to manufacture and sell said machines, according to the present model, and with improvements thereon and thereto as the party of the first part may become hereafter the inventor of, and entitled by law to letters patent therefor, prior to the termination of this contract, which said right shall continue and be in force from the date hereof till the patent about to be applied for as aforesaid shall become of no effect by lapse of time: Provided, however, that in case any patent may be obtained for said machine, or for any improvements thereon or thereto by the said party of the first part, territorial and shop rights to use the same may be sold and granted by the parties hereto, as is hereinafter provided.
    “And the said party of the first part further covenants and agrees to and with the said party of the second part, that he will -protect and save harmless the said party of the second part against any and every claim which any party or parties may make in and to the right of manufacture and sale of, said machines by reason of any agreement or' contract made with the said party of the first part prior to the making and delivering these presents. And the said party of the first part further covenants and agrees to and with the said party of the second part, that before letters patent shall be issued for said invention, he will make such necessary and proper assignment thereof to the said party of the second part that said patent may and shall issue to the parties hereto jointly, giving to them an equal, undivided one-third interest therein, and m case the said party of the first part shall hereafter invent any improvements upon the present model which may he patented, he shall, before obtaining letters patent therefor, make such necessary and proper assignment thereof to the said party of the second part that the patent therefor may and shall issue to the said parties hereto jointly, as aforesaid; and that the party of the second part shall have the right to use said subsequent invention in and about the manufacture and sale of said machine, during the time this contract shall be in force, exclusively: Provided, that the party of the second part shall have no interest in any invention of the said party of the first part after this contract shall cease to be in force, by any reason whatever.
    “And the party of the first part further covenants and agrees to and with the party of the second part, that he will work for the party of the second part in and about the manufacture of said machines, and the repairing (if required) of the same, by the second party paying therefor such wages as is received at the time by first-class mechanics in this city, so long as the party of the second part may desire his services in the business of said manufacturing and repairing, and that he will devote his time entirely to said business. And in consideration of the eonvenants and agreements of the said party of the first part, the said party of the second part covenants and agrees to and with the said party of the first part, that they will manufacture for sale, and sell the same, if they can, fifty of said machines the coming season, the said second party being at the whole of the expense of manufacturing and selling the same, and the. profits arising from the sale of said machines, after deducting all expenses and losses, (if any,) to be equally divided between said individuals interested in said profits,—that is to say, each receiving one-third of said profits. And the said party of the second part further covenants and agrees to and with the said party of the first part, that they will manufacture for the season of 1867, and each succeeding year, one hundred machines before mentioned, upon the same conditions b.efore mentioned, and the profits arising therefrom to be divided in like manner; and if the business should warrant, and the second party so agree to build an excess over one hundred of said machines in any one year, then, and in that event, the said party of the first part is to pay to the said party of the second part eight per cent interest annually on one-third of all such capital as shall be necessary and used by said party of the second part in the business aforesaid, in the manufacturing said excess, and selling and repairing done in said business on saidexcess. And it is mutually agreed between the respective parties, that no sale of any part or right of said invention shall be made by either party without the written consent of all the others, and when any sales are made, the profits arising therefrom shall be divided as before mentioned, as in case of any other profits.
    “And it is further covenanted and agreed between the respective parties, that the said business of manufacturing, repairing and selling said machines as aforesaid, may, at any time hereafter, be discontinued by a majority of the individuals to these covenants, by giving ninety days’ notice to the other of their intention so to do: Provided, the said party of the second part shall, before the time of discontinuance, assign to the said party of the first part, in due form of law, any and all right, title and interest which the said party of the second part may at the time have in and to said invention for said machines, and any improvement thereon and thereto made by the said party of the first part, and coming within the terms of this contract, by virtue of any patent or patents, or otherwise. And the said party of the second part further covenants and agrees to and with the said party of the first part, they will pay to me, said party of the first part, one-third of the net profits realized from the said business of manufacturing, repairing and selling said-machines, over and above the actual cost of manufacturing, repairing and selling same, and losses sustained and suffered, of any and all kinds whatsoever, and over and above all actual and necessary expenses incurred in relation thereto, and that upon the first day of January of each and every year, or immediately thereafter, a complete settlement of the business shall be had and determined.
    “And it is further agreed and understood between the respective parties, that in case a patent is not obtained for said machine, this agreement is to become of no effect. And it is also further covenanted and agreed between the respective parties, that for all the time-in which said party of the second part shall be actually and necessarily engaged manufacturing or selling any of said machines, the same compensation shall be paid to the said party of the second part as is paid to the party of the first part for services so rendered, said amount to be paid out of the receipts.
    “And'it is further covenanted and agreed between the respective parties, that the covenants and agreements herein contained shall extend to, and be obligatory upon, the heirs, executors, administrators or assigns of the respective parties hereto.
    “Witness our hands and seals the day and year first above written.
    A. B. Graham, [seal.]
    W. B. Weeden, [seal.]
    G. A. Weeden, [seal.]
    Signed, sealed and delivered in presence of J. E. Clarkson.”
    It is further alleged in the bill, that on or about the 5th day of December, 1865, Alvaro B. Graham, one of the appellees, filed in the patent office of the United States his petition for letters patent upon the machine mentioned in the contract, accompanied with specifications, drawings, etc., and paid the fees required by law, which fees, and the fees for legal services in said application, were borne by the complainants ; that after the execution of said contract complainants purchased a large and commodious foundry and machine shop, a large amount of tools, material and machinery, and employed a large force of men to manufacture the said harvesting machines, appointed said Graham as the foreman and general manager of said shops, and gave to him the sole management and direction of the same, and purchased, at his request, all the tools, machinery, materials and supplies, and hired and engaged all the assistants and workmen asked for by said Graham, or pointed out or suggested as needful or useful by said Graham, at any time; that thereafter, and on or about the 9th day of September, 1868, the aforesaid agreement was modified and altered by a certain agreement made between the complainants and said Graham, and one 0. G. Blaisdell, a copy of which said agreement is made an exhibit, and is as follows:
    “This agreement, made and entered into this 9th day of September, A. D. 1&68, between W. B. and C. A. Werden, parties of the first part, and A. B. Graham and 0. G. Blaisdell, parties of the second part:
    “Witnesseth, that the said parties of the first part doth hereby agree to and with the said parties of the second part, to employ them, and do hereby employ them, to labor for • the said party of the first part in manufacturing reaping and mowing machines, upon the following terms, and for the following terms, to-wit: The party of the first part shall furnish a shop to work in, being the shop now belonging to the party of the first part in Waukegan, and a moulding shop, one steam engine, one lathe, one milling machine, one centering machine, one cupola, one blower and one rattler, and any and all material of any and every kind to be used in making said machine, and in addition thereto shall pay said parties of the second part for the labor in making said machines, such a sum of money as will make, when added to the cost of the material for each machine, for mowers $80, and for reapers $95, the same to be paid from time to time, as the work upon the machine progresses. And the said party of the second part do hereby agree to and with the said first party, that they will at once proceed in said shop, and before the mowing season of A. D. 1869, do all the labor necessary to build, and actually to build, for the said first party, one hundred mowers and reapers, the same to be of the style and kind known as Graham Machine, of iron frame, with the latest improvements, to be finished and painted in the same style as those of A. D. 1868, and all of the work to be done in first-class order and style, at and for the sum of $80 for mowers, and $95 for reapers, to be paid in the following manner, that is to say: First, the actual cost of the material necessary to be used in the making of each machine shall be deducted from the above price to be paid for constructing each machine, and the balance shall be paid in cash, from time to time, as the labor upon each machine progresses.
    “And it is further agreed between said parties, that said second party shall furnish their own tools to do said work with, except such as is hereinbefore enumerated, and that all of the said machines shall be finished up ready for the sale of 1869, and that in no event shall said second party have any lien upon such machines, or any part thereof, for their labor upon the same under this contract.
    “In witness whereof the parties have herewith set their hands and seals the day and year first above named.
    W. B. and C. A. Werden,
    A. B. Graham,
    O. G. Blaisdell.”

