author: Mr. Justice Shope

text:
    John Belk et al. v. The People of the State of Illinois.

      Filed at Ottawa June 16, 1888.

    1. Criminal law—reckless or negligent driving on the highway—liability criminally for results. Every person driving upon the public highway is under a legal duty to observe, in the control and management of his team, the exercise of reasonable care to prevent injury to others, and he is criminally responsible for the neglect or willful failure to perform that duty. To create this responsibility, however, the law must cast upon the persons sought to be charged, the legal obligation to do the act or perform the service the omission of which is alleged to be the direct cause of the injury.
    2. If persons having the control and management of horses attached to-a vehicle, in which they are riding along a highway behind another conveyance, knowing the danger of a collision with the forward conveyance and the probable consequences flowing therefrom, recklessly and negligently, or wantonly and willfully, allow their horses to run down and collide with the other vehicle, without using such means as are reasonably at their command to prevent the same, they will be held criminally responsible for the result of their negligence or willful omission of duty. If it is the cause of death they may be convicted of manslaughter.
    3. Same—injury resulting from inevitable accident. But if they are not guilty of negligence, and the collision is the result of inevitable accident, or resulted from their horses becoming unmanageable without their fault, and uncontrollable by the exercise of proper care, there can be no criminal liability.
    4. Same—-whether negligence the proximate cause of injury. If a party in a wagon, on a highway, through negligence and carelessness, or willfully and wantonly, allows his team to become unmanageable, whereby it collides with another wagon, and causes the team of the latter wagon to run away and throw a person therefrom, inflicting injuries from which he dies, there being no interposition of any human will acting independently of the first named party, or any extraordinary natural phenomena to produce the result, the jury may very properly find that the negligence was the proximate cause of the death.
    5. In such case, it can make no difference whether the driver of the team after which the person injured was riding, was guilty of negligence in not controlling or failing to control his team after the collision, or not. But if the driver of such team, instead of being merely negligent, had done some act contributing to the running away of his horses, or had driven upon a bank, whereby the carriage was overturned and the deceased was thrown out, it might justly be said that the injury or death was attributable to the act of the driver.
    6. Same-—of an instruction in such case, not based on evidence. On the trial of parties for manslaughter, in running their team into the vehicle of another, and thereby causing the team, attached to the vehicle to run away and cause the death of the occupant, there was no evidence that the defendants did anything to urge their team forward or cause it to collide with the other one, but the counsel for the prosecution, in argument to the jury, stated that he could have proved that fact if a certain witness had been present. The court instructed the jury, that if they believed, from the evidence, that the defendants, unlawfully, etc., did drive and urge a certain span of horses to so rapid a pace that they could not control them, and in consequence of the careless and reckless driving of the horses ran into another wagon, etc., whereby the death, etc., occurred, the defendants would be guilty of manslaughter: Held, that under the circumstances of the case such instruction was erroneous.
    Writ of Error to the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.
    Messrs. D. and T. J. Sheean & McHugh, for the plaintiffs in error:
    Involuntary manslaughter is defined by the statute, as the Trilling of a human being, without any intent to do so, in the commission of an unlawful act, or a lawful act in an unlawful manner, which probably might produce such a consequence. Starr & Curtis’ Stat. Crim. Code, sec. 193.
    Plaintiffs in error are not responsible for the negligence of Richard Reed. There was no concert between them and Richard Reed. The direct cause of the death of Ann Reed was, that she was thrown out of Bichard Seed’s hack by his runaway team. Between the cause of death and any act of plaintiffs in error there was interposed the carelessness of Richard Reed. The result was produced by the interposition of an independent human will not acting in concert with plaintiffs in error. Wharton on Crim. Law, (7th ed.) point 3 preceding sec. 751, and sec. 751, at p. 698; People v. Rockwell, 39 Mich. 503.

      The court erred in instructing the jury, for the People, especially the sixth, for want of any evidence to support the hypothesis that John Belk urged his horses to so rapid a pace that he could not control them.
    Mr. George Hunt, Attorney General, and Mr. W. W. Wagdin, State’s Attorney, for the People.
   Mr. Justice Shope

delivered the opinion of the Court:

The plaintiffs in error, John Belk, John Hill and George Williams, with George Belk, were jointly indicted, in the JoDaviess circuit court, for the murder of Ann Reed, the indictment charging in the various counts, in varying forms, that the murder was committed by the defendants, by- willfully, recklessly, negligently, wrongfully and feloniously driving a team of horses hitched to a wagon, upon and against a wagon in which the deceased was riding, thereby causing the horses attached to the wagon in which she was so riding, to run away, thereby throwing said Ann Reed upon the ground, whereby she received wounds and injuries from which she died the following day. A trial resulted in an acquittal of said George Belk, and a verdict of guilty of manslaughter as to plaintiffs in error, and fixing their punishment at confinement in the penitentiary at one year each. Motions for new trial and in arrest were severally overruled, and sentence pronounced by the court upon the verdict.

