author: Mr. Justice Mulkey

text:
    The City of Kankakee v. William Potter et al.

      Filed at Ottawa January 25, 1887.

    1. Special assessments—sufficiency of the ordinance, as to the nature and description of the improvement. An ordinance provided that the sewer through an alley in a given block of the town be reconstructed, and deepened to as great a depth as its connection with another sewer named would admit, the grade of bottom to be as thereafter established by the city surveyor, and. after fixing its locality, provided that the character of the work should be the same as the then present sewer, and that the materials in the old sewer should be used in the new, as far as possible: Held, that the ordinance was defective in failing to give, with sufficient certainty, the character, nature and description of the proposed reconstruction of the sewer, and that no special assessment based on the same could be enforced.
    2. If the ordinance which is the foundation of a special assessment does not contain a description of the nature, character and locality of the improvement, the court will have no authority to confirm the assessment.
    3. Same—degree of certainty required in ordinance. The ordinance for the proposed improvement must prescribe the nature and character thereof with such definiteness and certainty as to furnish data for an intelligent estimate of its cost. When it can not he gathered from the ordinance itself whether a sewer is to be built of brick, stone, iron or wood, or what are its dimensions or capacity, it will be insufficient to justify a special assessment.
    4. It is not necessary that an ordinance for the construction of a sewer by special assessment shall set forth the details and all the particulars of the work. A substantial compliance with the statute is all that is required.
    Appeal from the County Court of Kankakee county; the Hon. James N. Orr, Judge, presiding.
    Mr. K. A. Ballinger, for the appellant:
    The nature, character and description of the improvement contemplated in this ease, are fully given in the ordinance. The block is named, and the commencement and end of the proposed sewer are given, and its course is made the same as the then existing old sewer. The ordinance provides that the sewer to he reconstructed and deepened is an “old sewer,”— one of which the property owners were bound to take notice. That is certain which is capable of being made certain. Here, reference is had to the old sewer, and the materials thereof were to be used. Village of Hyde Park v. Borden, 94 Ill. 26; People ex rel. v. Sherman, 83 id. 165.
    The ordinance does not delegate power and discretion to the city surveyor in determining the bottom of the sewer. His duties are purely ministerial. Lake v. Decatur, 91 Ill. 596; Foss v. Chicago, 56 id. 354.
    As to what is a delegation of municipal powers which is prohibited, see 1 Dillon, secs. 1, 96, p. 124; 3 Vroom, 548; 9 id. 95; Hitchcock v. Galveston, 96 U. S. 341; 4 Bush, 464.
    The objections present mixed questions of law and fact. A plea presenting such question is bad. Insurance Co. v. Westenhauser, 75 Ill. 285.
    Mr. William Potter, for the appellees:
    The ordinance recital in the petition provides that the sewer in the alley in block 24, and connecting with the public main sewer on Station street, be reconstructed, and deepened to as great a depth as its connection with said Station street sewer will admit of, the grade of bottom to be as1 hereafter established by the surveyor, the character of the work to be the same as in the present sewer,—“the materials in the old sewer to be used in the new, as far as possible.”
    The statute requires a description of such improvement to be specified in the ordinance. Starr & Curtis, sec. 135, p. 493.
    An ordinance of this kind is fatally defective if it fails to describe the nature and character of the proposed improvement. City of Sterling v. Galt, 117 Ill. 11.
    The law places the responsibility of prescribing what improvements shall be made, in the mode, manner and extent of them, with the common council. There is no authority for leaving it to the discretion of the board of public works, in the mode, manner or extent of the improvement, and an ordinance which undertakes to vest such discretion in that board is void. (Foss v. Chicago, 56 Ill. 354.) To the same effect are the following cases : Wright v. Chicago, 60 Ill. 312; McDonnell v. Chicago, id. 350; Moore v. Chicago, id. 243; Union Building Association v. Chicago, 61 id. 439; Workman v. Chicago, id. 463; Walker v. Chicago, 62 id. 286.
    It is not sufficient that the ordinance refers to specifications on file in the city clerk’s office, as showing the nature and character ;of the proposed improvement, as that is not made the source of information. City of Sterling v. Galt, 117 Ill. 11.
    In the case of Lake v. Decatur, 91 Ill. 596, the court say: “The extent or character of the improvement was not delegated by the city council, but, with accurate precision, the character and extent of the work was fixed by the ordinance. ”
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal, by the city of Kankakee, from an order of the county court of Kankakee county, sustaining objections by certain lot owners to a special assessment made by the city for the purpose of reconstructing one of its sewers. The only question to be determined is, whether the ordinance under which the assessment was made, sufficiently "describes the improvement proposed to be made. The,first section of the ordinance is the only one that has any bearing on the question, and is as follows ;

“Sec. 1. That the sewer extending through the alley in block number 24, original town of Kankakee City, and connecting with the public main sewer on Station street, be and the same is hereby ordered to be reconstructed, and deepened to as great a depth as its connection with said Station street sewer will admit of,—the grade of bottom to be as hereafter established by the city, surveyor,—said reconstruction and deepening to begin at the south line of Merchant street, and made continuous in the line of said sewer southerly through said block 24, and across Station street to its connection with Station street sewer,—the character of the work to be the same as in the present sewer, the materials in the old sewer to be used in the new, as far as possible,—said work to be done under the supervision of the street commissioner and city surveyor. ”

The section of the statute under which this ordinance was passed, provides, that “whenever such local improvements are to be made, wholly or in part, by special assessments, the said council in cities, or board of trustees in villages, shall pass an ordinance to that effect, specifying therein the nature, character, locality and description of such improvement.” (1. Starr & Curtis, chap. 24, sec. 135, p. 493.) Does the ordinance conform to the requirements of the statute ?

The part of the section cited has, on a number of occasions, been before this court for consideration. We say “consideration,” rather than “construction,” for the words of the act are so palpably plain and unequivocal that there is really nothing in it to construe. Indeed, any attempt to state what the language cited means, would, if successful, necessarily be a mere echo of the very words used. Thus, in Levy v. City of Chicago, 113 Ill. 650, where the validity of a special assessment was involved, and the present question being then under consideration, it was there said: “Under this statute, it is plain, if the ordinance, which may be regarded as the foundation for the assessment, does not contain a description of the nature, character and locality of the improvement, the court would have no authority to confirm the assessment. Indeed, no intelligent estimate of the cost of the improvement could be made, * * * unless the ordinance prescribes definitely the nature and character of the improvement; hence the necessity for such a description in the ordinance.” The language cited is quite pertinent to the present case. It not only declared what the ordinance must contain, but states the reasons for it. As the ordinance' affords the only authority for what is proposed to be done by the municipality, there necessarily can be" no authoritative way of making that known, except through the ordinance, as required by the statute. It is the basis of all' contracts for the construction of the improvement, and must contain the data for estimating its cost. An estimate or contract for a local improvement, the nature, character, locality and description of which are not contained in the ordinance authorizing such improvement, is without authority of law, and is therefore invalid. The rule laid down in Levy v. City of Chicago, supra, is substantially repeated in the recent ease of City of Sterling v. Galt, 117 Ill. 11.

The ordinance in the present ease clearly does not come up to the requirements of the statute, or conform to the rule as announced in the cases referred to, and others that might be mentioned. There is nothing in the ordinance from which a stranger could gather the slightest idea as to the nature of the sewer to be built, its size, or probable .cost. Is tiling to be used in its construction, or is it to be built of brick, stone, iron or- wood ? What are to be its dimensions or its capacity ? None of these questions are answered by the ordinance. It is true that one familiar with the old sewer would have some idea as to what was intended by the framers of the ordinance, so far as the character of the work is concerned, and would be justified in inferring that the new sewer was to be built out of the same kind of material as was used in building the old one;. but that is all. A stranger, however, could tell nothing about these things from the ordinance itself. -An ordinance .thus drawn does not meet the requirements of the statute. It is- not expected that an ordinance of this kind should set forth the details and all the particulars of the work. Indeed, this is not contemplated, and the statute requires nothing of the kind. A substantial compliance with its provisions is all that is required. Less than this will not suffice. The law, executed according to its obvious import and meaning, imposes no hardship, or even inconvenience, but serves as a wholesome safeguard against carelessness and fraudulent conduct on the part of those having charge of municipal affairs.

The judgment of the court below being in harmony with the views here expressed, is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Shops

license: Public Domain

text:
    The Northwestern Mutual Life Insurance Company v. Martha E. Amerman.

      Filed at Ottawa January 25, 1887.