      It is also further alleged in the bill, that said Alvaro B. Graham, one of the appellees, at or very near the date of the application for the patent before mentioned, made, executed and delivered to complainants and'himself‘an assignment; in due form of law, of all the inventions and devices described, exhibited or shown in said application for letters patent, or then invented by him, and therein requested that a patent should issue to said three assignees jointly, upon said application, and said assignment was thereafter, on the 5th day of December, 1865, duly recorded in the patent office; that thereafter, and about February 11, 1867, said Alvaro B. .Graham, one of the appellees, made and filed in the United States patent office his petition for the grant of letters patent to himself, upon certain other- improvements in reaping machines, and thereafter filed his specifications and drawings, and procured complainants to pay the necessary fees of the government, and for legal expenses incident thereto, and while both of said applications were pending before the patent office, and before the patent had been issued upon either of them, caused the same to be amended, in this respect: The first application for a patent contained, first, a device which had for its object the connection of the finger-bar of the harvesting machine to the frame thereof, so as to secure the free passage of the finger-bar over the ground, and at the same time permit it to adjust itself perfectly to the inequalities of the surface over which it passed; and second, a device having for its object the cutting of lodged or fallen grain or grass in a proper manner, without clogging the machinery of the harvester; and third, a device for the proper gathering of the grass, and bending it over within the reach of the knives at the cutter-bar side of the machine; and when the second application was made, said Alvaro B. Graham, one of the appellees, withdrew from the first application the first of the above named devices, and included it in the second application, and thereafter, on the 11th of February, 1868, he procured a patent on the second application to be issued in his own name,—wherefore the complainants charge, that, in equity, they became owners of the undivided two-thirds of said second patent. It is further alleged in the bill, that said appellee Alvaro B. Graham assigned said last mentioned patent to the other appellee, Hugh Graham, on the 12th of August, 1870, but charges that the latter, at the time, had full knowledge of complainants’ rights,—that the transfer was. not made in good faith, etc.
    It is further alleged, that said appellee Alvaro B. Graham, from November, 1865, to May, 1869, and during all the time that complainants continued to manufacture machines under the contract, had full and complete charge of complainants’ shops and foundry, and was furnished by complainants with everything required, or desired, or requested, by him for the manufacture of the said machines under the contracts; that by unfair representations of said appellee Alvaro B. Graham, and by his neglect, and on account of his willful neglect and refusal to fulfill and comply with said contract, and because he had not then caused, and did not cause, his said machine to be a finished and properly made machine, the manufacture of said machine proved very disastrous to complainants, and caused them to sustain a loss of not less than $30,000; that appellees have refused to assign any interest in the last mentioned patent to complainants, and have collected many thousands of dollars for fees, damages and royalties, under said patent, and that they are wholly irresponsible.
    Allegations excusing, or seeking to excuse, the filing of the bill then follow. Prayer is, that appellee Alvaro B. Graham be decreed to assign to complainants two-thirds interest in said patents, and two-thirds of all moneys received on account thereof, and that appellees be restrained from assigning any interest in said letters patent, and from collecting any claims, damages or fees thereunder, and for general relief. There was a demurrer to the bill, which was sustained, and on appeal to the Appellate Court for the First District that decree was affirmed. This appeal is from that decision of the Appellate Court.
    Mr. Chas. H. Wood, for the appellants:
    Mere lapse of time is no bar to specific performance, except it shows an abandonment. Bennett v. Welch, 25 Ind. 143.
    In this case complainants continually insisted on their rights. In such cases laches can not be set up as a bar. (Tilton v. Stein, 87 Ill. 122.) And when the circumstances satisfactorily account for the delay, relief will not be denied. Hamilton v. Quimby, 46 Ill. 90; Clark v. Hoyle, 52 id. 427; Harper v. Ely, 50 id. 180; Gibbons v. Hoag, 95 id. 69.
    Waiting, under advice of counsel, for a decision in another case, is a good excuse for delay. Cox v. Montgomery, 43 Ill. 110.
    Specific performance granted after twenty-seven years’ delay,—in case of Haffner v. Dickson, 2 Har. & J. 46. After twenty-three years,—in New Barbadoes T. B. Co. v. Vreeland, 4 N. J. Eq. (3 Green,) 157; Bennett v. Welch, 25 Ind. 140.
    Messrs. Banning & Banning, for the appellees:
    A party can not compel the specific performance of a contract unless he has himself fully performed, or justly accounts for his non-performance. Scott v. Sheperd, 3 Gilm. 486; Heckard v. Sayre, 34 Ill. 142; Stowe v. Russell, 36 id. 18; Supervisors v. Henneberry, 41 id. 180; Iglehart v. Gibson, 56 id. 91; Hoyt v. Tuxbury, 70 id. 339.
    The gross laches of appellants is fatal to the relief sought. Milward v. Earl Thanet, 5 Ves. 720, note; Eades v. Williams, 4 DeG. M. & G. 691; Story’s Eq. sec. 771; 3 Parsons on Contracts, *357; Fry on Specific Performance, secs. 737, 744, 734; Hough v. Coughlan, 41 Ill. 134; Roby v. Cossitt, 78 id. 643; Whittaker v. Robinson, 65 id. 413.