The facts immediately connected with the killing of Mrs. Reed, in reference to which there is little or no controversy, are as follows: On the 5th day of July, 1886, a celebration of the fourth of July was held in a grove about a half mile from the village of Elizabeth, in Jo Daviess county. The grove was a quarter of a mile from the public highway, and was reached through a lane about one rod wide and fifty rods long, extending from the road into the fields in which the grove was situated. This lane, ordinarily closed by gates at each end, was on this day thrown open and used by the public. About six rods from the gate nearest the grove was a hollow or depression crossing the lane, the descent into which, by the road, was quite steep, and at this point, owing to the unevenness of the surface of the land, a team could not be driven aside to permit another to pass. About six o’clock P. M. the deceased, with others, started homeward, through this lane, in a spring wagon or “hack” drawn by two horses, driven by her son, Richard. About the same time, plaintiffs in error, in company with George Belk, also started from the grove, in a like vehicle, also drawn by two horses driven by the defendant John Belk. At the time the latter entered the narrow lane the former was some six rods in advance, and in plain view. About the time of so entering the lane, the horses driven by Belk began to run, and ran into and against the wagon in which the deceased was riding, breaking the end-gate* and the back of the seat. The collision occurred just as the forward conveyance was descending the declivity into the hollow mentioned. The result was that the horses attached to the vehicle in which Mrs. Reed was riding became unmanageable, and ran away, whereby she was thrown violently to the ground, and was injured so that she died the next day.

Some question is made whether the collision was the proximate cause of the team running away, and of the injury and death of Mrs. Reed; but it is enough to say, the evidence was sufficient upon which to base the finding of the jury in that respect. The question was submitted under proper instructions, and there is no ground for disturbing the verdict for that reason. There was direct causal connection between the collision and the death of the deceased. Between the acts of omission or commission of the defendants, by which it is alleged the collision occurred, and the injury of the deceased, there was not an interposition of a human will acting independently of the defendants, or any extraordinary natural phenomena, to break the causal connection. It may be fairly said that what followed the colliding of the defendants’ team with the wagon in which the deceased was riding, was the natural and probable effect of the collision, and the collision was in consequence of the manner in which the team of the defendants was controlled. It can make no difference whether the driver of the team after which the deceased was riding, was guilty of negligence in not controlling or failing to control his team after the collision. It may be that persons standing by, or the driver, might, by the exercise of diligence and care, have checked the horses, and thereby prevented the final catastrophe; but because they did not do so, and were derelict in moral or even legal duty in that regard, will not release defendants from the responsibility of their wrongful act or omission of their legal duty. If the driver, instead of being negligent, as is claimed, in controlling his team, had done some act contributing to the running away of his horses, or driven upon a bank, whereby the carriage had been overturned and the deceased thrown out, or the like, it might justly be said that it was the act of the driver, and not of the defendants, to which the death of the deceased was legally attributable. Wharton on Crim. Law, 341, et seq.; Roscoe on Crim. Ev. 700, et seq.

The case made by the evidence fairly presented the question for determination, as to whether the collision was the result of the reckless and wanton failure of the plaintiffs in error, or some one or more of them, to control and manage the team of which they were in charge, or was the result of unavoidable mischance or accident. This record shows that in approaching the gate and entering the lane, the horses of the defendants were being driven in a walk or slow trot, and apparently under perfect control. About the time they entered the lane the horses started to run, and continued to do so until the wagon in which the deceased was riding was struck, as before mentioned; that then and from there on, said horses were again apparently under perfect control. The evidence fails to show that the horses were started or urged into a high rate of speed by any act or word of the defendants, or either of them. There is great conflict in the evidence as to whether or not said horses were unmanageable, and ran despite the efforts of the defendants John Belk and Hill to control them, or whether they were permitted to run and collide with the wagon of the deceased without any attempt on the part of defendants, or either of them, to control said horses.

It is insisted by counsel for the defendants, that as there is a failure to show that they were active in inducing their horses to run at the place indicated, no criminal responsibility attaches to the defendants. This we think a misapprehension of the law. There can he but little distinction, except in degree of criminality, between a positive intent to do wrong and an indifference whether wrong is done or not. It is therefore said, “carelessness is criminal, and within limits supplies the place of the direct criminal intent.” (1 Bishop on Crim. Law, 313; Commonwealth v. Rodes, 6 B. Mon. 171; Roscoe on Crim. Ev. supra.) Every person driving upon the public highway, or in other place frequented by others, is bound to exercise reasonable care and caution to prevent injury to others. The law casts upon him the legal duty of observing such care and caution as is exercised by reasonable and prudent men under like circumstances. As a rule, the care required is to be proportioned to the danger. Hence, driving rapidly in an open country highway may not be negligence, while the same character of driving in a thronged street or thoroughfare, or where there is known hazard to others, may he negligence in the highest degree. Wharton on Crim. Law, secs. 353-355.

