author: Mr. Justice Scott

text:
    Henry H. Hoagland et al. v. John W. Crum.

      Filed at Springfield

      March 30, 1885.

    1. Landlord and tenant—lease from tenant for life—rights and liability of lessee upon the death of the lessor during the term. At common law, where a tenant for life gives a lease for a term of years on a yearly rent, and dies in the course of the year before the day for the payment of the rent, the rent can not be apportioned, and the tenant may quit the premises on such death without liability to pay any rent to any one after the last day appointed for payment. This rule of the common law remains unchanged in this State.
    2. But if the tenant continues to occupy the premises after tire determination of his lease by the death of his lessor, and the owner of the reversion acquiesces in such holding, there is no rule of law to prevent the owner from recovering of the tenant the reasonable value for the use and occupation of the premises, from the time of the determination of the lease by the death of the lessor.

      3. So in an action to recover for the use and occupation of land, the defendant pleaded that the sole cause of action was the rent of the land, which had been leased by the defendant from the widow of the deceased owner for one year, from March 1, 1881, to March 1, 1882, and not from the plaintiffs, the heirs of the deceased owner, or either of them; that such land was held by the widow as and for her life estate or dower interest in the lands of her late husband; that the rents for the premises did not fall due until the expiration of the lease; that on November 1, 1881, and after such leasing, and before the rent fell due, the widow departed this life, and that plaintiffs claimed to recover the rents of and from the defendant as heirs at law of the deceased husband, and not otherwise: Held, that the plea was bad, in failing to allege that the defendant quit the premises on the termination of the lease by the death of the lessor.
    4. Same—administrator of dowress—power to release rights of heirs. The administrator of a dowress can not release any rights the heirs of the deceased husband may have against an occupying tenant holding over after the termination of his lease by the death of the dowress.
    Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of Menard county; the Hon. Cyrus Epler, Judge, presiding.
    Mr. T. W. McNeeley, and Mr. S. H. Blane, for the appellants :
    The rents for the year ending on March 1, 1882, were certainly due to somebody. These rents, falling due after the death of the lessor, could not go to her personal representatives, nor could such rents go to the personal representatives of Martin Hoagland, late owner of the fee. Bent falling due after the death of the lessor is a chattel real, and' descends with the land to the heirs, and not to the executor or administrator. Green v. Massie, 13 Ill. 363; Crosby v. Loop, id. 626; Foltz v. Sprouse, 17 id. 487; Dixon v. Nicholls, 39 id. 372.
    Accruing rents for the use and occupation of land, and which do not become due till after the death of the lessor, are a chattel real, which descends to the owner of the reversion.

      Messrs. Morrison & Whitlock, for the appellee:
    If any rent be recoverable for the time from March 1 to November 1, 1881, the right would be in Fannie M. Nance, administratrix with the will annexed, and not in the heirs of Martin Hoagland, deceased, appellants in this case. The right being in her as such administratrix with the will annexed, her release of the errors, as set forth in the plea filed, is a good reply to the assignment of errors. Henrichsen v. Van Winkle, 21 Ill. 274.
    But we say that no rent was due to any one. None can be recovered for the year 1881. The rent began March 1, 1881, and the lease was for one year. The life estate of the lessor fell, in November of that year. Where no time is fixed for the payment of rent, the rent is due at the end of the year. Perry v. Aldrich, 13 N. H. 343.
    The contract was broken by the death of Louisa A. Hoagland, because her title expired with her life, and this being so, the right of Crum to occupy ceased, and neither the heirs of Martin Hoagland, deceased, nor the personal representative of the lessor, had any right of recovery. Brudell v. Roberts, 2 Wils. 143; Hammond on Parties, 157; Clime’s Case, 10 Coke, 127; Paget v. Gee, Ambl. 198; Jenner v. Morgan, 1 P. Wms. 392; Edwards v. Countess of Warwick, 2 id. 176; Hay v. Palmer, 3 id. 502.
    If one lease lands for a term of years, rendering rent annually, and the tenant be evicted between rent days, the lessor shall have no rent for that year. Countess of Plymouth v. Throckmorton, 1 Salk. 65.
    Bent will not be apportioned as to time, where the lease is terminated by the expiration of the title of the lessor. Taylor on Landlord and Tenant, sec. 387; Perry v. Aldrich, 13 N. H. 343; Wood v. Partridge, 11 Mass. 488; Fishburg Manf. Co. v. Melvin, 15 Mass. 270. This is because the contract is an entire thing. The contract was first broken by the lessor by the failure of the title, and hence the right to occupy ceased before the end of the year.
    Where the landlord terminates the lease during the year, although it be done under a provision in the lease giving him that right, he can not recover rent for any part of that year. Zule v. Zule, 24 Wend. 76; 35 Am. Dec. 600; Nellis v. Lathrop, 34 id. 284; Wood on Landlord and Tenant, sec. 476; 1 Williams on Executors, 703, et seq., and cases cited.
    Mr. T. W. McNeeley, and Mr. S. H. Blane, for the appellants, in reply, contended that the rule of the common law on this subject is not adopted, being inapplicable to the habits and conditions of our society, and as not being in harmony with the genius and objects of our institutions. Boyer v. Sweet, 3 Scam. 130.
    The statute of this State was made for such a case as this, and gives a right of action. Hurd’s Stat. 1883, chap. 80.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought by the heirs at law of Martin Hoagland, deceased, to recover for the use and occupation of certain premises, against the occupying tenant, John Crum. To the first plea filed by defendant a demurrer was sustained, and, on leave given, defendant filed an amended or second special plea, in which it ivas averred the cause of action in the declaration mentioned was for the rent of certain premises, which are accurately described, and for no other cause whatever ; that such lands were leased by defendant from Louisa A. Hoagland, widow of Martin Hoagland, and not from plaintiffs, or either of them; that such lands were leased of and from Louisa A. Hoagland, for one year, viz., from the first day of March, 1881, to the first day of March, 1882; that such lands were held by Louisa A. Hoagland as and for her life estate or dower interest in the lands of which Martin Hoagland died seized and possessed, and by no other right or title whatever; that the rents for the premises did not fall due and become payable until the expiration of the lease, on the first day of March, 1882; that on the first day of November, 1881, and after the premises had been so leased by defendant, and before the rent therefor became due and payable, Louisa A. Hoagland departed this life, and that plaintiffs claimed to recover the rents in this suit of and from defendant, as heirs at law of Martin Hoagland, and not otherwise. To this plea plaintiffs interposed a demurrer, which was overruled by the court, and plaintiffs electing to abide by their demurrer, judgment was rendered for defendant, and against plaintiffs, for costs. That judgment was affirmed in the Appellate Court for the Third District, and a majority of the judges of that court having made the necessary certificate to enable them to do so, plaintiffs bring the case to this court on their further appeal.

The single error assigned is, the circuit court erred in overruling the demurrer to defendant’s second or special plea, and in rendering judgment against plaintiffs for costs. Had it been averred in the plea defendant quit the premises on the determination of his lease by the death of his lessor, the plea would undoubtedly have been good. There canobe no pretence the heirs could recover for use and occupation while defendant occupied the premises under his lease from the owner of the life estate. But the plea contains no averment defendant quit the premises on the death of his lessor. Although the plea contained no specific averment to that effect, the inference from the facts stated is, he occupied the premises up to the first day of March, 1882, when the lease, by its terms, would expire. On that hypothesis, no reason is perceived why defendant would not be liable for the use and occupation of the premises from the termination of his lease by the death of his lessor, up to the time when he surrendered the possession to the heirs, who were the owners of the fee, subject, only, to the dower or life estate of the widow. Of course the death of her who had the life estate, and who died before the end of the year, terminated defendant’s right to occupy under her, •and so long as he may have thereafter occupied the premises, it must have been under the heirs, who were then the owners of the fee, unincumbered by the life estate of the dowress. It is nowhere averred in the plea the heirs objected to his occupancy for the remainder of the year, or that he was evicted by them after the termination of his lease on the death of his lessor. At common law, where a tenant for life gave a lease for a term of years, rendering a yearly rent, and died in the course of the year, before the day appointed for the payment of the rent for the term of years, the rent could not be apportioned. It was for the reason the contract was an entirety. But the tenant might quit the premises if he chose, on the death of his lessor, and paying no rent to any one for the occupation since the last day appointed for payment of the rent. (8 Kent’s Com. 371; 2 Blackstone, 124.) The statute (George II, chap. 19, sec. 15,) that gave the executors or administrators of the life tenant on whose death any lease determined, the right to recover of the tenant a ratable proportion of the rent from the last day of payment to the date of the death of the lessor, has never been adopted by any act of our legislature, so that, in that respect, the common law remains unchanged in this State. There are many statutes of this State providing remedies’ where the common law afforded none, and this may be casus omissus. At all events, it seems the law now is, if a tenant holds-under one having only a life estate, if he shall quit the premises on the death of his lessor, which determined his lease, before the rent becomes due and payable, he will be liable to pay rent to no one,—neither to the representatives of the owner of the life estate, nor to the owner of the fee, who may be entitled to immediate possession. But where the tenant elects to continue to occupy the premises after the determination of his lease by the death of his lessor, and the owner of the reversion acquiesces in such holding, there is no rule of law that would prevent the owner from recovering of the tenant the reasonable value for the use and occupation of the premises. A statute of this State provides the owner may recover rent, or a fair and reasonable satisfaction, for the use and occupation of lands, where the same are held and occupied by any person without any special agreement for rent, by an action of debt or assumpsit, in any court of competent jurisdiction. That is precisely this case, so far as defendant may have held and occupied the premises after the determination of his lease by the death of the owner of the life estate. The plaintiffs are the owners, and their right to recover a fair and reasonable satisfaction for the use and occupation of the premises after the title was disincumbered from the life estate of the widow, against any person who may have held and occupied the same, is clear. As against their rights, whatever they may be, the plea presents no defence, and the demurrer should have been sustained.