      There being no right to a specific performance, there is no other ground on which to maintain the bill, .as the remedy for any supposed breach of the contract is complete at law.
   Mr. Justice Scholeield

delivered the opinion of the Court:

A bare reference to the terms of this contract would seem to be enough to demonstrate that it is now impossible of specific performance, however desirable it otherwise might be to hold appellee Alvaro B. Graham to its terms. It was made on the 25th day of November, 1865, and obligated appellants to “manufacture for sale, and sell the same, if they can, fifty of said machines,” (the Champion Reaping and Mowing Machine,) “the coming season, ” (i. e., the season of 1866,) to “manufacture for the season of 1867, and each succeeding year, one hundred machines before mentioned. ” The duration of the contract is, by its terms, limited to the period at which the patent therein provided for would expire, which, by virtue of sec. 4884, chap. 60, Rev. Stat. of the United States, is seventeen years. There is no allegation in the bill of a performance of the contract up to any recent period, but, on the contrary, it is alleged, in substance, that it never has been complied with by Alvaro B. Graham, and on that account, and for that claimed justification, it is alleged, inferentially at least, it has not been complied with by appellants. The precise date of the issue of the first patent is not alleged, but the issue of the second patent is alleged to have been on the 11th of February, 1867. From that date until the filing of the bill, October 25, 1881, lacks a little less than four months, only, of being fifteen years, or leaving but little over two years remaining within wdiich the contract was to run. To now specifically perform such a contract is, obviously, impossible. Whatever else may be decreed, in the very necessity of things it can not be specific performance. Courts of equity never decree the specific performance of a contract where the decree would be a vain or imperfect one. Tobey v. County of Bristol, 3 Story, 800.

Treated as a bill for an account, we are also of opinion the bill can not be sustained. It is said in Story’s Equity Jur. sec. 794: “It may be stated as a general proposition, that for breaches of contract, and other wrongs and injuries cognizable at law, courts of equity do not entertain jurisdiction to give redress by way of compensation or damages, where these constitute the sole objects of the bill, for whenever the matter of the bill is merely for damages, and there is a perfect remedy therefor at law, it is far better that they should be ascertained by a jury than by the conscience of an equity judge,—and, indeed, the just foundation of equitable jurisdiction fails in all such eases, as there is a plain, complete and adequate remedy at law. Compensation or damages, it should seem, ought therefore ordinarily to be decreed in equity only as incidental to other relief sought by the bill and granted by the court, or where there is no adequate remedy at law, or where some peculiar equity intervenes.” There is not claimed to be any peculiar equity here intervening. The bill claims no profits or losses as the result of carrying out the partnership, for it is framed upon the hypothesis that the partnership was not carried out, and, we have just seen, there is no foundation for a decree for specific performance. Appellants claim a decree solely for damages, and these, they allege, result, first, from the refusal of appellee Alvaro B. Graham to keep and perform his contract to render his personal services in the shops of appellants, and in overseeing the manufacture of machines, etc.; and second, from his refusal to keep and perform his contract that before letters patent should be issued for the invention to be applied for, he would make such an assignment that the patent should issue to appellants and himself jointly, giving to each person an equal, undivided one-third interest therein, and that he should make a like assignment as to any improvements on that patent which he should apply for. These are clearly personal covenants between appellee Alvaro B. Graham and appellants, upon which, in case of breach, an action at law may be maintained. Alvaro B. Graham, as the party of the first part, covenants with appellants, as parties of the second part, each being, with respect to the other, an independent contracting party. The covenants are, in no sense, to the firm, or by the firm,' hut are to and by parties dealing with each other as individuals.

The modified agreement is, clearly, of the same character, and differs from the original agreement only in that there is an additional party to it. It is between appellants, as parties of the first part, and appellee Alvaro B. Graham, and 0. G. Blaisdell, as parties of the second part, and the undertakings are expressly by the latter to the former, as individuals, and not to any firm of which they, or either of them, were members. For the breach of such covenants and agreements the remedy is, an action of covenant where the instrument is under seal, and where it is not, assumpsit. Parsons on Partnership, 27 5, note a; Collyer on Partnership, (Perkins’ ed.) sec. 245. See, also, Doyle et al. v. Bailey et al. 75 Ill. 418.

Whether appellants shall be able to show a sufficient reason for their own failure to comply with their contract, will be left to he determined by the court of law, where they must seek their remedy.

We think the demurrer was properly sustained to appellants’ bill, and that the judgment of the Appellate Court was therefore right. It must he affirmed.

Judgment affirmed.


text:
    Christian Belslay v. Edward C. Engel.

      Filed at Ottawa June 16, 1883.

    1. ■ Will—devise construed as passing life estate, and not falling within rule in Shelly’s case. A testator devised to his grand daughter “the free use and occupation of” certain land, “to have and to hold, to use, occupy and enjoy the same, together with all the rents, issues and profits thereof, with the appurtenances, during her natural life. ” In giving other bequests, the will provided: “It is my will, and this bequest is made upon the express declaration, that in case any of said grand children should depart this life without issue of their body, that then all their share of said real estate (or to W'hom the use thereof is bequeathed as aforesaid) shall be equally divided among all my grand children and their legal representatives, and the title thereto thereafterwards so vest forever. It is my will that no title in fee to any of said land shall vest in my said grand children, and I declare it to • be my will that they shall only have a life estate therein, and that the fee simple shall vest in their legal heirs. And it is my will that they', nor any' of them, shall have any right to sell, dispose of, mortgage or incumber, in any manner, any of said land, and that they shall keep it free and clear for their legal heirs, to whom it shall descend forever :” Held, that the grand daughter just named took only a life estate, and that the devise to her did not come within the rule in Shelly’s case.

    2. The rule in Shelly’s case is, at most, a technical rule of construction, and must give way to the clear intention of the testator or donor, when that intention can be ascertained from the instrument in which the words supposed to he words of limitation are used.
    Writ of Error to the Circuit Court of Woodford county; the Hon. David McCulloch, Judge, presiding.
    Messrs. Shaw & Edwards, for the plaintiff in error:
    We do not deny that to bring this case within the rule in Shelly’s case is to disregard the intention of the testator. This is the frequent effect of the rule, but it has become one of property, which the courts may not disregard. Welsch v. Savings Bank, 94 Ill. 191.