We have seen that every person driving upon the public highway is under a legal duty to observe, in the control and management of his team, the exercise of reasonable care to prevent injury to others. Every person is criminally responsible for the neglect or willful failure to perform that duty. To create this responsibility, however, the law must cast upon the persons sought to be charged, the legal obligation to do the act or perform the service the omission of which is alleged to be the direct cause of the injury. (Wharton on Crim. Law, 229, et seq.) If, therefore, the defendants, or such of them as had the control or management of the horses attached to the vehicle in which they were riding, knowing of the danger of the collision, and the probable consequences flowing therefrom, recklessly and negligently, or wantonly and willfully, permitted the horses to run down and collide with the vehicle of the deceased, without using such means as were reasonably at their command, to prevent the same, they should be held penally responsible for the result of their negligence or willful omission of duty. (Archbold on Crim. Proc. 9; Bishop on Crim. Law, sec. 314.) The case, in this view, should have been submitted to the jury by the trial court.

It is strenuously contended, and there is much proof tending to show, that after the horses of defendants had entered the lane, they became frightened and unmanageable, and that the collision was without fault on the part of accused, or either of them,—that they used every endeavor to prevent the same, but without avail. If the defendants were not guilty of negligence, and the collision was the result of inevitable accident, or resulted from their horses becoming unmanageable, without fault of the defendants, and uncontrollable by the exercise of proper care by the defendants, there would be no criminal liability. It is not our purpose, however, to discuss the evidence pertaining to this branch of the case, for the reason that the plaintiffs in error may again be placed upon trial for the crime of manslaughter, under this indictment. As we have seen, there is a total want of evidence in this case showing that anything was said or any act done by the defendants, or either of them, to induce their team to run away or become unmanageable, or that might have produced that result, and all that can be claimed by the prosecution upon this record is, that they failed to perform the legal duty of using reasonable care to check the team and prevent the collision.

The court, by the sixth and eighth instructions given for the People, told the jury, that if they believed, from the evidence, that defendants, etc., unlawfully, recklessly and carelessly did drive and urge a certain span of horses to so rapid a pace that they could not control them, and in consequence of the careless, reckless and unlawful driving, the horses ran into another wagon, etc., whereby the death, etc., of Ann Reed occurred, the defendants would be guilty of the crime of manslaughter.

It is to be remarked that the only place in this record in which any reference is made to the fact that defendants were urging, or doing any act tending to urge, their horses into a rapid gait after reaching the lane, is to be found in these instructions, and in the remarks of counsel, in argument, to the jury. One of the counsel, in argument, said to the jury that the reason why the prosecution had failed to prove that the defendants were whipping their horses just as they struck Reed’s hack, was because of the absence of the witness Herman Praegar; that if the witness Praegar had been present, the prosecution would have proved by him that as the defendants were driving along and running into Reed’s hack, they were whipping their horses. It is true, it does not appear that these remarks of counsel were objected to, or the attention of the court called to them by the defendants or their counsel; but, followed immediately, as they were, by the instructions referred to, having for their sole foundation these remarks of counsel, or none at all, gave emphasis to them, and must have been prejudicial to the defendants. It is a doctrine so well established in this court that instructions must be based upon the evidence, that no authorities are required to be cited in support of it. To instruct the jury that if they believed, from the evidence, that the defendants were carelessly and recklessly urging their horses, was for the court to say, in substance, to the jury, that in the view of the court there was some evidence upon which such finding might be predicated, whereas, it is totally without foundation in this record. This was manifest error, and necessitates the reversal of the judgment of the circuit court.

The judgment will accordingly be reversed, and the cause remanded to the circuit court of Jo Daviess county for further proceedings.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    William Kelsey Reed et al. v. The People ex rel. George Hunt, Attorney General.

      Filed at Springfield September 27, 1888.

    1. Banks and banking—corporations with banking powers—what so regarded. Banks, in a commercial sense, are of three kinds, to-wit: First, of deposit; second, of discount; and third, of circulation. A. corporation authorized to receive deposits, discount notes and invest the proceeds in public securities, and declare credits or dividends, must be regarded as having banking powers, although it may not have stockholders.
    2. Same—act of 1887 relating to savings societies, etc.-—its constitutionality—as conferring banking powers. The act of 1887, entitled “An act to provide for the organization of savings societies or institutions for savings, for their supervision, and for the administration of their affairs,” confers banking powers, and not having been adopted by a vote of the people, is in conflict with section 5, article 11, of the constitution, and is therefore void.
    3. The fact that the act declares that no corporation organized under it shall be deemed a bank or company having or exercising banking powers, will not render it a valid law, for the reason that other sections, by plain and express words, do confer banking powers. In determining whether the act is obnoxious to the constitutional prohibition, the court will look to the powers in fact conferred by it, notwithstanding some part may declare that corporations thereunder shall not be deemed to be banks.

