text:
    Emanuel Isaacs v. The People of the State of Illinois.

      Filed at Ottawa November 13, 1886.

    1. Evidence—declarations of agent as against principal. The declarations and statements made by an agent at the time of the payment of money to him for his principal, and at the time of his giving a receipt therefor, in respect to the subject matter being transacted, are admissible in evidence against the principal.
    2. New triad—newly discovered evidence. Evidence known to a party’s attorney at the time of a trial, can not be regarded as newly discovered evidence, so as to entitle the party to a new trial. The attorney’s knowledge in such case is that of the party.
    Writ of Error to the Criminal Court of Cook county; the Hon. John G-. Rogers, Judge, presiding.
    Messrs. Barnum, Rubens & Ames, for the plaintiff in error.

      Mr. George Hunt, Attorney General, for the People.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Emanuel Isaacs was tried, convicted, and sentenced to imprisonment in the penitentiary for two years, upon an indictment for buying, receiving and concealing stolen property,—a gold watch and chain belonging to one W. Fitzhugh Smith. This writ of error is brought to reverse the judgment.

The evidence shows that S. H. Meyers was a licensed pawnbroker at 224 South Clark street, Chicago. Emanuel Isaacs lived at that number, and conducted the business, as agent, for Meyers. Leopold Marx was -a clerk in the employ of Meyers at that place. On Saturday, the 18th of July, 1885, William Fitzhugh Smith was playing lawn tennis at Lincoln Park, in Chicago, from 3 o’clock P. M. until 7:30 P. M. He laid his coat on the ground near where he was playing, and placed his watch, gold pencil and chain in the pocket. When he stopped playing, at 7 :30, the watch, pencil and chain had been stolen. On Monday, July 20, 1885, a report was made from S. H. Meyer’s pawn-shop to the police headquarters, of the articles pawned on July 18, preceding, and among the list was described one hunting-case gold watch and chain, Ho. 11,326, taken in upon a loan of $45, made at a quarter to ten on Saturday night, to E. Shonn, twenty-nine years of age, etc., and for which a pawn-ticket was issued'. On July SO, 1885, Smith, and one Cosgrove, a detective, called upon Isaacs, described and demanded the watch. Isaacs claimed that a few days after the watch was pawned, the holder of the pawn-ticket called at the pawn-shop, said he could not redeem the watch, and wanted to sell the pawn-ticket; that he (Isaacs) purchased the ticket, and subsequently sold the watch, and wras unable to return it. After this, Smith, by his attorney, Mr. Hodges, brought an action in trover against Isaacs and Marx, to recover the value of the watch and chain. Mr. Beattie was employed by Isaacs and Marx to defend the suit, and while the suit was pending, in pursuance of negotiations between Beattie and Hodges, Beattie and Smith executed a writing, in and by which Smith deposited with Beattie, and agreed to pay him, the sum of $75 for the return of the watch within ten days, and in case of failure to return it, the money was to be returned to Smith. At about the expiration of the ten days, October 30, 1885, the-watch was returned by Beattie, and the suit against Isaacs and Marx was dismissed.

It is insisted the verdict is not sustained by the evidence. Upon the trial, defendant and Marx testified, that when the watch was presented and pawned at the pawn-shop, the entire business was done with Marx; that Marx gave the pawn-ticket to the pawner, and Marx made out the report to police headquarters ; that the business belonged to Meyers, and not to Isaacs. Isaacs testified that he had not seen the watch until the time of the purchase of the pawn-ticket, when he called upon Marx to show him the watch; that he bought the pawn-ticket for $5, took the watch and chain as it was, and threw it into the show case; that on the 27th of July he sold it for $65; that he had no knowledge at that time that a watch had been stolen from Smith, or that the watch he purchased and sold was a stolen watch. Successive applications, at different times, were made to Isaacs for the watch, by Smith, Cosgrove and Hodges, and they testify to conversations had with him, tending to show that it was in his power to get. the watch, and that he concealed the name of the purchaser to whom he sold it. Thus, Smith testified that Isaacs told him he sold the watch for $85; that he did not know the man that it belonged to, nor the man to whom he sold it; that when, afterward, he asked Isaacs if he could produce the watch, saying he would be willing to give $100 for it, Isaacs replied that he thought he might,—he would try. Cosgrove testified that Isaacs told him he sold the watch to a man near the stockyards, but he refused to give the purchaser’s name, and saying if it was a friend of theirs from whom the watch was stolen, he would get it back; if it was not a friend of theirs, it would cost some money. Hodges testified that Isaacs told him he had sold the watch to a stockyards man, but did not say who he was. These statements are denied or explained away by Isaacs.

The Smith watch had engraved upon the case the monogram, “A. W. F. S.” There is no doubt but that it was the Smith watch which was returned, as before stated. Isaacs and Marx both testify this is not the watch which was pawned. Isaacs testified that he first saw that watch, that morning of the trial; that before that he never had it in his hand; that he had no direct knowledge of where his attorney got the watch ; that he had heard it spoken of in a general way; that he did not receive the $75 paid for its return; that he did not know how the watch got into his attorney’s possession. Upon the trial, the defendant produced another watch bearing the number 11/326, /the same as Smith’s watch,) and said it was the Avatch pawned at his place on July 18, 1885, and referred to in the report made to police headquarters, and that he never had the Smith watch. In this statement he was supported by Marx. They denied that the watch they took had any such inscription or monogram as that of “A. W. F. S., ” which was on the Smith watch, and this watch so produced by the defendant at the trial shows it has none such. Defendant’s account of obtaining this watch is, that it was sent from Pitts-burg, by express, by a man of the name of Van Balen; that he found out Van Balen was the purchaser from him, from a man named Spielman, an agent for some pen house, who lives in St. Louis; that Spielman was on here, in Chicago, and said, “If you will go to Jake Cappels, who keeps on State street, he will tell you where he (Van Balen) isthat, he applied to Cappels, and inquired if he knew where Van Balen was, and had him write to Van Balen to forward the watch. Cappels testified he was a cigar manufacturer at 420 State street, and had lived in Chicago since 1876; that he knew a man by the name of Van Balen; that he lived in no particular place, and was a traveling man in the pen business; that he was in Chicago in July preceding, and was there about January then last, and also about the latter part of August; that he knew Spielman; thought he lived in St. Louis; that Spielman knew Van Balen; that he had a request from Isaacs to communicate with Van Balen regarding a watch and chain; that he received two letters from Van Balen, from Pittsburg; that he received a package, by express, from Van Balen, from Pitts-burg ; that it was brought down to Isaacs, and was opened in his presence; that it contained this watch and chain. The express package was produced, and bore every appearance, from marks on it, as having been sent by express from Pitts-burg.

Had there been in the case the testimony of this man Van Balen that he purchased this watch from Isaacs at the time the latter says he sold the pawned watch, the evidence touching this watch would have been of a more satisfying character. There does not appear to have been any effort to procure VanBalen’s testimony. The fact of the return of the stolen watch by Isaacs’ attorney stands out a most damaging piece of evidence against the defendant, in no way mitigated, save by his own testimony above given. The credibility of witnesses is for the determination of the jury, and where there is a conflict in their testimony, it is for the jury to say to whom they will give credence. In the discharge of this their proper function, the decision of the jury appears to have been adverse to the defendant. We can not say that in this they erred. And upon an examination of the whole testimony in the case, we are unable to say the verdict is so unwarranted by the evidence, as, upon that ground, to call upon the court to set it aside.

The only questions of law arising are the admission in evidence, of the writing above named, between Beattie and Hodges, for the return of the watch, and what was said by the former in the making of it, and the not granting a new trial on the ground of newly discovered evidence. Hodges-testifies that he had agreed with Beattie for the return of the watch for $75; that afterward, in a conversation with Isaacs, the latter said he wanted witness to pay the money over to> him; that witness told Isaacs he would not trust him with $75; that Isaacs replied, “All right; do it with Beattie; but-I want to prescribe the form of the receipt; ” that he wanted the receipt to state that we employed Beattie to get the watch, to which witness assented; that Isaacs said he would give the-watch up for $75, and to go ahead with Beattie and pay the money and sign the receipt on the terms stated; that in ten days he would give me the watch or the money, or Beattiewould; that witness then went to Beattie, and drew up a receipt and contract such as Isaacs had directed,—such as-they had talked about; that it was signed, one by Beattie, and one by Smith, and wdtness paid the former $75. This-testimony, although contradicted by Isaacs, tended to show that Beattie was the accredited agent of Isaacs in the execution of the writing, and rendered it, and what Beattie said, at the time of its execution, admissible, in evidence against. Isaacs.

The so-called newly discovered evidence was contained in an affidavit made by Mr. Beattie, detailing the manner in which he obtained the return of the watch; that the return of the watch and chain was negotiated and procured by the affiant, and others acting for him, without any assistance or knowledge from Isaacs, and that the latter never received any part of the $75. Manifestly this is not such newly discovered evidence as will entitle a party to a new trial. All of it, except the mode of procuring the watch, was known to the-defendant at the trial, and substantially testified to by him. The way in which the watch was obtained was then known to-his attorney, and evidence known to a party’s own attorney,, at the time of the trial, can not he regarded as newly discovered evidence since the trial. The attorney’s knowledge must be counted as the party’s knowledge.

Finding no error in the record, the judgment must be affirmed.

Judgment affirmed.

Mr. Chief Justice Scott: I dissent from the conclusion reached in this case. I am of opinion the verdict is not warranted by the evidence.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Isabel Kelsey v. Fannie M. Snyder et al.

      Filed at Ottawa November 13, 1886.