      The case of Baker v. Scott, 62 Ill. 86, is conclusive of this. See, also, Brislain v. Wilson, 63 Ill. 173.
    The final, controlling declaration of the testator in the case at bar is, that the “fee simple shall vest in their legal heirs, ”— that is, in the heirs generally of his grand children, who are to take as a class not ascertained, fixed or named in the will, as purchasers, but to be ascertained from the Statute of Descents, when the descent is cast.
    Mr. Wm. L. Ellwood, for the defendant in error:
    If the language used is not such as to imperatively require the application of the rule in Shelly’s case, the court will not defeat the express wish of the testator. The great and leading principle in the construction of wills is the intention of the testator, when not inconsistent with the rules of law, Rountree v. Talbot et al. 89 Ill. 246.
    The word “heirs,” as used in the latter part of the thirteenth clause of the will, seems to be used in the same sense as “children,” or “issue,” as it is preceded by the declaration that in ease any of the grand children should depart this life without issue of their body, their share should be equally divided among all said grand children. Beacraft v. Strawn, 67 Ill. 32; Hodgson v. Ambrose, Douglass, 337.
    To effectuate the clear intention of the testator the words “heirs,” “issue,” and “children,” may be construed interchangeably. Bradden v. Cannon, 1 Grant’s C. 60; Bowers v. Porter, 4 Pick, 198; Ebby v. Ebby, 5 Pa. St. 461; Butler v. Huestis, 68 Ill. 602.
   Mr. Justice Scott

delivered the opinion of the Court:

The only question for decision in this case is, whether the language of the sixth and thirteenth clauses of the will of Joseph Belslay, deceased, brings the devise therein made to his grand daughter, Catharine Belslay, within the rule in Shelly’s case, so as to give her the fee in the lands specifically devised to her in the sixth clause, or whether she only takes a life estate in such lands. There can be no doubt it was the intention of the testator to give to the devisee only a life estate in the lands bestowed on her, and it is thought a correct construction of the several clauses of the will accords with that intention. The lands in question are specifically devised by the sixth clause of the will, which is as follows: “Sixth—I give and bequeath unto my grand daughter, Catharine Belslay, the free use and occupation of” the lands in dispute, “to have and to hold, to use, occupy and enjoy the same, together with all the rents, issues and profits thereof, with the appurtenances, during her natural life. ” Had this clause stood alone, it would not be doubted the devisee would only take a life estate in the lands devised to her. Of this no question is made. The difficulty arises on the thirteenth clause of the will, which is as follows: “ Thirteenth—It is my will, and this bequest is made upon the express declaration, that in case any of my said grand children should depart this life without issue of their body, that then all them share of said real estate (or to whom the use thereof is bequeathed as aforesaid) shall be equally divided among all my grand children and their legal representatives, and the title thereto thereafterwards so vest forever. It is my will that no title in fee to any of said land shall vest in my said grand children, and I declare it to be my will that they shall only have a life estate therein, and that the fee simple shall vest in their legal heirs. And it is my will that they, nor any of them, shall have any right to sell, dispose of, mortgage or incumber, in any manner, any of said land, and that they shall keep it free and clear for their legal heirs, to whom it shall descend forever. ” In seeking for the true meaning of this thirteenth clause, it is well to bear constantly in mind the fact the testator had only, by the sixth clause of his will, given the devisee a life interest in the lands devised to her,— that is, she is “to have and to hold, to use, occupy and enjoy the same, together with all the rents, issues and profits thereof, with the appurtenances, during her natural life.” The devise, in this respect, is equivalent to a devise to her of a life estate in the property itself. There is some ambiguity in the thirteenth clause of the will, as will be seen on a close reading. It begins by saying: “It is my will, and this bequest is made upon the express declaration,” etc. What “bequest” is meant? It is doubtful whether it has reference to the division of his estate as mentioned in the twelfth clause of his will, which is the residue of his property, both real and personal, not before specifically disposed of or required for the payment of legacies, or whether it has reference to specific devises mentioned in other clauses of the will. The former would seem to be the correct reading. But conceding it applies to specific devises, as well as to the division of the residue of the estate, does it change the character of thé devise as made in the sixth clause of the will ? Extraordinary caution seems to have been taken in drafting the thirteenth clause, to express the will of the testator,—that his grand children shall only have a life estate in the lands given to them. That intention is so manifest it is not a matter of dispute. Any construction of the will that would give the grand children of the testator participating in his bounty a greater estate than a life interest in the devises made to them, would be in direct opposition to his oft repeated will and desire. If his intention in this regard, so plainly expressed, is to be defeated at all, it is by the use of the words “legal heirs, ” in whom the fee simple title is ultimately to vest, and that, too, by giving to them a technical meaning wholly inconsistent with the context. This ought not to be, if it can be avoided without a palpable violation of a known rule of law. Construing the sixth and thirteenth clauses of the will together, it does not seem the language employed brings the devise made by the sixth clause within the rule in Shelly’s case, as it has been defined by this court in Baker v. Scott, 62 Ill. 86, or in Butler v. Huestis, 68 Ill. 594. It is, at most, a technical rule of construction, and has always, since the decision in Perrin v. Blake, 4 Burr. 2579, given way to the clear intention of the testator or donor, when that intention could he ascertained from the instrument in which the words supposed to be words of limitation were used. This rule will control, unless where it contravenes some settled principle of law,—otherwise, instead of-being a rule .by which justice could be administered, it would be a source of incalculable mischief in its practical application. No reasoning can disabuse the mind of the impression made upon it by the plain and natural reading of the sixth and thirteenth clauses of his will, that the testator only intended to give his grand children a life estate in the property bestowed upon them for their use during their natural lives, and no subtle finesse of construction will be adopted to defeat that intention. The ease being considered is clearly within the principle of Butler v. Huestis, supra, and the decision should be controlled by the reasoning in that case.

The decree of the circuit court will be affirmed.

Decree affirmed.


text:
    The City of Chicago v. Louisa Schmidt, Admx.

      Filed at Ottawa June 16, 1883.

      1. New triad—on the finding of the facts. In an action against a city and a railway company, to recover for the death of the plaintiff’s intestate, alleged to have been occasioned by the negligence of the defendants, the first trial resulted in a judgment for the defendants, which was reversed by this court, and the cause remanded. There was a second trial, -with the same result, and again reversed. The railway company was then dismissed from the case. A third trial was had, resulting in a verdict against the city for $5000, which was set aside. A fourth attempt resulted in a mis-trial. Eor the fifth time the ease was submitted to a jury, and there was a judgment for the plaintiff for $3500, which was affirmed by the Appellate Court. On a further appeal to this court, by the city, it was considered, if no imperative rule of law forbid, the maxim, debet esse finis litium, might well be applied.
    2. Death from negligence—liability of city in respect to defective sidewalk. A city had notice of a hole in a sidewalk near a railroad crossing, and neglected to repair the same within a reasonable time. A person in passing over suck walk, exercising due care, stepped into the hole, whereby he was unavoidably thrown upon the railway track before an approaching tiain of cars, and in attempting to get up his clothes caught upon a spike or nail in the sidewalk, and he was struck by the train before he was able to extricate himself, and killed: Held, the city was liable in damages, under the statute, to the personal representatives of the deceased, for causing his death.
    3. Instruction—partial summing up of the facts. Where an instruction attempts to summarize the facts or elements in a cause essential to a recovery, it is vicious if it omits to give any important particular essential to a recovery.
    4. But where there are two distinct opposing theories upon which a trial is had, of both of which there is evidence tending to establish, an instruction based upon either theory is not required to have embodied therein all the hypothetical elements contained in the distinct and opposing theory. All the law requires is, that an instruction based upon some particular hypothesis warranted by the evidence, which undertakes to summarize the elements in the cause essential to a recovery upon that theory, must not omit any essential matter.
    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. Kirk Hawes, Judge, presiding.
    Mr. Julius S. Grinnell, and Mr. Clarence A. Knight, for the plaintiff in error:
    Want of ordinary care by the deceased prevents a recovery. Chicago, Burlington and Quincy R. R. Co. v. Hazard, 26 Ill. 373; Chicago, Burlington and Quincy R. R. Co. v. Johnson, 103 id. 512; Chicago, Burlington and Quincy R. R. Co. v. Lee, 68 id. 576; St. Louis, Alton and Terre Haute R. R. Co. v. Manly, 58 id. 300; Chicago and Alton R. R. Co. v. Gretzner, 46 id. 75.