    .1. Insurance—waiver of condition by accepting premium with 7ro< edge, of its breach. Generally,"the ‘receipt -of .the premium by ah insurer after knowledge that a condition of the policy has been broken, will amount to a waiver of the condition.
    2. A condition in a policy of insurance, that the insured shall not engage in a particular occupation, being for the benefit and protection of the insurer, may be waived, either before or after breach thereof; and when the agent of the insurer, knowing'of the right of forfeiture, permits the assured to pay the premium, the- latter relying on his policy as valid and subsisting, the company will he held to have waived the condition.
    3. Same—when acceptance of premium is not a waiver. ■ But where the assured, while engaged in a prohibited occupation, pays a premium with full knowledge that the company does not waive its right to declare a forfeiture for the breach of a condition in hi? policy, and for the purpose, only, of preventing a lapse of his policy, so that it may hold good after he quits such occupation, the company will not be estopped from-insisting on the forfeiture in case of the death of the assured while in the prohibited occupation, and no recovery can be had on the policy.
    4. Same—evidence as tending to show intention with which premium was paid and received. A policy of insurance contained a condition of forfeiture in case the assured should engage in the business of brakeman, or in the switching or coupling and uncoupling of railroad cars. Consent to engage in such business was refused, and the assured was advised to take an accident policy, and keep up his payments, so that his policy might be good when he ceased to engage in the prohibited business. He paid a premiuA while engaged in coupling and uncoupling cars. The insurance agent, at the time of his payment, informed him that if he got killed while braking on the train, his policy would amount to nothing, hut if he died in any other way liis policy would be good, and he replied that he would pay his premiums with that understanding: Held, error to exclude this evidence, as it tended to show there was no waiver of the condition relied on by the assured, when he paid the premium.
    5. Same—receipt of premium not a neto contract of insurance. Where a life policy of insurance provides for the paj’ment of semi-annual premiums in advance, a receipt of a premium providing that payment thereof makes the policy binding for six months from the date thereof, is not a new contract of insurance, but its effect is to prevent a forfeiture for non-payment of the premium falling due at its date.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Beoria county; the Hon. David.McCulloch, Judge, presiding.
    Messrs. Cratty Bros., Messrs. Fuller & Gallup, and Mr. Miles A. Fuller, for the appellant:
    It is only when the assured has been led to believe, by the acts and dealings of the company that a right of forfeiture will not be insisted on, that it will be estopped from setting up such defence. May on Insurance, sec. 361; Insurance Co. v. Warner, 80 Ill. 413.
    The receipt having been offered in evidence as showing payment after a right to declare a forfeiture, the parol testimony of Feger was propel" to explain the transaction, and show that it was no waiver of the company’s rights. White v. Morrill, 32 Ill. 511; Ditch v. Volkhardt, 83 id. 184.
    Mr. S. S. Bage, for the appellee:
    In hehalf of appellee we insist that the notifications, and the acceptance of the premium on August 11, 1882, knowing the employment of Amerman, was a waiver of the condition in the policy. The company was notified through its agents, Deane & Bayne, April 20, 1882, and through its agent, I. N. Feger, August 11, 1882. Notice to the agents is notice to the company. Insurance Co. v. Spankneble, 52 Ill. 53; Insurance Co. v. Wright, 22 id. 462; Insurance Co. v. Scheuler, 38 id. 166.

      Acceptance of the premium, knowing the policy is subject to forfeiture by reason of the violation of a condition, is a waiver of the condition, and the policy will be binding. Insurance Co. v. Barringer, 73 Ill. 230.
    It would he a fraud to permit the company to receive the premium when they knew the policy was not binding, and which they never intended to pay. Insurance Co. v. Spankneble, 52 Ill. 53. To the same effect, see Insurance Co. v. McGuire, 51 Ill. 342; Insurance Co. v. Jones, 62 id. 458; Insurance Co. v. Slaughter, 12 Wall. 404; Insurance Co. v. Warner, 80 Ill. 410; Insurance Co. v. Slockbower, 26 Pa. 199; North Berwick Co. v. Insurance Co. 52 Maine, 336; Viele v. Insurance Co. 26 Iowa, 9.
   Mr. Justice Shops

delivered the opinion of the Court:

On the 11th day of February, A. D. 1882, the Northwestern Mutual Life Insurance Company issued a policy upon the life of David A. Amerman, in the sum of $1000, payable at death, to appellee, his wife. The policy provided for the payment of semi-annual premiums by the assured, on or before noon of the 11th day of the months of February and August of each year, and contained the conditions, among others, that if the premiums should not be promptly paid when stipulated, and “if the said person (the assured) shall be personally engaged * * * as engineer or fireman of any locomotive engine, or in switching, or coupling or uncoupling cars, or be employed in any capacity on the trains of a railroad, except as passenger or sleeping ear conductor, mail agent, express messenger or baggage master, * * * without, in each or either of the foregoing cases, having first obtained the written consent of the company, * * * then, and in every such ease, this policy shall be null and void.” The assured, at the time of issuing the.policy, was a clerk in the office of the Wabash railway company, but shortly afterwards went upon that railroad in the capacity of brakeman, and was subsequently promoted to the position of conductor of a fr.eight train. It appears, from the evidence, that part of his .duty as such conductor was to couple- and uncouple cars of his .train, and while thus engaged on the morning of the 11th day of February, 1883, he ivas caught between the ends of projecting timbers with which the cars were laden, and so injured that he died at eight o’clock A. M. of that day. The consent of the company to his entering upon the prohibited employment had not been obtained. After engaging in the employment of braking, the assured wrote to the State agents of appellant, advising them that he was so engaged temporarily, while expecting something better, and asking them, what change .would be necessary in his policy, if any. This was on the 20th day of April, 1882, and on the first day of May these agents replied as follows :

“Chicago, III., May 1st. 1882.
“D. A. Amerman,.Esq., 809 Maple' St.-, Peoria, III.
“Dear Sir—Your favor at hand. I ain sorry the company will hot -issue-permit for your present business. Let me tell you what to do. ’ Take outran accident policy for six months or á year. In the meantime you may quit braking,, when our policy would be good. The accident policy pays you in ease of death by'or resulting from accident, and pays you a weekly compensation while you are laid up. You can not probably get a life policy in any first-class company for your present business. The accident policy will not cost you a large amount, and when you quit braking you will have our policy, which is as good as you can get.
“Mead & Dexter, of.this city, have a good accident company. I will have them write you.
Yours, Dean & Payne.”

It is obvious' that the assured, by entering into this employment, committed- á breach of the condition of the policy, and it is not claimed that the company is liable unless it has waived the condition, or has done some act that will estop it from interposing'the breach of the condition as a defence. The acts and declarations of the company relied upon as estopping the company from setting up a breach of the condition mentioned as a defence to this action, occurred after the receipt by the assured.of said letter.from Dean & Payne, and are, in substance, that on the first day of July, 1882, the company sent a notice to the assured that a semi-annual premium on his policy would be due on the 11th day of August following, at noon, and unless the same was paid the policy would be subject to forfeiture therefor, etc., and containing the statement, among others, that “members neglecting to pay are carrying their own risk; agents have no right to waive forfeitures; * * * prompt payment is necessary to keep your policy in force.” That before noon of August 11 the assured paid the premium, and received from the company’s agent the following instrument:

Northwestern Mutual Life Insurance Co.

Home Office, Milwaukee, Wisconsin.

And that afterwards, and on the 1st day of January, A. D. 1883, a like notice, in all respects, as that of July 2, was sent to assured, notifying him of the semi-annual premium falling due February 11, 1883. These facts are properly replied to the plea of the company setting up the breach of the condition in the respect named, as a defence.

In the court below, appellant company contended that the assured paid the premium with full knowledge that the company would not carry a policy on his life during his continuance in employment in the capacity of brakeman, etc., and-that lie made the payment in accordance with the suggestion of the letter of the State agents, for the purpose of preventing the lapsing of his policy, and for no other purpose, and that the company was not therefore estopped by the acceptance of the premium. At the trial, to maintain this contention, it put its local agent, Feger, upon the stand, who, among other things, testified: “Am agent for defendants; knew Mr. and Mrs. Amerman; became acquainted with them about the date of this policy; David A. Amerman paid all the premiums that were paid upon such policy; the date of the policy was the first one, and the second on August 11, following.

Q. “State what explanation, if any, you gave Mr. Amer-man at the time of delivering this last receipt to him, in reference to it (Objected to; objection overruled.)
A. “Well, I told him that if he got hurt while braking on the train, his policy would not amount to anything; but if he should die in any other way, he could collect his policy, and I guess he got the same from the company. He had written to the company before he came to me.
Q. “What reply did Mr. Amerman make to that, if any ? (Objection by plaintiff; objection overruled.)
A. “Well, he said he would pay it that way—with that understanding—which he did.
Q. “Was there anything else said at that time, that you recollect of, as explanatory of your question or his answer?
A. “I don’t know as there was.”