      Witness—competency—of the complainant in a suit against an administrator and heir. On a bill against an administrator of an estate and the heir of the intestate, to declare and enforce a resulting trust as to property in the name of the intestate, the complainant is not competent to testify, in his own behalf, as to transactions and conversations with the deceased, in his lifetime.
    2. Same—practice—time to object to competency of witness. An objection to the competency of a party to a bill in chancery to testify against parties defending as administrator and heir of a deceased person, is not waived by failing to interpose it at the time of taking the deposition of the witness, but such objection is good if taken on the hearing.
    3. At common law, an objection to the competency of a witness on the ground of his interest, which could be removed, by release or otherwise, was waived by a failure to make the same in apt time, so as to afford an opportunity to obviate it. But this rule did not apply to objections that were incurable, as, where the evidence was irrelevant.
    4. Resulting trust—evidence. If a party whose money is used in acquiring an interest in a mine or other real estate, takes the notes of the party in whose name the conveyance is taken, and proves them against his estate, this will rebut any claim of a resulting trust in favor of the payee of such notes.

      5. Rescission—for fraud—placing other party in statu quo. Before a party can have a contract rescinded on the ground of fraud, he must return, or offer and be able to restore, whatever he may have received which may be of any value. If such party has disposed of any property transferred to him by the other party, which has a value, he can not have the contract rescinded in a court of equity.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.
    Mr. Granville W. Browning, for the appellant:
    The objection to the competency of the witness was made too late. Lockwood v. Mills, 39 Ill. 602; Walker v. Dement, 42 id. 275; Webb v. Insurance Co. 5 Gilm. 225; Moshier v. Knox College, 32 Ill. 163; Gregory v. Dodge, 14 Wend. 593.
    Julia Glass’ testimony, alone, establishes a trust in favor of Mrs. Kelsey, in the mining property. We need no other evidence to show that the pretended assignment of August 24 was a fraud, but it corroborates the testimony of appellant, and makes it so strong as to be irrefutable. Story’s Eq. Jur. sec. 1201; Nicholas v. Thornton, 16 Ill. 113; Collins v. Smith, 18 id. 160; Kane County v. Herrington, 50 id. 232; Reed v. Petersen, 91 id. 288; Cramer v. Hoose, 93 id. 503; Weaver v. Fisher, 110 id. 146; Franklin v. McIntyre, 23 id. 91; Cookson v. Richardson, 69 id. 137; Loften v. Witboard, 92 id. 461; Smith v. Smith, 85 id. 189; McNamara v. Garrity, 106 id. 384; Mason v. Showalter, 85 id. 133; Seaman v. Cook, 14 id. 501.
    Inadequacy of price is evidence of fraud. Story’s Eq. Jur. sees. 188, 246 ; Reed v. Petersen, 91 Ill. 288; Kerr on Fraud; 189, 190.
    Mr. Charles A. Hill, for the appellees:
    The complainant was not a competent witness. Marshall v. Peck, 91 Ill. 187; Wachter v. Blowney, 104 id. 614; Cassel v. Cassel, id. 361; McCann v. Atherton, 106 id. 34; Plain v. Roth, 107 id. 595; Ferbrache v. Ferbrache, 110 id. 210.

      Having taken notes for the money she claims to have advanced for opening and developing the mine, and proved the-same as a claim against Benson’s estate, she' is equitablyestopped from claiming any interest in the mine itself.
    The rule is inflexible that, a party can not rescind a contract of sale, and at the same time retain the consideration received. If he rescinds, he must restore the property purchased, in as good condition as when he received it. “He-" must put the other party in as good a condition as he was-in before the sale, by a return of the property purchased.”' Buchanan v. Horney, 12 Ill. 338; Bowen v. Schuler, 41 id. 195; Wolf v. Deitsch, 75 id. 210; Livingston v. Short, 77 id. 591; Smith v. Brittenham, 98 id. 197; 109 id. 550; Strong v. Lord, 107 id. 25.
   Mr. Justice Scholfield

delivered the opinion of the Court::

On the 16th of June, 1880, Walter H. Putnam and Ira F.. Benson concluded an agreement, which was then reduced to-writing, and signed by the respective parties. The writing-recites, that “whereas, the said Putnam is the legal owner of" the ‘Milk Maid’ mining claim, lode or lodge, situate about one mile north of the town of Silver Cliff,” (Custer count)',. Colorado,) “and desires additional capital to procure machinery and further develop the said mining claim, and the said Benson has agreed to furnish the capital hereinafter mentioned, for that purpose, now, therefore, it is mutually agreed as follows, to-wit: First, the said Putnam agrees to sell and. convey to the said Benson a one-half interest in and to the said mining claim, for and in consideration of the sum of" $2500 to be by him, the said Benson,-furnished, for the purpose of developing the said mining claim; and the said Putnam further agrees that he will, within thirty days hereafter,, furnish an abstract showing good title thereto, and will make, execute and deliver a good and sufficient deed therefor to the> said Benson, his heirs or assigns. * * * Second, the said Benson agrees to pay, upon the execution of this agreement, the sum of $400 in cash, and further procure from George K. Clark an order on the Bull Domingo Mining Company for one hoisting engine and appurtenances, valued at $1000, and agrees further to pay the remainder in monthly payments, as required by the necessities of the work. * * * Fourth, that in case said mining claim should prove valueless as a mine, then the said hoister and other machinery belonging or appertaining to the mine, is to be the property of the said Benson, and shall be subject to his order. ” A deed was made by Putnam to Benson, in conformity with this agreement, on the 30th of June, 1880. Benson died intestate, on the 5th of July, 1880, leaving surviving him, no widow, but one child, Fannie M., intermarried with Elmore Snyder, his sole heir-at-law. Administration of his estate was granted to Chester K. Snyder, by the county court of Grundy county.

On the 3d of September, 1880, Isabel Kelsey filed, in the county court of Grundy county, her claim against the estate of said Ira F. Benson, deceased, the fourth clause of which reads thus: “Moneys borrowed, from time to time, since October, 1873, by said Benson, of claimant, under promise of repayment, but never repaid, and for which notes were given, which notes were kept in Mr. Benson’s satchel, and are not now in possession of claimant, $5500.” Subsequently, on September 15, 1881, this original claim was amended so as to include several other notes, one for the principal sum of $2000, another for $3000, both of which were claimed to be lost; two others, for the principal sum of $1200 and $275, respectively, which were attached to the claim, making four in all, so attached, and increasing the claim to some $18,000 or more. This claim, as amended, was allowed on the same day, (September 15, 1881,) to the amount of $8000, in the seventh class.

On the 24th of August, 1880, said Isabel Kelsey, by an instrument in writing signed by her, of that date, purported, “for and in consideration of a deed of conveyance of the Milk Maid deposit or lode, situated in Hardscrabble mining district, Custer county, Colorado, dated August 17, 1880, * * * to sell, assign, transfer and set over to Fannie M. Snyder, the grantor in said deed,” her (“my”) “claim against the estate of Ira F. Benson, deceased, to the extent or amount of $2000, said estate being now administered in the county court of Grundy county. ” And she therein purported to direct that the administrator of said estate pay said Fannie M. Snyder, or her attorney, from the dividends or moneys due or declared upon said claim, said sum of $2000, and which sum she further purported to declare was “in payment for said Milk Maid deposit or lode, conveyed as aforesaid. ” A deed was executed and acknowledged by Fannie M. Snyder, her husband, Elmore Snyder, joining therein, on the 17th of August, 1880, purporting to convey to Isabel Kelsey, by what may be assumed to be a proper description, “an undivided one-half interest” in the mine and its appurtenances.

On the 18th of September, 1880, said Isabel Kelsey, by her deed of that date, purported to convey the same mine and property to 0. H. Horine, F. M. Horine and Fred Howard, for which they, therein, undertook to pay her the sum of $2000, as follows: cash, at the delivery of the instrument, $500, and the sum of $1500, payable out of the first yield of the mine. Anri they further agreed that “in the event of the said mining property not yielding sufficient to pay said $1500, then all working apparatus, such as machinery and tools, shall be sold to pay said $1500.”

The bill by Isabel Kelsey charges, in substance, that Ira F. Benson bought, with money furnished by her for that purpose, the half interest he had in the mine, etc., by conveyance ,from Putnam; that she furnished $2000 for that purpose; .that the deed should have been taken to her, but, for convenience, it was taken to Benson, he intending to convey to her later; that after the death of Benson she was induced, by false and fraudulent statements, and accepted a deed of eonveyaneé of a half interest in the mine, of Fannie M. Snyder, sole heir-at-law of said Benson. These allegations were put in issue by the answer, and, that appellant should recover, it was asserted that they should be proved.

Appellant’s deposition was taken, and in it she testified to transactions and conversations with Benson in his lifetime, and at the hearing, counsel for appellees objected to the reading of that part of her deposition. The court heard the deposition, subject to the objection, and the first question now to be considered is, shall the part of her deposition thus objected to, be received and considered as competent evidence in the case.

The adverse parties defend as administrator and heir-at-law of Ira F. Benson, deceased, and it is not denied that the evidence objected to falls within the second section of the statute in relation to evidence and depositions, (Rev. Stat. 1874, p. 488,) and would have been inadmissible if the objection had been interposed in apt time. But counsel contend that the objection should have been taken at the time of the taking of the deposition, and that it was too late to urge it, for the first time, on the trial in the circuit court, and in support of this he cites Frink v. McClung, 4 Gilm. 569, Goodrich v. Hanson et al. 33 Ill. 498, and Warren v. Warren, 105 id. 568. The objection to a witness, on account of interest, might, at common law, be obviated upon the trial, by the execution of an instrument having the effect to release that interest, and hence it was required, as held in the cases cited, that an objection on account of interest should be made at the earliest opportunity, so that the party calling the witness might have time, if possible, to obviate the objection, by release or otherwise. In Warren v. Warren, no objection was taken on the hearing. But this rule did not apply as to objections that were incurable, as, for instance, that the evidence was irrelevant. (Lockwood v. Mills et al. 39 Ill. 606.) And the philosophy of the rule is stated in Clauser et al. v. Stone, 29 Ill. 114. It is not possible that appellant could, by any act of the court or of herself, have been rendered competent to testify as to the matters to which the present objection goes. She is no worse off, the objection having been urged upon the trial, than she would have been had it been urged at the time of taking the deposition. She is absolutely disqualified to testify as to those matters. Cassel v. Cassel, 104 Ill. 361; Wachter v. Blowney, id. 614; McCann v. Atherton, 106 id. 34; Plain v. Roth, 107 id. 595; Ferbrache v. Ferbrache, 110 id. 210.