      4. Construing the constitution—rule of construction. In placing a construction on one section of the constitution, it is proper to refer to any other section of that instrument relating to the same subject, and consider them together, in order to arrive at the true intention of its framers.

      Appeal from the Circuit Court of Cook county; the Hon. O. H. Horton, Judge, presiding.
    Messrs. Smith & Pence, for the appellants:
    The statute in question does not fall within the constitutional prohibition, for the reasons: First, it does not confer banking powers ; second, the" associations provided for by the act are not banks of deposit or discount; third, the banks of deposit or discount referred to in the constitution are corporations having stockholders; and fourth, the associations created are fiduciary, eleemosynary or charitable institutions, and the fund created belongs to the depositors, and the ordinary relation of debtor and creditor is not created by such deposits.
    Words of a constitutional provision are to be construed according to the sense in which they were employed at the time of framing the instrument, and not according to their strict technical import. People ex rel. v. Loewenthal, 93 Ill. 191; Comstock v. Gage, 91 id. 328; People v. Marshall, 1 Gilm. 672; Holmes v. Smythe, 100 Ill. 413.
    The corporation in question is in no sense a bank of deposit or discount, but a simple agent for the investment of the money of its depositors, and the ordinary relations of debtor and creditor do not exist. Huntington v. Savings Bank, 96 U. S. 388; Harmon v. Williams, 34 N. J. Eq. 255; Bunnell v. Savings Society, 38 Conn. 203; Osborne v. Byrne, 43 id. 155; Cogswell v. Savings Bank, 59 N. H. 43; 28 N. J. Eq. 532; 92 Pa. St. 134; 9 Cush. 604; Grant’s Law of Bankers, 571; Coite v. Society for Savings, 32 Conn. 173.
    Mr. George Hunt, Attorney General, for the People:
    As to what constitutes a bank or banking powers, see Bouvier’s Law Dic. title “Bank;” People v. Doty, 80 N. Y. 225; Kennedy v. Knight, 21 Wis. 345; Pratt v. Short, 79 N. Y. 437; Tishimingo Institution v. Buchanan, 60 Miss. 496; Insurance Co. v. Ely, 2 Cow. 678; Kieth v. Catchings, 64 Ga. 773; Bank v. Savery, 82 N. Y. 291.

      Savings banks which receive deposits, and lend the same for the benefit of their depositors, although they may have no capital stock, and neither make discounts nor issue any money for circulation, are “engaged in the business of banking.” See Bank v. Collector, 3 Wall. 495; Oulton v. Savings Institution, 17 id. 109; People v. President, 9 Wend. 351; Angell & Ames on Corp. see. 55.
    The purchasing and discounting of paper is only a mode of loaning money. Morse on Banking, 8; Smith v. Exchange Bank, 26 Ohio St. 141.
    Receiving money on deposit is the exercise of a banking power. Rupert v. Roney, 22 Ill. 325.
    Receiving money on deposit, loaning money, buying and selling notes, bonds and other securities, are banking powers. Ward v. Johnson, 95 Ill. 215.
    Banking powers have been defined as consisting of the right of issuing negotiable notes, discounting notes, and receiving deposits. People v. President Manhattan Co. 5 Conn. 383; People v. Insurance Co. 15 Johns. 390; Duncan v. Savings Institution, 10 G. & J. 309.
    Receiving deposits from customers is a part of the usual banking business. Marine Bank v. Fulton Bank, 2 Wall. 252; Savings Bank v. Hollenbeck, 29 Minn. 322.
    A corporation which is forbidden to exercise “banking privileges” can not lawfully exercise the power of discounting notes. Receivers v. Katz, 57 Md. 138.
    A corporation which is forbidden to exercise banking powers • can not loan money upon promissory notes. Insurance Co. v. Ely, 2 Cow. 678.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a proceeding instituted by the Attorney General to test the validity of an act of the legislature, entitled “An act to provide for the organization of savings societies, or institutions for savings, for their supervision, and for the administration of their affairs, ” which was enacted by the legislature in 1887. Laws of 1887, p. 77.

Whether the act was one calculated to advance the prosperity or welfare of any portion of the people of the State, is a question which might admit of debate. That, however, is a question addressed to the legislative department of the government,—one upon which the court is not called upon to speak. The only point presented to the court upon which we are called upon to determine," is, whether the act is constitutional.

Section 5, article 11, of the constitution, is as follows: “No act of the General Assembly authorizing or creating corporations or associations with banking powers, whether of issue, deposit or discount, nor amendments thereto, shall go into effect, or in any manner be in force, unless the law shall be submitted to a vote of the people at the general election next succeeding the passage of the same, and be approved by a majority of all the votes cast at such election for or against such law.”