On motion of appellee, the court excluded from the jury the three foregoing questions to, and answers of, the witness, and the defendant, by its counsel, excepted.

It also appeared that the assured, at the time of his death, had an accident policy of $1000 upon his life, but when the same was taken out does not clearly appear.

It is contended by appellee, that the company having received the premium with full knowledge of the breach of the condition of the policy, is estopped from insisting upon such breach as a defence. It has been repeatedly held, in this State and elsewhere, that the receipt of the premium by the insurer, after knowledge that the condition of the policy had been broken, would amount to a waiver of the condition. Commercial Ins. Co. v. Spankneble, 52 Ill. 53; Reaper Ins. Co. v. Jones, 62 id. 458; Lycoming Ins. Co. v. Barringer, 73 id. 230. An examination of the cases so holding, however, will, it is believed, show that the assured, in each case, in paying the premium, was induced to do so relying on the validity of his policy, and that the act of the company, therefore, in receiving the premium, would estop it from setting up the forfeiture. In Commercial Ins. Co. v. Spankneble, supra, the company sought to interpose, as a defence, facts constituting a breach of a condition "of the policy, which were known to its agents to exist when the policy issued, and the court says: “To permit the company, when the omission was by their own agent, to now avoid the payment of the loss, * * * would amount to a fraud. * * * It would be a fraud to permit the company to receive the premiums when they knew that the policy was not binding, and which they never intended to pay. ”

Conditions like those under consideration, are inserted in the policy.for the benefit and protection of the insurer, and may be waived either before or after breach thereof, and when the agent of the company through whom it must act in dealing with the public, knowing of the right of forfeiture, permits the assured to pay the premium to the company, he relying on his policy as valid and subsisting, the company will be held to have waived the condition. It would be grossly inequitable to permit the company to receive the premium from an assured, who was induced thereby to rely upon his policy for indemnity, and then insist upon a forfeiture from facts known by it to exist when the premium was paid. This we understand to be the rule laid down by text writers, and supported by the adjudicated cases. May, in his work on Insurance, page 507, thus states the rule: “An estoppel arises when the insurer, having knowledge of the facts to which he has the right to take exceptions, or which constitute a defence against any claim under the policy, if he chooses to avail himself of them, so bears himself thereafter in relation to the contract, as fairly to lead the insured to believe that the insurer still recognizes the policy to be in full force. ” It is to be observed, that it is the eifect upon the insured that gives vitality to the estoppel, rather than the purpose or intent of the insurer, and unless the conduct of the insurer has in some way misled the assured, or induced him to do some act or neglect to do some thing to his prejudice, in reliance upon the acts or declarations of the insurer, there can be no estoppel. (May on Insurance, supra.) It is said by this court: “The doctrine of estoppel in pais is based upon a fraudulent purpose or fraudulent result. If, therefore, the element of fraud is wanting, there is no estoppel, as, if both parties were equally cognizant of the facts, and the declarations or silence of the one party produced no change in the conduct of the other, he acting solely upon his own judgment. There must be deception, and change of conduct in consequence.” (Davidson v. Young, 38 Ill. 152.) Again it is said: “There must be a change of conduct, induced by the act of the party estopped, to the injury of another, in order to prevent him from showing the truth. If the element of fraud or injury is wanting, there is no estoppel.” Flower et al. v. Elwood et al. 66 Ill. 447; Powell v. Rogers, 105 id. 318.

There can be no fraud if the parties to'the transaction are equally informed of all the facts, and act independently upon such knowledge equally possessed by both parties. Nor can it be said that one party has been misled or induced to do an act by the conduct or declarations of another, when there has been no suggestion of falsehood or suppression of the truth, by silence or otherwise, and the party acts, after full knowledge, upon his own judgment or according to his own inclination, (if, as before substantially stated, the assured •paid the premium under the belief, fairly induced by the acts and declarations of the agents of the defendant company, that the policy was to be in force while he continued in the prohibited occupation, the acceptance of the money by the company would estop it from insisting upon the condition of the policy as a defence. The mere act, however, of receiving or collecting the premium, by the insurance company, with knowledge of an existing right of forfeiture, has, so far as we know, never been held to estop the company from setting up such forfeiture, if the assured had no reason fairly to conclude, from the acts and declarations of the company, or its agents, that the forfeiture had been or would be waived, when he made the payment of the premium, or unless the payment was made in reliance upon the validity of his policy, induced by the acts, declarations or silence of the company. If the assured knew or understood that the company intended to insist upon the forfeiture for breach of the condition of the policy under consideration, if he came to his death by reason of or while in an employment in violation of such condition, and with such knowledge, for the purpose of keeping his policy from lapsing for non-payment of the premium, so that it might be in force after he should quit such employment, as suggested by the company’s State agents, or for any other reason he might deem to his advantage, paid the premium, the company might rightfully accept it for the purpose for which it was paid, without being guilty of fraud in setting up the breach of such condition, which it had never consented to waive, and which the assured knew it intended to insist upon. Manifestly, then, it was material to the inquiry to know whether the payment of the premium by the assured, August 11, ivas made relying on the validity of his policy, induced by the acts or declarations of the appellant company, or whether he knew that the company intended to insist upon the condition of the policy if death ensued in consequence of his employment. It might be greatly to his advantage to suspend the force of his policy temporarily, while so engaged, and revive it when the necessity for such enrployment ceased. It not unfrequently happens, we presume, that it is necessary or desirable for persons having life insurance, to engage temporarily in some occupation, or travel for business or pleasure in latitudes, prohibited by their policy. In this case the assured wrote to the State agents that he had entered the employment on the train temporarily, while waiting for something better, and was promptly informed by the company, through these agents, that the company would not carry the risk while he was so engaged.

If the position contended for by appellee is correct, then it follows, that the insurance company, though acting in the utmost good faith, could not receive the premium at the request of the assured and for~his benefit, with full knowledge on his part that the company would not carry a policy on his life or waive its right of forfeiture while the prohibited occupation continued, without being estopped from asserting its rights of forfeiture if death ensued from such employment. It would follow, that if the assured, from necessity, or because he might find it profitable or desirable, engaged temporarily in an occupation, or traveled in a latitude, not permitted by his policy, there is no alternative, he may not pay his premium to prevent his policy from lapsing for non-payment of premium, and thereby keep his policy in condition to revive when he resumes an insurable occupation, or returns to a locality in which, by the terms of his policy, he is permitted to .reside, hut he must permit the policy to lapse, and re-insure when the temporary prohibited occupation or residence has ceased, if lie desires so to do and remains insurable, at such increased rate of premium as his increased age may demand. We are not prepared to so hold.

It follows, therefore, that the evidence of the witness Feger, as it tended in some degree to show for what purpose the premium was paid, and whether or not the insured relied upon his policy as valid and subsisting insurance < while he was engaged in brajdng on the trains of a railroad,¿was improperly excluded by the trial court. All the facts and circumstances attending the payment of the premium, and illustrative of the acts of the parties in respect thereto, were, we think, pertinent to the issue made by the pleadings, and under proper instructions should have been submitted to the jury.

It is said in argument, that the evidence shows that Mrs. Amerman, plaintiff, paid the premium of August 11, in the absence of her husband. That may be true, yet the whole evidence on that subject should have been submitted. The questions of how much the proposed evidence establishes, and of the credibility of the witnesses, are for the jury. If the evidence tends to prove any matter material to the issue, it is admissible.

It is also contended that the receipt given is a new contract, extending the insurance six months from its date. This, wre think, is a misapprehension. It will be found, upon examination of the policy, that this receipt is issued under the third condition of the policy, and in pursuance thereof. No new contract of insurance ivas made or intended to be made. The only office of the receipt was to acknowledge the payment of the premium as required by the terms of the policy, and avoid the effect of the condition forfeiting the insurance for non-payment of the premium. New England Fire and Marine Ins. Co. v. Wetmore, 32 Ill. 242; Herron v. Peoria Marine and Fire Ins. Co. 28 id. 235.

This view will also dispose of the contention of appellee that the parol evidence offered and excluded, as before mentionecl, would have the effect to alter or vary a contract in writing, and was therefore inadmissible. The receipt, with evidence of contemporaneous acts and declarations, should go to the jury, under proper instructions as to the weight and effect to be given thereto.

After what has been said, no extended discussion of the instructions complained of will be- required, as,'no doubt, upon another trial,- they will be made to conform to the views here expressed.