Omitting the testimony objected to, the only evidence relied on to establish a trust, as charged, is that found in the testimony of the colored woman, Julia Glass; but this is plainly insufficient, for two reasons: First, she says that the money she saw paid, and the conversations she heard, were about. three years before the death of Benson, whereas, we have seen the purchase of the property by Benson was less than one month before his death; and second, she says that she heard Benson tell appellant that a part of the mine should be hers. But what part ? The answer is not given.

The foundation of the bill thus failing, it is useless to consider the case farther. But we will add, that even if the entire deposition of Mrs. Kelsey were admitted, the proof fails to establish a resulting trust. If she paid the money for the mine, then, in equity, the one took the place of the other; but she took Benson’s notes for the money and probated them against his estate. It is not possible that she both bought the mine herself, through Benson, and at the same time loaned Benson the same money with which he bought it for himself. The execution of the notes rebuts the claim of a trust.

We are not satisfied that the evidence sufficiently proves any fraudulent conduct on the part of the appellees. But even .if fraud existed, and the ease were one in all other respects in ■which relief could be granted, we think relief should not here be granted as prayed, because appellant has not returned, or offered to return, nor can she return, what she received from the appellee Fannie M. Snyder. Appellant conveyed everything to Horine & Co., under a contract, and even if it be true that the mine is unproductive, it does not follow that it has no value; and then, the machinery which went with it is not shown to have been destroyed or valueless, and it is neither returned nor offered to be returned.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
      In re John Mullin et al.

      Filed at Ottawa November 13, 1886.

    Insolvent debtob— discharge from imprisonment—when malice is the “gist of the action." Malice being the “gist of the action” in a suit in trespass for an assault and battery, the defendant in the judgment, arrested and held in custody under a writ of capias ad satisfaciendum issued thereon, is not entitled to a discharge from imprisonment under the Insolvent Debt- or’s act.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. H. 0. McDaid, and Mr. C. A. Knight, for the appellant,
    contended that malice is not necessarily the gist of the action in trespass to the person, but that force is the gist of that action. Gratly v. Stern, 37 Hun, 426.
    The gist of an action is the ground or object of the action in point of law, without which there would be no cause of action. 1 Bouvier’s Law Die. 712; Gould’s Pleading, 41; Abbott’s Law Dic.; Wharton’s Law Dic.; First Nat. Bank v. Burkett, 101 Ill. 394.
    • Messrs. Brandt & Hoffman,' for Spangenberg,
    relied principally on the case In re Murphy, 109 Ill. 31.
   Mr. Justice Magruder

delivered the opinion of the Court:

This was an application for discharge under section 2 of “An act concerning insolvent debtors,” being chapter 72 of the Revised Statutes of this State. The appellants were arrested on a capias ad satisfaciendum, issued upon a judgment, recovered in the Superior Court of Cook county, in an action of trespass for an assault and battery. The judgment, so recovered, has heretofore been brought before this court for review, and was affirmed by us in Mullin et al. v. Spangenberg, 112 Ill. 140. A full statement of all the facts will be found in the opinion in that ease.

The Superior Court held, that malice was the gist. of the action, in which the judgment aforesaid was rendered, and that appellants could not be discharged under the Insolvent law. The decision of that court was affirmed by the Appellate Court, and Mullin and McHugh, the insolvent debtors, have appealed.

In the record, now presented to us, no other question is involved than that, which was considered and decided by us in In re Murphy, 109 Ill. 31. The decision in the last named case is decisive of all the issues in the case at bar. The judgment of the Appellate Court is, therefore, affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Gertrude K. Spencer v. Edwin R. Boardman et al.

      Filed at Ottawa November 13, 1886.

      1. Evidence—parol evidence, to prove contents of a written contract. Where there was evidence tending to show that a written ante-nuptial contract was in the possession of the wife, in a contest affecting her right to dower, etc., and she failed to produce it, on notice, and gave no reason for its non-production, it was held, that parol evidence of the contents of the instrument was admissible.
    2. Same—of evidence admissible in such case—as, the testimony of the attorney who drew the contract, in the absence of the person sought to be affected by it. To show an ante-nuptial contract between a husband and wife, an attorney was allowed to testify to the fact of his having drawn such a contract for the husband shortly before his marriage, and that the latter took it away unexecuted, the intended wife not being present. There was other proof of the existence of such a contract, and of its execution by the wife just before her marriage, and the evidence tended to show the original was in her custody. It was objected that the attorney could not testify to a transaction with the husband alone, in her absence, and that such transaction should not affect the wife: Held, that in view of the other evidence, the attorney’s testimony was properly received.
    3. Witness—competency—of a party to the suit, concerning matters transpiring before the death of another, as against the heirs of the latter. A witness was called in a case in which a widow was seeking dower in heríate husband’s lands, who testified to a transaction between the witness, the wife and the husband, and what was then said about an ante-nuptial contract between the latter two, the witness being called upon to draw a note and mortgage from the husband to the wife, to secure her in her post-nuptial rights. The widow offered to testify in her own behalf, as to what occurred between her and her husband and such witness, on the ground the witness was an agent of her deceased husband: Held, that she was not competent to testify to matters stated by such witness, as he was not an agent of the husband.
    ■ 4. Administrator’s saie oe dand to pay debts—of the pleadings in the proceeding—whether a cross-petition required. On petition by an administrator for an order to sell real estate to pay debts, in which proceeding the widow’s right to a specific allowance and dower is contested by the heirs, the court may properly find against the claims of the widow, under the petition and answers, without the filing of a cross-petition, and the court may also require her to apply upon a note held by her on the estate, property improperly taken by her under the assumption she was entitled to an award.

      5. Ante-nuptial contract—as a bar to widow’s dower and award. A widow’s dower may be barred by an ante-nuptial contract, and where there are no children of the marriage, the widow’s award may in like manner be barred.
    6. County court—of its equitable jurisdiction—awarding restraining order. Where a widow, having a note of her deceased husband, not yet due, given in lieu of the rights that would have accrued to her by the marriage, takes property without lawful right, to apply on what is called the widow’s award, and she claims dower in the lands sought to be sold to pay debts, the county court, under the somewhat of equitable jurisdiction which has been accorded to it in the settlement of estates, will have the power to direct that she credit the sum received by her, as being part of her award, upon her note, and restrain her from negotiating the note without such credit having been entered thereon.
    Appeal from the Circuit Court of Stark county; the Hon. T. M. Shaw, Judge, presiding.
    Messrs. McKenzie & Calkins, and Mr. A. P. Miller, for the appellant:
    What was said and done by North and the deceased, out of the presence and hearing of appellant, could not be allowed in evidence against her objection.
    Proof of the loss dr destruction of a written instrument must be conclusively shown before secondary evidence of its contents can be received. Mariner v. Saunders, 5 Gilm. 113; Lundberg v. Markenhauser, 4 Bradw. 603; Moore v. Wright, 90 Ill. 470; Rankin v. Crowe, 19 id. 626; Cooke v. Hunt, 24 id. 535 ; Williams v. Case, 79 id. 356 ; Wing v. Sherrer, 77 id. 200; Railway Co. v. Ingersoll, 65 id. 399; Rhode v. McLean, 101 id. 467.
    Bogart was Spencer’s agent to draw deeds and to draw a mortgage. He testified to pretended conversations with appellant, when he was drawing such papers. She was a competent witness to give her version of such conversations. Rev. Stat. chap. 57, sec. 2; Joaquin v. Davidson, 49 Ill. 82; Marshall v. Karl, 60 id. 208.

      The order of the county court granted relief beyond what was prayed for, and beyond its jurisdiction.
    A reasonable provision in an ante-nuptial contract, if so intended, will bar dower. McMahill v. McMahill, 105 Ill. 596; Jordan v. Clark, 81 id. 465 ; Phelps v. Phelps, 72 id. 545 ; McGee v. McGee, 91 id. 548. But homestead can not be barred by such contract. McGee v. McGee, 91 Ill. 548.
    Mr. M. Shallenberger, and Mr. C. G. Wilson, for the appellees.
    Mr. James H. Miller, for the appellee Boardman.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a cause originating in the county court of Stark county, on petition of Edwin B. Boardman, administrator of the estate of Isaac P. Spencer, deceased, to sell real estate to pay debts. Gertrude K. Spencer was the widow. The amount of the widow’s award was $1500, and she had received in property, at its appraised value, $1330.75 of that award. The petition set out facts showing a deficiency of personal property to pay debts, of about $10,000. It prayed the setting apart of the widow’s dower and homestead, and the sale of the residue of the real, estate to pay said deficiency. The heirs came in, and set up, by answer, that the widow was not entitled to homestead or dower, or widow’s award, by reason of an ante-nuptial contract entered into by her. The county court, upon trial, found that the widow was entitled to homestead, but not to dower or widow’s award, and ordered a sale. Erom the order of the county court, Gertrude K. Spencer, the widow, appealed to the circuit court, and in that court filed her answer, by leave of court, whereby she admitted the necessity of the sale to pay debts, admitted that she was entitled to dower and homestead, and requested that her dower interest be sold, and that a gross sum be allowed to her in lieu thereof. The circuit court affirmed, substantially, the order of the county court,. and from the judgment of the circuit court the widow appeals to this court.

No ante-nuptial contract was produced, and the question first to be considered is, whether one'was made, as alleged.