      A known or probable danger should be approached with greater care and caution than if there were no apparent danger. Wabash Ry. Co. v. Henks, 91 Ill. 406; Chicago, Rock Island and Pacific R. R. Co. v. Bell, 70 id. 102; Chicago, Burlington and Quincy R. R. Co. v. Howard, 80 id. 88; Chicago, Burlington and Quincy R. R. Co. v. Damerell, 81 id. 450; Lake Shore and Michigan Southern R. R. Co. v. Hart, 87 id. 529; City of Centralia v. Krouse, 64 id. 19; Illinois Central R. R. Co. v. Goddard, 72 id. 567; City Ry. Co. v. Lewis, 5 Bradw. 247.
    It is error in an instruction to single out and state the facts on one side only, leaving others having a bearing on the right to recover. Chicago, Burlington and Quincy R. R. Co. v. Griffin, 68 Ill. 499; Martin v. Johnson, 89 id. 538; Haines v. Hale, 71 id. 554; Logg v. People, 92 id. 602; Thorp v. Goewey, 85 id. 614; Pennsylvania Co. v. Stoelke, 104 id. 201; Illinois Central R. R. Co. v. Hetherington, 83 id. 510; Illinois Linen Co. v. Hough, 91 id. 64.
    Mr. Rufus King, and Mr. Allan C. Stoey, for the defendant in error:
    Where a judgment is affirmed by the Appellate Court, this court is conclusively bound as to the finding of the facts. Rev. Stat. chap. 110, sec. 90; Germania Fire Ins. Co. v. McKee, 94 Ill. 494; Massachusetts Mutual Life Ins. Co. v. Robinson, 98 id. 324.
    The plaintiff is only obliged to present the law correctly in his instructions applicable to his theory of the case, and is not bound in every instruction to anticipate and exclude ever possible defence. Logg v. People, 92 Ill. 604; Trask v. People, 104 id. 572.
    Appellant was the wrong-doer, and “no wrong-doer ought-to be allowed to apportion or qualify his own. wrong; and that, as a loss has actually happened whilst his wrongful act was in force and operation, he ought not to be permitted to set up as a defence that there was a more immediate cause of the loss, if that cause was put in operation by his own wrongful act. To entitle such party to exemption he must show, not only that the same loss might have happened, but that it must have happened if the act complained of had not been done.” Davis v. Garritt, 6 Bing. 716; Vanderburg v. Truax, 4 Denio, 464; McDonald v. Snelling, 14 Allen, 290; Scott v. Sheperd, 3 Wils. 403; Clark v. Lebanon, 63 Maine, 393; Willey v. Belfast, 61 id. 569.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an action on the case, brought under the statute, by Louisa Schmidt, as administratrix of Frederick Schmidt, her late husband, against the city of Chicago, to recover damages for his death, which is alleged to have been caused by a defective sidewalk, which the city, after notice, negligently suffered to remain out of repair. There was a trial upon the merits in the circuit court of Cook county, resulting in a verdict and judgment for the plaintiff for $3500, which was affirmed on appeal to the Appellate Court, and the case is now before us for review.

It is a conceded fact that the deceased was killed by a passing train of 'the Northwestern Railroad Company, and the company was originally joined as a co-defendant with the plaintiff in error. The accident resulting in Schmidt’s death occurred on the 5th of May, 1873,■ and the cause was first tried in March, 1875, resulting in a verdict for the defendants. On appeal to this court by defendant in error the case was reversed, and the cause remanded for further proceedings. (See 83 Ill. 405, where the case is reported.) There was another trial of the cause in March, 1878, with the same result, and on appeal to the Appellate Court the judgment of the circuit court was again reversed. After the second reversal the action was dismissed as to the railway company, and a third trial was had in February, 1880, resulting in a verdict against the city for $5000. For some cause or other this verdict was set aside, and in April following, the case was submitted to another jury, Which resulted in a mistrial, the jury being unable to agree. In January, 1882, the cause was submitted to a jury for the fifth time, with the result already stated. It will be thus seen, as between the present parties there has been one mis-trial, and two verdicts for defendants in error,—the first for $5000, and the last $3500. In the light of these facts, if no imperative rule of law forbids, we think the maxim, clebet esse finis litiim, may well be applied.

This case, as the record fully shows, was earnestly and vigorously contested in the court below, on issues of fact. Bach party entertained and propounded to the court and jury distinct and opposing theories as to how the accident occurred. For the defendant in error it was contended, that Schmidt, the deceased, while passing along on the sidewalk within a few feet of the track of the Northwestern Railway Company, and while in the exercise of due care,, stepped into a hole in the sidewalk, of which the city had notice, and was thereby unavoidably thrown upon the railway track of said company, and that in attempting to get up his clothing caught upon a spike or nail in the sidewalk, and before he was able to extricate himself and get off the track he was struck and killed by a passing train. The other theory is, that Schmidt was hurrying along to cross the railway track in front of a passing train, and in doing so came in collision with a boy, which momentarily detained him, and to make up the lost time occasioned by the collision, he jumped off the sidewalk and attempted to run around the front of the engine of the moving train, and thus make the crossing, and in doing so was struck by the cow-catcher, and killed. There was evidence tending to estab-. lish both these theories, and it was for the jury to determine which of the two, if either, was the correct one. This they have done, and their finding has received the indorsement and approval of the Appellate Court, and this must he accepted as conclusive of the'controversy, so far as it depends on the facts.