It is obvious the administratrix of the dowress could release no rights the heirs may have had against an occupying tenant, and the plea of the release of errors filed in the Appellate Court need not be considered.

The judgment of the Appellate Court will be reversed, and the cause remanded, with directions to that court to reverse the judgment of the circuit court and remand the cause for a new trial.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    John Leigh v. The People of the State of Illinois.

      Filed at Springfield

      March 30, 1885.

    1. Evidence—dying declarations—admissibility of evidence in respect thereto. On the trial of one upon a charge of murder, the court had the jury to retire, and heard the testimony of two witnesses who were present together at the time the person injured made a statement of the facts in relation to his injury, both of whom testified as to the state of mind of the declarant at the time, and his apprehension of death, but one only as to his declarations, from which the court held the same were admissible as dying declarations. The jury were recalled, when the same testimony was repeated, and in addition the witness who had testified on the preliminary hearing only as to the mental condition of the declarant, and his apprehension of death, gave his declaration. On objection that the court should have heard, on the preliminary examination, the statement by this latter witness, of the declarations, before it was permitted to go to the jury, in order that the defendant might not be prejudiced by something improper that the witness might say, it was held, the testimony was in itself all admissible and proper, and there was no injury to the defendant in this regard.
    2. Same—affidavit of person injured, to impeach his statements subsequently made, as dying declarations. There is no material error in refusing to admit in evidence an affidavit made by a party assaulted and injured, against his assailant, showing the facts of the assault, for the purpose of impeaching his dying declarations, made afterward, when there is nothing in such affidavit contradictory of any statement in his dying declarations.
    3. Same—of an instruction, as not stating all the elements necessary to dying declarations. An instruction in behalf of the People in a capital case naming certain matters which the jury may consider in determining the weight to be given to dying declarations, is not erroneous merely because it fails to inform the jury that the declarations must have been made under the sense of impending death, when it does not exclude the idea of this being a necessary element, and the deficiency is supplied in one of the defendant’s instructions.
    4. Same—contradictions in testimony—as affecting the question of its being considered at all. Where two witnesses testify to dying declarations made in their presence, being together at the time, and their testimony agrees in the essential of the commission of an unprovoked homicide, the fact that they vary somewhat as to the attendant circumstances, one being more full than that of the other, will not warrant an instruction for the rejection of the testimony of both on the ground of its being contradictory or untrue.

      5. Cbiminal law—reasonable doubt—as applied to a particular fact. A defendant in a criminal case is not entitled, as a matter of right, to an instruction that if the jury have any reasonable doubt as to a particular thing in the evidence supposed to relate to the offence charged, not an essential fact in the constitution of the crime, to give the defendant the benefit of such doubt.
    6. So on the trial of one for murder, in which the dying declarations of the person injured were shown, the defendant asked the court to instruct the jury as follows: “In order that such declarations should have any weight, you must further believe, from the evidence, that they were detailed to you substantially as they were made by him (deceased.) If you have any reasonable doubt as to whether the declarations were made at the time when if. felt that death was impending and certain to follow almost immediately, and after he had despaired of life, or whether his declarations have been detailed to you by witnesses substantially as they were made, you should give the defendants the benefit of such doubt.” The court modified the instruction by striking out all the words in italics. The jury, by other instructions, had been fully and most favorably instructed for the defendant upon the subject of dying declarations, and as to the necessity of proof of the defendant’s guilt beyond a reasonable doubt: Held, that there was no error in the modification.
    7. Same—apparent danger—self-defence. On the trial of one for murder, the court instructed the jury, for the People, to the effect that if the defendant, when not in actual or apparent danger of receiving death or great bodily harm at the hands of the person with whom he was involved in difficulty, shot and killed him, they should find the defendant guilty as charged: Held, that the defendant had no just cause of complaint from the use of the words, “apparent danger, ” instead of words showing circumstances such as to excite the fears of a reasonably prudent man. The appearance of danger does not imply more, but rather less, than such urgency of danger as to excite the fears of a reasonable person.
    8. On the same trial, the court, on behalf of the defendant, instructed the jury that if they had any reasonable doubt, from the evidence, whether the defendant, at the time of the shooting, was under a reasonable apprehension that his antagonist was about to inflict upon him great bodily harm, or would kill him, and that he fired the shot under that belief, it was their duty to acquit: Held, that the instruction embraced about all the law of the case upon the point of self-defence the defendant was entitled to have given to the jury, and that there was no error in refusing other instructions varying from the one given.
    9. Same—threats—in justification of homicide. On a trial for murder, proof of previous threats by the person killed will not justify an unlawful attack or killing. Such proof is admissible only for the purpose of giving character to any attack the deceased may have subsequently made upon the defendant. The circumstances of such an attack are to be considered and judged of in view of the previous threats of the deceased. But where the attack is of such a murderous character as to clearly justify the homicide, as in self-defence, his previous threats will have no weight at all, and an error in an instruction relating to such threats will not work an injury to the defendant.
    10. So on the trial of a capital case, the court, for the People, instructed the jury that the previous threats of the deceased were only admissible for the purpose of giving character to the attack the deceased might subsequently make upon the defendant, and concluded: “And before such threats should be considered by the jury as any evidence whatever to extenuate or justify the killing, it must appear, from the evidence, that the deceased actually attacked the defendant in such a manner as to create in a reasonable person a reasonable and well grounded fear of receiving death, or great bodily harm, at the bands of the deceased:” Held, that the last clause was erroneous, as an attack of less violence would have sufficed; but when the only evidence of such attack was that of the defendant, which showed it to have been of such a character as to justify the homicide, independent of the previous threats, it was held that the error in the instruction was harmless.
    11. New tbial—newly discovered evidence. Newly discovered evidence not of a conclusive character, but cumulative, merely, affords no ground for a new trial.
    Writ of Error to the Circuit Court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.
    Messrs. Palmers, Robinson & Shutt, for the plaintiff in error;
    As to the law applicable to the admissibility of dying declarations, and the proper practice, see Starkey v. People, 17 Ill. 20; Barnett v. People, 54 id. 331; Nelson v. State, 13 S. & M. 500.
    The court erred in refusing to admit in evidence the affidavit made by the deceased, giving an account of the same transaction. Instruction No. 15, of the People, in laying down the rule for weighing dying declarations, failed to give the very essential element that they were made under the sense of impending death.
    The court erred in modifying defendant’s twelfth instruction, and in striking out the clause for the rejection of the testimony relating to the dying declarations, if contradictory or untrue. It must appear, beyond a reasonable doubt, that the alleged declarations were made in extremity. Starkey v. People, 17 Ill. 21; Tracey v. People, 97 id. 106; Rex v. Ashton, 2 Lewin, 147; 2 Leading Crim. Cases, 243.
    The threats of the deceased communicated to the accused before the killing, are proper to show the grounds for his apprehension of great bodily injury. The People’s fourteenth instruction virtually excludes all consideration of threats from the jury. People v. Scoggins, 37 Cal. 677.
    The court erred in refusing instructions relating to the law of self-defence, and in refusing-a new trial.
    Mr. George Hunt, Attorney General, for the People:
    The variance of the witnesses as to the time they went to Eigby’s, ought not to impeach their testimony upon the important and vital facts. It is enough to give the substance of dying declarations. Starkey v. People, 17 Ill. 22.
    The affidavit of the deceased was made the day before the dying declarations, and it could not modify or contradict the statements made by the witnesses as to the dying declarations.
    The seventh of the People’s instructions, relating to self-defence, is not erroneous, under the defence set up by the defendant. Crim. Code, secs. 148,149; 3 Greenleaf on Evidence, sec. 115; Dawson v. People, 90 Ill. 231.
    The eleventh instruction for the People, taken as a whole, correctly states the law. Kinney v. People, 108 Ill. 519.
    It is not error to refuse an instruction repeating a principle already given. Murphy v. People, 37 Ill. 447.
    The newly discovered ■ evidence is not conclusive, and is hardly cumulative.
    Mr. John G. Drennan, State’s Attorney, also for the People:
    The defendant was not injured by the admission of any improper evidence of Taylor as to the dying declarations. It is proper to prove the same or different dying declarations, by different witnesses. Barnett v. People, 54 Ill. 325.