Isaac P. Spencer, deceased, at the time of his marriage to appellant, in July, 1876; was a widower, sixty-four years of age, having children by his former marriage, who were all of age. Mr. North, an attorney, testifies, that a week or ten days before this second marriage, Mr. Spencer came to him, informed him that he was about to contract.a second marriage, and wished him to draw up an ante-nuptial contract. Mr. North did so, in accordance with directions from Spencer, and handed the writing to the latter, which he took away without signing. Mr. North testifies distinctly to the contents of this writing; -that by it Spencer and his intended wife mutually agreed to join in any conveyances that might be necessary to convey the real estate of either of them, and she agreed to accept $2000 in lieu of any dower interest in his property which he had or might acquire, and in lieu of her homestead rights and widow’s award; that the $2000 was to be paid within one year after his death; that Spencer agreed to waive and release any claim or right in her property which might result from the marriage. The witness Boardman, the administrator, testifies, that in a conversation with appellant he told her the heirs claimed there was such a marriage contract as that above stated, and she said she did sign a paper; that she signed it just as she was going on the floor to be married; that she didn’t read the paper, didn’t know what was in it, and that it had been destroyed by mutual consent. Mr. Bogart, a notary public, testified, that in January, 1881, he drew up, at the request of Mr. Spencer and his wife, a note and mortgage for $3000, running from the former to the latter, due in six years after date,—the mortgage securing the payment of the note on real estate; that the consideration of the note and mortgage was fully stated by Mr. and Mrs. Spencer to him; that it was stated an ante-nuptial contract had been executed between them, whereby Mrs. Spencer was to receive $2000 within a year after her husband’s death, and that this $2000 was to be in lieu of all her widow’s rights in the estate of her husband; that the note and mortgage were given to secure the payment of this $2000, and $1000 additional. The witness states that he asked for the contract, in order to draw the mortgage, and Mrs. Spencer said it was with her attorney, where she used to reside,—that she didn’t want to keep it in the house.

Objection is taken to the admission of Mr. North’s testimony, as being to a transaction with Spencer alone, in the absence of appellant, and should not affect her. In connection with the subsequent testimony which appears, we regard it as admissible. We do not feel prepared to say that the court below was not warranted in finding, from the evidence, that the ante-nuptial contract was made as alleged, and that it was still in force. The evidence tending to show the contract was in the possession of appellant, parol evidence of its contents was properly admitted, it being stipulated that notice was given to produce the contract; and besides, the answer of the heirs apprised appellant that the contract was relied upon in resistance of her claim, and that evidence of it would be given.

There is objection to the exclusion of testimony of appellant, which was offered, as to what occurred between her husband, Mr. Bogart, and herself, concerning the execution of the $3000 mortgage, and what was said about the ante-nuptial contract, on the ground that Bogart was an agent of Mr. Spencer, and that she, under the statute, might testify to the same conversation or transaction of the deceased that his agent testified to. Bogart was not the agent of the deceased. He was but a scrivener employed by the deceased to draw the mortgage and take its acknowledgment.

The point is made, that the court improperly granted the relief it did, upon answer,—that there should have been a cross-petition filed. We perceive no error in this regard. The question presented, under the petition and answers, was the amount of the indebtedness, and how much real estate was required to be sold,—the widow making claim she should be paid a sum in gross for dower,—and there was substantially but a determination of that question. The order finds that the widow was not entitled to award; that she wrongfully received the $1330.75, part thereof, and that that amount should be applied toward the payment of appellant’s $3000 note and mortgage, and she was restrained by the order from transferring the note, so as to prevent the $1330.75 being applied as a credit.

It -is urged that the widow’s award was wrongfully taken away. As respects dower, this court has, in a number of eases, decided that it will be barred by such an ante-nuptial contract. Phelps v. Phelps, 72 Ill. 545; Jordan v. Clark, 81 id. 465; McGee v. McGee, 91 id. 548; McMahill v. McMahill, 105 id. 596. And in McMahill v. McMahill we held that the widow’s award was equally waived and barred by such an ante-nuptial contract. There were here no children of the second marriage. Under”the authority of the case last cited, the order was correct in declaring the widow’s award to be waived and barred by the ante-nuptial contract.

It is said the order granted relief beyond the power of the court, in its restraining part. The order, in this respect, was no more than was necessary to make effective the adjudication which had been made, that the $1330.75 should be applied as a credit upon the note. Somewhat of equitable jurisdiction we have held the county court to possess in the making of settlement of the estates of decedents, and we regard this restraining order as well enough made in this case.

The judgment of the circuit court will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    The Burlington Lumber Company v. Fred Willetts, Collector.

      Filed at Ottawa November 13, 1886.

    1. Taxation—as to property in transit from one State to anothei— or in case of temporary detention while in transit. Property in course of transportation from one State to another, over one of our navigable rivers, or over any of the public highways of the country, is not liable to taxation as it passes over such highways, by the State authorities along the lines thereof; nor, it would seem, if property, while in the course of transportation over-one of our navigable rivers, should be detained by low water, or ice, or other cause, would it be liable to be taxed by the authorities where the detention occurred.
    2. Same — of the situs of property, for purposes of taxation—and herein, of corporate taxation. A lumber company located at Burlington, Iowa, left a large quantity of saw logs in a harbor or bayou on the Illinois-side of the Mississippi river for safe keeping, until needed, and had leased the land along the shore and employed an agent in this State to take care of them, and it appeared that the company had kept logs at such place for several years before, and that they were kept at such place because they could be kept there in greater safety, and at a less expense than at Burlington. Held, that such logs were subject to taxation in this State. The property-had a situs here, rendering it subject to taxation under State authority. The owners might be deemed to be engaged in business in this State, so far as-the storage of the property was concerned.
    3. But an incorporated village has no authority of law to impose a corporate tax upon property thus situated, and which is without its-limits, and being void, if levied, its collection may be enjoined.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Mr. John C. Pepper, for the appellant:
    The property had no such business situs as to be taxable in this State. Dunlieth v. Reynolds, 53 Ill. 45; Herron v. Keeran, 59 Ind. 472; Parker Mills v. Comrs. of Taxes, 23 N. Y. 242; Blount v. Munroe, 68 Ga. 51; Lee v. Templeton, 6 Gray, 679; Desmond v. Machiasport, 48 Me. 478; Ells-

      worth v. Brown, 53 id. 519; Loud v. Charlestown, 103 Mass. 278; Walton v. Westwood, 75 Ill. 125; Vogt v. Ayer, 104 id. 583; Goldgart v. People, 106 id. 25; Hays v. Steamship Co. 17 How. 596.
    There is no doubt as to the illegality of the city tax. If part of a tax is illegal, the court should enjoin the illegal part. Taylor v. Thompson, 42 Ill. 17; Briscoe v. Allen, 43 id. 296.
    Messrs. Bassett & Wharton, for the appellee:
    The situs of this property for taxation was in New Boston township. It was there because the owners could keep it there for less expense, and with less liability to loss, than at Burlington. Dunlieth v. Reynolds, 53 Ill. 45; Walton v. Westwood, 73 id. 129.
    The appellant also had a place of business at New Boston, to the extent of placing and keeping its logs there. It leased property there for that purpose, and hired and placed a person there to receive, watch and care for the property, and send it to the mills at Burlington when needed. This was, in that sense, a business that was beneficial to the owners. This gave the property a situs there for the purpose of taxation. Board of Supevisors v. Davenport, 40 Ill. 197; First Nat. Bank v. Smith, 65 id. 45; Selz v. Cagwin, 104 id. 647; Irvin v. Railroad Co. 94 id. 105 ; City of St. Louis v. Wiggins Ferry Co. 11 Wall. 423.
    It is claimed by the appellant that these logs were not within the corporate limits of New Boston, and that the city tax, in any event, is not legal. That proposition may be correct, and if the other taxes had been tendered or paid, then an injunction to restrain the collection of the illegal taxes would have been proper. But there was no offer to pay the State, county or township taxes, and there is no offer in the bill to pay it. The bill is to restrain the collection of all the taxes, and although a part of the taxes may have been illegal, still the bill can not be sustained. Johnson v. Roberts, 102 Ill. 658; Swinney v. Beard, 71 id. 31; High on Injunctions, secs. 497, 498.
    It was the duty of these owners to appear before the town auditors or board of supervisors, to redress any grievances for over-assessment, or for the assessment of property that was exempt. Preston v. Johnson, 104 Ill. 628; Felsenthal v. Johnson, id. 23; Mix v. The People, 116 id. 265; Humphreys v. Nelson, 115 id. 45; Railroad Co. v. Johnson, 108 id. 11; Johnson v. Roberts, 102 id. 655.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by the Burlington Lumber Company, to enjoin the collection of a tax, upon an assessment made by the assessor of the town of New Boston, in Mercer county, for the year 1885, on a certain quantity of logs which were in the New Boston harbor, or bayou, on the 1st day of May, 1885.

There is no substantial dispute between the parties in regard to the facts. The Burlington Lumber Company is a corporation organized under the laws of Iowa, with its place of business at Burlington. The corporation is engaged in the business of manufacturing lumber. It buys logs in Wisconsin and Minnesota, where they are rafted, and towed down the Mississippi river to Burlington, and there sawed into lumber at the mills of the company. In the spring and summer of 1884, the company purchased logs, which were rafted in Boef slough, near the mouth of the Chippewa river, in Wisconsin. After the logs were rafted, they were towred down the river by a steamer. The vice-president of the corporation, on cross-examination, testified: “Some of the logs were stopped on the way. We could not stow all we bought, at or near Burlington, but it was more convenient and safer to leave them in the harbor at New Boston. After the boats were started with the rafts, the boat would be instructed to leave them at New Boston or other place, and there they would be left until wanted. The first raft was put in, October 3, 1884. That was there in May, 1885. There were 3,000,000 feet there that winter. We had no logs at Burlington in winter of 1885. We have used the harbor for nine years. We could keep logs there safer than at Burlington, and with less expense. Corporation did not own the land. It leased shore privileges,—that is, we pay something, rather than have bother or trouble, to those who own the land, same as if we used a wharf. We have been renting shore privileges several years. The right to tie rafts on his shore was rented of Prentiss. The corporation had E. L. Willits employed to look after logs, and see that none got away. When we wanted logs we sent after them by steamer. Willits was the only man we had employed or that had charge of them there.” Edward L. Willits testified: “I was in the employ of the Burlington Lumber Company in the fall, winter and spring of 1884 and 1885. Was employed by the month to keep logs afloat and see that none got away. Got $50 per month. I know the situation of the logs that winter and spring. There were four rafts, and about 750,000 feet in each.” Cross-examined: “I have been employed five years to look after all rafts. I give receipt to boat, deliver to boat and take receipt. I have control while there. I had moved them across slough to keep them afloat. The Burlington Lumber Company put a raft in Sturgeon bay on the 1st of May. Part of it is there yet.”