The first and second instructions given for appellee, informed the jury, in substance, that if, after the assured was engaged as a brakeman on the trains of a railroad, the appellant company, with notice of that fact, by its agents, wrote the letter of May 1, and afterwards notified assured to pay the premiums on his policy, and collected and received the premium thereafter accruing, and gave assured the receipt mentioned,! with knowledge that assured was so engaged and employed, then the jury would be justified in finding that the appellant company, by its acts, had waived - the forfeiture provided for in said policy in case of such employment,— thereby, in effect, instructing the jury that the acts and declarations enumerated, as a matter of law, estopped the company whether the assured had been misled to his injury thereby, or not, or whether or not he had been induced, by the acts and declarations of the company, to pay the premium, alter his position in respect to the insurance, or take or neglect to take some other action in relation thereto to his prejudice, relying upon his policy as: valid and binding while he was so employed. These instructions, in this respect, were erroneous.

. For the errors indicated, the judgment of the Appellate and circuit courts will be reversed, and the cause remanded to the circuit court of Peoria county for further proceedings.

Judgment reversed.


author: Mr. Chief Justice Scott

text:
    William Ripley et al. v. The People’s Savings Bank et al.

      Filed at Ottawa January 25, 1887.

      Evidence—as shoii'ing ownership of funds garnisheed. The proceeds of the sale of certain railroad ties and cedar posts were garnisheed, in an attachment suit, as belonging to the defendant in attachment. The same fund was claimed by a bank, by way of interpleader. A written contract between the bank and the defendant, under which the bank furnished the defendant the means with which to procure such ties and posts, and by which it was agreed how they should be got out, by whom, and when they should be sold for the reimbursement of the bank, and that the proceeds should belong to the bank, w'as held properly admissible in evidence on the trial of the issue upon such plea, together with other evidence, for the purpose of showing to whom the funds attached belonged.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Schuyler & ICremer, for the plaintiffs in error.
    Mr. David Sullivan, and Mr. James T. Keena, for the defendant in error the People’s Savings Bank.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

It appears from the transcript of the record in this case, that William Bipley and Bradford W. Bipley commenced a suit in attachment against John Monaghan, and that certain parties were served with process, as garnishees. The suit progressed to judgment against the attachment debtor. The garnishees answered the interrogatories filed, admitting that certain sums of money were in their hands, and stating the sources from whence derived, and all the facts within their knowledge concerning the title or right to such funds. After-wards, the People’s Savings Bank of Michigan, interpleading, claimed the funds admitted to be in the hands of the garnishees, as their rightful property. On the trial, the Superior Court found the moneys belonged to the interpleading claimant, and so rendered its judgment. That judgment was affirmed in the Appellate Court for the First District, and the attachment plaintiffs bring the case to this court on error.

The only question made in this court is as to the admissibility of certain evidence offered by and received on behalf of the interpleading claimant. The cause was submitted to the court for trial, without the intervention of a jury, and it seems that much of the testimony, and perhaps all of it, was received" by the court, subject to any objection that could be raised to it.

The evidence objected to, consists, principally, of two exhibits attached to the depositions of certain witnesses whose testimony was taken on behalf of the interpleader, and two writings, designated as “bills of lading.” The latter papers are of no importance, one way or the other, and no discussion will be had in regard to them. The exhibits read in evidence are contracts between parties getting out cedar posts and railroad ties, and the provisions of these contracts show how and in what manner the posts and ties were to be got out, by whom, where to be sold, and to whom the proceeds which might be realized from the sales should be paid. It matters little what definition shall be given to either of these exhibits, whether defined as a chattel mortgage or a simple contract. It is plain, their provisions show to whom the money to be derived from the sales of posts and ties under such contracts was to be paid. The funds in the hands of the garnishees were moneys derived from the sale of posts and ties. Of this fact in the case no controversy is made. It would seem,' therefore, to be evident, these contracts were proper evidence to be considered by the court, in connection with the other testimony offered on the question whether the funds attached belonged to the interpleading claimant or to the attachment debtor. In this view, there was no error in admitting these contracts in evidence.

It was purely a question of fact to whom the funds attached belonged, and the finding of the issue in that regard by the Appellate Court, against the attachment plaintiffs, as was done by its judgment, this court is precluded, by the statute, from investigating further that point in the case.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Shope

text:
    Jacob Darst v. Mary Murphy et al.

      Filed at Ottawa January 25, 1887.

    1. Mortgage—of a deed absolute in form,—whether a mortgage—of evidence on that question. The true character of a transaction may be shown by parol, and if, upon a consideration of the facts, it clearly appears that the deed, though absolute in form, was taken as security for the payment of money, it will, in equity, be held a mortgage.
    2. Ordinarily, the intent of the parties is to be drawn from a consideration of the deed itself. Therefore, to change the character of the instrument by parol, by attaching to it a condition of defeasance, the evidence should be clear and satisfactory.
    3. The gist of the inquiry, in cases of this class, is, what was the purpose for which the deed was executed; and every fact or circumstance tending to illustrate the purpose and intent of the parties is receivable as evidence.
    4. The fact of an existing indebtedness, in respect to which the deed is executed, the retention of the evidence of such indebtedness by the grantee in the deed, that the deed was procured by fraud or oppression, that there was a loan of money, the subsequent conduct of the parties in respect to the land, as, that the grantor had retained possession, and the like, and, indeed, almost every conceivable state of facts legitimately illustrative of the transaction, has been held competent evidence on the question whether a deed absolute in form was intended as a mortgage, or security for the payment of money by the grantor to the grantee.

      5. The declarations and statements of the parties contemporaneous with the execution of the deed, are admissible, not for the purpose of altering or varying the terms of the written instrument, but as tending to illustrate whether a condition of defeasance should be added thereto in equity; but such declarations are not necessarily of controlling force and effect, as they may be but a device to cover usury, or to conceal a hard and unconscionable bargain, and the like.
    6. In this case, the inadequacy of the consideration, and the facts and circumstances under which a deed absolute in form was made, and the subsequent conduct of the parties in relation thereto, are stated, from which the court holds, the convej'ance was merely a security for the payment of a sum of money advanced by the grantee to prevent the foreclosure of a deed of trust previously given by the grantor.
    7. Laches—in what manner availed of. If the laches of a complainant is relied on as a defence to equitable relief by the defendant, he should set it up in his answer.
    Writ of Error to the Circuit Court of Peoria county; the Hon. David McCulloch, Judge, presiding.
    Messrs. Foster & Kellogg, for the plaintiff in error.
    Messrs. Hopkins & Hammond, for the defendants in error.
   Mr. Justice Shope

delivered the opinion of the Court:

The principal question presented by this record is, whether the deed of September 3, 1869, from Murphy to Darst, was intended as security for the money advanced by Darst to take up the note of Murphy to Mrs. Stewartson, or was intended to be an absolute conveyance. The instrument purports to convey an absolute title to the grantee, and must be regarded as fixing the rights of the parties, unless some equity is shown that will defeat that effect, and from which the court may grant the relief sought by the bill.

The law is well settled, that the true character of the transaction may be shown by parol, and if, upon consideration of the facts, it clearly appears that the deed, though absolute in its form, was taken as security for the payment of money, it will, in equity, be held a mortgage. Ordinarily, the intent of the parties is to he drawn from a consideration of the deed itself; therefore, to change the character of the instrument by parol, by attaching to it a condition of defeasance, the evidence should be clear and satisfactory.

The gist of the inquiry in cases of this class is, what was the purpose for which the deed was executed; and it will be found, by reference to the cases, that every fact or. circumstance tending to illustrate the purpose and intent of the parties is receivable as evidence. The fact of an existing indebtedness in respect to which the deed was executed; the retention of the evidence of such indebtedness by the grantee in the deed; that the deed was procured by fraud or oppression or undue advantage; that there was a loan of money; the subsequent conduct of the parties in respect to the land, as, that the grantor had retained possession, and the like,— and, indeed, almost every conceivable state of facts legitimately illustrative of the transaction,—has been held competent evidence. In some of the cases, as in Brown v. Gaffney, 28 Ill. 149, evidence of oppression and undue advantage, in connection with the peculiar facts of that case, is made prominent and controlling, and in that and other cases, as in Miller v. Thomas, 14 Ill. 428, the inadequacy of the price paid is made, under the circumstances there proven, a prominent element in the solution of the question involved. ‘The declarations and statements of the parties contemporaneous with the execution of the deed are admissible, not for the purpose of altering or varying the written instrument, but as tending to illustrate whether a condition of defeasance should be added thereto in equity. Such declarations, while admissible, may or may not be controlling. It may be, that the declarations are but a device to cover usury, or to conceal hard and unconscionable bargains, driven by a relentless or sharp and designing creditor, or the debtor may be misled into the execution of the deed, or, from the peculiar circumstances, shown incapable of understanding his relations to his creditor thereunder. In all such and kindred cases, equity will, if necessary to the ends of justice, look beyond the statements of the parties and written instrument, into the facts and attending circumstances, and give to the transaction its true character. An application of these principles to this case will relieve it of any considerable difficulty.