The act in question was not submitted to a vote of the people, and if it is one authorizing or creating corporations with banking powers, of either issue, deposit or discount, it is prohibited by the constitution. The defendant corporation, as organized, is known as the “Chicago Society for Savings.” Whether it may or may not be a savings bank, is not the inquiry here; but the question is, whether the act under which the defendant organized, confers upon it banking powers of issue, of deposit, or of discount. In section 15 of the act it is declared, that no such corporation organized under the act shall be deemed a bank or company having or exercising banking powers. But these declarations do not affect the powers conferred, nor do they limit the authority of the corporation. Whether the corporation may be called a bank or not, is a matter of no moment. If any of the sections of the act, in plain and express words, confer banking powers, the character of the corporation is to be determined from the powers thus conferred, and not from the fact that some portions of the act declare that the corporation shall not be deemed a bank.

The constitution of 1848 contained a provision that no act of the .General Assembly authorizing corporations with banking powers, should go into effect unless submitted to and ratified by the people at a general election. It will be observed .that the provision of our present constitution relating to the same subject is more specific and far-reaching than the old constitution, prohibiting, as it does, an act authorizing or creating corporations or associations with banking powers, whether of issue, deposit or discount. This court held in The People v. Loewenthal, 93 Ill. 193, that the prohibition in the pld constitution related only to banks of issue; but that decision has no bearing on the present inquiry.

There ought not, however, to be any serious difficulty in determining what was intended by the words; “banking powers,” as used in the constitution of 1870. We think the language employed should be used in its common, ordinary sense, and when this is done, the banking powers referred to mean such as are ordinarily conferred upon and used by the various banks doing business in the country. The ordinary and usual powers exercised by banks are to discount notes and receive deposits. They may, and often do, possess other powers; but these are the ordinary and usual powers conferred upon and exercised by banks and bankers. Bouvier, in defining a bank, says: “A place for the deposit of money; an institution (generally incorporated) authorized to. receive deposits of money, to lend money and issue promissory notes, (usually known by the name of bank-notes,) or to perform some one or more of these functions.” “Banks are said to he of three kinds,— deposit, discount and circulation.” (See, also, The People v. Doty, 80 N. Y. 225; Pratt v. Short, 79 id. 437.) Speaking in a commercial view, Bouvier is doubtless correct in his definition of a bank; but one of the chief characteristics and one of the most essential elements of a bank, as that term is ordinarily understood, is that it is a place for the deposit of money. The powers and functions of a hank are well stated in Oulton v. Savings Institution, 17 Wall. 117, as follows: “Banks, in the commercial sense, are of three kinds, to-wit: First, of deposit; second, of discount; third, of circulation. Strictly speaking, the term ‘hank’ implies a place for the deposit of money, as that is the most obvious purpose of such an institution. Originally, the business of banking consisted only in receiving deposits,—such as bullion, plate, and the like,—for safe keeping, until the depositor should see fit to draw it out for use; but the business, in the progress of events, was extended, and bankers assumed to discount bills and notes, and to loan money upon mortgage, pawn, or other security, and, at a still later period, to issue notes of their own, intended as a circulating currency, and a medium of exchange instead of gold and silver. Modern bankers frequently exercise any two, or even all three, of those functions, but it is still true that an institution prohibited from exercising any more than one of those functions is a bank, in the strictest commercial sense.”

Another interesting case upon the same subject is Bank for Savings v. The Collector, 3 Wall. 495. The act under which the bank was incorporated, was, in many respects, similar to the act under which appellant is incorporated. The bank had no capital stock. It had no shareholders. No corporators were interested in the profits. The corporators were trustees, who constituted a board of managers. The question arose whether the incorporation was engaged in the business of banking, within the meaning of the United States Revenue law, and the court held that savings banks which receive deposits, and lend the same for the benefit of depositors, although they may have no capital stock, and neither make discounts nor issue any money for circulation, are engaged in the business of banking, within the meaning of the Revenue law, which provides for a tax upon any person, bank, association or company engaged in the business of banking.

In People v. President of Manhattan Co. 9 Wend. 383, the court, in speaking of the powers of hanks, says: “Banking powers have been defined by this court to consist in the right of issuing negotiable notes, discounting notes, and receiving deposits. 15 Johns. 390, per Spencer, J.; 2 Cow. 710, per Savage, Ch. J.”

We will now examine briefly some of the provisions of the act under which appellant corporation is organized, in order to determine whether banking powers of discount or deposit have been conferred.