It is claimed that the property in question, under the evidence, was in transitu, and, therefore, not taxable in this State. It is a plain proposition, that property in course of transportation from one State to another, over one of our navigable rivers, or over any of the public highways of the country, is not liable to taxation as it passes over such highway, by the State authorities along the line of such highway, and we think it is equally clear, that if property, while in the course of transportation over one of our navigable rivers, should be detained by low water or ice, or other cause, it would not be liable to be taxed by the authorities where the detention occurred': Any other rule would have a direct tendency to obstruct commerce between States, which, of course, could not be done under our system of laws. But the question here presented is, whether the property, when assessed, was in course of transportation over a public highway. We have given the evidence bearing upon this point that consideration which the importance of the question demands, and we have reached the conclusion that the property was not in transitu. For nine years the complainant had used the harbor at New Boston as a place of safety for depositing logs during the winter. Land along the shore had been leased, where the property was anchored, and a man employed, who was placed in the possession of the property. At the time the boats started from Wisconsin with the rafts, to convey them down the river, the destination of the property had not been determined by the company, but after departure, as stated by the vice-president in his evidence, the boats were then instructed to leave a part of the rafts at New Boston, and there they would remain until wanted at the mill in Burlington, when a steamer would be sent for them. New Boston harbor, or Sturgeon bay, as it is usually called, is only about thirty miles up the river from Burlington. It is very accessible, and it seems plain that the company had selected the bay as a place of storage for its logs,—a place where its property could be shipped, and kept in safety until such time as it was needed at the mills in Burlington. Indeed, for all practical purposes, it may be said that the transit of the property ended at New Boston. When the logs reached that point, they were located there for an indefinite time. New Boston harbor thus became the destination of the property, and so remained until such time as the corporation saw proper again to place the property in transit. No other reasonable construction can be placed upon the evidence.

The first section of our Bevenue law provides, that all real and personal property in this State shall be assessed and taxed, except such as is by the act exempted. Here was a large quantity of personal property, located in this State on leased premises, in the hands of an agent of the owner, and upon what principle it can escape taxation is not apparent, unless the plain language of our Bevenue law is disregarded. It is true, that the owners of the property were not manufacturing the logs into lumber in this State, or engaged in selling the lumber here, but the property was kept at New Boston because it was more profitable for the owners to keep it in store there than at Burlington. If kept at the mills in Burlington it would be liable to loss upon the breaking up of the ice in the river, in the spring, while at New Boston it was safe, at a trifling expense. The property was therefore kept at New Boston on account of the profit to the owners to keep it there. The company made money by the transaction. Here the Burlington Lumber Company .had premises leased, large amounts of valuable property placed on the leased premises, in the hands of’hired agents, resulting in profit to the company, and yet it is claimed it had no place of business in this State. This claim is unreasonable. We think, when all the circumstances are considered, it may be said that the company was engaged in a business here, beneficial to itself. If, then, the company had this property located in our State, and it was here for profit, and it was so located as to claim the protection of our laws, the property, in our ppinion, had a situs here, and was liable to taxation.

We have been cited to the late case of Coe v. Town of Earl, decided in the Supreme Court of the United States, as having an important bearing on the question involved. We have examined that case, and,- as we understand the decision, the question here involved is not considered or decided in that case. The point there decided, as we read the opinion of the court, is, in substance, this: In order to exempt property from taxation on the ground that it is in course of transportation, the property must be actually shipped,—that placing it together for shipment is not sufficient.

There is, however, one error in the record. The taxes which complainant attempted to enjoin, were, in part, levied by the incorporated town of New Boston. The property, however, was never within the incorporated limits of New Boston, and so far as it is concerned, it acquired no jurisdiction over, and has no right whatever to impose a tax on, the property. The corporation tax was void, because New Boston had no right to assess the property, and being void, the complainants had a clear right to file a bill to enjoin this part of the tax.

As to the corporation tax of New Boston the decree will be reversed. In all other respects it will be affirmed, and the costs of this court will be equally divided between the parties.

Decree reversed in part and in part affirmed.


author: Mr. Chief Justice Scott

text:
    The University of Chicago v. The People ex rel. William C. Seipp.

      Filed at Ottawa November 13, 1886.

    1. Exemption from taxation—University of Chicago—constitutionality. Section 10 of the charter of the University of Chicago, passed in 1857, is unconstitutional and void, under the constitution of 1848, in so far as it attempts to exempt the property of that corporation from assessment of benefits for local improvements.
    2. Nor does the provision in section 2, article 8, of the constitution of 1870, securing the faithful application of all gifts, etc., to the purposes intended, lend any aid to the claim of exemption in such case. That clause in the constitution relates to the public school fund of the State, from whatever source derived, and not merely private donations to educational institutions, or to private corporations created for educational purposes.

      - Appeal from the County Court of Cook county; the Hon. Bichard Prendergast, Judge, presiding.
    Messrs. Jenkins & Harkness, for the appellant.
    Mr. George M. Haynes, for the appellee.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The appeal in this case is from the judgment of the county court of Cook county, for the sale of the real estate of the University of Chicago, upon which its buildings are located, for two special assessments levied by the municipal authorities of the city of Chicago, for the improvement of streets adjacent to the university grounds. The principal objection insisted upon is, the real property of the university is exempted “from taxation or assessment for all and any purpose whatever, ” under the 10th section of the charter of 1857. ¡

The facts of this ease, as they appear in the record, so clearly bring it within the principle of City of Chicago v. Baptist Theological Union, 115 Ill. 245, it will not be necessary to discuss the case as on first impression. It was held in that ease, section 7 of the charter of the Baptist Theological Union, granted in 1865, providing that “the property, real and personal, belonging to said corporation, at any and- all times hereafter, shall be free and exempt from all taxation and assessments, special or general, for any and all purposes whatever, ” is held unconstitutional and void, under the constitution of 1848, in so far as it attempts to exempt the property of that corporation from assessment of benefits for local improvements. The provisions contained in the charters of both corporations are, in substance, the same, and the case cited must control the present decision.

It is not thought the provisions of section 2, article 8, of the constitution of 1870, designed to secure the faithful application of school lands, moneys or other property granted or donated to school, college, seminary or university purposes, at all aid the view suggested by counsel. That provision was, no doubt, intended to secure the public school fund of the State, from whatever source derived, and not mere private donations to educational institutions, or to private corporations created for educational purposes. The case of People v. Trustees, ante, p. 52, goes to that extent, and no further.

The judgment of the county court will be affirmed.

Judgment affirmed.


text:
    James A. Kirk et al. v. The L. Wolf Manufacturing Company.

      Filed at Ottawa November 13, 1886.

    1. Contract—estimating cost on specifications which are subsequently changed. If a manufacturer, upon a rough sketch, makes an estimate of the price of certain copper tanks, etc., based upon the idea of using copper only One-fourth of an inch in thickness, which would make the price $1250, and the other party afterward orders the copper to be one-half inch thick, the manufacturer will not be bound to do the job for the estimated price, and such estimate will not be regarded as a part of the contract.
    2. Same—evidence as to what is a reasonable price. Where a manufacturer is employed to manufacture certain articles for another, and there is evidence tending to show a failure of the parties to agree as to the price to be paid therefor, and the articles are made, accepted and retained by the party ordering the same, evidence of what is a reasonable price is proper.
    3. Instruction—construed, as directing that the price charged must be paid. In an action to recover the price of certain work done, when the amount to be paid is alone in dispute, an instruction in behalf of the plaintiff, that “the value or no value of the job to the defendants is of no consequence; * * * if they ordered it they should pay for it,” is not subject to the objection of being understood by the jury to mean, that if the defendants ordered the work they must pay the price charged.
    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.

      Messrs. Flower, Kemy & Gregory, for the appellants:
    The contract price alone must govern, and evidence of what the work was reasonably worth, is improper. Brigham v. Hawley, 17 Ill. 38; Byrne v. Byrne, 47 id. 507.
    If there was no contract growing out'of a mistake or misapprehension, neither party will be bound. Rupley v. Daggett, 74 Ill. 351; Kerr on Fraud and Mistake, 422.
    An instruction ought not to single out particular facts in evidence, and call them to the attention of the jury. Holmes v. Hale, 71 Ill. 552; Callaghan v. Myers, 89 id. 566; Frame v. Badger, 79 id. 441.
    Messrs. Dent & Black, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action brought by the L. Wolf Manufacturing Company, against James A. Kirk and others, to recover for manufacturing for the latter certain copper tanks, with their connections, the declaration containing the common counts, only. A trial before a jury resulted in a verdict in favor of the plaintiff for $3177, upon which judgment was entered, after overruling a motion for a new trial, and there was an affirmance of the judgment by the Appellate Court for the First District. From this judgment of affirmance the defendants appeal to this court.

The tanks, etc., were manufactured, accepted and retained. The controversy was as to the price, the plaintiff claiming that it was to be fifty cents per pound for the tanks and apparatus, which would make it $3124.25, the number of pounds being 6428J, to which was added $140 for extra work; and the defendants insisting that the outside cost to them was not to exceed $1250.

Appellants assign for error, the admission by the court of evidence to show what the work done and materials furnished were reasonably worth, and the giving of instructions for the plaintiff. The position taken is, that as both parties insist there was a contract as to }3rice, there must have been a special contract as to price, and it was simply a> question for the jury which party’s version to accept,—that where there is a special contract as to price, it must govern, and what is a reasonable price in such case is entirely irrelevant and inadmissible.