Murphy was old and illiterate, unfamiliar with the methods of business,—scarcely able to read or write,—and, as the evidence tends-strongly to show, much below the average, mentally, and incapable of comprehending the difference between a deed of trust and an absolute conveyance. The evidence also shows, and we think the facts of the case demonstrate, that he confided in those with whom he dealt, to take care of his interest as well as their own. Mr. Darst, on the contrary, was a sharp and successful business man, possessed of a high order of business ability, and who had amassed a fortune in real estate transactions. In 1859, Murphy, who was then living in Peoria, received money from Ireland, and with it, purchased the one hundred and sixty acre farm in controversy, and some years afterwards moved upon it. He testifies that he had implicit confidence in Darst, and the course of dealing tends. strongly to corroborate him. It appears, that on the lltli day of June, A. D, 1867, Murphy was indebted to Gardner T. Barker, in the sum of $120, and applied to Darst to borrow money with which to pay it. Darst declined to make the loan, but told Murphy he would take him where he could get it. On the way, he advised Murphy to borrow $300 and pay his debts. Murphy at that time owed Darst $50. They applied to Mr. Julius Starr, and he loaned Murphy $300, took his note therefor to Mrs. Stewart-son, with a trust deed on this same land to secure it. There is some conflict as to where all this money went to, but it is clearly shown that-$30 of the $300 was deducted out by Starr and credited on the back of the note as one year’s interest, at ten per cent. The second year’s interest ($30) fell due January 11, 1S69. On the 3d day of September, 1869, the interest and principal being due and unpaid, Murphy came to Peoria and endeavored to arrange the matter with Mr. Starr, but was unable to do so. Starr had either advertised a sale of the land under the trust deed, or was about to do so. He testifies: “The old man (Murphy) was there, (Starr’s office,) crying, and made a terrible ado because I was going to sell him out, and I got out of patience with him.” Darst and Murphy met at Starr’s office, and Murphy applied to Darst for the loan of money to take up the Stewartson note, which all agreed in saying amounted then to about $330. Murphy testifies that Darst agreed to loan him the money, and did so, and that the paper he signed was drawn- by Starr, and he -signed it, at Darst and Starr’s request, without its being read to him, and he supposed it "was in some way a receipt showing he had received the money of Darst. It is, however, shown by both Darst and Starr that he is mistaken in reference to the deed being read over to him. Mr. Darst’s version, taken from the abstract prepared by his counsel, is as follows: “I bought the land from complainant. It is described in the deed, (of September 3, 1869,) or his interest in it. He came into Mr. Starr’s office. I was sitting there, and he wanted to borrow some money. I told him I would not loan him any money,—that if he had any real estate to sell, I would buy it, if he sold it right; and then he said he would sell what interest he had in this same property that he put this deed of trust on. He said he did not want me to let his wife or family know that he had sold it. . He said he wanted to keep it from them. He would rather I would have it than his family, because they used him so mean,—that he did not expect to live long, and wanted me to let him stay, there as long as he lived. This was about all that was said at that time. The deed was made out then, and I paid Starr $300, and then we went down to the bank. I think we went down there for him to get some of those tickets I had, and get some more money, but I am not certain. I am satisfied he got some more money, because he always wanted some more money. The instrument that he signed at that time was fully explained to Murphy. He knew he was making me a deed of his land. ”

It is noticeable, if Mr. Darst is correct, that Murphy at once, without fixing upon any price for his land, upon Darst’s proposal to buy if he “would sell right,” closed with the offer, only asking that he be permitted to live on the land his lifetime. It is not stated that Darst even verbally consented to this request, while it is clear no reservation of his right of occupancy is mentioned in the deed, nor was any memoranda in writing made respecting it. We have said Murphy closed with the offer of Darst to buy. That offer was to buy if Murphy “would sell right,”—what was right was not discussed. -Mr. Darst made no other offer. Murphy fixed no price on his land. Mr. Darst further testifies: “After we made the bargain, we went into Mr. Starr’s, and he (Murphy) had him make this deed.”

We have given, in full, Mr. Darst’s account of that “bargain,” which culminated in the execution of this deed. He ■testifies that he has given “about all that was said at that time.” There is some conflict in the evidence as to who suggested that the consideration in the deed be expressed at $1000, but that is not material. It is not pretended that $1000 was ever paid. Darst paid Starr $300, and no more, but he testified he thinks he paid Murphy some money,— enough to make the whole amount paid, $400. He is, however, not definite in his recollection, and has nothing by which to refresh his memory. Murphy positively denies having received a dollar. The evidence shows the land worth, at the time of this transaction, from $5000 to $7000, from which should he deducted the inchoate right of dower in Murphy’s wife, in considering its value.

It appears, and is not contradicted or sought to be explained, that when Darst paid Starr the $300, the note was indorsed in blank, and delivered, with the trust deed, to Darst, w’ho retained them, and, under subpoena, produced them at the hearing. It further appears that the note is credited with two years’ interest. .The first was retained out of the money loaned. The second indorsement of interest is shown to be in Starr’s handwriting, and is as follows: “Deceived interest by Jacob Darst, until June 11, 1869, $30.—Mary J. Stewart-son, by Julius Starr, Atty. ” It is not pretended, nor can it be from this record, that anything was paid prior to September 3, 1869. But it is said by Mr. Darst, again quoting from the abstract: “I did not owm the note when the interest w'as paid, is my recollection. ” It is apparent that his recollection is at fault. If Darst purchased the land of Murphy, why take an assignment of the Stew'artson note? Being indorsed in blank, and remaining uncancelled, he, or any subsequent holder, could fill up the indorsement, and, in equity, thus transfer the security, the trust deed remaining uncancelled and of record. Again, if the transfer of the land was abso-. lute, why the particularity of the indorsement of the interest ? If, as Murphy testifies, Darst agreed to take up the note as a loan to him, it is at once apparent why the interest is credited as having been paid by Darst, and why the date became important. The note would then show that interest had not been paid to September 3, but only until June 11, and that Murphy not only owed the principal, but the interest indorsed as paid by Darst, as well. But if it was an absolute sale of the land, the notes belonged to Murphy, were paid, and should have been cancelled and delivered up to Murphy. Mr. Darst could not be the owner of the land, and the consideration paid for it, at the same time. It could hardly be that the assignment of the note, and its being kept in condition to be enforced against Murphy, was accidental, but it is evident, w7e think, that it was purposely and intentionally done, and evidence of the exact amount paid by Darst carefully preserved by him for a purpose. That purpose could only have been to preserve the evidence of the indebtedness of Murphy.

But this is not all. Darst testifies that Murphy said he would rather Darst would have the land than his family,— that he did not expect to live long, and wanted Darst to let him stay there as long as he lived. As before said, no written agreement was made or apparently thought of. No terms were mentioned between them, no rent reserved, no contract as to taxes, repairs or improvements even suggested. Murphy continued in possession without interruption, received all the proceeds therefrom, since the date of the deed to Darst, without interference by Darst in any way. He had paid all taxes, and so kept the place in repair, that, as he testifies, and is not contradicted, it could have been sold for $8000 shortly before the hearing. He was under no contract obligation to pay taxes or keep up repairs, if Mr. Darst’s understanding of the transaction is correct. During, all this time Darst made no other assertion of title than to place his deed of record. The declarations of Murphy, if Darst remembers them correctly, are not inconsistent with the theory that the money was advanced as a loan, except, perhaps, the declaration that he would sell his interest, and can readily be reconciled consistently with that theory, when the circumstances are all considered.

Some reliance is placed on the fact that Murphy permitted, substantially, ten years to elapse before asserting his right to redeem, and that he then, as it is claimed, endeavored to make a repurchase of the land from Darst. The obvious answer is, first, that Murphy swears that he did not know of the existence of the deed until after he had attempted to settle with Darst, and had actually paid him $300 on his claim. The weight of the evidence perhaps shows, that in the transactions relating to what Murphy calls a settlement with Darst, Darst used the words, that he would re-sell, and that Murphy could purchase, and Mr. Casey undoubtedly so understood it. It is, however, evident, if it be conceded that Mr. Darst is correct in that regard, that the arrangement was not consummated, and if the deed was in equity a mortgage, only, there was nothing in these subsequent negotiations to change its character, even if Murphy understood the effect of the language employed. He testifies that he first learned that Darst had an absolute deed to his farm, only a short time before filing the bill in this case, from Mr. Cutler, whom he had sent to effect a settlement with Mr. Darst. Mr. Cutler testifies that when he went to Mr. Darst, at Murphy’s request, Murphy had not informed him that any land was involved; that he asked Mr. Darst to see Murphy’s note, and permission to cast up the interest on it. Darst replied, he had a deed for Murphy’s farm, but said nothing about a note, one way or the other. Upon being asked what he would take for his claim against Murphy, he replied that his claim amounted to $1500, but he would take $1200. Mr. Cutler further testifies, that he told Murphy that Darst said he had a deed, and “the information affected him visibly^so much so that he wept about it.” It is true, that this conversation is explained by Mr. Darst as referring to the so-called attempted repurchase of the property, and, very probably, correctly so. It is abundantly shown, also, that Murphy was improvident, and, as before stated, the evidence tends strongly to show, by reason of mental incapacity, aggravated by his habits, he was incompetent to understand business of this character. Many neighbors and business men of Peoria, who have known him for years, dealt with him and knew of his affairs, testify to his want of capacity to transact business, and his uniform habit to leave the business to be done by the party with whom he was trading, if he was a person in whom he had confidence.

