text:
    The City of Elgin v. Robert Beckwith et al.

      Filed at Ottawa January 25, 1887.

    1. Boundaries—accretions—of the rule for extending lines to take in an accretion. As a general rule, where new land is formed on a river bank by a change in the river, the riparian proprietor’s lands will be extended bylines drawn at right angles with the middle thread of so much of the river as lies opposite the shore line, rather than at right angles with the shore line. But this rule, under special circumstances, is subject to modification.
    2. Same—of evidence in reference to boundaries, in connection with the question of accretions. A town was laid out on the east bank of a river, the plat showing a street extending due east and west, sixty-six feet wide, up to the river, which ran in a south-easterly course, and a lot bounded on the west by the river, and on the south by the north line of the street. After the location of the town, the river receded some seventy feet to the west, leaving an accretion. The lot owner claimed all of the accretion north of a line from his south-west corner, extending to the river at a right angle to its general course, while the city claimed all of it south of an extension of the north line of the street to the river, and also a part of the accretion south of the south line of the street extended in like manner, thus making the street one hundred feet wide at the river bank. It appeared that the travel on the street over such accretion had been deflected to the south as it approached the river, to reach a bridge over the same. In ejectment, by the owner of the lot, to recover the accretion claimed by him, the city, which was the defendant, offered in evidence a deed for land south of the street, as extended due west, which the court refused to admit: Held, that the court erred in excluding the same, as it afforded a reasonable explanation why the street was wider at the river.
    3. In a case where it becomes material to show the north line of a public street over land formed by accretions since it was first laid out, as, whether in the same direction as the balance of the street, or whether at a right angle with the center thread of a river from which the accretion was formed, any evidence tending to show its true line, is proper; and it is error to exclude from the jury declarations of the plaintiff’s grantors, made when in possession of the land owned by the plaintiff, as to the location, and as to what was the true north line of the street.
    4. On the trial of an action of ejectment, for a strip of land formed by accretion to the former bank of a river, involving the question whether such strip was an accretion to a public street or to a lot of the plaintiff, whose deeds referred to a plat of a subdivision of a lot made by an assessor, which included the plaintiff’s, and to which some of his witnesses referred, the defendant offered in evidence the assessor’s plat of such subdivision, which the court excluded: Held, that the court erred in refusing to admit the same in evidence.
    5. Evidence—declarations of one in possession of land, as to boundary lines. Declarations in disparagement of the title of the declarant in possession of lands are admissible as original evidence. So when the boundary line of a lot is in dispute, and depends upon the true line of a street, the declarations of a former owner while in possession of the lot, as to the location of the line of the street, are admissible in evidence against one claiming under him.
    6. Dedication—for street by plat, over a river. Where the plat of a city bordering upon a river shows a street to the bank of the river, with lines marked “bridge, ” that is evidence that the party making such plat intended to dedicate the land for a street to the center of the stream, or at least so far as he could dedicate a highway. The dedication of land to public use, by plat or otherwise, is a matter of intention.
    7. Law and fact—line of a street—question of fact. What is the line of a street over ground formed by accretions, after the laying out and platting of the street, is purely a question of fact; and to state in an instruction, as a matter of law, what is such line, when it forms a boundary of land which is in dispute, is error.
    8. Instruction—assuming to settle a question of fact. An instruction which assumes to state, as a matter of law, what line is the north line of a street in a case where such line is a vital and disputed question, is erroneous, as being equivalent to a withdrawal of such question from the jury.
    9. Same—ignoring matters in defence. In an action of ejectment, an instruction virtually deciding the case for the plaintiff on a hypothesis which ignores certain matters tending to show' a defence, is erroneous.
    Appeal from the City Court of Elgin; the Hon. A. H. Barry, Judge, presiding.
    Mr. F. W. Joslyn, and Messrs. Sherwood & Jones, for the appellant:
    The declarations of. the grantor of appellees, concerning the boundaries of the land, and the extent of his possession, are competent evidence as part of the res gestee, and especially so when the declarant is dead. Greenleaf on Evidence, see. 109; Phillips on Evidence, (4th ed.) 311, 314; 2 Smith’s Leading Cases, 390; Van Deusen v. Turner, 12 Pick. 522;
      Bower v. Earl, 18 Mich. 376; Treat v. Strickland, 23 Maine, 234; Kinney v. Farnsworth, 17 Conn. 355; Nixon v. Porter, 34 Miss. 697; Morton v. Folger, 15 Cal. 275; Melvin v. Marshall, 22 N. H. 379; Stroud v. Springfield, 28 Texas, 649.
    Where a public right is involved, as in this ease, whfere the question to be determined is the location and boundary of a highway, it is competent to show, by persons acquainted with the facts and with the reputed boundary lines of a public highway, where, by common reputation, a given boundary of a street is. Greenleaf on Evidence, sees. 127, 145, and note ; Phillips on Evidence, (4th Am. ed.) p. 219, note 87; Boardman v. Reed, 6 Pet. 341.
    Reputation is of more weight than experimental surveys. 3 Rand, (Va.) 44.
    The court erred in rejecting proof of the deed to the city for the ground on the south of the street. This rejection wras, in effect, telling the jury that the city, under no circumstances, was entitled to a street more than sixty-six feet wide, even though it bought and paid for it.
    As the owners of this property used the assessor’s plat to determine the boundaries of this very land, it was admissible in evidence. Bowen v. Earl, supra; Harmer’s Heirs v. Morris, 1 McLean, 44; Lunt v. Holland, 14 Mass. 149; Davis v. Rainsford, 17 id. 207; Jones v. Johnston, 18 How. 150.
    The city owns the piece of land in controversy by dedication, and by user for the last forty-two years, exercising control over the same, and claiming title to the same as against the world; and this claim has been acquiesced in by all the owners of the land called for by the appellees’ deed. Acquiescence in boundaries determines the rights of parties. Yates v. Shaw, 63 Ill. 368; Thomas v. Saytes, 24 id. 363; Kerr v. Hitt, 75 id. 50; McCormick v. Barnum, 10 Wend. 104.
    The instructions took away from the jury every fact in the case, and in substance directed a verdict for the plaintiff. This was error. Railroad Co. v. Rector, 104 Ill. 296; High

      way Comrs. v. Highway Comrs. 60 id. 58; Ogden v. Kirby, 79 id. 555; McCartney v. McMullen, 38 id. 237; Grabe v. Nichols, 36 id. 92.
    Mr. B. N. Botsfobd, and Mr. A. B. Coon, for the appellees:
    By the dedication, the public, in respect to the street, became entitled to the same riparian rights as a lot owner whose lot was bounded on the river. Accretions, in such case, would be apportioned to the street and the adjoining lot owners, on the same basis as between individual owners. This rule of apportionment would give the fee of this disputed piece of land to the appellees. Kehr v. Snyder, 114 Ill. 313.
    We refer to the following authorities as applicable to all eases in dividing accretions : Valentine v. Piper, 22 Pick. 85; Gray v. Deluce, 5 Cush. 9; Knight v. Wilder, 2 id. 199; Sparhawk v. Bullard, 1 Metc. 95; Gould on Waters, sec. 162; Angell on Water-courses, 222.
    In construing grants or locating boundary lines, courses and distances must yield to monuments. Williams v. Warren, 21 Ill. 541; Miller v. Beeler, 23 id. 163; Kamphouse v. Gaffner, 73 id. 453; Hadden v. Shoutz, 15 id. 581; Lyman v. Gedney, 114 id. 388; Kruse v. Wilson, 79 id. 233.
    Acceptance of any proposed dedication is wanting, and non-user and abandonment, if necessary, can be successfully urged against the claim. Littler v. Lincoln, 106 Ill. 353; Winnetka v. Prouty, 107 id. 218.
    If the public acquires a new route for a street or road, this will amount to an abandonment of the former way. Grube v. Nichols, 36 Ill. 92; Champlin v. Morgan, 20 id. 181; Peoria v. Johnston, 56 id. 45.
    If the city purchased any lands, it was those accretions formed west of the platted street,, and was a part of the street before its purchase. The deed was therefore properly rejected.
    The assessor’s plat offered in evidence ivas not certified as the law required, and there was no preliminary proof that the owners of lot 6 had refused to plat the same, or that the assessor had required one made, or had directed the county surveyor to make one. Such plat was not binding on the lot owners unless assented to by them.
    The offer to prove the declarations made by Root and Dexter was rightfully rejected,—first, because the testimony was too loose, vague and indefinite to apply the declarations to the land; second, because there is no question of lost boundaries or disputed lines; and third, because these declarations, if competent, are estoppels in pais, and inadmissible in ejectment. Mills v. Graves, 38 Ill. 455; Stock Yards v. Ferry Co. 102 id. 514; Winslow v. Cooper, 104 id. 235.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This suit was brought in ejectment, by Robert Beckivith and Harriet Dickenson, against the city of Elgin. The premises described in the declaration is a piece of ground lying at or near the intersection of Chicago street and Fox river. It is claimed, the premises described are a part of lot 6, in block 20, of Gifford’s plat of Elgin, with the accretions thereto. Defendant filed the general issue, and a special plea disclaiming all interest in the land described in plaintiffs’ declaration, lying north of the north line of Chicago street, as laid on what is styled the assessor’s subdivision of lot 6, in block •20, of Gifford’s plat of Elgin. On the first trial of the cause the jury found defendant not guilty. Plaintiffs entered a motion for a new trial. That motion was by the court overruled, and plaintiffs then asked for a new trial, under the statute, which was granted to them. On the second trial the jury found for plaintiffs as to a part of the land described in the declaration. The motion made by defendant for a new trial was overruled, and the court rendered judgment, in the usual form, on the verdict.