The Appellaté Court, in their opinion, say, they “are satisfied that there was evidence tending to show, and from which the jury might have found, that the work was not done and the materials furnished under an express or special contract which fixed the price to be paid.” The case shows such a misunderstanding between the parties as to the price to be paid, that we are satisfied the evidence tended to show that the minds of the parties never concurred upon the question of price, and that thus, as the Appellate Court found, there was no special contract fixing the price. It is then contended on behalf of appellants, that if there was such a failure to concur as to price between the parties, the necessary effect thereof was to annul the entire contract, and leave either party free to rescind it or to insist upon its nullity, and Rupley v. Daggett, 74 Ill. 351, is cited as supporting such view. There was a purchase of a horse in that case, the seller understanding the price to be §165, and the purchaser understanding it to be §65. The latter having obtained the animal, claimed the right to retain it upon payment of this sum. The seller brought replevin, and the action was sustained by this court upon the ground of the nullity of the contract. The court said there had been no meeting of the minds of the contracting parties, and hence there could be no sale. There was in the present case no annullment of the contract, or claim that it was a nullity. The articles were received and kept. Appellants’ counsel say: “There was no denial by appellants of their liability to pay for this apparatus. They admitted of record a liability of §1250. The only controversy was, not whether they should pay, hut how much, ”—thus impliedly admitting the existence of the contract, and that they stood by it, claiming, only, that their indebtedness upon it was but $1250. Surely they must be held under obligation to pay some price for the articles they receive and retain,—either the contract price, if any, as it shall be found, or a reasonable price. Besides, in the case cited, by the return of the property the seller would be placed in statu quo, and neither party would suffer injury; but here, appellee had expended a large amount of labor and material upon the articles manufactured; they were of special design, for a peculiar purpose of appellants, of no general demand, and appellee could not be placed in statu quo by their return. The case of Rupley v. Daggett would not seem to be applicable to a case like that at bar. If there was no contract price, evidence of what was a reasonable price would be proper, and we find -no error in the admission of such evidence.

Objection is taken to the third, fourth and fifth instructions which were given for the plaintiff. The third is as follows :

“If you believe, from the evidence, that the defendants furnished a crude sketch, upon which plaintiff or its president made merely an estimate, based upon the thickness of the copper to be used, and that the estimate then made was upon the idea of using copper only one-quarter inch thick, and-that it would require only about twenty-five hundred pounds, and that afterwards defendants ordered the copper to be one-half inch thick, and that ■ plaintiff thereafter prepared one more •elaborate and specific drawing for the work, upon which was marked in plain writing that the job was to be at fifty cents per pound, and that the defendants’ agent, Dr. Tilley, saw such latter drawing before finally ordering the work, and frequently saw it during the progress of the work, then all such facts should be considered by you in making up your decision, and the plaintiff would not be bound to do the job at the price of $1250.”

This instruction is objectionable in singling out particular facts in evidence, and calling them to the attention of the jury, and in being argumentative. It is a form of instruction this court has frequently disapproved. But we do not, in the circumstances of this case, attach enough of importance to the objectionable feature of the instruction to make it material error. What appellants claimed to be an agreed price of $1250, appellee insisted was but an estimate of the price; and the substance of the instruction was, that if there was but an estimate by appellee of the price, on the basis of the copper being one-quarter inch thick, and that afterwards defendants ordered the copper to be one-half inch thick, then appellee would not be bound to do the job at the price of $1250. The first thing under the instruction was, whether appellee made merely an estimate, and the finding upon that was really the determination of the whole question under the instruction, and going on afterward to consider the facts which the instruction says should be considered, would seem to be unimportant.

The fourth instruction was:

“The value or no value of the job to the defendants is of no consequence to you—whether it be of value or not to them is wholly immaterial in the ease. If they ordered it, they should pay for it.”

It is' objected to this instruction that it would naturally be understood by the jury to mean, that if appellants ordered the tanks they must pay the price which appellee asked for them. The jury would not be justified in so understanding the instruction. It informs the jury that defendants should pay—but what price, whether the contract price claimed by the plaintiff, or that insisted on by defendants, or a reasonable price, is not intimated.

The criticism made upon the fifth instruction is, that it is somewhat involved,—what is meant by it is difficult to understand,—that it must have confused rather than assisted the jury. This would not be ground sufficient for reversing the judgment. We perceive no material error in the instructions.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott;

text:
    The Chicago, St. Louis and Pittsburgh Railroad Company v. Anna Welsh.

      Filed at Ottawa November 13, 1886.

    1. Negligence—whether the question of comparative negligence involved—as, in case of injury to a child. In an action by an infant, against a railway company, to recover for a personal injury, when the plaintiff, at the time of the injury, was too young to be chargeable with negligence, and the parent of the child is not shown to have been guilty of any, the question of comparative negligence does not arise. In such a case the inquiry is, whether the injury was caused by the negligence of the defendant.
    2. Same—instruction—when it need not present the rule as to comparative negligence. The law does not make it necessary to state the doctrine of comparative negligence in an instruction, as applicable to a plaintiff incapable, from its tender years, of observing ordinary care for its personal safety, and hence an inaccuracy in an instruction as to the negligence of the plaintiff, is harmless, as no question can arise on it.
    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.
    Messrs. Willard & Driggs, and Mr. F. J. Loesch, for the appellant:
    The second instruction given for the appellee assumes that appellant was guilty of wrongful acts, and leaves it to the jury whether the plaintiff suffered any permanent injury therefrom. This was error. Insurance Co. v. Crawford, 89 Ill. 62; Chicago v. Bixby, 84 id. 82; Railroad Co. v. Griffin, 68 id. 503; Railroad Co. v. Robinson, 106 id. 142.

      The defendant’s instruction should have been given as asked, presenting the law as to the comparative negligence of the parties. Railroad Co. v. Eininger, 114 Ill. 79; Chicago v. Starr, 42 id. 174; Chester v. Porter, 47 id. 66; Railroad Co. v. Hetherington, 83 id. 510; Railway Co. v. Scates, 90 id. 586; Morrissey v. Railroad Co. 125 Mass. 377; Moon v. Railroad Co. 99 Pa. St. 301; Gillespie v. McGowan, 100 id. 144; Railroad Co. v. Schwindling, 101 id. 258.
    Mr. Simon P. Douthabt, for the appellee:
    The instruction complained of does not assume any facts as true. It is not unusual or objectionable practice, when the plaintiff’s counsel desires an instruction as to the rule of damages, to say to the jury, that if they find, from the evidence, that the defendant is guilty as charged, then the plaintiff is entitled to recover, etc. Railroad Co. v. Payne, 59 Ill. 434; Collins v. City, 32 id. 324.
    The modification of appellant’s instructions was proper, as they, as asked, failed to state the law correctly.
   Mr. Chief Justice Scott;

delivered the opinion of the Court:

This suit was brought in the name of Anna Welsh, by her next friend, Mary Welsh, against the Chicago, St. Louis and Pittsburgh Eailroad Company, and was to recover damages for personal injuries sustained by plaintiff, by reason of the negligent conduct of defendant. On the trial in the Superior Court, plaintiff obtained a verdict in her favor, on which judgment was rendered. That judgment was affirmed in the Appellate Court for the First District, and defendant brings the case to this court on its further appeal.

It is averred in the amended declaration, plaintiff was sitting, with her playmate, on the sidewalk, on May street, at the time she received the injury complained of. It seems May street runs north and south, and that the main tracks of defendant’s road cross it from east to west. One of the side or switch-tracks was connected with the main tracks at Ann street, and came down to May street, ending some three or four feet west of May street. This track was used for coal cars. There was no bumper at the end of this track. On the day of the accident to plaintiff, three cars loaded with coal were standing on the track, the east end of the last car being some five or six feet from the sidewalk on May street. At the time of the happening of the accident to plaintiff, she was seven years and three months old. Her mother resided near where the accident occurred, and sustained herself and family by her daily labor. On that morning she had gone out to service, and left plaintiff and other small children at home. There is evidence tending to prove, and it will be assumed the trial and Appellate courts so found, that plaintiff and her playmate were sitting on the sidewalk on May street, playing together,—as the plaintiff expresses in her testimony, “slinging stones over our heads.” At that point of time, a switch-engine in charge of defendant’s servants sent or pushed in some coal cars from Ann street, which, coming in contact with the cars previously on the switch, pushed them along with such violence they went off the end of the track into the sidewalk on May street, where the children were playing. The ear that w'ent off the track into the sidewalk, ran upon the plaintiff, by which her leg was so badly injured it had to be amputated, at first, below’ the knee, and later, above the knee. Her little companion was instantly killed. Assuming, then, the facts to be as they were found by the Appellate Court, as the evidence tends to establish them, the case presents no difficulty.

It is obvious, plaintiff was too young, at the time she was injured, to observe any care for her personal safety. It is not suggested her mother was guilty of any negligence that exposed her child to danger, or failed to observe the usual precaution for its safety, in the care bestowed upon her, that would usually be taken by persons in her position in life. Keeping in view the fact plaintiff was herself too young to exercise care to avoid injury, there was no serious error in modifying the instructions, as was done. Beally the only question that could arise on the trial was, whether defendant had been guilty of negligent conduct in regard to that which caused the injury to plaintiff. In that view the modifications made to defendant’s instructions, whether entirely accurate or not, could do the defendant no harm. It would be idle to state the doctrine of comparative negligence as applicable to a plaintiff incapable of observing ordinary care for personal security. In such cases the inquiry is, whether the injury was caused by the negligence of defendant. If so, a liability exists. The doctrine of the modifications to defendant’s instructions are so nearly in accord with this view of the law, it is thought they contain nothing really hurtful to the defence.