      The version of the affair set forth in the affidavit does not contradict the dying declarations, nor show the killing was in self-defence. Wharton on Crim. Evidence, secs. 293, 295, 297, 298.
    The People’s fifteenth instruction states the law as laid down in Barnett v. People, 54 Ill. 331, and especially so when considered in the light of the defendant’s seventh, thirteenth, fourteenth, and modified twelfth and fifteenth, instructions.
    Instruction No. 10 is copied from one in Gainey v. People, 97 Ill. 278, and so is the twelfth. No. 11 is fully sustained in Davison v. People, 90 Ill. 229. No. 14 is sustained by Forbes v. Snyder, 90 Ill. 377, on the principle that before threats can be considered there must be proof of an attack by the deceased.
   Mr. Justice Sheldon

delivered the opinion of the Court:

John Leigh was indicted in the Christian county circuit court, with his father, Emanuel T. Leigh, for the murder of James Eigby. The venue was changed to Fayette county, and the defendants were tried at the February term, 1884. The jury acquitted Emanuel T. Leigh, and found John Leigh guilty of manslaughter, and fixed the term of his imprisonment in the penitentiary at five years. A motion for a new trial was made and overruled, and judgment entered upon the verdict. The defendant John Leigh prosecutes this writ of error.

The alleged dying declarations of James Eigby, testified to by the witnesses Anderson and Taylor, were received in evidence. Preliminary thereto the jury were sent out, and an examination of the witnesses was had before the court as to the admissibility of the declarations, Anderson testifying to the state of mind of Eigby, his apprehension of death, and his declarations. Taylor’s examination was confined to the question of the state of mind of Eigby, and his apprehension of death. The two witnesses were present together at the time of the making of the declarations. The court decided the evidence of the declarations to he admissible to go to the jury. The jury were then recalled, and Anderson repeated before the jury his testimony upon the preliminary examination. Taylor followed, repeating his testimony given on the preliminary examination, which referred alone to the state of Bigby’s mind, and his apprehension of death; and he was then permitted by the court, against the objection of the defendants, to go beyond the points embraced in his preliminary examination, and testify to the declarations made by Bigby at the time to which he referred. This is complained of as error. All the reason suggested why the court should have heard, on the preliminary examination, Taylor’s statement of the declarations before it was permitted to go the jury, is, that the defendant might not be prejudiced by something improper that the witness might say. But the testimony received was in itself all admissible and proper, and there was no injury to the defendant in this regard. The objection is without force.

It is insisted that the court erred in its exclusion from the jury of an affidavit made by the deceased on the day of the homicide, offered by the defendant to impeach or contradict the dying declarations. There is, as is said, a difference between the declarations and the affidavit. The one is more full than the other, and there may be statements in one not contained in the other; but we do not find there to be contradiction between them, and we do not regard the affidavit as containing anything which could fairly be said to be in impeachment of the declarations. We can not say there was any material 'error in excluding the affidavit.

Complaint is made of the court’s action with respect to instructions. The fifteenth instruction given on behalf of the People named certain things which the jury might take into consideration in determining the weight to be given to the dying declarations of Eigby. The objection is taken to this instruction, that it failed to inform the jury that the declarations must have been made under the sense of impending death. The instruction did not at all exclude the idea of this being a necessary element. And the fourteenth instruction given for the defendants fully supplied the alleged deficiency in the former.

The twelfth instruction, as prayed by the defendants, after enumerating a variety of circumstances which the jury should take into consideration in determining the degree of credit to be given to such declarations, concluded as follows: “And if you believe, from all the facts before you in evidence with respect to their declarations as stated by the witnesses, that they are contradictory and untrue, you ought to reject them altogether, and it is your duty to give them such weight only as you may believe, after a fair consideration of all the circumstances, that they are entitled to.” The court modified the instruction, as prayed, by striking out the words in italics, and, as thus modified, gave it to the jury. Exception is taken to this modification. We see in it no substantial ground of complaint. The last clause in the instruction embraced essentially all that ivas proper in what was stricken out. The statements of the declarations given by the witnesses agreed in the essential of the commission of an unprovoked homicide, but varied somewhat as to attending circumstances, and one being more full than that of the other. The giving of the portion of the instruction stricken out might have -misled the jury to think that contradiction or variance in unessential circumstances would warrant rejection of the entire testimony of the witnesses.

The twelfth instruction asked by the defendants was :

“In order that such declarations should have any weight, you must further believe, from the evidence, that they were detailed to you substantially as they were made by him. If you have any reasonable doubt as to whether the declarations were made at the time when Rigby felt that death toas impending and certain to follow almost immediately, and after he had despaired of life, or whether his declarations have been detailed to you by witnesses substantially as they were made, you should give the defendants the benefit of such doubt.

The court modified this instruction by striking out the words in italics, and thus modified gave it to the jury. Exception is taken to this. The jury, by other instructions, had been fully, and most favorably for the defendants, instructed upon the subject of dying declarations, and as to necessity of proof of the defendants’ guilt beyond a reasonable doubt, in order to a conviction. The reasonable doubt spoken of in the refused portion of this instruction did not relate to the defendants’ guilt, or to any essential fact in the constitution of the crime charged, but to a mere particular of evidence tending to prove the commission of the crime, as to which we perceive no just ground of complaint in the court refusing to apply the rule of reasonable doubt. It is a kind of instruction a party is not entitled to have given. Mullins v. The People, 110 Ill. 42.

Objection is taken to the seventh instruction for the People, which is to the effect that if the defendant John Leigh, when not in actual or apparent danger of receiving death or great bodily harm, at the hands of James Rigby, shot and killed Rigby, then they should find him guilty as charged in the indictment. What is complained of is the use of the words “apparent danger, ” without reference to the question whether the circumstances were such as to excite the fears of a reasonable person. If the circumstances be such as to excite the fears of a reasonable person, of danger, we think there would be appearance of danger. That apparent danger does not imply more, but rather less, than such urgency of danger as to excite the fears, of a reasonable person, so that defendant has no cause of complaint in the use of the former phrase instead of the latter. See Davison v. The People, 90 Ill. 231. The law, too, in respect of reasonable fear, was fully given to the jury in other instructions.

. The tenth instruction for the People, which is objected to, appears to be but a copy of one which was sustained in Gainey v. The People, 97 Ill. 278, with which we are satisfied.

The objection to the eleventh instruction we deem sufficiently answered in what has been said in regard to the seventh.

We do not consider the thirteenth liable to the objection urged against it, of unduly giving prominence to certain facts.

The fourteenth instruction-for the People was in respect of threats,—that they would not justify an unlawful attack or killing, and were only admissible for the purpose of giving character to the attack which the deceased might subsequently make upon the defendant, and concluded as follows: “And before such threats should be considered by the jury as any evidence whatever to extenuate or justify the killing, it must appear, from the evidence, that the deceased actually attacked the defendant in such a manner as to create in a reasonable person a reasonable and well grounded fear of receiving death, or great bodily harm, at the hands of the deceased.” This last clause was erroneous. An attack of less violence than expressed in the instruction would have sufficed. Such an attack was not first to be proved before threats could be considered. The circumstances were to be considered and judged of in view of the threats, whether the former, taken together with the latter, showed an attack of the character named in the instruction. As had rightly been before said in the instruction, the threats were admissible for the purpose of giving character to the attack, and this should not have been departed from, as it was, in the conclusion. But the only evidence of any attack whatever was that of the defendant, and his evidence showed it to be a plainly murderous attack, which clearly justified the homicide as in self-defence, so that if the jury should believe there was any assault by the deceased, they must, believe it from the defendant's evidence, which showed an assault of the character above named. In such a case the evidence of threats would have had no weight at all, and we can see that this instruction could have done the defendant no injury.

The nineteenth instruction is conceded to be warranted by the ruling in the case of Hirschman v. The People, 101 Ill. 576; but that, it is insisted, is incorrect. On a reexamination of the same, in view of the objections urged against it, we still adhere to what was there said.

The defendants asked the court to give to the jury a series of instructions, twenty-six in number. Seventeen of them were given as asked, four as modified, and five were refused. Four of those refused related to the matter of self-defence. Upon that specific subject five instructions were given for the defendants, the last one being as follows:

“24. If you have any reasonable doubt, from the evidence, whether the defendant John Leigh, at the time of the shooting, was under a reasonable apprehension that the deceased, Eigby, was about to inflict upon him great bodily harm, or would kill him, and that he fired the shot under that belief, then it is your duty .to acquit the defendants.”

This instruction really embraced about all of the law of the case, under the evidence, upon the point of self-defence, which the defendants were entitled to have given to the jury. Four of the refused instructions were upon this same subject of self-defence, varying from those given in the recitation of supposed facts in the case more or less faulty. What of law they contained we consider as embraced substantially in instructions which were given', except two relating to threats, which, in that respect, were so intermingled with other matters as to make them objectionable. And as we have said instructions as to threats could not have been injurious under the evidence, so neither could have been the refusal of such.