The land described in the verdict,—the fee of which the jury found was in the plaintiffs,—is a triangular piece. The description is given by metes and bounds, as follows: “Commencing at the south-west corner of lot six (6,) block twenty (20,) as shown in James T. Gifford’s plat of Elgin; * * * thence running westerly in a direct line with the south line of said lot, to Fox river; thence running southerly thirty-three (33) feet along the bank of said river, to the north line of Chicago street, said last line being sixty-seven (67) feet from the north line of the block of buildings on the south side of said street; thence running easterly in a direct line to the place of beginning, being the premises described by the letter ‘A’ on Pease’s plat in evidence.” It is seen, from the evidence, that the land embraced by the description contained in the verdict consists wholly of accretions either to Chicago street or to lot 6, and the contention is as to which do the aceretions belong.

Concerning many of the facts in the case no controversy exists. No question is made that James T. Gifford owned the land east of the river covered by his plat of Elgin. His plat of the town was made and recorded on the 11th day of February, 1843. Lot 6, in block 20, is situated at the northwest corner of River and Chicago streets, as those streets are marked on the plat. Originally this lot was bounded on the east by River street, on the south by Chicago street, and west by Fox river. Nor is there any controversy that plaintiffs, through mesne conveyances, now own a part of lot 6, in block 20, that fronted on the river, as shown on the original plat of the town. It would seem that Chicago street, in Gifford’s plat, runs east and west, and that River street runs parallel with the river. The course of the river at that point, at the date of the making of the original plat, was from the north slightly to the south-east, so that River street crossed Chicago street obliquely. There was a bridge across Fox river, at the time the town was laid out by Gifford, at the west end of Chicago street, and the plat in evidence shows the street approached to the water line. Since then, two or three new bridges have been constructed, and in erecting each new bridge the abutments were placed farther ivest, on account of the accretions to the east bank of the river, so that now, according to some evidence in the case, the east bank of the river is over seventy feet west of the river margin in 1840. The land found by the verdict to belong to plaintiffs, as before observed, consists wholly of accretions, and lies south of the north line of Chicago street, if extended west in a direct line from the point where it originally touched the river bank, and north of a line projected west from the same point at right angles with what is claimed to have been the bank of the river when Gifford’s plat was made, its river front being thirty-three feet. It will be noted, the verdict finds the south line of the parcel of land described is the north line of Chicago street. That is a line projected west from the south-west corner of lot 6, at right angles with the margin of the river, as it was thought to have been when Gifford’s plat was made. It is this line that plaintiffs claim is the true north line of Chicago street, and if it can be maintained as the true north line of that street, then undoubtedly plaintiffs would own the acere- . tions to their property north of that line. On the other hand, defendants insist the north line of Chicago street is the north line of that street, as it is indicated on the original plat, extended west in a direct line to the present river bank. If that theory of the case is correct, then the land in controversy would be accretions to Chicago street, and would belong to defendant.

It will be recollected the verdict states the south line of the land in controversy, which is also stated to be the north line of Chicago street, is sixty-seven feet from the north line of the buildings on the south side-of the street, which, added to the frontage on the river bank, would make the street at the river bank one hundred feet wide, while the street, as originally laid out, is but sixtj’-six feet wide, and is only now that wide at the south-west corner of lot 6. An explanation of this fact is given in the evidence. Defendant offered to prove it had bought a parcel of land on the south side of the street of about the size of the triangular piece claimed on the north side of the street, but was denied the privilege to make that proof. This was an important fact in the case. It was a reasonable explanation why Chicago street ivas wider at that point than to the east, as it had been originally established. It was error in the court not to admit the Baymond deed for the land defendant claimed to have bought of him on the south side of the street. It does, however, appear, the street has been deflected to the south from the south-west corner of lot 6, so as to make the access easier to the bridge over the river as it is now constructed. It appears, also, the street has been so graded and worked as to turn the travel slightly to the south in the direction of the bridge. Between the south line of the land in controversy and the north line of the buildings on the south side of the street is sixty-seven feet, which, after taking off the land claimed, the street, at the present river bank, is one foot wider than the street is, as originally platted, farther to the east. Without the explanation defendant offered to make, by giving the Baymond deed in evidence, that fact may have made the impression on the jury that as the street would still be one foot wider than the original street, it was all defendant could claim at that point, and if so, it must have been hurtful to the defence.

It is obvious, from what has gone before, this litigation arises out of the controversy as to what is the true north line of Chicago street west from the south-west corner of lot 6 to the river bank as it now is. On this branch of the case the court excluded evidence offered by defendant that was both important and competent. It was the pivotal point upon which the whole case turned, and everything that would tend to establish that fact ought to have been permitted to go to the jury. Defendant offered to prove the declarations of some of plaintiffs’ grantors, since deceased, when in possession of the land now owned by plaintiffs, as to the location, and as to what was the true north line of Chicago street on the south side of the land. It was proposed to prove they recognized the line now insisted upon by defendant, as the correct north line of Chicago street. That was material evidence, and it was serious error to reject it. The rule of law on this subject is said to be well settled, that declarations in disparagement of the title of the declarant in possession of lands, are admissible as original evidence. It is upon the principle that possession is prima facie evidence of seizin in fee, and as his declarations make most strongly against his own interest, they are therefore admissible. Mr. Greenleaf, in his work on Evidence, says no reason is perceived why every declaration accompanying the act of possession, if made in good faith, should not be received as part of the res gesta, leaving its effect to be governed by the rules of evidence. 1 Greenleaf on Evidence, sec. 109.

The testimony offered might, perhaps, have been admitted on other well recognized principles; but be that as it may, the declarations of the parties in_ possession, offered to be proved in this case, were made in disparagement of their title, whatever it was, and under the strictest rule held by any of the cases upon this subject, such declarations were admissible, and the jury should have been allowed to hear that testimony, in connection with other evidence in the case.

In this connection it is proper to remark, the court ought to have permitted defendant to give in evidence what is called the plat of the assessor’s subdivision of lot 6, in which plaintiff’s property is situated. Plaintiffs’ deeds refer to this plat made by the assessor, and the witness that gave the most important testimony for them, referred to it, and it was otherwise so closely allied to the matters in controversy, the jury should have been permitted to consider it for what it was worth.

There are a number of questions made on this record that go directly to the merits of the controversy, that perhaps ought not now to be considered, since it is thought they were excluded from consideration by the instructions given for plaintiffs, and as to which, for that reason, there has been no finding by the jury. Many of the instructions given for plaintiffs state the same general doctrine, but it will afford an opportunity for an expression of the views entertained by this court, to consider only the first of the series. It is as follows : “If the jury believe, from the evidence, that in 1843, when the plat of the city of Elgin was made by James T. Gifford, the south-west corner of lot six (6,) block twenty (20,) and the west end of the north line of Chicago street, was then marked out, on said plat, on the east side or bank of Fox river, and that since that time said east bank has been extended further Avest, and the river narrowed thereby, either by natural causes or physical means, then the south line of said lot six (6,) and the north line of said Chicago street, would, by law, be extended westerly at right angles with the then east shore of the river, to the center line of said stream, and that such right-angled line would be, and now is, the legal south line of said lot six (6) and the north line of said Chicago street, over said new or made land. ”

The objections that occur to this instruction are numerous, and some of which seem to be fatal. First, it assumes to state, as a matter of laAV, what line would be the “north line” of “Chicago street.” That was the vital fact in the case. It is purely a question of fact, and should have been left 'to the determination of the jury. To state, as a matter of laAV, what is the “north line” in controversy, was equivalent to Avitlidrawing the question of fact from the jury, which was error. Second, but whether this charge states correctly the rule of laAV most generally observed for ascertaining the rights of riparian OAvners, is not a matter of much consequence in this particular case. It perhaps would have been nearer accurate to have said, a line drawn at right angles with the middle thread of so much of the river as lies opposite the shore line, instead of “at right angles with the then east shore of the river to the center line of said stream. ” It was a matter of contention between the -parties- whether the rule for ascertaining the rights of riparian owners, if correctly formulated, could have any application to the facts of the case. All the authorities concur in holding, special circumstances, in some cases, require a modification of the general rule on this subject. The rale, as stated by the court, admitted of no exception, and the jury were bound to regard it in all its strictness, no matter what circumstances may have been proved that would mdke a modification of the rule imperative. In this respect this and other instructions on the same subject were highly calculated to mislead the jury. Under the facts and circumstances proved, it was important to consider whether the rule as to the rights of riparian owners,- attempted to be stated, should not be modified, and the court should have so advised the jury.

There-is yet another, and perhaps still graver, objection to this instruction. It is, it adopts the theory of plaintiffs, that by law a certain line is the “north line” of Chicago street, and that being so, the jury could not do otherwise than find for plaintiffs. The effect was absolutely to take from the jury certain defences defendant was insisting upon, and which it had a right to have considered by the jury. One was, that defendant had been in the undisputed and actual ¡lossession of the land in controversy for more than twenty years, and therefore, by the statute, plaintiffs were cut off from any right of action to recover the same. Certain acts of dominion over the property by defendant were relied upon as showing possession for a longer time than the statutory period required to bar the right of entry by an adverse claimant. But whether that defence should prevail, is not a question to be now considered. The finding of the facts should be left for the jury.