We are of the opinion, that, in view of this evidence, the fact of the lapse of- time without the assertion of his right to pay this debt, is of slight weight, when considered as an admission by Murphy of the absolute character of the conveyanee. We are of opinion that the deed was intended as a security, only, for the money advanced by Darst, and the circuit court was fully justified in rendering its decree permitting redemption therefrom. There is, as we understand, no fault found with the amount found by the master, and decreed by the court to be paid, if the decree is in other respects warranted.

We do not understand that laches in the complainant in asserting his equities, is relied upon as a defence. It is not set up in' the answer, as it should have been if relied upon as a defence, and is only incidentally, as it seems to us, referred to in the brief of plaintiff in error, and we refrain from further discussion of that question.

We are unable to perceive any error in this record warranting a reversal, and the decree will accordingly be affirmed.

Decree affirmed.


author: Mr. Justice Magruder

text:
    Henry S. Carpenter et al. v. The First National Bank of Joliet.

      Filed at Ottawa January 25, 1887.

    1. Amendment of declaration— on opening judgment by confession, to Zei in defence. Where a judgment by confession has been opened, and the * defendant allowed to plead, the. court may properly allow an amendment of the lteclarati°n, *° avoid a variance, when the note, warrant of attorney and cognovit are filed, and they show an error in the date of the note, as alleged in the original declaration.
    2. . Practice—opening and conclusion of the argument to the jury. Whether the plaintiff or defendant shall have the opening and close of a case, is generally deemed a matter of discretion, to be ordered by the judge at the trial, as he may think most conducive to the administration of justice; and an error in this respect is ordinarily not of sufficient gravity to call for a reversal.
    3. Where the defendant pleads the general issue, and also special pleas of an affirmative nature, he must withdraw the general issue before he can demand the privilege of opening the case. And if the defendant pleads the general issue, with a stipulation that all special matters of defence may be set up under it, he will not, merely by reason of affirmative matters thus to be allowed in defence, be entitled to open and close.
    4. Pleading—general issue, with a stipulation to permit special defences—effect in fixing the affirmative of the issues. Where a defendant files only the general issue, under a stipulation that the same defences which could be properly setup in special pleas may be introduced under the general issue, the same as though specially pleaded, the stipulation will not have the effect of making a special plea out of the general issue, but the cause will stand as though the general issue, and, in addition thereto, affirmative pleas, had been filed.
    5. Contract—executed without reading—whether binding upon maker. If a party signs a promissory note without reading it or understanding its ' contents, this will not relieve him of his liability as maker, when no artifice was used to induce him to sign the same, and he is a man of mature age, and able to read and.write, and had an opportunity to read and examine the paper before signing it, and to inform himself of its contents.
    6. Measure oe damages—for defect in quality of grain sold. Where grain sold proves to be not of the quality bargained for, the general rule is, that the purchaser is entitled to recover the difference between the contract price and the value of the article in the market at the time and place of delivery.
    7. This rule, however, is changed, when the vendor knows that the purchaser has an existing contract for a re-sale at an advanced price, and that the purchase is made to fulfill such contract, and the vendor agrees to supply the article to enable him to fulfill the same. In such case, the profits which would accrue to the buyer upon fulfilling his contract or re-sale, may justly be said to have entered into the contemplation of the parties in making the contract.
    8. Instruction—assuming disputed facts—ignoring elements in the case which ought to be considered. In an action upon a note given for the price of a lot of com purchased, in which damages were claimed for a defect in the quality of the corn, an instruction which assumes that the defendant had a contract for its re-sale at a particular place, at an advanced price, (which is a disputed fact,) and leaves out of consideration the question whether or not such a contract did exist, or whether the vendor knew of its existence, and that the grain was bought to fulfill it, and whether he agreed to supply the same to enable the purchaser to fulfill it, is erroneous, and properly refused.
    9. Evidence—whether a sale was absolute or upon condition. Where it becomes a question whether a contract for the sale of corn was an absolute one on the day it was made, or was not to be such until after an inspection in Chicago, to which place it was shipped, and the corn was found to be of a certain grade, if the purchaser actually treats the corn as his own by making a sale of a part of it before the inspection could possibly have taken place, such conduct is evidence tending to show that the purchase was an unconditional one, and without reference to an inspection.
    ■ 10. Same — as to a matter not within the personal knowledge of the witness. Where a person shipping grain to market, through his agent there sells the same, not being present at the sale and having no personal knowledge of the price it sold for, is asked, when oh the stand, what price he received for the same, an objection to the question will properly be sustained, as his testimony would be based entirely upon the report made to him. In such case the testimony of the agent who made the sale should be taken on that question.
    ■ 11. Same—relevancy—as to what a party would have done, if he had known a particular fact. Where the issue being tried is whether the defendant’s purchase of grain was conditional upon an inspection of the same in Chicago, and whether the result of such inspection was correctly stated to the defendant, it is immaterial whether he would have made the purchase if he had known of the inspection, and there is no error in disallowing a question seeking to elicit that fact.
    12. Same—promissory note—as prima facie evidence of amount due. A promissory note is prima facie evidence of the amount due to the payee, so as to throw upon the maker, when sued thereon, the burden of showing a less amount due than that named in the same.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Will county; the Hon. Geo. W. Stiff, Judge, presiding.
    Messrs. Garnsey & Knox, for the appellants:
    There was error in refusing appellants the opening'and close of the case. Railroad Co. v. Bryan, 90 Ill. 134; Mills v. Oddy, 6 C. & P. 728; Hornan v. Thompson, 25 E. C. L. 654; Smart v. Raynor, id. 656; 1 Greenleaf on Evidence, sec. 75; Aurora v. Cobb, 21 Ind. 492.
    The judgment should have been arrested. Gould’s Pleading, chap. 10, sec. 55, p. 485; Stephen’s Pleading, 96; Tidd’s Practice, 922.
    The first refused instruction announced the correct rule of damages. Benjamin on Sales, sec. 871; Crabtree v. Kile, 21 Ill. 180; DeWolf v. McGinnis, 106 id. 554; Railroad Co. v.
      Cobb, 41 id. 141; Thorne v. McVeigh, 75 id. 84; Messmore v. New York County, 40 N. Y. 422.
    Mr. E. C. Hagar, Mr. A. 0. Marshall, and Mr. C. A. Hill, for the appellee:
    The party against whom judgment would be given in ease no proof was offered on either side; has the burden of proof, and the right to open and ■ close. Railroad Co. v. Ryan, 90 Ill. 126; McReynolds v. Railway Co. 106 id. 152; South Park Commissioners v. Trustees, 107 id. 489; Williams v. Sharp, 12 Bradw. 454; Huddle v. Martin, 54 Ill. 258; Kells v. Davis, 57 id. 261; Kent v. Mason, 79 id. 540; Colwell v. Brown, 75 id. 516; Harvey v. Ellithorpe, 26 id. 418; Topper v. Snow, 20 id. 434; Amos v. Hughes, 1 M. & R. 494; Wharton on Evidence, sec. 357; 1 Greenleaf on Evidence, sec. 76.
    The judgment ivas not void. Roundy v. Hunt, 24 Ill. 598; Chase v. Dana, 44 id. 262; Tucker v. Gill, 61 id. 236.
    If error appears in the record, the only remedy is by motion ■to set aside the judgment. Stein v. Good, 16 Bradw. 516; Stuhl v. Shipp, 44 Ill. 135; Rising v. Brainard, 36 id. 80; Keith v. Kellogg, 97 id. 147.
    In this case the error was a mere clerical one in the declaration, and was, under the authorities, released by the cognovit, even though the judgment was entered in vacation. Keith v. Kellogg, 97 Ill. 147.
    The rule is well established, that errors which may intervene in judgments by confession áre released, when the warrant of attorney and cognovit so provide. Freer v. National Bank, 73 Ill. 473; Hall v. Hamilton, 74 id. 437.
   Mr. Justice Magruder

delivered the opinion of the Court:

In this case a judgment by confession was entered in vacation. The note filed is dated June 19,1884. The declaration described the note, as dated July 19, 1884. Upon motion of the defendants, the judgment was opened, and defendants were allowed to plead. The case was tried before a jury, and the defendants introduced proof, in support of the matters of defence, insisted upon by them. After the judgment was opened, the circuit court permitted the plaintiff to amend its declaration by describing the note, as dated on June 19, instead of July 19. Defendants claim, that the judgment was void, because the date of the note was misstated in the declaration, and that the trial court had no power to permit the amendment. This position is wholly untenable. When the judgment was opened, and the defendants had pleaded, the case was under the control of the court. There was merely a variance.between the date in the note and the date in the declaration. The-note, warrant of attorney and cognovit were all a part of the files of the court, and showed, that there was a purely clerical error in the declaration, which the court had full power to correct from the papers already in the record. It was, moreover, such an error, as was waived by the agreement, in the warrant of attorney and in the cognovit, to release errors. Hall v. Jones, 32 Ill. 38; Frear v. Commercial Nat. Bank, 73 id. 473; Hall v. Hamilton, 74 id. 437.