Assuming the hypothesis of the plaintiff below to be true as above stated, there was a clear right of recovery, and the first instruction, which is mostly complained of, does nothing more than so inform the jury, and we see no substantial objection to it. The learned counsel for plaintiff in error, if we correctly understand him, seems to suppose that the general doctrine often recognized by this court, which holds an instruction vicious that attempts to summarize the facts or elements in a cause essential to a recovery, but fails in some important particular, applies to an instruction which merely fails, as was the case here, to embody in it the evidence tending to establish a distinct antagonistic theory. That such is not the case is too palpable to admit of serious discussion. In most, if not all, cases of conflicting testimony, there are two or more distinct opposing theories, supported, more or less, by the evidence, and the very object of instructions is, to present to the jury these several distinct views, with the conclusions of law pertaining to them, respectively, and any attempt to embody in one instruction all the hypothetical elements contained in the distinct and necessarily opposing views, would make the veriest nonsense. All the law requires is, that an instruction based upon some particular hypothesis warranted by the evidence, which undertakes to summarize the elements in the cause essential to a recovery upon that theory, must not omit any essential matter.

There is some criticism of other instructions, but we do not think it well founded. On the whole, we are of opinion the law of the case was properly laid down by the court, and that there is no material error in the record for which the judgment should be reversed.

Judgment affirmed.


author: Mr. Justice Walkeb

text:
    W. Henry Moore v. Eugene Wayman et al.

      Filed at Mt. Vernon June 16, 1883.

    1. Taxes—collection—when enjoined. It is the doctrine of this court that equity will not enjoin the collection of taxes that are levied on property subject to taxation, and which are due and unpaid, if the same are legally imposed. A court of equity will never enjoin the collection of taxes unless they are void, or levied without authority on the part of the officers executing the revenue laws.
    2. As long as such officers are acting under the law in imposing and collecting taxes, the courts will not interfere. They will do so only when such officers transcend their powers, and act without legal warrant. Nor will they interfere for the reason that the assessment is not strictly according to the letter of the law; and when there is no ground for enjoining the collection of a tax, the collector can not be enjoined from making a tax deed to the holder of the certificate of purchase, unless good cause is shown for matters which have transpired since the sale.
    3. Same—terms upon which sale will be set aside. If the owner of land lies by and permits judgment to go against his land for taxes, and the same to be sold and paid for, it is the settled law of this court that before he can have the sale set aside as a cloud on his title, he must tender or offer to pay the holder of the certificate the purchase money, and all taxes he has paid, with interest thereon. A hill seeking to enjoin the making of a tax deed on the ground of mere irregularities, is subject to demurrer if it fails to offer to refund the money paid by the holder of the certificate.
    Appeal from the Circuit Court of Washington county; the Hon. William H. Snydee, Judge, presiding.
    Mr. W. Henby Moobe, pro se.

   Mr. Justice Walkeb

delivered the opinion of the Court: .

This was a bill in equity, filed by complainants, to enjoin the collector from making a tax deed for two forty-acre tracts of land that had been sold for delinquent taxes, and the time for redemption had expired. The bill nowhere charges that the property was not liable to taxation, or that it had not been legally assessed, or the tax lawfully imposed on the property, or .that the tax so levied had been paid. There is nothing alleged to show that the tax is unjust, or that it would be inequitable to enforce payment, nor is there a tender or any kind of offer to pay the taxes, with interest, or any other sum, to the holder of the tax certificate. There are, however, alleged technical errors and omissions in reporting the delinquent list and the petition for a judgment, and in failing to give notice to a person to whom the land was assessed for taxation; but it is not contested that he had no interest in, or claim to, the land at the time it was assessed for taxation, or afterwards ; that the collector’s report did not specify the years for which the back taxes were levied; that the collector’s report was in loose sheets, and was not corrected before the sale by marking the taxes that were paid after the advertisement and before the sale, and the list was not copied in the proper books, and the judgment was not signed by the county judge, and proper notice was not given. The evidence contradicts most of these allegations. Personal notice and publication were had on the parties in interest. Personal service was had on all the residents but Armstrong, who had no interest in the property when listed or at the time of the sale, and notice was given and publication was made. The loose sheets of the collector’s report were read in evidence, which seems to have been in proper form, and they were filed by the clerk, and so indorsed, in consecutive order, and at the end is the affidavit of the collector. It was admitted the name of the judge was signed to the judgments by the county clerk, by the direction of the judge. The collector could not remember that he corrected this list, but had always done so before judgment was rendered. No tracts were marked paid, in the “Tax-sale and Redemption Record.” On this evidence the circuit court rendered a decree perpetually enjoining the collector from executing a tax deed to the holder of the certificate, and the record is brought to this court by appeal.

It is not denied that every cent of this tax was honestly and equitably due when the judgment was rendered and the sale was made. It is the doctrine of this court that equity will not enjoin the collection of taxes that are levied on property subject to taxation, and which are due and unpaid, where the tax is legally imposed. A court of equity will never interfere to enjoin the collection of taxes unless they are void, or levied without authority on the part of the officers executing the revenue laws. As long as such officers are acting under the law in imposing and collecting taxes, the courts will not interfere, only where they transcend their powers, and act without legal warrant. (Ottawa Glass Co. v. McCaleb, 81 Ill. 556.) Nor for the reason that the assessment is not strictly according to the letter of the law. (Chicago, Burlington and Quincy R. R. Co. v. Siders, 88 Ill. 320.) Numerous other cases in this court announce the same doctrine. The State and the government municipalities protect all alihe and confer equal benefits on all, and it is eminently just that each person should, as required by the constitution and the jfiainest principles of natural justice, and the simplest rules of equity, contribute his proportionate share to support the government and its municipalities, that affords such protection and confers such benefits. It is inequitable and unjust to a community that any person should escape his fair share of the common burthens for the support of government. Equity, therefore, can not aid in the penetration of such injustice and wrong.

If, then, there were no grounds for enjoining the tax, as we have seen, there can be no grounds for enjoining the collector from executing a tax deed to the holder of the certificate of purchase, as nothing subsequent to the sale has been shown requiring the interposition of a court of equity. If objections existed, they should have been made when application was made for judgment. It would be highly inequitable and unjust to permit owners to lie by and permit judgment to go against their land, a sale to be made, the land purchased, and the tax to be paid by the purchaser, and then come in and restrain the collector from malting a deed to the purchaser, and compel him to sustain the loss. There is no rule of law or principle of equity that will compel, or even requires, one man to pay the taxes of another, or discharge any of his duties to the public. Such injustice can never be tolerated by the courts,—and to enjoin the collector from making a deed in this case would produce that result. It was neither illegal nor inequitable for any person to purchase the land when exposed to sale for these delinquent taxes. On the contrary, public policy invites and encourages such purchases by the high rate of interest that the law gives the purchaser on a redemption from the sale. If it is placed on the ground that complainants may have the sale cancelled by an equitable redemption to remove a cloud from the title, then it is the settled law of this court that complainants must tender or offer to pay the holder of the certificate the purchase money and all taxes he has paid, with interest thereon, before he can have relief. (Reed v. Tyler, 56 Ill. 288; Reed v. Reber, 62 id. 240; Farwell v. Harding, 96 id. 32; Barnett v. Cline, 60 id. 205.) Other eases announcing the same rule might, if necessary, be cited. It is based on the fundamental rule that he who seeks equity must do equity.