Another defence insisted upon was practically excluded by the instructions given for plaintiffs. It is, that the land to the center of the river, as it was when Gifford made his plat, was dedicated for the purposes of a highway, in a direct line with Chicago street, if extended west. It is conceded, Gifford owned the land on the east bank of the river, and, of course, his title extended to the center of the stream. The plat made by the owners shows Chicago street to the bank of the river, and then, spanning the river in a direct line with the street, are lines-marked “bridge.” This is certainly some evidence that he intended the-street should extend to the center of the .stream, or so far. as he owned the soil. .. .Exactly what the evidence on this branch of the case may prove, it is perhaps not proper now to determine. It is sufficient enough appears to make it proper for the jury to pass upon it, and the court should not have told the jury, as was done by this instruction, the case should be decided on another view of the case, thereby ignoring altogether this defence. The dedication of land to public use, by plat or otherwise, is a matter of intention. That Gifford, when he made his plat of the town, intended Chicago street should extend over his land to the center of the river, is so evident it can hardly be a matter of dispute. The plat shows the street comes to the river bank, and the lines marked “bridge,” indicated unmistakably it should extend to the center of the stream, or at least so far as he could dedicate a highway. But how did he intend to dedicate it ? Was it intended to be in a direct line with Chicago street, west, over the river, or did he anticipate there would be accretions to the east bank of the river, and in that event the dedication should be in the direction of a line extended west, drawn at right angles with the then east bank of the river ? The latter would seem to be a most unreasonable conclusion, with nothing in the evidence, and very little in reason, in its support. Adopting this latter view, it would imply he must have anticipated -the accretions that have since formed, and that the street would consequently deflect south, as Chicago street does not approach the river' bank,at right angles, as originally laid out. All there is on the plat would seem to indicate the street should extend over the river in a direct line,—the lines marked to indicate a “bridge” are in a direct line with the street. But what ivas the intention of the owner when he made the plat of the town, and what he did do, are matters for submission to a jury.'

Some of the instructions given by the court, both for plaintiffs and defendant, may state the law more accurately, hut this one is so radically erroneous it may have misled the jury. Regarding it as a correct expression of the law, as the jury might well do, they could not do otherwise than find for plaintiffs, as they did. It gave a distinct theory, stated to be the law, upon which the case was to be decided, and that, of course, excluded effectually from the consideration of the jury all matters insisted upon as a defence to the action.

The judgment will he reversed, and the cause remanded.

Judgnieiit reversed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    William G. Wilson v. Logan H. Roots.

      Filed at Ottawa January 25, 1887.

    1. Contracts—construction of contracts—separate, writings construed together as one. Where different instruments are executed as the evidence of one transaction or agreement, they are to be read and construed as constituting but a single instrument.
    2. Same—parol evidence, in aid of construction of written contract. Although it is not competent to contradict or enlarge the terms of a written agreement by parol evidence, it is competent to resort to such evidence to ascertain the nature and qualities of the subject to which the instrument refers.
    3. Same—attendant circumstances, as manifesting intention of parties. Courts, in construing written contracts, endeavor in all cases to place themselves in the position of the contracting parties, so that they may understand the language, and in the sense intended by the persons using it.

      4. Same—contract for exchange of stock in an incorporated company for bonds of the same company—construed, in respect to the purpose of the exchange, etc. A contract for the exchange of stock in an incorporated company, organized for the manufacture of sewing machines, for bonds of the same company, provided that the first party should place in the hands of a custodian or depositary, properly transferred, $29,500 of the stock, and receipts of a third person, with proper assignments, of $15,000 more stock then loaned to such third person, making $44,500 of the stock, and that the second party should deposit $40,000 of the bonds of the same company, to be delivered to the first party by the custodian, upon satisfactory evidence that the company was producing three hundred sewing machines per week, the bonds to be delivered to the assignor of the stock, and the stock to the other party, and the contract further provided that each party should make his delivery within twenty days: Held, that it was the duty of the first party, within twenty days, to deposit with the custodian, evidences of unincumbered, properly transferred stock, to the amount of $44,500, and that the obligation to transfer the receipt for $15,000 of bonds which had been loaned, did not imply a sale of a claim on the maker of such receipt for so much stock, but that such person then held the bonds in such condition that he could return the same, and a reasonable time, only, was allowed in which the company should produce three hundred sewing machines per week.
    5. Same—condition construed—as to the producing capacity of a manufacturing company. Where a contract for the exchange of the bonds of a manufacturing corporation for stock in the corporation, is dependent upon its producing three hundred sewing machines per week, that number of complete machines must be the fan- average product of the week, evincing a continuous average capacity of that amount per week, to make the contract complete.
    6. Same—roilh whom a contract is considered as having been made, as giving the right to avail of its provisions. The owner of stock in a private corporation made a contract with another for its exchange for bonds of the same corporation, in which it was recited, that “for and in consideration of payments” made by the latter in purchasing the stock, the former had covenanted and agreed with the latter to give to such corporation -his unstinted, unreserved, hearty good will, active assistance, counsel, aid and advice, for the next three years, and to do all he could to make such corporation a complete success, and to assign to it certain other stock, and agreed to forfeit certain royalties to the corporation in case of his failure to perform his said covenants: Held, that the covenant was with the purchaser of the stock, and for his benefit as a stockholder, notwithstanding the corporation might also derive a benefit from the performance of the same, and that without performance by the covenantor he could not enforce the agreement as against the covenantee.
    .7. Same—contract for services, construed—as to the character of service to be rendered. Where a party contracted to give “his unstinted, unreserved, hearty good will, active assistance, counsel, aid and advice, for the next three years, through good and ill, and to do all, except financial management, that he” could “in any way do * * * to make the most complete possible success” of a sewing machine company, “without further request,” etc., it was held, that his duty was not negative or passive, but affirmative and active, and no request was necessary in order to fix his obligation in that regard.
    8. Same—rescission of contract—effect of providing a penalty for nonperformance. A party to an executory contract will not be denied the right to rescind the same for a breach thereof by the other party, on the ground that he might perform his part and then recover a penalty provided in the contract, in an action at law, for such non-performance.
    9. Same—the particular case, showing right to rescind. The holder of stock in a private corporation for the manufacture of sewing machines, by misrepresentation as to the value of the property of the corporation, and its capacity to make a large number of machines a week, and by his agreement and covenants to give his active aid and assistance in making the business of the corporation a success, and to transfer to it certain stock in a prior company which it had succeeded, induced another to enter into a contract, whereby he was to purchase of the former $44,500 of the stock of the new corporation for $40,000 of its bonds, the stock and bonds to be placed in the hands of a third person within twenty days, to be delivered upon a certain condition. The first named party failed to procure and deliver the stock, unincumbered, within the time prescribed, and could not, up to the time of the filing of the bill to rescind, make a clear title to the bonds, and generally had failed to perform his part of the contract: Held, on such bill filed, that the purchaser of the stock had the right to have a rescission of the contract.
    10. Same—whether time is of the essence of the contract. In general, time is not of the essence of a contract, unless so declared by the parties; but the rule has its exceptions, as, if the thing sold be of greater or less value, according to the effluxion of time, it is manifest that time is of the essence of the contract.
    11. So where a party had agreed to prepare a model for the manufacture of sewing machines by a corporation, the expense of which was $8000 or $10,000 a month, and a delay in bringing its factory to a profitable productive capacity, would necessarily depreciate the stock of the corporation in value, the time for the performance of the undertaking is necessarily of the essence of the contract.
    12. Appearance—as a waiver of defect in service. A defendant in an attachment suit, by the entry of his appearance and going to trial on the merits, waives any objection he may have as to the service of process on him.
    13. Estoppel—of the elements essential to an estoppel. One entitled to the assignment of stock in a private corporation, free of incumbrance, will not be estopped from urging an attachment of the same in a suit against his vendor, as affecting his ability to make a valid assignment, merely from the fact he may have known of the attachment and proposed ways for obviating the same, none of which were accepted, and when he has done no act to cause his vendor to change his course of conduct. In such case, the indispensable elements of an estoppel, fraud-and injury, are wanting.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Mohan, Judge, presiding.
    Messrs. Leaking & Thompson, for the appellant:
    The stock deposited by appellant, Wilson, with G-age, was properly transferred, as between Wilson and Boots, by Wilson’s indorsement of assignment and authority to Boots to make the transfer on the books of the corporation, on the certificates of stock. Railroad Co. v. Schuyler, 34 N.Y. 30; Leitch v. Wells, 48 id. 585; McNeil v. National Bank, 46 id. 325; Johnson v. Laflin, 103 U. S. 532; National Bank v. Watsontown Bank, 105 id. 217; Stone v. Hackett, 12 Gray, 227; Otis v. Gardner, 105 Ill. 436; Colt v. Ives, 31 Conn. 25; Kellogg v. Stockwell, 75 Ill. 68; Laing v. Burley, 101 id. 591; Lowell on Transfer of Stock, secs. 91, 96, 98, 99.
    Appellee, Boots, is estopped from claiming a forfeiture or annulment of the contract on the grounds of appellant not having properly transferred the capital stock in compliance with said agreement, by reason of subsequent acquiescence, showm by his conduct and correspondence with appellant, even if he had been entitled to so avoid it ivlien the knowledge of the failure first came to him. Boutwell v. O'Keefe, 32 Barb. 434; Noble v. Chrisman, 88 Ill. 199; Hanna v. Ratekin, 43 id. 462; Herman on Estoppel, pp. 335, 337, 340, 343, 457; also, secs. 331, 336, 463, p. 463, and sec. 469, and p. 464, and note.
    The agreement and conversations respecting the sale of the stock by Wilson, to Boots, of November 13, 1SS3, were all merged in the contracts in writing made on November 13, 1883, and no verbal agreement respecting the same matter prior to that time can he shown to contradict or vary the written agreements. Wadhams v. Swan, 109 Ill. 46; Manufacturing Co. v. Wire Fence Co. id. 71.