Under section 10 of the act, the appellant is authorized to receive any sums of money for accumulation and safe keeping that may be offered, and to invest, hold and repay the same, and to declare credit, and pay dividends thereon. Section 11 authorizes the corporation to invest funds received, in stocks, bonds, interest-bearing notes, municipal obligations, mortgage bonds of railroad companies, and in bonds or notes and mortgages on unincumbered real estate. Section 14 provides that in making loans on real estate, the expenses of examination of titles shall be paid by the borrower. Section 16 provides a mode under which a depositor may withdraw funds deposited, under regulations to be established by the trustees of the corporation. Section 17 authorizes the trustees to classify the depositors. Section 19 requires the corporation to make annual reports, which, among other things, shall show the amount loaned on bond and mortgage. Such report shall also state all the liabilities on the morning of the first day of July, the amount due to depositors, the amount deposited during the fiscal year, and amount withdrawn during the same period, and amount of dividends credited to depositors.

Under the sections of the act we have referred to, the corporation is invested with full power to receive money on deposit and to discount notes. These are banking powers, as has been abundantly shown. In many of the sections of the act there seems to have been a labored effort to conceal the real powers conferred upon the corporation and the relations existing between the corporation and its patrons; but in section 19 the mask seems to have been removed, and it is there plainly disclosed that those who place their funds in the hands of the corporation are depositors, and the corporation is dealing with the depositors and using their funds as a hank.

But it is said, in the argument, that section 5, of article 9, of the constitution, has reference only to banking corporations with stockholders who own the bank, and hence as appellant corporation has no stockholders, it is unaffected by the constitution,—and in support of this position we are referred to sections 6 and 8 of the same article. In placing a construction on' one section of the constitution, it is proper to refer to any other section of the instrument relating to the same subject, and consider the sections together, in order to arrive at the true intention of the framers of the instrument. We do not think section 6 has any bearing whatever on section 5, so far as the question here involved is concerned. It is as follows: “Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder.” At the time the constitution was framed, there existed in the State a number of banks organized and doing business under special charters granted by the legislature, and section 6 was, no doubt, framed with the view of fixing the liability of stockholders in such banks; and in the event that a general banking law should be passed and adopted by the people, section 6 was also no doubt intended to fix the liability of stockholders in such a bank. Section 8 requires certain things to be done in the event that a general banking law shall be enacted in the future. It has reference to such a contingency, and nothing more. The terms of section 5 are general. It prohibits any act creating a corporation with banking powers, whether such corporation may have stockholders or not, unless the law should be adopted by a vote of the people; and there is nothing in section 6 or 8 which limits this prohibition.

We have been referred to Holmes v. Smythe, 100 HI, 413, and Stevens v. Pratt, 101 id. 206, as cases having a bearing on the question involved. The question involved in this record was not presented in either of those cases, and the decisions • there have no bearing here.

We are satisfied that the act under which appellant organized is unconstitutional, and the judgment of the circuit court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    John B. Brown v. The Calumet River Railway Company.

      Filed at Ottawa October 2, 1888.

    1. Eminent domain—measure of damages—of an instruction in respect thereto. In a proceeding for the condemnation of land for right of way for a railroad, the court instructed the jury, that in considering the compensation to be paid for the land about to be taken, they should fix the actual cash value of the land taken, and that they were not to consider the price at which the property would sell for under special or extraordinary circumstances, but its fair cash market value if sold in the market under ordinary circumstances, for cash, and not on time, and assuming that the owner is willing to sell and a purchaser is willing to buy: Held, that there was no error in the instruction. Such an instruction does not make a distinction between the market value and the cash value of the property.
    2. Same—evidence on the question of value of property. On the hearing, in 1887, of a proceeding to condemn land for a right of way by a railway company, the land owner stated that he bought the property in 1880, and then proceeded to state what improvements then existed in its vicinity and what have since been made there affecting its value, and what other considerations, in his opinion, affected and enhanced its present value. On cross-examination, he was asked what he paid for the land when he bought it, which was objected to: Held, there was no error in allowing the question. The original cost, though not a very material circumstance, was a proper one to be considered, as tending, in a slight degree, to affect the question of value.
    3. SAME—existence of corporation seeking condemnation—how questioned. In a proceeding by a railway company to obtain a right of way, the county court has no jurisdiction to determine whether or not the petitioner is a bona fide corporation, within the meaning and spirit of the law. That can be done only on quo warranto.