We find no substantial error in the giving, modifying or refusing of instructions.

No question was made, as there could not well be, of the sufficiency of the evidence to sustain the conviction.

It is insisted the court erred in overruling the motion for a new trial, on the ground of newly discovered evidence. That evidence was to the purport that James Rigby, about two weeks before the homicide, applied to one Sullivan for the loan or purchase of a pistol, saying he was always having trouble with the Leighs, and did not intend they should get the start of him; that Sullivan refused. to let him have the pistol; that Rigby afterwards said' he was determined to have a pistol or revolver,—that sooner or later he and the Leighs were bound to have bad trouble. This evidence was not at all of a conclusive nature, and was but of a cumulative character. We perceive no error in the overruling of the motion upon this ground.

The judgment will be affirmed.

Judgment affirmed.


text:
    Thomas J. Cox v. The Massachusetts Mutual Life Insurance Company.

      Filed at Springfield

      March 30, 1885.

      Usury—commissions paid to agent by the borrower. The fact that an agent, without the authority, consent or knowledge of his principal, upon loaning the money of the latter exacts from the borrower a sum in excess of lawful interest, does not make the loan usurious.
    Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of McLean county; the Hon. Franklin Blades, Judge, presiding.

      Messrs. Williams, Burr & Capen, and Messrs. Stevenson & Ewing, for the appellant:
    A loan agent who is required to learn the situation of property given in security for money loaned, appoint appraisers to ascertain its value, employ attorneys to examine the abstracts of title, prepare the notes and deéds of trust to be executed by the borrower, receive the drafts and pay the money over to the borrower, is the agent of the lender in making the loan of money. Payne v. Newcomb, 100 Ill. 611.
    A money lender will be charged with notice of the commissions paid to his agent, where it is understood between the lender and his agent that the latter, in effecting a loan from the former, is to get his commissions from the borrower for his services in examining the title to the property, having the same appraised, etc. Payne v. Newcomb, 100 Ill. 611.
    If the agent, with the consent or knowledge of the money lender, makes a loan, and receives compensation from the borrower for his services, the transaction is usurious. Philo v. Butterfield, 3 Neb. 259; Cheney v. White, 5 id. 261.
    As long as any portion of the principal remains upon which the usurious interest accrued and was paid, such usurious interest may be deducted from or set off against the remaining principal, and this can not be prevented by a settlement between the parties. The settlement is not conclusive where there is usury. Payne v. Newcomb, 100 Ill. 611.
    The requirement that the borrower should take a life insurance policy in connection with the loan, and as a condition upon which the loan was granted, the highest legal rate of interest being reserved in the notes, makes the loan usurious. Life Ins. Co. v. Harvey, 7 Fed. Rep. 805; Insurance Co. v. Kittle, 1 McCrary, U. S. Circuit Ct. Rep. 234. .
    Messrs. Stuart, Edwards & Brown, for the appellee:
    The fact that an agent, without the knowledge or authority of his principal, upon loaning the money of the latter exacts a sum in excess of lawful interest, does not make the loan usurious. (Phillips v. McKellar, 92 N. Y. 34.) No decision of this court is in conflict with this view.
    To make a loan usurious, there must be an intent on the part of the lender to take more than the legal rate of interest. Palmer v. Call, 7 Fed. Rep. 720.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a decree of foreclosure of a mortgage. The error assigned is in finding against the defence of usury, which was set up.

In 1875, Thomas J. Cox borrowed of the Massachusetts Mutual Life Insurance Company, through one Tillotson, at Bloomington, $3000, executing his note to the company for that sum, bearing ten per cent interest, (the highest legal rate of interest,) and giving a mortgage to secure the payment of the note, upon the land described in the bill. At the time, Cox allowed to Tillotson a commission of five per cent, ($150,) which was retained by the latter from the money. In July, 1880, the note maturing, Cox made application to Tillotson for a renewal of the loan, which Tillotson obtained, and Cox gave his note to the insurance company for $3000, bearing eight per cent interest, (the then highest legal rate of interest,) secured by mortgage on the same land, receiving no money whatever. On this occasion Cox paid to Tillotson a commission of $75. The last mentioned mortgage is the one foreclosed by the decree.

It appears from the proofs that Tillotson was engaged in the insurance, loan and real estate business, in Bloomingtpn, Illinois; that Cox came to his office and made an application for the loan. Tillotson forwarded the application, with an appraisement, by appraisers, of the value of the property, to the insurance company. The latter accepted the application, and forwarded a draft for $3000, the amount of the loan. Tillotson was the agent for the insurance company, soliciting applications for life insurance, in Bloomington, during the years 1874 to 1881, but, as testified to, was not the agent of the company for any other purpose. It appears that during the years 1875 and 1876 there were thirty-six loans made by the insurance company in Bloomington, through Tillotson, but in each case a written application for the loqn was made by the borrower to Tillotson, who forwarded the same to the insurance company, for its acceptance or rejection. Any commissions received by Tillotson appear to have been without the authority or knowledge of the insurance company, and without its participation in them in any way, or in any benefit from them. They were a matter solely between Cox and Tillotson, paid by the former to the latter for his benefit, alone, under Cox’s employment of Tillotson to- obtain the loan for him. There is nothing of usury in such a transaction. The fact that ah agent, without the authority, consent or knowledge of his principal, upon loaning the money of the latter, exacts from the borrower a sum in excess of lawful interest, does not make the loan usurious. Phillips v. McKellar, 92 N. Y. 34; Palmer v. Call, 7 Fed. Rep. 730; Ballinger v. Bourland, 87 Ill. 513, and authorities there cited; Phillips v. Roberts, 90 id. 492; Boylston v. Bain, id. 283.

Payne v. Newcomb, 100 Ill. 611, referred to by appellant’s counsel as favoring a contrary view, is quite another case than the one before us, and does not apply to the facts of the present case. There, services were rendered by the loan agent for the lender of the money, and the commission paid by the borrower to the agent was paid under a pre-arrangement made between the lender and the agent that the latter should get his compensation for the services rendered by him to the lender, by charging commissions to the borrower. Nothing of that kind appears here.

The decree will be affirmed.

Decree affirmed.


author: Mr. Justice Craig

text:
    Manda Myers, Admx. v. The Indianapolis and St. Louis Railway Company.

      Filed at Springfield

      March 30, 1885.

    1. Negligence—want of due care on the part of the person injured. "Where a section hand, working on a railroad track, sees a freight train appreaching, and gets off the track to let it pass, and immediately afterward steps upon the track, when he is struck by a detached part of the train following the part just passed, and is killed, and it appears that the separation of the train was accidental, and not discovered by those in the rear cars in time to avert the injury, and the deceased might, by the use of ordinary care, have discovered that the cars had been detached and the approach of the car which struck him, in time to avoid all danger, no recovery can be had for his death.
    2. Same—as a question of law or fact. The question of negligence is one of fact, and not one of law; and an instruction which tells the jury, as a matter of law, that certain facts constitute negligence, is erroneous. It is for the jury to determine, from the evidence, whether one or both the parties may have been negligent in their conduct.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Craig & Craig, and Mr. J. S. Hall, for the plaintiff in error.
    Messrs. Wiley & Neal, and Mr. John T. Dye, for the defendant in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by "Manda Myers, administratrix of the estate of Logan K. Myers, against the Indianapolis and St. Louis Railway Company, to recover damages for the death of plaintiff’s intestate, which was caused, as alleged in the declaration, by the negligence of the defendant railroad company, on the 13th day of February, 1883. Myers, at the time of his death, was in the service of the company, working on the track as a section hand. A freight train going west, after it left Ashmore, a station on the road, became separated, two cars and the caboose being detached from the train. As •the train approached the section hands, Myers stepped off the track to let the train pass, and when the first section of the train passed, he stepped on the track again, and was struck and killed by the detached cars, which were running some eighty or one hundred yards behind the first section of the train, and were not discovered by Myers in time to get off the track before he was struck.