    Messrs. Peckham & Brown, and Mr. Thomas H. Pease, for the appellee:
    The agreement between Wilson and Boots, under which the deposits were made, was one and entire. Chestnut v. Chestnut, 15 Bradw. 442; Gardt v. Brown, 113 Ill. 475.
    Wilson prevailed upon Boots to make the agreement by fraudulent threats, and hence he can not have it enforced, and Boots may have it cancelled. Bowes v. Heaps, 3 Ves. & Beames, 117; Darley v. Singleton, 1 Wightw. 25; Roche v. O’Brien, 1 Ball & Beat. 330; Dunbar v. Tredennick, 2 id. 304; Gowland v. De Faria, 17 Ves. 20; Willan v. Willan, 16 id. 72.
    Boots -was induced to enter into the agreement by false and fraudulent representations made by Wilson. This will prevent a decree for its specific performance, and authorize Boots to rescind. Pomeroy on Sp. Per. sec. 224, pp. 306-8; Kerr on Fraud and Mistake, sec. 2, p. 53; Falcke v. Gray, 4 Drewry, 651; Warner v. Daniels, 1 Woodbury & Minot, 90; Conybeare v. Land Co. 1 DeG., F. & J. 578; Allen v. Hart, 72 Ill. 104; Bradley v. Luce, 99 id. 234; Blake v. Mowatt, 21 Beav. 603; Coffee v. Ruffin, 4 Coldw. 487.
    Wilson has neglected and refused to perform on his part, hence the agreement confers no rights on him. 2 Parsons on Contracts, *675; 3 id. *407.
    There has.been a failure of consideration, moving to Boots, for the agreement, and while the agreement was still executory,—hence the agreement was not binding on him. Roget v. Merritt, 2 Caine, 117; Benedict v. Field, 4 Duer, 154; 16 N. Y. 595; Christin v. Cabell, 22 Gratt. 82.
    Time was necessarily of the essence of the contract. Hipwell v. Knight, 1 Y. & C. 401; Coslake v. Till, 1 Russ. 376; Barker v. Prentiss, 6 Mass. 430.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill in equity, by Logan H. Roots, against William Gr. Wilson, filed in the circuit court of Cook county on the 9th day of May, A. D. 1884, for the rescission of a certain contract for the assignment and transfer by Wilson, to Roots, upon certain conditions, of $44,500 of the capital stock of the Wilson Sewing Machine Company of Wallingford, Connecticut, in exchange for $40,000 of the bonds of that company. Wilson answered the bill, putting in issue its -material allegations, and then filed a cross-bill for the specific performance of the contract of which rescission is sought by the bill. The circuit court, on hearing, decreed that the cross-bill be dismissed, and that the prayer of the original bill be granted. On appeal to the Appellate Court for the First District, that decree was affirmed, and Wilson has appealed from that judgment of the Appellate Court to this court.

The contract in controversy is evidenced by two instruments in writing, executed at the same time and as a part of the same transaction, (as is abundantly proved by the evidence in the record,) which read as follows: o

“Chicago, November 18, 1888.
“L. J. Gage, Esq., Chicago, Ill.:
“Dear Sir:—It is understood between W. G-. Wilson and Logan H. Roots, that W. G-. Wilson is to furnish, properly transferred, $29,500 stock in the Wilson Sewing Machine Company of Wallingford, Conn., and receipts of S. Kirby, with proper transfer or assignments of $.15,000 more stock now loaned to said Kirby by him, making a total of $44,500 (forty-four thousand five hundred dollars,) capital stock of said company, and Logan H. Roots is to deposit $40,000 (forty thousand dollars) of the bonds of the said company, bearing six per cent interest, with coupons No. 1 detached; and whensoever you receive notice from the general manager of said company, or other satisfactory evidence, that the company at Wallingford is producing three hundred complete sewing machines per week, you are to deliver the bonds to W. G. Wilson, and the stock to Logan H. Boots.
“In testimony of which request, we hereby append our signatures, it being understood that each party hereto is to make his respective delivery within twenty days from the date hereof. Signed in triplicate.
Bespect. Logan H. Boots,
W. G-. Wilson.”
“For and in consideration of payments made by Logan H. Boots, in purchasing stock from W. G. Wilson, it has been covenanted and agreed between Logan H. Boots, of Little Bock, Arkansas, and W. G. Wilson, of Chicago, Illinois, that W. G. Wilson agrees, without further direct consideration than the reimbursement of his expenses, to give to the Wilson Sewing Machine Company of Wallingford, Conn., his unstinted, unreserved, hearty good will, active assistance, counsel, aid and advice, for the next three years, through good and ill, and to do all, except financial management, that he can in anywise do, while others are in actual management, to make the most complete possible success of the Wilson Sewing Machine Company. Wilson also agrees to at once,—after first assigning to himself its present assets,—transfer.and properly assign all of the stock of the Wilson Sewing Machine Company of Chicago, to the Wilson Sewing Machine Company of Wallingford, Conn., free of all debts; and as a guaranty of good faith, he pledges and hereby forfeits to the Wilson Sewing Machine Company of Wallingford, Conn., on failure to continue in the execution of the foregoing agreements, the extent of $25,000 in amount of the royalty of twenty-five cents on each machine, agreed to be paid him by the company for the use of his patents.
“Witness our hands this 13th day of November, 1883.
“Witness: W. G. Wilson,
J. N. Keller, Logan H. Boots.”
S. B. Kirby.

The first of these instruments was executed in triplicate, and one copy was delivered to L. J. Gage, and one was retained by Roots and one by Wilson. The second was executed in duplicate, and one copy, each, was retained by Roots and Wilson.

The rule is familiar, and of frequent application in cases before this court, that where different instruments are executed as the evidence of one transaction or agreement, they are to be read and construed as constituting but a single instrument. Gardt v. Brown et al. 113 Ill. 475; Freer v. Lake, 115 id. 663; Canterberry v. Miller, 76 id. 355; Stacey v. Randall, 17 id. 467; Duncan v. Charles, 4 Scam. 561; Bailey v. Cromwell, 3 id. 71. And, furthermore, although it is not competent to contradict or enlarge the terms of a written agreement by parol evidence, it is competent to resort to parol evidence to ascertain the nature and qualities of the subject to which the instrument refers. (1 Greenleaf on Evidence, sec. 3S6.) And so we have said, that courts, in construing written contracts, endeavor, in all cases, to place themselves in the position of the contracting parties, so that they may understand the language used, in the sense intended by the persons using it. Doyle et al. v. Teas et al. 4 Scam. 202; Turpin, Receiver, v. Baltimore, Ohio and Chicago Railroad Co. 105 id. 11; Brand et al. v. Henderson et al. 107 id. 141.

The facts, in the light of which these instruments are therefore to be read, are briefly these: A corporation, spoken of by the witnesses as the Wilson Sewing Machine Company of Chicago, had been in existence and doing business for several years prior to the year A. D. 1882. It occupied certain buildings in the city of Chicago for sales-rooms, store-rooms, workshops and offices, and it had a factory for the manufacture of sewing machines at Grand Crossing, in Cook county. William G. Wilson was the owner of most, if not all, of the stock" of the company. He was its president and manager, and controlled it entirely. In July or August, A. D. 1883, it ceased to manufacture, and about that time,.through the efforts of Wilson, and his. manager, Sheldon, acting under his direction, a corporation ivas organized at Wallingford, Connecticut, under the name of the “Wilson Sewing Machine Company of Wallingford, Connecticut.” Its capital stock was fixed at $300,000, of which Wilson agreed to take $100,000, the Wallingford company agreeing to'take from him the movable plant at Grand Crossing for that sum. Parties at Wallingford took $106,000 of the stock, thus leaving $94,000 untaken, but it was agreed by the promoters of the company that this should be subscribed by Sheldon, with the understanding that he was to pay nothing for it, and that the company should sell it to other parties. Wilson was elected president of the new company, and his salary was fixed at $5000 per annum; and he was also made the general manager of the company. The erection of buildings at Wallingford was begun, and prosecuted with reasonable dispatch, and that company, while the buildings, etc., were being erected, also manufactured sewing machines at Grand Crossing. The evidence shows that this was attended with loss, and in Februa.ry, A. D. 1883, after the buildings at Wallingford had been erected at a cost of some $75,000, there was, substantially, no money in the treasury. Wilson had also, meanwhile, contracted to sell to the company the furniture, material, etc., of the Chicago company not included in the plant at Grand Crossing, for $75,000.

Samuel B. Kirby was an agent for the sale of sewing machines, having his residence and headquarters at Little Bock, Arkansas. He had dealt in the machines manufactured by Wilson, and had been quite successful in disposing of them. Logan H. Boots likewise resided at Little Bock, and was the president of a bank there, and was also actively engaged, at the same time, in some nineteen other corporations. In January or February, A. D. 1883, Boots and Kirby entered into co-partnership for the purpose of selling sewing machines in the State of Arkansas, Boots furnishing $3000 or $4000 in money, and Kirby agreeing to exclusively attend to the business. Wilson having communicated with Kirby, through him commenced negotiations with Kirby & Boots, which resulted in a sale, on the 27th day of March, A. D.'1883, to Boots, of $36,850, to Kirby, of $25,000, and to Niemeyer, another citizen of Little Bock, of $10,000, of the Wallingford stock nominally subscribed for by Sheldon; and the balance of the Sheldon stock was taken, as we understand the record, not far from this time, by other parties. There is evidence, that, to induce these sales, Wilson represented that the work at Wallingford was progressing; that the plant would be removed from Grand Crossing to Wallingford in April; that the stock would bear sixty-six and two-thirds per cent; that he himself had paid $100,000 for the stock he held, etc. Although Boots, Kirby and Niemeyer were elected directors in April, Boots seems to have given the business but little personal attention, being occupied, most of the time, with other matters. The machinery was not removed from Grand Crossing at the time first indicated by Wilson. Afterwards, he represented to Boots that it would be removed to Wallingford, and that everything would be in operation there by the 1st. of August. But that promise was not fulfilled. At a meeting of the board of directors, in September, A. D. 1883, bonds of the company were issued to the amount of $50,000, secured by a first mortgage on the property at Wallingford, to raise money wherewith to pay expenses.