    4. Same—location of line of railway—admission of land owner. "Where the land owner, by his cross-petition for damages to land not sought to be taken, alleges that the petitioner has located its right of way over and across the premises, describing them, this will be regarded as an admission that the petitioner has located its line of road, within the meaning of the law.
    5. Same—practice—time to object that location of line of road has not been shown. The objection that a railway company seeking to condemn for a right of way, has not located its line of road, should be addressed to the court before evidence is given to the jury, when the court would have required satisfactory proof in that regard. The objection comes too late on appeal or error.
    6. Witness—impeachment—laying the proper foundation. In order to prove the prior statement or admission of a witness by way of impeachment, it is only necessary to call his attention to the substance of such statement or admission.
    7. In a proceeding to condemn land claimed to be valuable for dock purposes, the owner, on cross-examination, was asked if he did not say to A, about a year before, in the office of the former, that the land was worth $300 an acre as it lay, and it would not pay to improve it with docks. The owner answered: “No, sir; we were talking about this property and land in the 0. farm—not about this property.” A was called, who, after stating he had the conversation referred to, was asked what property was the subject of the conversation, and answered that he understood it to apply to the property, generally, on the 0. river, and said: “But in our conversation we were referring to the A. property. What brought about our conversation was that, but we were talking about the river front, generally,—as to its personal value and cost of improvement. ” He was then asked, “What did Mr. B. (the owner) say on that occasion,” and replied: “He said there was no river property that was worth to exceed $300 an acre. Says he, ‘It cost me $4000 an acre to fill it:’ ” Held, that a proper foundation was laid for the inquiry as to what the owner did say in the conversation referred to.
    8. Evidence—-proof of admission of party in interest—preliminary proof. It is always competent to prove an admission of a party in interest, to his prejudice, when it relates to a matter material to an issue being tried, without previously examining him in reference to it.

      Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Messrs. Osborn & Lynde, for the appellant:
    The court erred in allowing the petitioner, on cross-examination, to examine Brown as to the price which he had paid for the property in controversy, in 1880. Stinson v. Railway Co. 27 Minn. 288; Railroad Co. v. Heister, 40 Pa. St. 55; Railroad Co. v. Rose, 74 id. 362; Dietrichs v. Railroad Co. 12 Neb. 225.
    If the evidence is admissible to show the basis on which the opinion of the witness is founded, it should be limited to sales at or about the date in question. Watson v. Railway Co. 57 Wis. 350; Railroad Co. v. Pearson, 35 Cal. 362.
    The court erred in permitting the petitioner to examine the witness Arnick, in rebuttal, as to a conversation between him and Brown, and as to what Brown then said.
    The true test of the compensation to be paid for land taken, is the market value of the land, and not the price it would bring at a forced sale. Haslam v. Railroad Co. 64 Ill. 355; Railroad Co. v. Jacobs, 110 id. 417; Railroad Co. v. Catholic Bishop, 119 id. 528; Railroad Co. v. Doughty, 22 N. J. L. 503.
    The court has jurisdiction to-inquire into and determine whether the petitioner is, in fact, abusing the powers conferred upon it. Smith v. Railroad Co..105 Ill. 511; Railroad Co. v. Dix, 109 id. 237; Railroad Co. v. Wiltse, 116 id. 449.
    Mr. Frank J. Loesch, and Mr. Charles A. Allen, for the appellee:
    The Smith case, 105 Ill. 511, the Dix case, 109 id. 237, and the Wiltse case, 116 id. 449, are not pertinent. Those were cases where the petitioner was abusing its powers to condemn. Here, appellant denies, in toto, the power of appellee to condemn.
    It is sufficient, for the purposes of condemnation, that the petitioner is a corporation de facto. McAuley v. Railway Co. 83 Ill. 348; Railroad Co. v. Railway Co. 105 id. 110; Railway

      Co. v. Railroad Co. 112 id. 589; Ward v. Railroad Co. 119 id. 287; Henry v. Railroad Co. 121 id. 264.
    The question of the location of the road was not one for the jury. Smith v. Railroad Co. 105 Ill. 511; Ward v. Railroad Co. 119 id. 287.
    Proof of the price paid for land tends to prove its value. Dietrichs v. Railroad Co. 12 Neb. 225 ; Ham v. City of Salem, 100 Mass. 350; Railroad Co. v. Smith, 42 Ark. 265.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a proceeding in the county court of Cook county, instituted by the Calumet River Railway Company, against John B. Brown, to condemn for right of way a strip of land sixty feet in width over a tract of land belonging to him, lying on the east side of and adjoining to Calumet river, and extending from One Hundredth street, on the north, to One Hundred and Sixth street, on the south. The quantity of land thus sought to be taken is 4 66/100 acres. Brown filed a Cross-petition, in which he alleged, among other things, that the tract of land over which the proposed right of way is located, is known as block B, in South Chicago, of which he is the owner; that it has a river front of more than three hundred feet, and a depth of more than seven hundred feet; that the river is navigable, and the property fronting thereon has especial value for dock and wharf purposes; that he had designed locating and constructing wharfs and docks thereon, similar to those of the South Chicago Dock Company on the opposite side of the river, with slips extending the entire depth of the block; that the property is especially valuable and available for this form of improvement, and could thus be made available as a whole; that the right of way, as located, cuts through the middle of the block, and cuts off from the river front a strip containing more than 20 acres, preventing its use for the construction of docks, and taking away the greater part of its value, and that the remainder of the block not taken will be damaged $50,000. A jury was duly impaneled, and, after hearing the evidence, they went upon the premises sought to be taken and those claimed to be damaged but not taken, and afterwards rendered them verdict, whereby they found that Brown was entitled to $4600 for the land actually taken, and that he sustained damages to the land not taken to the amount of $12,900. Motion for new trial was made by Brown, but overruled by the court, and the court thereupon entered judgment upon the verdict of the jury. Brown brings the case here by appeal.