It is said the second instruction given for plaintiff assumes that defendant was guilty of wrongful acts, and leaves it to the jury whether plaintiff suffered any “permanent injury”' therefrom. It is not perceived the instruction is obnoxious to any such objection. It plainly directs the jury should find every fact material to a recovery, from the evidence, and does not assume the existence of any fact. If the instruction did assume the existence of material facts not proved, and without which* there could be no recovery, of course it would be within the principle of the cases cited, and would, for that reason, be both erroneous and hurtful. But such is not the fact, as the instruction is read and understood by this court.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    In the matter of Benjamin V. Page, Admr.

      Filed at Ottawa November 13, 1886.

    1. Wills—proof of execution, where the will has been lost or destroyed. Section 6 of the Statute of Wills, relating to the proof of wills when an attesting witness is dead, applies to lost or destroyed wills the same as to wills produced before the court.
    2. In this country, the ruling, in general, is, that a will may be established by one, only, of the attesting witnesses, if he can testify to a compliance with the statute relating to its execution. This does not, however, dispense with the necessity of the will being attested by two witnesses; and this rule applies equally to a lost or destroyed will.
    3. Same—proof of contents of lost will—by a single witness—declarations of ¿estator. The contents of a lost or destroyed will may be proved by the testimony of a single witness.
    4. The declarations, written or oral, made by a testator after the execution of his will, are, in the event of its loss, admissible, not only to prove that it has not been canceled, but also as secondary evidence of its contents.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Mr. George W. Smith, for the appellant:
    If the will is traced into the testator’s possession and custody, or is not found at all, it will be presumed the testator destroyed or mutilated it, animo revocancli. The presumption is rebutable. Redfield on Wills, p. 307, sec. 8, p. 348, sec. 9, note 14; Lord St. Leonard’s case, 195.
    The following cases state the rule of presumption clearly, and show its force: Betts v. Jackson, 6 Wend. 173; Knapp v. Knapp, 10 N. Y. 276; Chisholm v. Ben, 7 B. Mon. 408; Smock v. Smock, 3 Stockt. (11 N. J. Eq.) 156.
    As to the proof of a lost or destroyed will, we refer to the following authorities : Statute of Wills, secs. 2, 6; Crowley v. Crowley, 80 Ill. 469; Theakston v. Marson, 4 Hogg, 313; Hubb v. Clark, 1 id. 115; McKinzie v. Yoe, 3 Curtis, 125; 4 Burns’ Eccl. Laws, 324; Toller on Executors, 71; Burles v. Bush, L. R. 1 P. & D. 472; Whorram v. Whorram, 3 Sw. & Tr. 301 ; Dickey v. Malechi, 6 Mo. 177; O’Fallon v. Mullanphy, 4 id. 601; Graham v. O'Fallon, 3 id. 354; Baker v. Dobyns, 4 Dana, 220; Steele v. Price, 5 B. Mon. 58; Dan v. Brown, 4 Cow. 483; Jackson v. Betts, 6 id. 377.
    As to proof of contents of will, see 1 Redfield on Wills, 349; Davis v. Sigourney, 8 Metc. 487; Rhodes v. Vinson, 9 Gill, 171; Hale v. Monroe, 28 Md. 98; Durfee v. Durfee, 8 Metc. 490.
    Mr. A. B. Lenes, and Mr. Wallace Smith, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Joseph P. Maxwell died in Cook county on the 22d day of September, A. D. 1876, leaving surviving him, a widow, Sarah J. Maxwell, and several children. No will being discovered at the time of his death, administration of his estate was granted to ■ Benjamin V. Page and Sarah J. Maxtvell. On the 26th day of October, A. D. 1881, Sarah J. Maxwell having discovered, as she alleged, within a few days of that time, that Joseph P. Maxwell made a last will and testament on or about the 1st day of August, A. D. 1876, which he left unrevoked at the time of his death, presented her petition to the probate court of Cook county, that the same might be probated. The probate court made an. order admitting the alleged will to probate, and that order was affirmed, on appeal to the circuit court of Cook county. An appeal was prosecuted from the order of the circuit court to the Appellate Court for the First District,' and that court affirmed the judgment of the circuit court. The caséis now before us by appeal from the last named'.judgment.

It is provided in our Statute of Wills, (Bev. Stat. 1874, p. 1101,) in section 2, that “all wills, testaments and codicils * * * shall be reduced to writing, and signed by the testator or testatrix, * * . * and attested, in the presence of the testator or testatrix, by two or more credible witnesses.,r And section 6 provides, that in “all cases where any one or more of the witnesses to any will, testament or codicil, as. aforesaid, shall die, or remove -to parts unknown to the parties concerned, so .that his or her testimony can not be procured, it shall be lawful for the county court, or other court having jurisdiction of the subject matter, to admit proof of the handwriting of any such deceased or absent witness, as. aforesaid, and such other secondary evidence as is admissible, in courts of justice to establish written contracts generally, in similar cases, and may thereupon proceed to record the same,, as though such will, testament or codicil had been proved by such subscribing witness or witnesses in his or their proper-person.” This, it will be observed, is not restricted to cases, where the will is actually produced before the court. The-language applies to all cases wherein a witness to the will or codicil dies; and the same reason that would exclude it from lost or destroyed wills, would exclude the language requiring wills to be witnessed by two or more witnesses, from such wills. But all wills are to be attested in the same way, and. the only difference between wills that are produced in open court, and those that have been lost or destroyed, is in the-mode of proving their contents. The will that is produced shows what its contents are, but secondary proof must be-made of the contents of a lost or destroyed will.

That the contents of a lost or destroyed will may be proved, by the testimony of a single witness, is settled, in England, since the decision in the great case of Sugden v. Lord St. Leonards, 17 English, (Moak’s notes,) 453. And like ruling has. obtained in this country. (Dickey v. Malechi, 6 Mo. 177.) And in this country the ruling in general is, that a will maybe established by one, only, of the attesting witnesses, if he-can testify to a compliance with the statute relating to its. execution. Welch v. Welch, 2 T. B. Mon. 83 ; Dan v. Brown, 4 Cow. 483; Jackson v. Vickery, 1 Wend. 431; Lambert v. Hooper’s Exrs. 29 Gratt. 61; Jackson v. Legrange, 19 Johns. 386; Jauncey v. Thorne, 2 Barb. Ch. 40; Thornton v. Thornton, 39 Vt. 122. See, also, to' like effect, in principle, Doran v. Mullen, 78 Ill. 342. And the fact that the will is destroyed or lost makes no difference in this respect, as will be seen by Dickey v. Malechi, supra, and Dan v. Brown, supra. Sugden v. St. Leonards, supra, also holds that declarations, written or oral, made by a testator after the execution of his will, are, in the event of its loss, admissible, not only to prove that it has not been cancelled, but also as secondary evidence of its contents. It has been held otherwise in New York, but this, in our opinion, is the more reasonable ruling. Cockburn, C. J., in speaking of this question, among other things, said : “In like manner the declarations of a testator have been admitted to show the continuing existence of the will at the time they were made, and so to rebut the presumption of the will having been destroyed, animo revocandi, when the will, having remained in the custody of the testator, is no longer forthcoming. Thus, if a testator were to say, ‘When I am dead, you will find my will in such a place,’ or T have left my estate of Blackacre to my son John,’ or ‘I have left ¿65000 to my daughter Mary,’ such, or similar declarations, would be receivable in evidence to show that the will was, so far as was known to the testator, in existence at the time they were made. ” And he then goes on to show, that, upon like principle, such declarations are also admissible to prove the contents of the will, discriminating Doe v. Palmer, and overruling Quick v. Quick. To like effect, see, also, Hope’s Appeal, 48 Mich. 518.

The evidence, here, is complete as to the due formal execution of the will. Mr. Tourtelotte, a prominent member of the bar of the city of Chicago, testified, that about the first day of August, A. D. 1876, at the request of Joseph P. Maxwell, he drew his will for him; that Maxwell then signed it in the office of Eldridge & Toutelotte, in the presence of the .witness and H. P. Fulton; that he (Tourtelotte) and Fulton witnessed Maxwell sign the will, at Maxwell’s request; that the witnesses then, in Maxwell’s presence, and in the presence of each other, signed their names to the will, as witnesses thereto; that no one else was present at the time; that Maxwell was then of sound mind and memory; that after the will was signed by Maxwell and the witnesses, Maxwell took it ■ away with him; that H. P. Fulton died in the spring of 1877. Tourtelotte gives a copy of the will. By it, Maxwell devised his entire estate to his wife, adding this language: “To have and to use the same, and dispose of the same as she may deem best, having full confidence that she will deal justly by the children. ”

The presumption arising from the non-discovery of the will since the death of the testator, is, that he revoked and can-celled it, and the question is, whether that presumption is overcome by the evidence, here. Tourtelotte testified, that some time after he drew the will,—a ' few weeks before the death of the testator,—he and Maxwell talked about the will, and Maxwell said he then had it in a safe; that the talk was in regard to whether Tourtelotte or Maxwell should keep the will, and Maxwell said, “he had'it in a safe place) among his other papers.” Philena Maxwell, a daughter of the testator, says, in substance, that about the last of August or first of September, A. D. 1876, her father' and her mother and her sister were at Cleveland, and they returned witliin two weeks of the 22d of September, and he w'as then sick, and he remained sick until he died, on the 22d of September; that he never went to his place of business, nor left the house or his bed, after he returned; that after his return, and while he was thus on his deathbed, she heard conversations between him and her mother, in' which he said that he expected to die, and that there was a will, and everything would be left to her mother, at her discretion, for the good of the children. Thomas Maxwell, a son of the testator, says: “After father was taken sick,—his last sickness,—he did not leave the house; he was sick about two weeks; just before his sickness he was away; * * * he came home sick; * * * during father’s last sickness I heard him say that there was a will; * * * he was talking to my mother; * * * that was a few days before he died; * * * I don’t remember exactly what he said, in words, but what he meant to convey was, that he left a will, and left her provided for, and the will was in her favor.” Frank E. Maxwell, another son of the testator, says :■ “About four weeks before my father died, he was' going out- of town. He said if anything happened to him—that he should die—there was a will left at a factory of his.” ' '

No one contradicts either of these witnesses. If they have any interest in the event of the suit, they testify against it. No circumstance tending to affect their veracity is in evidence.