On the 13th of October, A. D. 1883, on the representation of Wilson that in a few days the factory would be producing a large number of machines, that the machine would be the best looking, the best finished, and the most rapid-working machine in the market, and that it would be made and sold for a large profit, and on the promise that Wilson would, at "the meeting of the board of directors' in November, resign as president and general manager of the company, and use his influence to have Boots elected president, and that he w'ould thereafter give his time and attention to the business of the company until the re-organization would be working satisfactorily, Roots bought of Wilson $50,000 of the Wallingford stock held by Wilson. Wilson did not attend the meeting of the board of directors at Wallingford on November 5, but he sent his resignation as president and general manager of the company to the board, at that time, and it was accepted by the board, and Roots was then elected president of the company. Just before this, in the latter part of October, Wilson notified Roots that it would require $8000 to meet the expenses of the company for the month of November, and that it would require $10,000 per month thereafter for that purpose. After being elected president, Roots found, as he thought, things in a very different condition from what they had been represented to him by Wilson, and at a meeting which occurred between him and Wilson, at the Grand Pacific Hotel, in Chicago, on the day that' these instruments were signed, hut before the}7 were signed, Roots called Wilson’s attention to them. Among other tilings, he had learned at Wallingford that manufacturing was delayed for want of a model machine, and a machine intended to be used for that purpose had just been sent to Wilson, and was then in his possession. Wilson, at that time, informed Roots that the machine was not quite satisfactory, but that he could make it so in a short time, but he added, that unless Roots would buy the remainder of his stock in the company, he w.ould have nothing to do with the machine, and would do nothing in aid of the business of the company. In reply to the suggestion that the machinery at Wallingford was insufficient, Wilson said, “You are all wrong in your conclusions,” and “the factory people are muddled,” and assured him that the machinery then in place in the factory at Wallingford, would, if he took hold, be, within ten days, turning out satisfactory sewing machines, at the rate of three hundred per week; that he would, if Roots bought his stock, personally go to Wallingford, perfect the model, and see that the factory was in operation at that rate, and that Boot’s inference of the impossibility of this, from what he had just seen and heard at Wallingford, arose from his want of familiarity with the conditions and possibilities of mechanical operations. Wilson also then again assured Boots that the profits on the machines would be very large, and he then exhibited to Boots a memorandum which he had made, showing that he had contracted for piece work on terms that would give a large profit on the machines, and so that .when the factory got into operation, it would make two thousand machines per month, which could be readily sold at a profit of five dollars per machine. Boots expressed doubts about the real value of the assets of the company, and, in answer to questions in that respect, Wilson assured him that the movable machinery was well worth the $100,000 which had been paid for it; that Boot’s suspicions of the worthlessness of some of this property were due entirely to his ignorance of the requirements of the sewing machine business. Boots called Wilson’s attention to an old understanding, that had not been carried out, that Wilson should cause the stock of the Chicago company to be transferred to the Wallingford company, and Wilson agreed that that should be included in his undertaking. It was agreed that Wilson should enter into bond for his cordial cooperation in promoting .the welfare of the company, and further transfer of the stock of the Chicago company, and finally it was further agreed, that, by way of bond, Wilson should pledge, to the extent of $25,000, the royalties which were to come to him from the machines to be manufactured by the company.

The evidence fully shows that Wilson had great mechanical knowledge and capacity, and was thoroughly skilled in all the details of manufacturing sewing machines, and the necessary machinery therefor, and that he had had a number of years of experience in manufacturing and selling sewing machines, and that Boots, although a shrewd and successful business man, had no knowledge of the manufacture of sewing machines or of the necessary machinery therefor, and had had no practical experience either in manufacturing or selling sewing machines. Evidence also shows that it was agreed that this purchase of Wilson’s stock by Eoots should not take effect until Wilson should have fulfilled his promise to bring the model machine into such a condition of efficiency as to produce satisfactory machines at the rate of" three hundred per week, and he was to go, himself, to the factory, and remain there until this was accomplished. It is true, there is controversy as to some of the matters we have thus stated, but the fair preponderance of the evidence, in our opinion, is as we have stated.

In the light of these facts, and construing the two instruments as one, we think it is clear—

First—That it was the duty of Wilson to deposit with Gage, within the twenty days, evidences of unincumbered, properly transferred stock in the Wilson Sewing Machine Company of Wallingford, Connecticut, to the amount of $44,000. The obligation to transfer the Kirby receipts does not imply that, as to that amount, there was simply a sale of a claim against Kirby for so much stock, but that Kirby then had, in a condition that it could be returned, so much stock, which he could, and which Eoots would thereby have a right to demand he should, deliver to him.

Second—Although no time is mentioned within which the company should produce three hundred sewing machines per week, it must have been within a reasonable time,—such a time as would have enabled Wilson to perfect a model and get the forces properly re-organized, so far as he could accomplish this while others were in the actual management. (Niemeycr v. Brooks, 44 Ill. 77; Smithy. Gear, 59 id. 381.) And without saying that ten days, the time designated by Wilson, would have been such reasonable time, we are clear in the opinion that a reasonable time, for that purpose, had elapsed before the filing of the bill. It is true that, in general, time is not, unless so declared by the parties, of the essence of the contract ; but the rule has exceptions, as, if the thing sold be of greater or less value, according to the effluxion of time, it is manifest that time is of the essence of the contract. (Hipwell v. Knight, 1 Younge & Coll. 416.) And here, it is evident that the expenses running, during November, at $8000 per month, and afterwards at $10,000 per month, the corporation,—already indebted $50,000,—must soon become bankrupted, and the stock worthless; and in proportion as was the delay in bringing the factory up to a profitable productive capacity, it is further evident there must have been a depreciation in the value of the stock. It could not concern Boots that the factory had produced three hundred complete sewing machines per week after delays and consequent expenses destroying the value of the stock. See Garretson v. Vanloon, 3 Greene, (Iowa,) 128; Coslake v. Till, 1 Russ. 376; Dalovet v. Rothschild, 1 Sim. & Stuart, 590.

Third—The three hundred complete sewing machines per week must be the fair average product of the week, evincing a continuous average capacity of that amount per week.

Fourth—It was the duty of Wilson to give “his unstinted, unreserved, hearty good will, active assistance, counsel, aid and advice, for the next three years, through good and ill, and to do all, except financial management, that he can in any way do, while others are in the actual management, to make the most complete possible success of the Wilson Sewing Machine Company,” without further request or solicitation from Boots or any one else. His duty was not negative or passive, but affirmative and active.

It is objected on behalf of Wilson, that the writing last recited was for the benefit of the Wilson Sewing Machine Company as a corporation, and the penalty therein provided, in case of breach on the part of Wilson, accrues to said corporation, and the right of action, in the event of such breach, is in the corporation, and not in Boots. But the instrument recites, that “for and in consideration of payments made by Logan H. Boots, in purchasing stock from W. G. Wilson, it has been covenanted and agreed between Logan H. Boots, of Little Bock, Arkansas, and William G. Wilson, of Chicago, Illinois.” Thus the consideration moved from Boots, and Wilson’s covenants are directly with him. Undoubtedly, the covenants affect the corporation, but Boots, as a large stockholder, would presumably be benefited by the performance of the covenants, in the enhancement of the value of the stock, and these covenants enter into the consideration for the execution of the instrument first recited, the whole forming, in our opinion, as has been seen, but one single undertaking or agreement. Unless Wilson performed these covenants, the undertaking in the instrument first recited could not be enforced.

Nor do we regard the fixing of a penalty in the instrument as controlling the question of rescission or specific performance. Where the penalty affords an adequate remedy at law, it may afford a reason why a court of equity will not interfere. Fry on Specific Performance, (2d Am. ed.) 72, *26, and 73, *27, secs. 66, 67, 68, 69. But the failure of Wilson to keep these covenants, would tend to render the penalty of no value to Boots or to the corporation, and the remedy at law, in the present case at least, would be inadequate. But apart from this, the effect of a penalty in such agreements can only be important on the question of specific performance, or the question of the rescission of an executed contract. This contract is only executory, as yet; and we have knowledge of no case where a party has been denied rescission of an executory contract, on the ground that he might go on and perform his part, and then recover a penalti', in an action at law, of the other party, for his non-performance.

Without entering into an elaborate recitation and discussion of the immense volume of evidence before us, we state, as the result of a patient and careful examination of it, that, in our opinion, it warrants the conclusion that Wilson has not complied with his undertakings under these instruments. He has not given his “unstinted, unreserved, hearty good will, active assistance, counsel, aid and advice, * * * through good and ill,” and done “all, except the financial management, that” he could “in anywise do, while others were in the actual management, to 'make the most complete possible success of the Wilson Sewing Machine Company, ” for any length of time reasonably sufficient to accomplish any beneficial result. Nor has he attempted to carry out this part of his agreement in good faith. He has not properly assigned and transferred the stock of the Chicago company to the Wallingford company. The evidence shows that the factory was not able to produce three hundred machines per wreek at any time before filing the hill; and although there is some evidence that it has done so since, in our opinion the evidence does not authorize the conclusion that there were made this number of machines per week, in consecutive weeks, as an average result of the weekly production. Moreover, it was impossible when the instruments were signed, and has been since, prior to the filing of the bill, -for Wilson to furnish, properly transferred, so as to vest an unincumbered title to $29,500 of stock in the Wallingford company, and it was then, and has remained and still is, impossible for him to so transfer the $15,000 more of stock in the Wallingford company, which had been loaned to Kirby, so as to vest an unincumbered title.