The demurrer in this case should have been sustained, because the bill was defective in not offering to refund the money paid by the holder of the certificate at the tax sale, and for subsequent taxes, if any, paid by him; and the decree was erroneous because it did not require such payment as a condition to the relief sought, even if there were irregularities in the levying and collecting the tax which were not cured by the 191st section of the Revenue law, or even if a court of equity is not precluded by tbe 224th section of the Revenue law, as amended at the session of 1879, (Laws of 1879, p. 253,) from frying any question except whether the tax was paid,' or the land was not liable to the tax.

For the errors indicated the decree of the court below must be reversed, and the cause remanded.

Decree reversed.


text:
    Stephen Paddon et al. v. The People’s Insurance Company.

      Filed at Ottawa June 16, 1883.

      Appeal—presumption as to finding of facts. Where there is a controversy as to a fact necessary to the plaintiff’s right to recover, and the court finds for the defendant without stating any propositions of law, it will be presumed the judgment was based upon a finding of the facts against the plaintiff; and when the Appellate Court fails to recite in its judgment a finding of the facts differently from that of the trial court, the affirmance of the judgment will be taken as a finding of the facts the same way.
    Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Superior Court of Cook county; the Hon. R. S. Williamson, Judge, presiding.
    Messrs. Page & Booth, for the appellants.
    Mr. Elbert H. Gary, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

The declaration in this case is upon what are claimed to be insurance contracts, made by the People’s Insurance Com: pany with plaintiffs,. Stephen Paddon & Co. The first count of the declaration is upon what purports to be a written contract of insurance, and the second and third counts are upon a verbal contract. A loss is averred under both counts, with the usual formality, the making of proofs of such loss, and every other fact necessary to a recovery, if the contracts declared on are valid and binding on the company. To the declaration containing these facts th'e company pleaded the general issue. On the first trial the jury to whom the cause was submitted found the issues for plaintiffs, and assessed their damages at the amount of the loss proven, being for the sums named in the insurance contracts. That judgment, on the appeal of defendant, was reversed by the Appellate Court for the First District, and the cause remanded. On the second trial the court to whom the cause was submitted for trial, without the intervention of a jury, found the issues for defendant, and rendered judgment accordingly. On plaintiffs’ appeal, that judgment was affirmed by the Appellate Court, and plaintiffs bring the case to this court.

Whether the insurance contracts declared on were in fact made and assented to by both parties thereto before the loss occurred, were questions of fact. It seems the trial court must have found no such contracts were proven, otherwise its decision would have been for plaintiffs. The declaration counts, in part, upon a verbal contract of insurance. It is not claimed such a contract is not as valid, if fairly and understandingly entered into, as though its terms had been reduced to. writing and signed by the respective parties.There is nothing in this record that indicates the trial court based its judgment on the ground a verbal contract of insurance was not binding on the party making it. The case seems to have been tried solely on the question whether any such contracts as those mentioned in the declaration had, in fact, been entered into by the parties. Where an Appellate Court fail to recite in their judgment they found the facts differently from what they were found by the trial court, it will be understood the affirmance of the judgment implies a finding of the facts the same way.

Were it true, as counsel insist it is, the facts of this case are uncontroverted, it would then be a question of law whether, on the facts appearing from the record, plaintiffs would be entitled to recover. That question, on the authority of Goodrich v. Lincoln, 93 Ill. 360, would be open for consideration in this court, without the trial court being asked to instruct itself how to find as to the law of the case. But that is not the case here. The contracts declared on are alleged to have been made one day, and on the next day, or the next day but one, the loss occurred. It was a matter of contention in the trial court whether any such contracts were entered into at any time before the destruction of plaintiffs’ property by fire. That, of course, is a question of fact, and it was found against the position taken by plaintiffs. No doubt the same controversy was carried on in the Appellate Court. This question of fact must have been found in the same way by it, and the findings of the latter court concerning controverted questions of fact are, of course, conclusive on this court. The evidence in this record has been examined with patient care, and it is seen there is some ground, at least, for the controversy as to the making of the insurance contracts insisted upon,—whether such contracts were made before the destruction by fire of the property claimed to have been insured under them. Enough appears to show the making of the contracts was controverted. Which way the preponderance of the evidence may have been, is a question upon which this court can express no opinion. It is sufficient it appears the making of the contracts was matter of contention between the parties, to make the finding of the Appellate Court conclusive as to the facts involved.

No error appearing that can be reviewed in this court, the judgment will be affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    The Lake Erie and Western Railway Company v. John Zoffinger.

      Filed at Springfield June 14, 1883.

    1. Appeal—reviewing controverted questions of fact. 'Where there is a direct conflict in the testimony on almost all the material facts, in an action on the case to recover for a personal injury caused by negligence, a finding by the jury for the plaintiff implies a finding of every fact the evidence tends to establish in favor of the plaintiff necessary to sustain the action, and when the Appellate Court finds the facts the same way by affirming the judgment, such finding is conclusive on this court.
    2. Negligence—facts establishing negligence. In an action on the case against a railway company, to recover for a personal injury alleged to have resulted from the negligence of defendant, where there was evidence tending to show that the plaintiff was struck by cars being moved by the defendant at a street crossing; that the train was being run at an imusual rate of speed; that no bell was rung or whistle sounded; that there was no light on the forward car that struck the plaintiff, and that plaintiff was observing due care for his safety, it was held, that such facts, assuming them to have been proven, established a clear right of recovery in the plaintiff.
    3. Ebbob will not always bevebse—admission of improper evidence. The admission of improper evidence of a trifling character, not affecting in the slightest degree the defence set up, affords no ground for reversing a judgment in favor of the plaintiff fully justified by the other facts found by the jury.
    4. Evidence—statements of a third person. In an action to recover for a personal injury by being struck by a moving car at a street crossing, the defence was a want of due care by the plaintiff, and that he was intoxicated. The defence offered to prove that just before the accident the plaintiff, in a saloon, called for a drink of liquor, and that the bar-keeper told him he had enough, which the court excluded, on objection: Held, that this evidence was not admissible, and was properly refused. The fact whether plaintiff was under the influence of liquor was subject to proof the same as any other fact in the case, but could not be proved by the declaration „of a third person.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. N. J. Pillsbury, Judge, presiding.