No question has been raised in regard to the admission or exclusion of evidence, on the trial. The court, at the request of plaintiff, gave to the jury three instructions, without modification, which fully presented the law on the facts as claimed by the plaintiff. On behalf of defendant the court gave four instructions,—Nos. 2, 3, 4 and 5,—all of which are claimed by plaintiff to be erroneous, and the decision of the court in giving these instructions is the only error relied upon to reverse the judgment. Instruction No. 2 was as follows :

“If the jury believe, from the evidence, that the deceased, Logan K. Myers, could have seen that the train was parted, if he had looked before he walked onto the track, and that he did not look or take any means whatever to ascertain whether he could safely enter upon the railroad track, and that it was not possible to have stopped the train, after he entered the track, in time to avoid a collision with him, then the jury will find for the defendant. ”

No claim is made in this case, either in the declaration or the evidence submitted to the jury, that the defendant, in the operation of its train, was guilty of wanton or willful injury. The evidence is, that a freight train had broken in two a few miles after leaving the station, and before the break was discovered by those in charge of the train, the accident happened which resulted in the death of Myers. It will be observed that the deceased was not killed at a public crossing while in the act of crossing the railroad track, where the company was required to give signals of the approach of its trains by ringing a bell or sounding a whistle, but'he deliberately walked • upon the track, after the engine and a part of the train had passed, without taking any precaution whatever, either by looking or listening, to ascertain whether there was danger from a moving car or train. Under such circumstances, did the instruction announce a proposition not sanctioned by the law ? If the deceased, in going upon the track, took no means whatever to guard against danger, and those in charge of the train were free from fault, as they must have been if it was not possible for them to stop the train in time to avoid a collision, then the plaintiff can not recover. Where an injury has been received, and the person injured is alone in fault, it needs no argument to prove that an action can not be maintained,—and this is the substance of the charge to the jury. In order to recover for an injury of this character, the person injured must exercise ordinary care to avoid danger, and those in charge of the train must be proven to have been negligent in the management of the train. If the jury found, from the evidence, the facts existed as stated in the instruction, no recovery could be had. So far as this instruction is concerned, it could not mislead the jury, and we perceive no ground upon which it can be :qegarcled erroneous.

Complaint is also made of instructions Nos. 3, 4 and 5. So far as one question is involved they are substantially alike, and may be considered together. In No. 3 the jury were directed that if, at the time Myers stepped between the two rails, he could have seen, by simply looking, that the train was parted, and that the rear of the train was approaching the place where he entered the track, then Myers was guilty of such negligence and want of cáre as prevent a recovery. The fourth instruction informed the jury that if they found that the brakeman and conductor on the rear part of the train did certain acts therein specified, as soon as théy reasonably could after they discovered the break in the train, then defendant is free from any negligence. No. 5 is as follows :

“But even if you should believe that the conductor and brakeman on the rear end of the train failed to exercise such care and diligence in bringing the train to a stop, as they were required to do, under the circumstances, by the rules of the company, still, if the deceased, Logan K. Myers, could have seen the break in the train, and the rear end approaching the point where he entered the track, by simply looking, then he was himself guilty of such negligence as prevents his recovery in this ease, and you will find for the defendant in that event of the proof. ”

This court has held in a number of cases that negligence was a question of fact, and not one of law. . Great Western Railroad Co. v. Haworth, 39 Ill. 353; Chicago and Alton Railroad Co. v. Pennell, 94 id. 448; Pennsylvania Co. v. Conlan, 101 id. 93; Pennsylvania Co. v. Frana, 112 id. 398. Under the ruling in the cases cited, an instruction which tells the jury, as a matter of law, that certain facts constitute negligence, is erroneous. It is for the jury to determine, from the evidence, whether one or both of the parties may have been negligent in their conduct, and not for the court to take the question from them, and declare, if certain facts exist, negligence is established. Bach one of the three instructions violates this rule, and directs the jury that if certain facts exist negligence is established.

The instructions, in our opinion, were erroneous, and the judgment of the Appellate Court will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    Estate of Michael Rapp v. The Phœnix Insurance Company.

      Filed at Springfield

      March 30, 1885.

    1. Consideration—of its sufficiency—as to a bond of an agent to his principal. A bond given by an agent of an insurance company, with surety, in the penal sum of $1000, conditioned that the agent shall promptly pay to the company moneys received by him from time to time, and well and truly perform all the duties of his agency as long as he officiates as such, and shall deliver to his successor, or to such person as the company may direct, all property which he may receive and hold when his agency terminates, discloses on its face a sufficient consideration to support the undertaking of the obligors so long as the agency continues, and is not similar to a guaranty on the part of the surety to be responsible for future advances. Such an obligation becomes binding immediately upon its execution and delivery.
    2. Surety—suretyship as to bond given by an agent to his principal— distinguished from, an ordinary guaranty as to future admances. The undertaking of a surety in a bond given by his principal for the faithful discharge of his duties as agent of an insurance company, is distinguishable from that of a guaranty of payment of future advances. In the latter, the only consideration to uphold the guarantor’s undertaking is an advance or credit given the party for whom the guaranty is given, and no liability arises until such an advance is made, and the undertaking may be revoked at any time before advances are made on its faith; while in the former, the appointment of the agent with power to act and transact business for the obligee, is a present consideration, which renders the surety’s undertaking binding immediately. .
    3. Same—whether contract terminated by the death of the surety, as to subsequent dealings. The obligation of the surety in a bond given by a party to procure his appointment as an agent of an insurance company, conditioned for the faithful discharge of his duties as agent, and the payment of all moneys of the principal coming to his hands, and the delivery of all property of his principal he may have when his agency ceases, is not terminated by the death of the surety as to any moneys or property that may come into the hands of such agent after such death, but may be enforced against the personal representative of the surety’s estate.
    4. Same—obligee retaining dishonest agent—effect on liability of su/rety on such agents bond. Where the employer of a clerk or other agent takes from another a bond of indemnity, or an undertaking to become responsible for the honesty and fidelity of such clerk or agent in his service, the employer impliedly stipulates that he will not knowingly retain such clerk or agent in his service after a breach of the guaranty justifying his discharge, and if he retains him after such breach, the surety will not thereafter be liable.
    5. So where an agent of an insurance company, who had given bond, with personal security, for the faithful discharge of his duty to his employers, and such agent was required to make monthly reports and settlements, and pay over any moneys in his hands, and he was still retained in the service after notice of his default and failure to pay over moneys in his hands, it was held, that the estate of the surety was discharged from liability as to any subsequent default and delinquency on the part of such agent_^-
    6. Agency—terminated by death of principal. The death of the principal is per se a revocation of the agent’s authority, and hence all contracts or other engagements subsequently entered into by the agent are absolutely void as to the legal representatives of the principal, notwithstanding the death of the principal may have been unknown at the time such contracts or engagements were entered into.
    7. Action—death of one of the parties to a contract—whether right of action survives. All contracts entered into by one, not of a personal character, are equally binding upon him, and his legal representatives after his death. The latter are held liable on all contracts of the former which are broken in his lifetime, and, with the exception of contracts in which personal taste or skill is required, on all such contracts broken after his death; and his legal representatives may sue on such contracts, although they are not named therein.
    8. Same—former case distinguished. The case of Pratt v. Trustees, 93 Ill. 475, is not to be regarded as holding a different doctrine on this subject. That case holds that a mere voluntary proposition that may be withdrawn at any time before acceptance, is revoked by the death of the person making it, before acceptance.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    This is an appeal from the Appellate Court for the Third District, affirming an order .of the circuit court of Morgan county, allowing a claim of $188.90 against the estate of M. Rapp, deceased, in favor of the Phœnix Insurance Company. The executors of Rapp bring the case here, on a certificate of the judges of the Appellate Court that it involves important questions of law which should be passed upon by this court.

      The foundation of the claim thus allowed is the following bond:
    “Know all men by these presents, that I, Joseph B. Booker and Albert H. Brace, of the town of Jacksonville, county of Morgan, and State of Illinois, as principals, and M. Bapp, of. the town of Jacksonville, county of Morgan, and State of Illinois, as surety, are firmly held and bound to the Phoenix Insurance Company, a corporation incorporated by the legislature of Connecticut, and located at Hartford, and State of Connecticut, in the sum of $1000, to be paid unto their certain attorneys or assigns, to which payment, well and truly to be made, we jointly and severally bind ourselves, our heirs, executors -and administrators, firmly to these presents. •
    “Sealed with our seals, and subscribed at Jacksonville, this 28th day of December, 1880.
    “ The condition of this obligation is such, that whereas the above named J. B. Booker & Co. has been duly appointed by the directors of the aforesaid company their agents for the city of Jacksonville and its vicinity, State of Illinois, during their pleasure, and by reason whereof, and as such agent, he will receive into his hands and possession divers sums of money, policies, chattels and other effects, the property of said company, and is bound to keep true and accurate accounts of said property, and of his receipts and disbursements, and to account for and pay over the same to the said company when demanded, and comply with all instructions furnished him from the office of said company, or from H. M. Magill, general agent, at Cincinnati, Ohio,—
    “Now, therefore, if the said J. B. Booker & Co. shall promptly pay to said company the amounts received from time to time, and shall well and truly perform all and singu-. lar the duties aforesaid, for and during the time he officiates as said agent, and shall deliver all the property which he may receive and hold as such agent, to his successor in office, or to such other .person as the company or its authorized officers may direct, then this obligation shall be null and void, otherwise to remain in full force and virtue.
    Joseph B. Booker, [Seal.]
    Albert H. Brace, [Seal.]
    M. Rapp. [S§al.] ”
    The remaining facts are embodied in a stipulation between the parties, which is as follows: That appellee appointed J. B. Booker & Co. its agents, and by the contract of appointment said agents were to make with appellee a full settlement of each month’s business at the end of each and every month while they should remain appellee’s agents; that said agents were not appointed for any specified time; that M. Rapp signed the bond in evidence; that M. Rapp died about the 10th of March, 1882; that notice of the death of M. Rapp was published in the newspapers in Jacksonville in the month of March, 1882; that the agents of appellee had actual notice of the death of M. Rapp at the time of his death; that said agents faithfully made their monthly settlements with appellee for ten months after the death of M. Rapp, and paid appellee all that was due it up to January 1, 1883 ; that said agents failed to make a settlement with appellee for the month of January, 1883, and also failed to make a settlement for the month of February, 1883; that appellee did .not notify the executors of'M. Rapp of the failure of said agents to make the January, 1883, settlement, until after the failure to make the February settlement; that the claim filed shows correctly the sums received by said agents in the months of January and February, 1883, which they failed to pay over. The entire deficit of the agents was $260. The court charged the estate of Rapp with the default for January, which, as already appears, amounted to $188.90, but refused to allow the one for February, and appellee has assigned as a cross-error the ruling of the court in rejecting the latter claim.