An attachment suit was commenced by Frank H. Alford, against Wilson, to recover an alleged indebtedness of $5000, in the Superior Court of Hartford, Connecticut, on the 10th day of November, A. D. 1882. The writ of attachment was levied on four hundred shares of the capital stock of the Wilson Sewing Machine Company of Wallingford, Connecticut, then standing on the books of that company in the name of and belonging to Wilson, as the property of Wilson. On the 30th of December, A. D. 1882, Wilson appeared in the suit, and, on his motion, the suit was transferred to the Circuit Court of the United States for the District of Connecticut, and on the 4th day of January, A. D. 1883, both parties entered their appearance in that court. The cause was continued until the 28th of March, A. D. 1884, when there was a trial by the court, without the intervention of a jury, and on the 3d of May, A. D. 1884, the court rendered judgment in favor of Alford, for $5000, and costs of suit, and awarded execution. Counsel contend, however, this levy was not binding on Wilson, because the service was not in accordance with the statute of Connecticut. But this objection ought to have been urged while the suit was pending. The objection was personal. The effect of the levy was to sequester the stock attached, to await the judgment. (Davenport v. Lacon, 17 Conn. 278.) Wilson not having urged the objection in the court where the cause was pending, but having entered his personal appearance and gone to trial, waived the objection. (Harris v. S. and K. R. R. Co. 47 Me. 298; Raymond v. Rockland Co. 40 Conn. 401.) The description of the stock in the levy was sufficient. Stamford Bank v. Ferris, 17 Conn. 258.

The facts in relation to the $15,000 of stock are, briefly, these: At the time of the -sale of the stock by Wilson to Boots & Kirby, on the 27th of March, A. D. 1883, Kirby did not have the money to pay the $25,000 for his stock. Wilson agreed to advance Kirby $20,000 of the amount, on pledge of the same stock, if Boots would advance for him the other $5000. Boots assented to this. Wilson and Kirby met in New York on the 7th of April, A. D. 1883, pursuant to a previous agreement between them, Kirby having with him the $5000 which Boots had advanced, pursuant to his agreement. Wilson then proposed to loan Kirby $15,000 of bis stock in the Wallingford company, instead of advancing the $20,000 in money, which Kirby could pledge in bank, together with the $20,000 of his own stock, which he had before agreed to pledge to Wilson to obtain a loan of the $20,000. Kirby consented. Wilson loaned him the stock; and it, together with Kirby’s stock, was put in pledge with the bank to secure a loan to Kirby of $20,000 in money, and Kirby obtained the money of the bank, and paid it over to Wilson. Kirby failed to pay the loan when it was due; then, at Wilson’s instance, he got an extension of time for ninety days, and the note not being paid at the end of that time, the stock was sold by the bank to satisfy the loan.

It was, under the evidence, no part of the agreement with Boots, that the stock of Wilson should be pledged to raise the $20,000. He was simply to advance to Kirby that amount, on the pledge to him of Kirby’s stock. The loaning of Wilson’s stock to Kirby was a matter wholly between Kirby and Wilson, and while, at the time these instruments were signed, Boots knew that this $15,000 of stock had been thus loaned and pledged, yet, as we have before indicated, the fair construction of the contract, in our opinion, is, that Boots, although contracting for stock in pledge, did not contract for stock subject to the pledge. He was contracting for so much stock, and proposing to pay full value for it. The undertaking of Wilson to transfer and assign the stock, implies an ability to do so legally.

It is contended by counsel that Boots is estopped to urge the Alford attachment as an objection to the ability of Wilson to assign and transfer the stock so attached, and the grounds urged as constituting such estoppel are, Boots knew of the Alford attachment against Wilson before December 21, 1883 ; he wrote numerous letters .about this stock; made sundry propositions with reference to the bonds, after his knowledge of the attachment suit and of the manner in which Wilson had transferred and deposited the stock. There is no evidence that Boots ever consented that the bonds were sufficiently transferred or assigned, notwithstanding this attachment. On the contrary, the evidence clearly shows that he regarded it as preventing a transfer and assignment of the bonds attached. He manifested an anxiety that the spirit of the agreement should be carried out, by proposing ways by which that objection might be obviated; but Wilson accepted none of them, and it is not claimed that Wilson, in consequence of anything said or done by Roots, placed himself in a position which he would not otherwise have occupied, whereby, if Roots’ objection be now allowed, he' must suffer injury. Roots did not, by proposing to obviate the objection, waive it. The indispensable elements of an estoppel in pais,— fraud and injury,—are wanting. Flower v. Elwood, 66 Ill. 438; People v. Brown, 67 id. 435; Ball v. Hooten, 85 id. 159; Noble v. Chrisman, 88 id. 186; Davidson v. Young, 38 id. 145; Dorlarque v. Cress, 71 id. 380.

It is not material to inquire whether the form of assignment of the stock was sufficient, since, if the stock was, as We have held, so incumbered that no form of assignment could vest Roots with the present right of possession and control, Wilson was not able to perform his contract,—Roots could not obtain that which he contracted for.

It is contended, in argument, that the existence of the attachments at the time was no impediment to Wilson’s undertaking, since he was only required to be able to transfer the stock when the factory was making three hundred machines per week. We can not concur in this view. The undertaking is, that the deposit of stock and bonds shall be made in twenty days, which, on Wilson’s part, was absolutely impossible. Besides, in our opinion, the reasonable time within which the factory should make the three hundred machines per week, had expired before the filing of the bill, and at that time the Alford attachment suit was still pending, and the ownership of the $15,000 bonds loaned to Kirby had passed from Wilson.

As to the contention that Roots is estopped to urge any objection to the transfer of the bonds deposited with Gage, the same reply is applicable that is made to the objection that be is estopped to urge the Alford attachment suit.

We may add, that the evidence convinces us that Wilson grossly overvalued the Grand Crossing plant, and the furniture, materials, etc., in the Chicago offices, and misrepresented to Roots the capacity and condition of the factory at Wallingford; but being in doubt whether Roots did not have sufficient evidence to put him upon his guard in these respects, we place our decision upon the ground that Wilson has not complied with his contract, and that, as respects the transfer of the stock, "it was impossible for him to do so,—and this justifies setting aside even an executed contract. Thomas v. Coultas, 76 Ill. 493; Walker v. Denison, 86 id. 142; Yost v. Shaffer, 3 Ind. 331; Shackelford v. Handley’s Exrs. 1 A. K. Marshall, 494. See, also, 2 Kent’s Com. (8th ed.) 614; Parham v. Randolph, 4 Howard, (Miss.) 435, (35 Am. Dec. 403;) Chitty on Contracts, (11th Am. ed.) 1089, 1090; Willets v. Burgess, 34 Ill. 494. But we have before observed, this is an executory, not an executed, contract. Title has not passed to the bonds or to the stock. The granting of the prayer of the bill really only has the effect to restore the possession of the bonds and stocks to the respective owners. In such a contract, the failure of one party to comply with the contract, justifies the other to treat the contract as rescinded, and to take steps accordingly. Schoonover v. Christy, 20 Ill. 426; Carney v. Newberry, 24 id. 203; Chitty on Contracts, (11th Am. ed.) 1090-1097.

We see no cause to disturb the judgment of the Appellate Court. It is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Cbaig

text:
    The Pennsylvania Company v. Henry Marshall, Admr.

      Filed at Ottawa January 25, 1887.

      1. Negligence—instructions limited to the question of the measure of damages, as distinct from such as are designed to lay doum the rule in respect to due care and comparative negligence. In an action against a railway company to recover for the killing of the plaintiff’s intestate,—the result, as alleged, of negligence on the part of the defendant,—where the jury is properly instructed as to the right to recover, another instruction relating to the measure of damages in case of a recovery, is not erroneous, merely on the ground that it ignores the question of comparative negligence, or the care on the part of the deceased.
    2. In such a case, the court instructed the jury, that if they believed, from the evidence, the plaintiff had made out his case as laid in the declaration, to find for him, and in another instruction told the jury, that if they found, from the evidence, that the defendant was guilt)' of the wrongful act, neglect or default, as charged, and that the same resulted in the death of the plaintiff’s intestate, then the plaintiff was entitled to recover such damages as they might deem, from the evidence, a fair and just compensation therefor, having reference to the pecuniary injuries resulting from such death to the plaintiff and next of kin, not exceeding the amount in the declaration, and that sorrow or grief for the deceased, or any pain caused to the next of kin by the manner of bis death, should not be considered. The second instruction was claimed to he erroneous, as ignoring the question of the care or negligence of the deceased: Held, that as the object of such instruction was merely to give the proper measure of damages, and not to lay down any rule as to the doctrine of negligence, the instruction was not open to the objection urged against it.
    3. Same—an instruction construed, as whether ignoring the question of due care. In the same case, the declaration averred that the plaintiff’s intestate, when struck by the defendant’s train of cars, was in the exercise of due care and diligence, and that his death was the result of the carelessness and negligence of the defendant. The court instructed the jury, that if they believed, from the evidence, that the plaintiff had made out his case as laid in the declaration, they should find for him: Held, that such instruction was not obnoxious to the objection of ignoring the question whether the deceased was in the exercise of due care for his personal safety.
    4. Instruction—should be based on the evidence. Instructions must be based upon evidence; and the court is not required to give an instruction, although, as an abstract proposition of law, it may be correct, unless there is evidence before the jury upon which it may be properly predicated.
    5. So in an action against a railway company for causing the death of an intestate by negligence, where there was no evidence that the deceased went upon the railroad track in a reckless and heedless manner, or failed to exercise that degree of care and caution that a prudent man would observe to avoid danger, it was held no error to modify an instruction asked by the defendant, to the effect that if the deceased knowingly attempted to cross the track without looking for the approach of a train, he was guilty of negligence,—so that it left it as a question for the jury to determine, whether, under the facts, he was guilty of negligence.
    6. Same—in case of several counts—of an instruction ignoring one of them. Where a plaintiff seeks to recover for negligence, under two different counts, relying upon different matters as negligence, an instruction by the defendant applicable only to one of the counts, and ignoring the right to recover under the other count, is properly refused.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    The declaration in this case consisted of three counts, in substance as follows:

      First count—For that the defendant, in the lifetime of said James Marshall, to-wit, on the 27th of March, 1881, in the county aforesaid, was possessed, using and operating a certain railroad and a certain locomotive and cars, which were then and there under the management of certain servants of the defendant, who were then and there driving the same upon and along said railroad, toward a public street, known as Eighteenth street, and while the said Marshall, with all due care and. diligence, was then and there walking across said railroad at the said crossing upon said street, the defendant then and there, by its servant, so carelessly, negligently and improperly drove and managed the engine and cars, that by reason thereof the said engine and cars ran into, upon and over the said Marshall, whereby he was then and there killed.