Appellants, who were the defendants below, insist, that the circuit court erred in not permitting them to have the opening and closing of the case in the conduct of the trial before the jury. It is admitted, that appellee is not the owner of the note sued upon, but merely holds the legal title thereto for F. W. Woodruff and A. L. Jones, the real owners thereof. The note was given in part payment for corn sold to appellants by Woodruff & Jones,. The latter claim, that they made an absolute and unconditional sale of the corn to appellants on June 19,1884. On the other hand, the defence, set up by the appellants, on the trial below, was, that they agreed to purchase the corn, upon condition that five car loads of corn of the same kind, which Woodruff & Jones had shipped from Joliet to Chicago on June 19, 1884, should turn out, upon inspection in that city, to be of the grade, known as No. 2 corn; that, on June 20, 1884, they were induced' by statements, made to them by Woodruff & Jones, to believe, that the corn shipped to Chicago, had inspected as No. 2 corn, and, relying upon such statements, had closed the bargain for the purchase of the corn; that, about eleven days thereafter, and after they had shipped the corn to Philadelphia and had been forced to sell it there at a sacrifice, they learned, that the statements, which had been made to them, were false, and that the five car-loads, sent to Chicago, had proven, upon inspection there, to be of a grade, greatly inferior to No. 2 corn. Appellants claim, that, on the trial, they held the affirmative of the issues involved, inasmuch as the burden rested upon them to show the conditional character of the sale, and the failure of Woodruff & Jones to comply with the conditions, and that, therefore, they were entitled to have the opening and close of the case.

Whether the plaintiff or the defendant shall have the opening and close of the case, “is generally deemed a matter of discretion, to be ordered by the judge at the trial, as he may think most conducive to the administration of justice. ” (1 Green-leaf on Evidence, sec. 76.) In Huddle v. Martin, 54 Ill. 258, where the defendant, having admitted plaintiff’s account and set up payment, held the. affirmative, and, so, was entitled to open and conclude his case, but was not allowed to do so, it was held, that such an error “would not be sufficient to reverse a judgment just in itself, when a fair trial had been had upon the merits and on proper instructions. ” Upon the same subject, it was said, in Kells v. Davis, 57 Ill. 261: “So slight an error in practice ought not to be a ground for the reversal of a judicial proceeding in all other respects regular, and that does justice between the parties.”

Even if appellants were erroneously denied the privilege of opening and closing the case, we are unable to say, that any such injustice has been done them, as to justify us in reversing this judgment on that account. It appears, that the verdict is more than $1500 less than the amount claimed by the plaintiff to be due on the note. The judgment of the Appellate Court upon the facts is final, and we are bound to assume, that that court found the verdict to be sustained by the facts.

It is to be further noted, that, when the judgment ivas opened, the appellants filed a plea of the general issue, and it was stipulated, that the same defences, which could be properly set up in special pleas, might be introduced under the general issue the same as though specially pleaded. The stipulation did not have the effect of making a special plea out of the general issue. The cause stood in the same condition, as though the general issue, and, in addition thereto, affirmative pleas, had been pleaded. Where the general issue is pleaded, the affirmative rests upon the plaintiff, and he has the opening and closing. Where the defendant pleads both the general issue, and special pleas of an affirmative nature, he must withdraw the general issue before he can demand the privilege of opening and closing the 'case. (Harvey v. Ellithorpe, 26 Ill. 418; Chicago, Burlington and Quincy Railroad Co. v. Bryan, 90 id. 126.) In the ease at bar, the plea of the general issue was not withdrawn.

Appellants claim, that the first, third, eighth and ninth instructions, given for the plaintiff were erroneous, and calculated to mislead the jury. It is said, that, by the first and eighth instructions, the attention of the jury was directed to the execution of the note sued upon, as though that was the only question to be considered by them, and as though no defence to the note was allowable, if it should be found to have been made by the appellants. We do not think, that this view is correct. The two instructions, when taken together, very correctly announce, that the note was prima facie evidence of the amount due to the plaintiff, so as to throw upon the defendants the burden of showing a less amount to be due than that named in the note.

The defendants below introduced evidence, tending .to show, that they signed the note in a hurry, without reading it, and without really understanding its contents. In view of this testimony, the third instruction very properly told the jury, in substance, that such hurried execution of the note would not relieve the defendants of their liability, as its makers, if no artifice was used to induce them to sign it, and if they, being men of mature years and sound mind, and able to read and write, had an opportunity to read and examine the note, before signing it, and to inform themselves of its contents.

As has already been stated, one of the questions in dispute between the parties- was, whether the sale of the corn was made on June 19, or was consummated on June 20, after the inspection in Chicago was alleged to have taken place. The ninth instruction was, in substance, that, if the jury should believe, from the evidence, that, on June 19, appellants sold a part of the corn, purchased by them from Woodruff & Jones, and ordered certain other portions of it to be placed upon the floor of the elevator, in which it was stored, “or exercised any other act or acts of ownership over the said corn” on June 19, the jury would have a right to consider such acts, if proved, in connection with all other evidence, if any, in the case bearing on the question, in determining the date of the sale, and whether it was absolute or on condition. We see no objection to this instruction. If appellants actually treated the corn, as their own property, before the inspection, which was to determine whether it was No. 2 corn or not, could have possibly taken place, such conduct might have a tendency to show, that they had bought it unconditionally without any reference to such inspection.

It is further objected, that the circuit court erred in refusing to give what is called defendants’ first refused instruction, which has reference to the measure of damages. Many instructions were given for the defendants, which presented their side of the ease in a favorable light. The jury were told over and over again, that, if they should find the matters of defence, relied upon by the defendants, to be established by the evidence, the defendants “would have a right to set-off, in this action, any damages, which resulted to them thereby. ” The first refused instruction, however, sought to lay down a rule, not referred to in the other instructions, for the guidance of the jury in computing the damages. That rule was expressed in the following language: “The difference between what the grain of the best quality was contracted to be sold for, and what it actually sold for, in the market for which it was purchased. ”

All the parties, interested in this suit, live and do business in Joliet. The sale was made in Joliet, and the corn sold was in Jdiet at the time of the sale, and was there delivered. The evidence tends to show, that appellants were in the habit of buying corn to be shipped to Philadelphia, and that they purchased the corn in controversy for the purpose of shipping it to Philadelphia. The general rule is, that the purchaser is entitled to recover the difference between the contract price and the value of the article in the market at the time and place of delivery. (Messmore v. Lead Co. 40 N. Y. 427.) “This rule, however, is changed, where the vendor knows, that the purchaser has an existing contract for a re-sale at an advanced price, and that the purchase is made to fulfill such contract, and the.vendor agrees to supply the article to enable him to fulfill ¡the same, because those profits, which would accrue to the purchaser upon fulfilling the contract of re-sale, may justly be said to have entered into the contemplation of the parties in making the contract. ” (Idem.)

The refused instruction, considered with reference to the testimony, to which it was intended to apply, told the jury, that appellants were entitled to recover the difference between what they had contracted to re-sell the corn for in Philadelphia, and what it did actually sell for in Philadelphia. We think, that it is erroneous, and was properly refused. It assumes, that appellants had a contract for the re-sale of the grain in Philadelphia at an advanced price. This was a matter in dispute and to be determined by the jury from the evidence. It, furthermore, leaves out of consideration the question, whether or not, if such a contract did exist, Woodruff & Jones knew of its existence, and that the corn was bought to fulfill it, and whether or not they agreed to supply the com to enable appellants to fulfill it. If appellants were buying the grain for the special purpose of fulfilling a contract of re-sale in Philadelphia, that fact should have been communicated to Woodruff & Jones, before it could be made the foundation of special damages against them. (Illinois Central Railroad Co. v. Cobb et al. 64 Ill. 128; Thorne v. McVeagh, 75 id. 81.) Whether it was communicated or not was a matter in dispute between the parties, and the instruction was faulty in not submitting it to the jury.