      This was an action on the case, brought by appellee, against the appellant, in the McLean circuit court, where a trial was had resulting in a verdict and judgment in favor of the plaintiff, for $3500, and costs. On the trial the defendant sought to show that the plaintiff was intoxicated at the time he was injured, which the plaintiff denied. The defendant called Mr. Lancaster, who testified that he saw plaintiff in Homath’s saloon, and thought he was drunk, and heard him ask the bar-keeper for more liquor, and then the witness was asked, “What did the bar-keeper say?” The court sustained an objection to the question. The defendant then offered to prove by the witness that the bar-keeper said to plaintiff, “No, you have had enough,” but the court excluded it. The other material facts appear in the opinion.
    Mr. Benjamin D. Lucas, and Messrs. Weldon & McNulta, for the appellant:
    The burden of proving that he exercised ordinary care was on the appellee. Dyer v. Talcott, 16 Ill. 300; Chicago, Burlington and Quincy R. R. Co. v. Hazzard, 26 Ill. 377; Chicago, Burlington and Quincy R. R. Co. v. Damerell, 81 id. 454; Kipperly v. Ramsden, 83 id. 355; Indianapolis and St. Louis R. R. Co. v. Evans, 88 id. 63; President, etc. v. Carter, 2 Bradw. 34; Chicago City Ry. Co. v. Lewis, 5 id. 245.
    Declarations of a third party to plaintiff about a matter material to the issue are competent evidence. Wharton on Evidence, (2d ed.) sec. 1136; Jewett v. Banning, 23 Barb. 15; McClerhan v. McMillon, 6 Pa. St. 366.
    The negligence complained of must have caused the injury. Chicago and Rock Island R. R. Co. v. McKean, 40 Ill. 218; Chicago, Burlington and Quincy R. R. Co. v. Lee, Admr. 60 id, 504; Chicago, Burlington and Quincy R. R. Co. v. Van Patton, 64 id. 514; Chicago, Burlington and Quincy R. R. Co. v, Lee, Admr, 68 id. 583.

      If appellee failed to exercise ordinary care he can not recover. Dyer v. Talcott, 16 Ill. 300; G. C. W. R. R. Co. v. Jacobs, 20 id. 478; Grand Tower Manf. and Trans. Co. v. Hawkins, 72 id. 388; Chicago and Alton R. R. Co. v. Becker, 76 id. 26; Chicago, Burlington and Quincy R. R. Co. v. Harwood, 80 id. 90; Illinois Central R. R. Co. v. Green, 81 id. 24; Kipperly v. Ramsden, 83 id. 357; Illinois Central R. R. Co. v. Hetherington, id. 515; Indianapolis and St. Louis R. R. Co. v. Evans, 88 id. 64; Chicago and Northwestern R. R. Co. v. Scates, 90 id. 587; Illinois Central R. R. Co. v. Patterson, 93 id. 294.
    The law is, that unless appellee was struck at the street crossing, he can hot recover. Illinois Central R. R. Co. v. Hetherington, 83 id. 510; Illinois Central R. R. Co. v. Godfrey, 71 id. 500; Lake Erie and Western Ry. Co. v. Zoffinger, 10 Bradw. 252; Jefferson and Madison R. R. Co. v. Goldsmith, 47 Ind. 43; Gill v. Pennsylvania R. R. Co. 59 Pa. St. 129 ; Railroad Co. v. Norton, 12 Harr. 465; Railroad Co. v. Mulheim, 81 Pa. St. 366.
    Mr. N. B. Reed, and Messrs. Eifeb & Phillips, for the appellee:
    The declaration of the bar-keeper to the plaintiff was clearly incompetent to prove the fact sought to be shown thereby. 1 Greenleaf on Evidence, sec. 199 ; Child v. Grace, 2 Carr. & Payne, *193; Commonwealth v. Kinney, 12 Metc. 235.
    The negligence alleged was, first, there was no light on the west end of the train at the time it crossed Howard street; second, the bell was not rung; third, the train, when approaching, was running at a high rate of speed; and fourth, there was no person on the west end of the train to watch the track or give warning of danger. The jury must have found some of these allegations of carelessness were proven, and if so, the recovery was rightful.

      This case has been tried three times, each and every trial insulting in a verdict for the plaintiff.
   Per Curiam :

This action was brought by John Zoffinger, against the Lake Erie and Western Railway Company, to recover for personal injuries sustained by plaintiff, caused by a train of cars defendant was moving over the track of the Indianapolis, Bloomington and Western railroad, in the city of Bloomington. On the trial plaintiff recovered a judgment for $3500, on which the circuit court rendered judgment against defendant. That judgment was affirmed, on appeal, in the Appellate Court, and defendant brings the case to this court on its further appeal.

After'a careful consideration of the entire record, no tangible ground is perceived on which a reversal of the judgment in this ease can be based. There was a direct conflict in the testimony touching almost every material fact in the case; but the jury found the issues in favor of plaintiff, and that implies a finding of every fact the evidence tends to establish in favor of plaintiff that was necessary to sustain the action. The Appellate Court, by its judgment of affirmance, having found the facts the same way, its findings are, of course, conclusive on this court, under the statute.

There is evidence tending to show plaintiff was struck by the cars being moved by defendant, at or on the crossing of Howard street; that the train was being run at ah unusual rate of speed; that no bell was rung or whistle sounded ; that there was no light on the forward car that struck plaintiff, and that plaintiff was observing due care for his safety. As there w'as some evidence tending to establish these facts the jury must have so found, and the affirmance of the judgment in the Appellate Court implies a finding of the facts the same way. Conceding the facts to be as they must have been found, a clear ease is made in favor of plaintiff, where' a recovery is fully justified.

The evidence admitted which it is insisted was improperly allowed, is of too trifling a character to be made the ground of a reversal of a judgment where the facts are as the jury must have found them. It could not in the slightest degree affect the defence sought to be made, and defendant was not in the least prejudiced by its admission. There was no error in excluding what the bar-keeper may have said to plaintiff when he called for something to drink at his counter. No principle is suggested on which such declarations are admissible. All that was sought to be proved was, whether plaintiff was then under the influence of intoxicants. The remark made by the witness was not proper to show that fact. If that was his condition, it was subject to proof as any other fact in the case. What the witness said to him was not proper to show his condition.

But two instructions were given for plaintiff. Neither of them contains any bad law. So far as they assume to state the law, it is formulated with sufficient accuracy. On the other hand a great number of instructions,—fifteen in all,— were given for defendant, which state every conceivable principle of law defendant deemed applicable to the facts of the case. There can be no just ground for complaint on account of instructions given at the trial. Indeed, the charges given were very favorable to the defence defendant was endeavoring to make.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.