      Second count—Same as first, except breach of duty therein alleged, viz: failure to keep and maintain a flagman and bell tower at said crossing to warn persons traveling in the direction of the crossing.

      Third count-r-S&me as first, except breach of duty therein alleged, viz: failure to ring the bell of the locomotive.
    The court gave only two instructions on-behalf of plaintiff, ■which are given in the opinion. The defendant’s eighth and ninth instructions, as asked, were as follows:
    “8. If the jury believe, from the evidence, that the deceased possessed the faculty of seeing and hearing, and that at the time in question he knowingly attempted to cross the track in question without looking for the approach of a train before going upon the track, (if the jury believe, from the evidence, he did go upon the track,) then he was guilty of negligence.
    “9. If the jury believe, from the evidence, that the train in question, at and before the time of the accident to the deceased, was being run in a manner reasonably proper, under all the circumstances shown by the evidence, then the jury should find for the defendant. ”
    The court refused to give these instructions as asked, or either of them, but modified the same, and gave them to the jury, as follows:
    “8. If the jury believe, from the evidence, that the deceased possessed the faculty of seeing and hearing, and that at the time in question be knowingly attempted to cross the track in question without looking for the approach of a train before going upon the track, and that by reason of so doing he was guilty of negligence, and that he lost his life in consequence of his own carelessness and negligence, then the jury will find for the defendant.
    “9. If the jury believe, from the evidence, that the train in question, at and before the time of the accident to the deceased, ivas being run in a manner reasonably proper, under all the circumstances shown by the evidence, and that the deceased came to his death by reason of his own carelessness and negligence, and not the negligence of the defendant,.then the jury should find for the defendant.”
    The other material facts appear in the opinion.
    Messrs.. Willard & Briggs, for the appellant:
    The second of plaintiff’s instructions wholly ignores the question of comparative negligence. It relates not only to the measure of damages, but to certain elements which must be considered in determining whether there is a right of recovery. These elements are, first, that defendant was guilty of the wrongful act, neglect or default, as charged; and second, that such wrongful act resulted in the death of the deceased. Instructions of this kind have been repeatedly pronounced erroneous by this court. Railroad Co. v. Harwood, 80 Ill. 88; Railway Co. v. Dimick, 96 id. 42; Railway Co. v. Shacklet, 105 id. 364; Peoria v. Simpson, 110 id. 294; Railroad Co. v. Morrissey, 111 id. 646.
    The ninth of defendant’s instructions, as modified, is subject to the same objection. The words added by the court left the jury at liberty to find that if the deceased came to his death by reason of his own carelessness and the negligence of the defendant, then they might find for the plaintiff, without any comparison of the degrees of negligence on the part of deceased and defendant.
    . The eighth instruction, as asked, made it the duty of the deceased, as matter of law, to look out for the approach of a train before going upon the track. The court so modified it as to leave the jury to say whether, under the circumstances recited therein, an omission on his part to look out for a train would be negligence. That the instruction, as asked, was groper, see Railroad Co. v. Godfrey, 71 Ill. 500; Railroad Co. v. Goddard, 72 id. 567; Railway Co. v. Jones, 76 id. 311; Railway Co. v. Hatch, 79. id. 137; Railway Co. v. Riley, 47 id. 514; Railroad Co. v. Jacobs, 63 id. 178; Railroad Co. v. Van Patten, 74 id. 91; Railroad Co. v. Damerell, 81 id. 450;
      Railroad Co. v. Hetherington, 83 id. 510; Railway Co. v. Hart, 87 id. 429; Austin, Admx. v. Railway Co. 91 id. 35; Railway Co. v. Dimick, 96 id. 42; Pennsylvania Co. v. Rudel, 100 id. 603; Railroad Co. v. Johnson, Admx. 103 id. 512; Railroad Co. v. Robinson, 106 id. 142; Pennsylvania Co. v. Frana, 112 id. 398.
    This is in accord with other courts of last resort. Railroad Co. v. Stead, 95 U. S. 161; Henze v. Railroad Co. 71 Mo. 636; State v. Railroad Co. 76 Me. 357; Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railway Co. 114 id. 615; Railway Co. v. Snyder, 24 Ohio St. 670; Warner v. Railroad Co. 44 N. Y. 465; Railroad Co. v. Miller, 25 Mich. 274; Railroad Co. v. Hileman, 47 Pa. St. 60; Artz v. Railroad Co. 34 Iowa, 153; Butterfield v. Railroad Co. 10 Allen, 532; Brown v. Railway Co. 22 Minn. 165; Haas v. Railway Co. 41 Wis. 44; Telfer v. Railroad Co. 1 Vroom, 188.
    Mr. Moeton Culveb, and' Mr. Simon P. Douthabt, for the appellee:
    Plaintiff’s second instruction is not subject to the criticism made upon it. It relates solely to the measure of damages. It is sustained in other cases. Railroad Co. v. Dowd, 115 Ill. 659; Railroad Co. v. Payne, 59 id. 534.
    Defendant’s eighth instruction made it the absolute duty of the deceased to look for the approach of the train, whether it was in his power or not.
   Mr. Justice Cbaig

delivered the opinion of the Court:

This was an action brought by Henry Marshall, administrator, against the Pennsylvania Company, to recover damages on account of the death of his son, James Marshall, who was run over by the company’s train of cars on the 27th day of March, 1881, at the corner of Grove and Eighteenth streets, in the city of Chicago.' The plaintiff based his right of recovery on the negligent management of the train by the servants of the defendant, and on a trial before a jury he recovered a judgment for $2000, which, on appeal, was affirmed in the Appellate Court.

On this appeal, the only question relied upon in the argument to reverse the judgment, is the alleged erroneous ruling of the Superior Court on the instructions to the jury. The instructions given for the plaintiff are very brief, and are as follows:

“1. If the jury believe, from the evidence, that the plaintiff has made out his case as laid in his declaration, they must find for the plaintiff.
“2. If the jury find, from the evidence, and under the instructions of the court, that the defendant corporation is guilty of the wrongful act, neglect or default, as charged in the plaintiff’s declaration, and that the same resulted in the death of the deceased, then the plaintiff is entitled to recover such damages as the jury may deem, from the evidence and proof, a fair and just compensation therefor, having reference only to the pecuniary injuries resulting, from said death, to the said plaintiff and next of kin, not exceeding the amount in the declaration. Sorrow or grief for the deceased, or any pain caused to the next of kin by the manner of his death, is not to be considered by the jury, and the pecuniary value of the life of the deceased to the next of kin himself surviving, is all for which damages can be assessed. ”

No fault is found with the first one given, but it is contended that the second is erroneous, on the alleged ground that it ignores entirely the question of comparative negligence. It is apparent from the language of the instruction, that its object was not to lay down any rule of law for the consideration of the jury, upon the doctrine of negligence, but the purpose was to inform the jury as to the measure of damages, in case they arrived at the conclusion, from the evidence, that the plaintiff was entitled to recover, and for this purpose we perceive no objection to the instruction. In the first instruction, the jury were told, that if they believed, from the evidence, that the plaintiff had made out his case as laid in the declaration, they would find for the plaintiff. In the declaration it was expressly averred, that the deceased, when struck by the train, was in the exercise of due care and diligence, and that his death was the result of the carelessness and negligence of the defendant. With the declaration before the jury, and this charge directing their attention to it, it seems manifest that the jury could not be misled, nor could they arrive at the conclusion that the plaintiff might recover if the deceased was guilty of negligence which contributed to his death. When the object intended to be accomplished by each of the two instructions is understood, and their bearing properly considered, we think they are free from objection. Indeed, the second instruction is almost identical with one sustained by this court in the recent case of Chicago, Milwaukee and St. Paul Railway Co. v. Dowd, 115 Ill. 659, which was predicated upon Chicago, Burlington and Quincy Railroad Co. v. Payne, 59 id. 534, where the same question was involved.

Chicago, Burlington and Quincy Railroad Co. v. Harwood, 80 Ill. 88, and Chicago and Northwestern Railway Co. v. Dimick, 96 id. 42, have been cited as authorities to sustain appellant’s position. In the first case cited, an instruction which omitted all care or caution on the part of the person injured, was condemned; but the instruction was not one relating to the measure of damages, as is the case here. In the other case cited, an instruction somewhat similar to the one here involved, was held to be erroneous; but that instruction did not relate solely to the measure of damages. The last part of instruction No. 2, which discloses its real purpose, was entirely omitted from the instruction held to be bad in the Dimick case; and in addition to what has been said, the record in the Dimick case contained other errors sufficient to reverse the judgment. Other cases have been cited, but we do not think they sustain appellant’s position.