      Mr. John A. Bellatti, for the appellant, cited the following authorities as to the nature of the undertaking, to show that it ceased on the death of the surety: Harris v. Faucett, 15 Law Rep. Eq. C. 311; Jordan v. Dobbins, 122 Mass. 168 ; Jendevine v. Rose, 36 Mich. 54; Pratt v. Trustees, 93 Ill. 475; 2 Williams, (Vt.) 209.
    Messrs. Morrison & Whitlock,
    for the appellee, cited contra, Green v. Young, 8 Greenlf. 14; Brandt on Suretyship, sec. 113; Royal Ins. Co. v. Davies, 40 Iowa, 469; Gordon v. Culvert, 4 Russell, 581; and commented on the cases of Jordan v. Dobbins, and the other cases referred to in appellant’s, brief, to show they were not analogous to this case.
   Mr. Justice Mulkey

delivered the opinion of the Court:

It is contended by appellant that the bond in question is, in legal effect, the same as a guaranty of future advances to the extent of $1000; that it did not become binding or operative upon the makers until money or other property belonging to the company came into the hands of J. B. Booker & Co. as its agents; that money or property thus coming into their hands is to be regarded in the nature of future advances, and to be governed by the same rules of law that are applicable to such advances; that the contract being indefinite as to its duration, either party had the right to terminate it on notice; that it existed, so to speak, by the continued desire or joint will of the parties, and as this, in the nature of things, could not extend beyond their joint lives, and as Rapp could not, after his decease, terminate the contract by notice, the law itself terminated it, and hence Rapp’s estate is not bound for anything that occurred after his death. Such is the position of appellant, as we understand it.

The bond in question is something more than an ordinary contract of guaranty. It is a joint and several contract between Joseph H. Booker, Albert H. Brace and M. Rapp, on the one side, and appellee on the other. The contract discloses upon its face that Booker and Brace, under the style of J. B. Booker & Co., had been appointed agents of appellee in conducting the insurance business, and that by virtue of their appointment, and the service upon which they had or were then about to enter, certain moneys, chattels and effects would come into their hands, which of itself disclosed a sufficient consideration to support the undertaking of the obligors so long as the agency continued. The contract therefore became binding immediately upon the execution of the instrument, and had a default on the part of the agents occurred in the lifetime of Rapp, there is no question but that a joint action might have been maintained on the bond against all three of the obligors. The instrument, then, was a written contract, whereby the obligors, jointly and severally, bound themselves, their executors and administrators, to the extent of $1000, for the faithful discharge of the duties of two of them in a certain specified business of a confidential character. Two of the obligors stipulate for their own honesty and business fidelity; the other joins in the stipulation, and also individually guarantees the same thing. It is to be observed, that, unlike an ordinary continuing guaranty, as it is claimed this is, nothing is to be done by any of the parties to the instrument to give it effect or make it binding upon them, as is always the case where the payment of future advances, merely, is guaranteed. The difference between the two cases is well illustrated by the language of the court in Jordan et al. v. Dobbins, 122 Mass. 168, cited and relied on in appellant’s brief. In that case the goods sued for were sold after the guarantor’s death, and the court, in holding there could be no recovery, among other things said: “An agreement to guarantee the payment by another of goods to be sold in the future, not founded upon any present consideration passing to the guarantor, is a contract of a peculiar character. Until acted upon it imposes no obligation, and creates no liability of the guarantor. After it is acted upon, the sale of the goods upon the credit of the guaranty is the only consideration for the conditional promise of the guarantor to pay for them. It is in the nature of an authority to sell goods upon the credit of the guarantor, rather than a contract which can not be rescinded except by mutual consent. Thus, such a guaranty is revokable by the guarantor at any time before it is acted upon. Such being the nature of the guaranty, we are of opinion that the death of the guarantor operates as a revocation of it, and that the person holding it can not recover against his executor for goods sold after the death.”

Without expressing any opinion for the present in respect to the conclusion reached in that case, we fully concur in the general expressions of the court with regard to the peculiar character of a continuing guaranty where it is supported by no consideration other than advances to be made at a future day, and where the party to whom the guaranty is given assumes no obligation to make such advances, as is generally the ease with such guarantees. But the transaction now under consideration can hardly be said to be a guaranty of this character. Taking a common-sense business view of the matter, the giving of the bond, and its acceptance by the company, were the final acts by which Booker & Brace were clothed with authority to open an insurance office at Jacksonville in the name and on behalf of the company. And there can be no doubt but that the intrusting them with its business, and permitting them to conduct it with the public in the company’s name, was a sufficient consideration, independ- , ent of the fact the instrument was under seal, to support the agreement in question. In these respects the Dobbins case is wholly unlike the one in hand. In this ease no additional act was to be done by appellee, or any one else, to give the bond effect. Business was commenced, and continued under it for a long time, satisfactorily to all parties. Even according to the rule applicable to continuing guarantees, strictly so-called, the bond under consideration was in full forcé and effect long before Rapp’s death. We.have looked with considerable care to see if the general principles applicable to a continuing guaranty of the kind mentioned have ever been extended to an ordinary agent’s bond, as is sought to be done here, and we have wholly failed to find any authority for it, and certainly none has been cited.

Considerable space in appellant’s brief is occupied in an , effort to show that Rapp’s liability upon the bond could have been terminated at any time before his death by his giving the company notice to that effect. Whether his liability could have been thus terminated in his lifetime, or whether his executors might in this manner have terminated it after his decease, are questions which do not directly arise on this record, as it is not pretended any such notice was given, either before or after his death. But as these questions probably have more or less bearing upon the main question in the • case, presently to be stated, they may be incidentally noticed further on.

The controlling question in the ease is, -whether upon Rapp’s death the bond in question, by mere operation of law, ceased to have any legal effect as to subsequent transactions between the company and its agents, J. B. Booker & Co. It is a familiar rule of law that requires no citation of authority for its support, that the death of the principal is per se a revocation of the agent’s authority, and hence all contracts or other engagements subsequently entered into by the latter, on behalf of the principal, are absolutely void as to his legal representatives, and this notwithstanding the death of the principal was unknown at the time such contracts or other engagements were entered into. On the other hand, the general rule unquestionably is, that all contracts entered into by one, not of a personal character, are equally binding upon himself, and his legal representatives after his decease. This general rule is well stated in Chitty on Contracts, (10th Am. ed.) page 101. The author says : “It is a presumption that the parties to a contract bind not only themselves, but their personal representatives. Executors, therefore, are held to be liable on all contracts of the testator which are broken in his lifetime, and, with the exception of contracts in which personal skill or taste is required, on all such contracts broken after his death; and such parties may likewise sue on a contract, although they be not named therein. ” In the present ease, however, Eapp, as we have already seen, expressly binds his executors and administrators, and hence no question of presumption of liability can arise, so far as Eapp’s legal representatives are concerned, for if it be possible to bind them by any terms, they are certainly bound. \^f

Appellant contends, however, as the bond is nothing more | than an ordinary continuing guaranty, without limitation as | to time, and could not for that reason have extended, in any event, beyond the guarantor’s life, the provision expressly binding his personal representatives must have been intended to apply only to such defaults as might occur during his lifetime. For reasons already appearing, and others hereafter to be stated, we do not think this view is sound. In support of the proposition that the bond in question ceased to have any legal effect or binding force upon the death of Rapp, as to all subsequent transactions, four eases are cited and relied on, namely, Pratt v. Trustees, etc. 93 Ill. 475, Jendevine et al. v. Rose et al. 36 Mich. 54, Harris v. Fawcett, 15 Law Rep. Eq. C. 311, and Jordan et al. v. Dobbins, already referred to.