Under the theory of the appellants as to the proper mode of computing the damages, it was, of course, necessary to show what the grain was actually sold for in Philadelphia. To that end, one of the appellants, when on the stand as a witness, was asked what he received from Philadelphia for the corn, so sold there. The court sustained an objection to the question, and its ruling, in that regard, is assigned for error. The ruling was proper. Neither of the appellants sold the corn, nor knew, of his own knowledge, how much it sold for. The testimony of the parties in Philadelphia, who made the sale there, should have been taken to show its amount. The amount received by appellants may have been less than the amount realized from the sale. The testimony called for by the question, would have been based altogether upon the report, made to appellants by the parties selling, as to what they realized.

It is, also, urged, that the court erred in sustaining an objection to the following question, which was addressed to H. S. Carpenter: “If, at the time .you purchased this corn of Woodruff & Jones, you had known of the inspection of the five cars in Chicago, would you have made the purchase?” The question was clearly improper. It was immaterial what either of the appellants would have done in a certain contingency. The question was, whether the purchase was conditioned upon the inspection of the five cars, and whether the result of such inspection-was correctly stated to appellants.

We do not deem it necessary to discuss any other of the numerous points, so elaborately discussed by counsel. After a careful examination of the whole of this lengthy record, we find no errors, which would justify a reversal. The judgment of the Appellate Court is,' therefore, affirmed.

Judgment affirmed.


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    The Chicago and Eastern Illinois Railway Company v. Fred Kamman et al.

      Filed at Ottawa January 25, 1887.

      Tender—acceptance—whether not in full satisfaction. A railway company, before suit brought, tendered to .a party a sum less than his demand, in full satisfaction,-which was refused, and upon suit brought before a justice of the peace, deposited the tender with the justice, to be paid to the plaintiff on condition it was accepted in full, which was again refused, and a trial had, resulting in a judgment for a larger sum than that tendered. After the judgment, the justice, on the advice of the plaintiff’s attorney, applied part of the deposit upon the costs, and paid the. residue to the plaintiff in part payment of the judgment, the latter not accepting the same in full satisfaction: Held, that a bill by the company to enjoin the collection of the balance of the judgment was properly dismissed. The question of authority, or want of authority, in the justice to make such application of the tender, it was not considered important to consider.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Franklin Blades, Judge, presiding.

      Mr. William Armstrong, for the appellant.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The present appeal is prosecuted by the Chicago and Eastern Illinois Bailway Company, to reverse a judgment of the Appellate Court for the Second District, affirming a decree of the circuit court of Kankakee county dismissing a bill for an injunction, brought by the company, against Ered Kamman, Christian Hecht and Peter Fina, to restrain the collection of a balance of $37.75 on a judgment recovered by Kamman, against the company.

There is no substantial difference between the parties in respect to the facts in this case. On the 17th of March, 1883, Fred Kamman brought an action against the company, before Christian Hecht, a justice of the peace, for a claim of $55, though the sum sued for was $200. After the service of the summons, and before the trial, the company, through its agent, John Lumberg, tendered Kamman $21.50 in full satisfaction of all claims against the company. Kamman refusing to accept the tender on the conditions imposed, the money was then deposited by the company with the justice, to be by him given to Kamman whenever he was willing to receive it on the conditions stated. On the 24th of the month, the day set for trial, the company was represented, before the justice, by Lumberg, its agent, at least for the purpose of proving the tender and reporting the result of the trial. The justice, after hearing the evidence on both sides, rendered a judgment in favor of the plaintiff, for $55. Subsequent to the trial, upon the advice of Kamman’s attorney, the justice, without any further instructions or order from the company, applied $3.75 of the sum deposited with him as a tender, in payment of the costs of the suit, and paid the remainder to Kamman in part satisfaction of his judgment, leaving a balance of $37.75 still unpaid. This balance remaining unpaid, the plaintiff sued out an execution on the judgment, and placed it in the hands of Peter Fina, a constable, who was threatening to levy the same, when the present bill was filed to perpetually enjoin the constable, justice, and plaintiff in the judgment, from the collection of the balance due thereon.

It is not claimed by appellant, nor is there any ground for such a claim, that the $ 17.75 paid Kamman by the justice was accepted or received by him in satisfaction of his judgment. Kamman swears: “Hecht paid me $ 17.75 after the trial. I did not accept it in full satisfaction of my claim. Hecht said he would not keep the money, because it was left with him to turn over to me.” The justice himself swears: “Kamman did not accept the money in full satisfaction of his claim. It was paid toward the judgment. ” There is nothing in the record contradicting the testimony of these two witnesses, and it is not claimed that there is.

Under the proofs, the utmost that can be claimed is, that the justice paid the money without the authority of the company, and that, prior to the trial, the company had made a tender of it to Kamman, on condition that he would receive it in full satisfaction of his claim, and that he expressly declined to do so. The contention of appellant is, that the receiving of the money, under the circumstances stated, operated as an absolute satisfaction of Kamman’s judgment, notwithstanding nothing of that kind was understood or intended, either by the justice who paid the money, or the plaintiff in the judgment, who received it, but exactly the contrary. This very novel, and, as it seems to us, startling proposition, to be made by one coming into a court of equity, where relief is rarely, if ever, granted, except upon the condition that the party asking it must evince a willingness to do equity, is urged with a persistence, and a seeming confidence in its soundness, that are rarely met with, notwithstanding the proposition in question is not, as we understand the eases relied on, supported by a single authority cited. Moreover, we have' gone outside of the briefs, and have examined, with some care, to see if we could find anything in the books tending to support appellant’s position, and have utterly failed to do so.

But this is not all. Learned counsel assert, with great positiveness, that the cases-cited on the other side, in opposition to this view, directly sustain his own position. Turning to these cases, we fail to find anything in them to justify such an assertion. Take, for instance, the case of Higgins v. Halligan, 46 Ill.173,—one of the cases referred to. That was an action of assumpsit to recover rent. The defendant pleaded non-assumgisit as to the whole amount claimed, except $125, and as to that, he pleaded a tender before suit brought, and that the same had been brought into court, etc. Issues were joined on them and other pleas in the case, and the cause was tried, resulting in a judgment for the plaintiff, and on appeal to this court by the defendant, the judgment wras affirmed. It is to be inferred from the opinion in the ease, that the $125, after having been brought into court, had been accepted by the plaintiff and applied on the claim, and it was contended by the defendant that its acceptance was a conclusive admission that there was nothing more due the plaintiff. In answer to this position this court said : “There is no authority cited on this point, and there can be none, for the doctrine is well established that accepting a sum tendered, if not accepted in full of all demands, does not conclude a party from proceeding for more,”—citing Ryal v. Rich, 10 East, 47. That is also one of the cases cited by appellees, and asserted, by appellant’s counsel, to sustain his position. That, too, was an action by a landlord for use and occupation of certain premises, in which the plaintiff also proceeded for double their value, because of a failure to surrender the premises after an alleged notice to quit, and one of the defences relied on was an alleged acceptance of a tender of what the defendant claimed to be due. The court, in considering this question, holds the following language: “If this tender of single rent had been accepted before the action brought, it would have been a question for the jury to have determined whether it were not a waiver of the landlord’s claim to the double value. If it were accepted after the action brought, it became a question with what intent it was received,—whether in part satisfaction of the double value, or as a waiver of it. At any rate, it is no estoppel in law, but an estoppel, if at all, arising out of the acts and intents of the parties. There can not, indeed, be a double satisfaction for the same thing; but the question is, in what sense the plaintiff received the money tendered and paid into court. ” So the question here is, with what intent was the money received. Whether the justice had any right to pay the money to Kamman, it is not important to inquire. Conceding he had not, the payment, no doubt, was made through ignorance of the law, and while that would be no justification for an unauthorized application of the money, it would in no way affect the justness of Kamman’s claim against the company, which is conclusively established by the judgment so long as it remains in force. Moreover, the justness of the claim before, it was merged in the judgment, is in nowise assailed or questioned by the present bill, and the complainant in the bill having had the full benefit of the payment in question, in the part liquidation of this confessedly meritorious claim, a court of equity will not lend its aid to set this transaction aside for a mere technical violation of law, which has clearly, so far as this record shows, worked the complainant no injustice, but will remit it to a court of law, to enforce whatever legal rights it may have, if any, growing out of the transaction.

Viewed from an equitable standpoint, there is clearly no merit in this ease, and the bill was therefore properly dismissed.

Judgment affirmed.