The court refused defendant’s eighth instruction, as asked, which, in substance, directed the jury, that if the deceased possessed the faculty of seeing and hearing, and that at the time in question he knowingly attempted to cross the track without looking for the approach of a train, then-he was guilty of negligence, but modified the same, so as to leave it as á question for the jury to determine, whether, under the facts, the deceased was guilty of negligence. It is a familiar rule, that instructions must be based upon the evidence, and the court is not required to give an instruction,, although, as an abstract' proposition of law, it may be correct, unless there is evidence before the jury upon which it may be predicated. There was no evidence in the case that the deceased went upon the track in a reckless or heedless manner, or that he failed to observe that degree of caution that a prudent person would observe to avoid danger. The deceased approached the crossing from the west. A pile of lumber was on his right, which he could not see over. There was a malt house and several freight cars between him and the moving train, and as he stepped from behind the lumber, on the track, he was struck. The train consisted of some twenty freight ears and an engine, the engine being at the rear end of the train, pushing it along. Had the deceased looked, he could not have seen the approaching train ;■ or if he had listened, the ringing of the bell on the engine, a block and a half distant, pushing the train, would have tended to deceive, rather than serve as a warning that he was in danger. Under such circumstances, the instruction, however accurate it may have been, had no proper place before the jury, and it should have been refused by the court.

The court modified defendant’s ninth instruction, and this ruling is relied upon as error. Had no negligence of the. defendant been relied upon except the negligent manner of running the train, the instruction might have been proper as originally prepared; but in the second count of the declaration, the failure to keep a flagman at the crossing was relied upon, and evidence was introduced to establish negligence under this count. The instruction ignored this branch of the case, and hence the propriety of the modification.

In conclusion, after a careful examination of the whole record, we are satisfied that the law involved in the case was fairly given to the jury, and the judgment of the Appellate Court will have to be affirmed.

Judgment affirmed.


text:
    The International Bank v. Joseph Jones et al.

      Filed at Ottawa January 25, 1887.

      1. Banks and banking—right of set-off as against a deposit—in the case of an individual depositor, and a partnership debt, rights of the depositor, and his creditors. A bank has the right of set-off, as against a deposit, only where the individual, who is both depositor and debtor, stands in both these characters alike, in precisely the same relation and on precisely the same footing toward the bank. Hence, an individual deposit can not be set off against a partnership debt.
    2. Although a partner making an individual deposit with a bank' is under a legal obligation to pay a debt to the bank owing by a firm of which he was a member, he may lawfully appropriate his deposit to a bona fide creditor by drawing a check in his favor, and thereby vest him with full power to sue for and collect the same of the bank.
    3. Where a partnership firm has been dissolved while largely indebted to a bank for overdrafts upon its deposits, and the bank has notice of the dissolution, and of the fact that one of the partners continues the business in the old firm name, and such partner afterward makes a deposit, against which he issues his check, the holder of such check will be entitled to be paid out of such deposit; and in such case it is immaterial in what book or in what manner the entry of the deposit has been made, if the bank, at the time of such entry, knew such deposit was made by the partner so continuing the business for himself, though in the old firm name.

      Appeal from 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.
    Messrs. Rosenthal & Pence, for the appellant:
    Oakford was legally liable to pay to the bank the overdrafts made by the old firm. If Oakford, after the dissolution of the old firm, therefore, made deposits in the bank in the name of the old firm, and such deposits were passed to the credit of the old firm on the bank’s account books, and on the old firm’s bank pass-book, which pass-book was returned to Oak-ford, and if Oakford, when making such deposit, did not direct the bank officers to open a new account or to apply such deposits in any particular way, then the bank had the right to apply them in payment of the old firm’s overdraft. Nor was it incumbent on appellant to show that Oakford had actual knowledge of such application of the deposits at the time they were made, or that he consented to or directed such application. Without any direction on the part of Oakford, the bank had the right to make such application. Story on Partnership, sec. 157; 1 Bindley on Partnership, (Ewell’s ed.) 422-426; Collyer on Partnership, (2d ed.) 376; 1 Story’s Eq. Jur. sec. 675; Clayton’s case, 1 Mer. 572; Hooper v. Keay, 1 Q. B. 178.
    The individual creditors of Oakford have no claim, at law, to he paid out of the individual assets of Oakford over Mr. Oakford’s partnership creditors. Such an equity, when it exists by reason of the insolvency of a debtor, can only be worked out in equity, and through the interposition of the debtor himself. 2 Story’s Eq. Jur. sec. 675. *
    Mr. J. K. Boyeson, for the appellees:
    The lien and right of set-off of a bank exists only where the individual who is both depositor and debtor stands in exactly the same relation and on the same footing toward the bank. Morse on Banking, (2d ed.) 48; Grant on Banking, (3d ed.) 308; Coates v. Preston, 105 Ill. 470; Dawson v. Real Estate Bank, 5 Ark. 283; Hilliard v. Walker, 11 Ill. 644; Watts v. Christie, 11 Beav. 355.
   Mr. Justice Scholfield

delivered the opinion of the Court:

John D. Oakford and Frederick H. Thomas were partners, under the firm name of John D. Oakford & Co., in the business of commission merchants, in the city of Chicago. The partnership was dissolved on the last day of August, A. D. 1879. It had made deposits with the International Bank, and drawn drafts upon it in the course of its business, and at the time of the dissolution the firm was indebted to the bank, on overdrafts, some $11,000. After the dissolution of the partnership, John D. Oakford continued to do business under the old firm name of John D. Oakford & Co., and on the first day of September, A. D. 1879, he drew a check, in the name of John D. Oakford & Co., upon the International Bank, payable to Jos. Jones & Sons, for the sum of $1960.75, and delivered it to the payees, in payment for two hundred and fifty barrels of pork then bought by him of them. Payment of the check was refused by the International Bank, and this suit was brought by Joseph Jones, Benjamin Jones and Edward Jones, constituting the firm named, as payees in the check, against the International Bank, for the money which the check directed to be paid. It is clearly proved, that on the day the check was drawn, and before presentment of the check, John D. Oakford deposited with the International Bank, to the credit of John D. Oakford & Co., more than enough money to pay this check, and enough to pay all checks drawn by him on the bank on that day, and this is not contested. But the International Bank claimed the right to apply the deposit made by him on that day, in payment of the overdrafts of the oldfirm of John D. Oakford & Co., (composed of Oakford and Thomas,) and having done which, there were no funds left to meet this draft.

Upon the trial, the plaintiffs gave evidence to the jury tending to prove that the cashier and president of the International Bank were notified of the dissolution of the firm of Oakford & Thomas, and that John D. Oakford would thereafter do business as a new firm, under the old firm name; that on the first day of September, A. D. 1879, they were expressly notified,' before this check was drawn, that John D. Oakford, as the new firm, would draw checks upon the International Bank on that day, and that to meet those checks he would deposit the cheeks which he should receive in payment, on sales made by him on 'that day; that after this check was drawn, and before it was presented for payment, they were expressly notified by Oakford that it had been drawn, and that he had made a deposit with the bank to meet its payment, to all of which they assented. On behalf of the International Bank, evidence was given tending to contradict this evidence, arid to, show that the officers of the bank had no knowledge that the firm of Oakford & Thomas had been dissolved, and that the deposits on the first day of September, A. D. 1879, were-made by John D. Oakford, alone, as John D. Oakford & Co., and also evidence tending to show that the officers of the bank" had reason to believe that the5 transactions between Oakford and the bank, on the first day of September, A. D. 1879, were but a continuation of the business of the old firm of Oakford & Thomas.

The general rule is, that a bank has a right of set-off, as against a deposit, only when the individual who is both depositor and debtor, stands, in both these characters alike, in precisely the same relation, and on precisely the same footing, towards the bank, and hence an individual deposit caii not be set off against a partnership debt. Coates v. Preston, 105 Ill. 470. See, also, Morse on Banking, (2d ed.) 48.

In our opinion, the objections urged by the defendant to the phraseology of the court, in the instruction given .at the instance of the plaintiffs, and in the modification of the defendant’s instructions, present an irrelevant question. If the jury believed the witnesses testifying on behalf of the plaintiffs, it was wholly immaterial in what book or in what manner the entries of deposits were made, because, in that event, they must have found that the bank knew that the transactions were, in fact, with John D. Oakford, alone, and that the deposits were by him, alone,—and it could not relieve itself of the effect of this knowledge by a subsequent entry,'reciting something different, in a pass-book. If, on the other hand, the jury believed the witnesses on behalf of the bank, and that it had no notice of the change of the partnership, and that John D. Oakford made the deposits on the first of September on account of the new firm, the entries in the passbook were unimportant,—they could add nothing.

It is enough to say, in respect to the alleged error in modifying defendant’s instruction alleging the duty of John D. Oakford, since the dissolution of the firm, to pay the firm debts, by adding that it was “as much” his duty to pay them “after as before the dissolution,” that the entire instruction related to an irrelevant matter, and that it should have been refused on that ground. Notwithstanding he owed the duty to pay the firm debts, still, inasmuch as the bank could not set off the firm debt against his deposit, he could lawfully appropriate his deposit to a bona fide creditor by drawing a check in his favor on the bank for the amount, and thereby vest him with full power and authority to sue for and collect the same.

We can not think that any inaccuracy in the language of the court in the instructions materially prejudiced the defendant.

'The judgment is affirmed.

Judgment- affirmed.