The principle applied to the Pratt case, and upon which it was decided, is the well recognized doctrine thajj a mere voluntary proposition may be withdrawn at any time before such action is taken under it as will, in law, show not only its acceptance, but also a sufficient consideration to sustain it as a contract. In every ease of a mere voluntary proposition, if the party making it die before any action has been taken under it, his death will, in law, operate as a withdrawal of the proposition,—consequently it can not be accepted or acted upon afterwards so as to hind his estate. The principle here stated, and which was applied to the Pratt ease, we do not think has any application to this one!4

Jendevine et al. v. Rose et al. supra, in some of its features is much like the case before us. In that, as in this, the action was upon a bond which, like the present case, was founded upon a sufficient present consideration, and related to a cotemporaneous contract of indefinite duration, which was subject to be abrogated by either of the parties to it, and, of course, upon such abrogation the bond itself would have become functus officio. Here the resemblance between the two cases ceases. The bond in that case was a guaranty of future sales; in this it is a guaranty of the honesty and fidelity of particular persons in a specified business. In that the money sought to be recovered was the price of goods sold after the obligee in the bond had been expressly notified not to make any further sales on the faith of the defendant’s guaranty. In this case, neither Eapp, in his lifetime, nor his executors, after his decease, gave any such notice. It will be thus seen the two cases differ materially in a number of important particulars, so that there is no ground for the the claim that that case controls this. The actual point decided in the Michigan case is, that the surety (the obligor in the bond) had the right to terminate his liability upon it by giving notice, as he did. This certainly falls far short of sustaining the position that a liability of that character is determined by death, without such notice.

Harris v. Fawcett, supra, was a chancery proceeding. The guaranty in that case was one of future advances, wherein it was expressly provided the guaranty should continue for six months, notice in writing, under the hand of the guarantor, “to discontinue the same.” The guarantor died, leaving as his executor the debtor on whose account the guaranty had been given. It was known to the creditors having the guaranty, there was no personal estate to discharge the liability of the deceased upon the guaranty, nevertheless they continued to make advances to the executor, on the faith of it, after the guarantor’s death. This was such a transaction between the creditors and the executor, who was acting in manifest disregard of his duty to the estate, with their knowledge, that no court of equity ought to have sustained it, and so it was held. In that case, as we have just seen, the right to terminate the contract by six months’ notice was expressly reserved in the contract itself. But as the death of the guarantor rendered it impossible to give the kind of a notice provided for, namely, a notice under the guarantor's oivn hand,—a fact to which the court seems to have attached considerable importance,—it was held, as the contract was clearly not intended to continue forever, the estate of the guarantor, under the circumstances, was not'bound for advances made after his death. The case, however, is not an authority for the proposition that the death of a guarantor in a case like the present is per se an abrogation of the contract. On the contrary, the logic of the entire reasoning of the court leads irresistibly to the opposite result. In the present case there is no provision in the contract of the obligors by which they are authorized to terminate their liability on the bond, and the duration of their liability is therein expressly declared to be during the time J. B. Booker & Co. officiate.as agents of the insurance company,—so it is clear the contract in this case is essentially different from the one in that, but the reasoning in that case, as just observed, is clearly against the appellant in this.

' In the case of Jordan et al. v. Dobbins, supra, the action was brought on a continuing guaranty to recover the price of goods sold after the guarantor’s death, and it was held there could be no reeovéry, on the ground the guarantor’s death terminated the guaranty, notwithstanding it was unknown at the time the goods, were sold. In thus holding, the case is clearly unsupported by the decided weight of authority. Chitty on Contracts, supra; Brandt on Suretyship, sec. 113; Green v. Young, 8 Greenlf. 14; Moore v. Wallis et al. 18 Ala. 458; Royal Ins. Co. v. Davies, 40 Iowa, 469; Menard v. Scudder, 7 La. Ann. 385. If, as contended by appellant, there is no difference in principle between that and the present ease, it must be admitted the former is an authority directly in point sustaining his position; but, as already indicated, we think there is an essential difference between a guaranty of future advances, whether in the form of a bond, or, as is usually the case, of a mere stipulation, and a bond executed by an agent and his sureties for the faithful discharge of the _ former’s duties in some business or employment, as was the case here. Such a bond is, in all its essential features, like the bond of an executor, guardian, trustee, and the like. The only difference between the two cases is, that most of these bonds are required to be taken by express statutory provision. But this only relates to the duty of giving such a bond. It does not change its scope, character or legal effect when given. ' All voluntary bonds executed for a lawful purpose, like statutory bonds, derive whatever efficacy or binding force they have, from the positive law of the State, and in this respect there is no difference in the two classes of bonds. To hold that the estate of a surety on an ordinary trustee’s bond is absolutely discharged from all future liability upon the death of the surety, on the ground that his death is per se an extinguishment of the bond, would certainly be a startling proposition to come from this or any other court of final resort; and yet to decide this case in conformity with appellant’s theory would be, in legal effect, to assert, as we understand it, that very proposition. We unhesitatingly decline, both upon reason and authority, to give our adhesion to any such a doctrine. We have no doubt of the correctness of the ruling of the trial court in allowing appellee’s claim to the extent it did.

With respect to the question raised by the assignment of the cross-error, but little need be said.

We are of opinion the court also ruled properly in refusing to allow appellee the amount of deficit for the month of February,—not on the ground, however, the bond had become functus officio, but because the company, in retaining in its service J. B. Booker & Co. after notice of the January default, which was just cause for discharging them, violated a duty which it impliedly assumed to Rapp and his legal representatives on accepting the bond. When the employer of a clerk or other agent takes from another a bond of indemnity, or other instrument, guaranteeing the honesty and fidelity of such clerk or agent while in the service of the employer, the latter impliedly stipulates that he will not knowingly retain such clerk or agent in his service after a breach of the guaranty justifying his discharge, and that in the event he does so without the surety’s consent, it 'is to be at the employer’s own risk. This is not only fair dealing and common honesty, but it is a rule of law also. The principle here announced is well established by the authorities. Phillips v. Foxall, 27 L. T. (N. S.) 231; 7 L. R. Q. B. 666; Anderson v. Aston, 28 L. T. (N. S.) 35; 8 L. R. Exch. 73.

Holding, as we do, the ruling of the trial court was correct in allowing the claim for the amount it did, it follows the Appellate Court properly affirmed the order.

Judgment affirmed.

Dickey and Craig, JJ.: We can not concur in this decision. We think this bond, on the part of the surety, is simply a continuing guaranty by him of the good conduct of the agents of the insurance company,—that the relations of the parties were in their nature capable of determination at the will of either the insurance company or of the agents in question, or at the will of the surety. This surety certainly could not be held indefinitely, but by notice of his unwillingness to be bound further, could relieve himself from liability accruing thereafter. f In this his case differs from that of surety for an officer, executor or guardian, j We think the death of the surety operated to terminate his obligation as to moneys coming to the hands of the agents thereafter. I On this latter question the authorities are not in harmony. We, however, think the reason of the matter is decidedly in favor of the proposition that in this regard death was equivalent to notice. See Jendevine v. Rose, 36 Mich. 54; Jordan v. Dobbins, 122 Mass. 168; Harris v. Fawcett, 15 Law Rep. Eq. C. 311.


text:
    Edward Wilson v. William D. Genseal.

      Filed at Springfield

      March 30, 1885.

    1. Evidence—admissibility as part of the res gestee—want of materiality, in the light of other evidence. On the trial of an action for an assault and battery committed at a particular saloon, the proof showed that the difficulty originated at another saloon, in which the son of the defendant was shot in the leg by a brother of the plaintiff, who fled and was pursued. A number of witnesses testified that the defendant was present at the saloon when the assault was made by him, while several witnesses testified in behalf of the defendant that he was not present at that place, and that the injury was inflicted by others. The defendant offered to prove that he tried to dissuade his son from pursuing the person -who shot him, which the court refused to allow: Held, that while the proffered evidence was properly admissible as part of the res gestee, on the theory of the defence, yet as there was proof that the defendant did inflict the injury, the error in its rejection was not so material as to justify a reversal.
    2. Same—statement of a parly’s apprehension of trouble. On the trial of an action for an assault and battery of the plaintiff, the court excluded a question to one of defendant’s witnesses as to statements previously made by the plaintiff touching his apprehension of trouble at the place where the difficulty afterward happened, and what he expected to occur. The plaintiff, on cross-examination, had already stated that he thought there would be some trouble that night: Held, that there was no error in excluding the question.