The will, it will be observed, was made only some six or seven weeks before the testator’s death. There is not a circumstance in evidence tending to show subsequent dissatisfaction on the part of the testator with the will, or any attempt or wish to cancel or change it, but there are, on the contrary, these repeated declarations, after it was made, from time to time, up to within a few days of his. death, recognizing its continued existence. Why should he have spoken falsely in this respect,—and this, too, in the face of impending death, realized by him? Not the shadow of an excuse is shown. We think the conclusion must be, that the testator did.not, contrary to all these assertions, intend to revoke and cancel the will. There is, it is true, the circumstance that he sent his son for a paper, while he was lying sick, which he did not return to the safe; but this son could read, and says that he, at one time, saw among the papers an envelope indorsed “Will, ” and he does not pretend it was that paper which he carried to his father. ■

It is useless to discuss the facts further. Some circumstances have been pressed in argument, such as the fact that a previous memorandum for a will was not destroyed, and that the testator retained the custody of the will instead of leaving it with Tourtelotte, which we do not deem of any significance. In our opinion they are just as consistent with the truth of the repeated declarations of the testator as with the view claimed by appellant. It is not indispensable that we should determine what became of the will. It is enough that, in our opinion, it was not revoked or cancelled by the testator.

The judgment is affirmed.

Judgment affirmed.

This ease, when first considered, was assigned to the late Justice Dickey- to prepare the opinion, but by some inadvertence the record was mislaid, and no opinion was prepared in his lifetime, and the record was not found until the September term, 1886.


author: Mr. Justice Mageudeb

text:
    James M. Lowman v. George A. Lowman et al.

      Filed at Ottawa November 13, 1886.

    1. Merger—where the entire estate is united in a mortgagee—whether the mortgage will still be kept alive. Although the parties may have undertaken to discharge a mortgage upon the uniting of the estates of the mortgagor and mortgagee in the latter, the mortgage will still be upheld, in equity, as a source of title, when it is for the interest of the mortgagee, by reason of some intervening title or incumbrance, that it should riot be regarded as merged.
    2. It will be presumed, as matter of law, that the mortgagee must have intended to keep his mortgage alive, when it was essential to his security against an intervening title or incumbrance. And this presumption applies, although the parties, through ignorance of such intervening title or incumbrance, or through inadvertence, have actually discharged the mortgage of record, and canceled the notes.

      3. So where a mortgagee, shortly after the maturity of "the debt, took a •deed from the mortgagor of the mortgaged premises, the mortgagor being insolvent and the premises not being equal in value to the debt, and entered satisfaction of his mortgage upon the record thereof, under the belief of the payment and discharge of a junior mortgage, it was held, on bill to foreclose the junior mortgage, that in order to protect the first mortgagee and his grantee, the prior mortgage would be kept alive and enforced.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Stark county; the Hon. T. M. Shaw, Judge, presiding.
    Mr. M. Shallenbebgee, and Mr. B. F. Thompson, for the •appellant.
    Mr. James H. Milleb, for the appellee.
   Mr. Justice Mageudeb

delivered the opinion of the Court:

This is a bill in chancery, filed by appellant against appellees, on August 18, 1884, in the circuit court of Stark county, to foreclose a mortgage, dated April 1, 1873, and recorded April 16, 1873, upon the west half of lots 2 and 3 in block 14 in Toulon, executed by George A. Bowman to Branson Bowman, to secure a note for $400, dated April 1,1873, payable three years after date with interest at ten per cent, made by George A. Bowman and payable to the order of Branson Bowman, and by the latter indorsed to appellant.

Previously, George A. Bowman and William Bowman had executed their note for $5000, dated July 26, 1872, drawing ten per cent interest, payable two years after date to the order of Samuel Burge & Co., composed of Samuel Burge and David J. Walker, and, to secure the same, had executed a mortgage, •dated July 26, 1872, and recorded on July 26,1872, to Burge and Walker, composing said firm, upon certain land, owned by William Bowman, and also upon said west half of lots 2 and 3, owned by George A. Bowman. David J. Walker, who only had an interest in the profits of the firm, has no interest in the note and mortgage, last described.

On September 10,1874, George A. Lowman and wife made a deed, dated as of that day, to Samuel Burge, conveying the west half of lots 2 and 3, in part payment of the $5000 mortgage, and a credit of $2000 was thereupon indorsed upon the note for $5000. On February 1,1881, a release of the mortgage for $5000, signed by “Sam’l Burge & Co.,” was written upon the margin of the record thereof in the recorder’s office. Burge went into possession of the lots in the fall of 1874, and resided upon them until September 25, 1882, when he sold and conveyed them to Hopkins Shivvers for $1500.

Upon a trial of the cause, the circuit court entered a decree, dismissing the bill, and, the Appellate Court having affirmed that decree, appellant brings the case before us by appeal from the Appellate Court.

It is claimed by appellees, that the mortgage, made on April 1, 1873, and sought to be foreclosed, has been paid. . Bran-son Lowman and George A. Lowman had been partners under the firm name of B. & G. A. Lowman, and had ceased doing business by selling out to one Nicholas. Branson died in Nebraska March 13, 1885. George A. Lowman swears, that, shortly before September 1, 1874, he turned over to Branson Lowman all his interest in the notes, books and accounts of the old firm,-and that, in consideration of such transfer, Branson agreed to release the mortgage; that he told Branson of his intention to deed the property to Burge, and Branson said “all right,” and promised to have the mortgage released. This testimony is not directly contradicted by any other evidence in the record, and there are many circumstances, which tend to confirm its truth.

-During nine years after the note for $400 was given, Bran-son Lowman lived in Toulon. George A. Lowman also lived there, and at a place, not distant more than fifty miles from Toulon, during the same period. Branson made no demand at any time, during these nine years, for the payment of the note. In the spring of 1882 he moved to Hastings, Nebraska. In the winter of 1883-84, appellant, who is a son of Branson Lowman, and was a clerk for B. & G. A'. Lowman, while they were in business, and assisted in collecting their accounts, after they quit business, went to Nebraska to see his father. Shortly after his return, the note for $400 was forwarded to him from Nebraska. He found the mortgage in the recorder’s office in 1884, where Branson Lowman had suffered it to remain for eleven years after its execution, and eight years after its maturity. Appellant claims to be the owner of the note by assignment from his father, but he admits that such assignment was not made until the winter of 1883-84, seven or eight years after the maturity of the note.

But, even if the proof of payment is not sufficient to overcome the presumption of non-payment, which arises from the possession of the note and mortgage by the appellant, there is another reason, why it would be inequitable to allow appellant to enforce the mortgage, as against Shivvers and his grantor, Burge. In order to protect the rights of the latter, equity will keep alive the mortgage for $5000, notwithstanding the apparent merger, which might’ appear, from the records, to have taken place.

In September 1874, shortly after the mortgage for $5000 became due, the makers of that mortgage, William and George A. Lowman, were both insolvent. The property covered by the mortgage—both the lots, owned by George A. Lowman, and the land, owned by William Lowman—was worth from $1500 to $2000 less than the amount due. For these reasons, Burge did not desire to go to the expense of foreclosing, and accordingly accepted a deed of the lots to himself from George A. Lowman, one of the mortgagors. “A mortgagee may procure a conveyance from the mortgagor without intending to merge the lien of his mortgage. It may be of great importance to him to be permitted, for the protection of his title, to keep his mortgage alive, and to assert it in a court of equity, if the necessity shall arise. Where a greater and less estate meet in the same person, a merger does not necessarily follow. That will depend upon the intent' and the interest.of the parties, and if a court perceives it is necessary to the ends of justice, that the two estates should he kept alive, it will so treat them. Thus, if a mortgage is the eldest lien, and is for an amount, exceeding the value of the premises, and the mortgagee, to avoid the expense of foreclosure, takes a conveyance from the mortgagor, a court of equity would not permit the mortgaged premises to be swept away from him by a junior judgment creditor” (or a junior mortgagee) “without payment of the ” (prior) “mortgage, under the pretence, that its lien had been lost by merger. ” Edgerton et al. v. Young et al. 43 Ill. 464. To the Same effect are Fitts v. Davis, 42 Ill. 391; Shaver v. Williams, 87 id. 469 ; Worcester National Bank v. Cheney, id. 615; 4 Kent’s Com. 102; 1 Jones on Mortgages, sec. 873.

The evidence, in the case at bar, shows, that Burge never did surrender the note and mortgage to George A. and William Lowman, but still had them in his possession, after appellant’s bill had been filed. It also appears, that, in the fall of 1882, Burge wrote a letter to Branson Lowman, stating that he found the junior mortgage for $400 still unsatisfied on the records, and desired to have a release of it forwarded, in order to avoid expense, as he had sold the lots to Shivvers, but, at the same time, speaking of his own mortgage for $5000, as a prior lien, and expressing his intention to foreclose it, if necessary, to cut off Lowman’s lien.

“Even when the parties have undertaken to discharge the mortgage upon the uniting of the estates of the mortgagor and mortgagee in the latter, it will still be upheld as a source of title whenever it is for his interest, by reason of, some intervening title or other cause, that it should not be regarded as merged; It is presumed, as matter of law, that the party must have intended to keep on foot his mortgage title, when it was essential to his security against an intervening title, -or for other purposes of security; and this presumption applies, although the parties, through ignorance of such intervening title, or through inadvertence, have actually discharged the mortgage and cancelled the notes.” 1 Jones on Mortgages, sec. 873; Young v. Hill, 31 N. J. Eq. 429; Stanton v. Thompson, 49 N. H. 272.

Without further discussion, we think, that the case of Richardson v. Hockenhull, 85 Ill. 124, is decisive of the case at bar. The facts there are similar to the facts here, and the principles, there announced, must control in the present casé.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.