      3. Same—cross-examination—of the latitude allowed. Great latitude is allowable on the cross-examination of a witness, and this court will not reverse on account of liberal rulings in that regard unless it can see that the discretion of the trial court has been abused, and injury has resulted to the party complaining.
    . 4. So on the cross-examination of a defendant in an action of trespass.for an assault and battery upon the plaintiff, tkerg is no error in showing his affidavit, previously made, for a continuance of an indictment against him for the same transaction, and examining in relation thereto and reading the same, the statements in the affidavit being contradictory of the whole theory of the defence. Such affidavit is admissible on cross-examination, as affecting his credibility as a witness.
    5. Witness — impeachment—recalling witness therefor—violating an order for separation of witnesses. Although an order has been made for the separation of witnesses pending the talcing of testimony in a cause, the trial court may properly allow the recalling of a witness to impeach another witness on the part of the plaintiff, where the witness so recalled has remained present in court a part of the time the plaintiff’s witnesses were being examined; but unless there is an abuse of such discretion, the refusal to allow him to testify will be no error.
    6. While the court may properly allow a witness to be recalled, and cross-examined as to declarations made by him to others, and thus lay the foun dation for impeaching him by such other witnesses, yet a refusal to allow the same is not such a material error as to justify a reversal, it appearing the same facts were shown by six or seven other eye-witnesses of the same transaction.
    7. Practice—mode of saving an objection and exception. As a jury were about to retire to consider of their verdict, counsel for the plaintiff" handed to the jury an affidavit of the defendant which had been admitted in evidence to impeach the testimony of the defendant, whereupon defendant’s counsel remarked to the court, “The court understands we are not consenting,” and the affidavit was taken by the jury: Held, that this was not equivalent to a ruling of the court that the affidavit might be taken by the jury, and to an exception taken to such ruling, so the objection did not avail.
    Appeal from the Appellate Court for the Third District;— ■ heard in that court on appeal from the Circuit Court of Tazewell county; the Hon. N. M. Laws, Judge, presiding.
    Mr. William Don Maus, and Mr. N. W. Green, for the appellant.
    Mr. N. E. Worthington, Mr. S. S. Page, and Mr. George T. Page, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This is an apjieal from a judgment of the Appellate Court for the Third District, in affirmance of a judgment of the circuit court of Tazewell county, against the defendant, in an action for an assault and battery.

It is insisted the circuit court refused to admit proper evidence for the defendant. The assault and injury were undisputed, and the controversy was as to who committed the same. The theory of the defence was, that at Brandt’s saloon, Benjamin Wilson, a son of the defendant, Edward Wilson, had been shot in the leg with a pistol, by one James Genseal; that the latter ran, and was pursued by Benjamin and Jesse Wilson, and others; that after going around a block, or half block, they approached a saloon which was kept by James Genseal, and Jesse Wilson threw a stone, which hit William Genseal, the plaintiff, who was standing in the door of the saloon, on the head, knocking him down, and Benjamin Wilson entered the saloon and inflicted further injury on the plaintiff,—Edward Wilson, the defendant, not being present. It appeared by defendant’s testimony, that Edward Wilson was present at Brandt’s saloon. Two of defendant’s witnesses were asked the question, (for the purpose of showing that defendant endeavored to prevent his son, Benjamin Wilson, from pursuing the person who shot him, or from going to Genseal’s saloon,) what they saw or heard defendant, at Brandt’s saloon, do or say to Benjamin Wilson before he ran from the saloon, relative to his leaving or going from Brandt’s saloon. It is the exclusion, by the court, of this question, which is complained of. The evidence on the part of the plaintiff was strictly confined to the occurrence of the actual commission of the trespass, without any reference to preceding events, or to anything that happened at Brandt’s saloon. Still, under the theory of the defence, we think the offered testimony was properly admissible as a part of the res gestee, and as tending to show defendant did not advise and encourage the commission of the trespass. And if the ease had been one resting upon such advice or encouragement, we can well see the evidence would have been material. But the testimony on the part of the plaintiff was direct and positive, of several witnesses who saw the transaction, of the actual commission of the trespass by defendant and Alexander Herndon, no one else being present. On the part of the defendant the testimony was equally positive and direct that the injury was done by Jesse and Benjamin Wilson, neither defendant nor Alexander Herndon being present. The testimony of the two sets of witnesses was flatly contradictory. The verdict shows the jury must have given credence to the witnesses on the part of the plaintiff. This being so, it is not to be supposed that evidence of what defendant said, at Brandt’s saloon, to his wounded son, relative to his leaving or going from there, could have had any appreciable weight with the jury. Dissuading another from committing a trespass, would be a light circumstance against proof of the actual commission of the trespass by one’s self. Under the case made by the testimony, we can not think that the exclusion of this evidence was of material prejudice to the defendant, and so cause for reversal.

A question to a witness was excluded, whether statements were made by plaintiff touching his apprehension of'a trouble at the saloon that night, and what he expected to occur, and this is complained of. We do not perceive the materiality of the question. Besides, plaintiff, himself, had stated, on cross-examination as a witness, that he thought there would be some trouble that night.

Defendant, at the trial, recalled the witness Watson, and asked him the question whether the witness Lewis Green, who had testified on the part of the plaintiff, had said to him (Watson) that they must tell the same story in the case; that they must stand together; that if they did not, they would not beat defendant, and would not get any pay. The court excluded the question, as would seem, on the ground that the witness had been present at the examination of the plaintiff’s witnesses, part of the time, in violation of an order-made for the exclusion of witnesses. This is complained of, but we can not see that there was any abuse of the court’s discretion in the ruling.

Further complaint is made that the court erred in refusing to permit defendant to recall this same plaintiff’s witness, Lewis Green, for the purpose of cross-examining him as to a conversation had by him with one Eeveal, to the purport that he (Green) would make his testimony favorable for defendant if the latter would do something for him. This was for the purpose of calling Eeveal to contradict the witness, if he should deny the conversation, and thereby impeach the credibility of said witness. The court might properly have permitted this recall and further cross-examination of the witness Green, (Angus v. Smith, 1 Moody & Malk. 473, and Queen’s case, 2 Brod. & Bing. 310,) yet we are not prepared to say that the refusal was of such probable prejudice to the defendant that it should cause a reversal of the judgment. Leaving out entirely the testimony of this witness Green, there would then remain six or seven other eye-witnesses who testified to the actual participation by defendant in the commission of the trespass and injury sued for.

The further point is made that the circuit court erred in permitting the introduction of an affidavit of defendant, and his cross-examination on portions of it. This affidavit was one which had been made at the November term, 1883, by the defendant, in a criminal case of an indictment against him for this same assault and battery, for the purpose of procuring a continuance of the cause. Among other things, the .affidavit stated that defendant expected to prove by Alexander Herndon that at the time of the commission of the assault the plaintiff had with him, at the saloon of James Genseal, certain persons, friends of the plaintiff, who were, with the plaintiff, lying in wait for the purpose of assaulting and attacking the friends of Benjamin Wilson, if they should come to the saloon looking for James Genseal, and that while they were so in waiting, the plaintiff suddenly started up and went towards the door of the saloon, with a pistol in his hand; that thereupon some of said friends of plaintiff threw stones or other missiles towards said open door from the rear of the room, or from the yard in the rear, and that by some of the stones or missiles so thrown, and not otherwise, plaintiff was struck and injured, which was the same assault alleged, and that defendant knew of no other witness by whom he could so fully prove the foregoing facts as he could by said Herndon. The plaintiff’s testimony makes the stone which struck plaintiff and knocked him down, to have been thrown by Alexander Herndon himself, defendant being together with him. The defendant’s testimony makes the stone to have been thrown by Benjamin Wilson, Herndon not being present on the occasion. It was on defendant’s cross-examination as a witness in his own behalf, that the affidavit was introduced by plaintiff, and defendant cross-examined upon it. It is contended that the affidavit was admissible to impeach the credit of defendant as a witness, only, as it showed that he had made statements out of court contrary to what he had testified at the trial, and that this affidavit does not show any such contrary statement. The affidavit does not seem to contain any statement which is exactly contrary to anything testified to by defendant, except as there may be contradiction in respect of this particular of defendant’s testimony: “I found out, in August, 1883, who it was that struck and injured William Genseal at the saloon that night. I have just heard Jesse Wilson testify that he did it, and I never learned any different.” The statements in the affidavit were contradictory to the whole theory of the defence made on the trial, and they relating to the same subject matter, we think they were properly admissible, on cross-examination, as affecting the credibility of defendant as a witness. As was said in Cooper v. Randall, 59 Ill. 817, relative to the refusal of permission to witnesses to answer questions on cross-examination : “Such an examination is largely discretionary, and this court will not, usually, reverse, unless we can see that the discretion has been so exercised as to have produced injury. * * * It is only when we can see that it is probable that wrong has been done to the party complaining, that we will reverse for such rulings of the court. ” And the same observation may be made with respect to the other rulings which we have been considering. There is nothing in the objection taken that defendant was entitled to have the whole affidavit read, and to be reexamined upon the same, for the purpose of explanation, as there was no denial thereof by the court, and the whole affidavit did go to the jury.

A point is made that the court permitted the jury to take with them to the jury room the affidavit, though only portions thereof had been given in evidence to the jury. It is sufficient to say of this, that there was no exception taken to the permission. All that the bill of exceptions shows in this respect is, that as the jury were about to retire, plaintiff’s counsel handed the affidavit to the jury to be taken by them to their jury room, whereupon defendant’s counsel remarked to the court, “The court understands we are not consenting, ” and the affidavit was taken by the jury with them to the jury room. This was not equivalent to a ruling of the court that the affidavit might be so taken by the jury, and to an exception taken to such a ruling.

We perceive no error in the instructions. The judgment of the Appellate Court will be affirmed.

Judgment affirmed.