The several objections urged as grounds of reversal will be considered in the order of their presentation in the argument of counsel for appellant.

First—The court below allowed the petitioner, on cross-examination of Brown, to inquire of him what he paid for the tract of land affected by the proceeding when he bought it, and it is contended this was erroneous, because it has no tendency to establish the present value. This the court, in effect, said, in admitting the evidence, but held it admissible, as tending to test the correctness of the opinion which the witness had previously expressed of the present value of the land. We think the ruling is liable to no serious objection. "The witness had stated that he bought the property in 1880, and then proceeded to state what improvements then existed in its vicinity, and what improvements had since been made there affecting its value, and what other considerations, in his opinion, affected and enhanced its present value. Certainly the petitioner might show that any fact thus claimed to enhance value was not as claimed by the witness, or that there were other modifying circumstances tending to affect the question of the value, reference to which the witness had omitted. The original cost, though not a very material circumstance, was certainly a proper one, tending, in a slight degree, to affect the question. The line of inquiry pursued by appellant assumed there had been very great appreciation in value after his purchase, and it is impossible to perceive how he could have been injured by showing precisely how great he claimed the appreciation had been.

Second—On cross-examining Brown, he was asked by the petitioner, “Did you not say to Mr. Amick, about a year ago, in your office, that this land was worth $300 or $400 an acre as it lay there, and it would not pay you to improve it with docks,—this property in question ?” He answered, “No, Sir. We were talking about this property and land on the Chittenden farm, not about this property.” When Amick was examined by the petitioner, he was, among other things, after his stating that he had a conversation with Brown upon the subject, and at the time and place alluded to in the interrogatory to Brown, asked: “Concerning what property was the conversation between you and Mr. Brown ?” He answered: “The conversation, as I understand it, applied to the river property, generally, on the Calumet river; but in our conversation we were referring to the Anderson property. What brought about our conversation was that, but Ave were talking about the river .front, generally, as to its personal value and costs of improvement.” He was then further asked, “What did Mr. Brown say on that occasion?” He replied: “He said there was no river property that was worth to exceed $300 an acre. Says he, ‘It cost me $4000 an acre to fill it.’ ” It is objected, that no proper foundation was laid for the introduction of this evidence. We think otherwise. It was only necessary to call Brown’s attention to the substance of his admission, (Craig v. Rohrer, 63 Ill. 325,) and that, in our opinion, was here sufficiently done. Apart from this, however, it is always competent to prove an admission of a party in interest to his prejudice, where it relates to a matter material to an issue being tried, (1 Greenleaf on Evidence, sec. 172,) and therefore, although this evidence may not have been competent for the purpose of impeaching Brown, it was competent as proving an admission by him against his interest, and in that view it was not necessary that he should have been previously examined in regard to it. (McCoy v. The People, 71 Ill. 111.) In either view, therefore, there was no error in admitting the evidence.

Third—The sixth instruction given by the court, at the instance of the petitioner, is as follows:

“The jury are instructed, that in considering the compensation to be paid to the defendant for the land about to be taken, they are to fix the actual cash market value of the land taken. And they are further instructed, that they are not to consider the price which the property would sell for under special or extraordinary circumstances, but its fair cash market value if sold in the market, under ordinary circumstances, for cash, and not on time, and assuming that the owners are willing to sell and the purchaser is willing to buy.”

It is objected that this introduces a condition and qualification as to the measure of the compensation to be allowed, not warranted by authority or reason, in that it draws a distinction between the market value and the cash value of the property. This precise form of instruction was approved in Kiernan v. Chicago, Santa Fe and California Railway Co. 123 Ill. 188, and Calumet River Railway Co. v. Moore, 124 id. 329. In legal contemplation, the present market value of property is its present cash value in market, unless something is said showing that a valuation on'a time sale is intended.

Fourth—The modification of the first, second and fourth of appellant’s instructions was to conform to the ruling in giving the petitioner’s sixth instruction, and therefore was not objectionable.

Fifth—It is contended the petitioner is not a bona fide corporation, within the meaning and spirit of the law, and the purpose, in fact, for which it seeks to condemn property, is not one for which the right of eminent domain is given. This question is not presented in Railroad Co. v. Dix, 109 Ill. 237, and Chicago and Eastern Illinois Railroad Co. v. Wiltse, 116 id. 449. There, a valid corporation existed, but the question was, the extent of its corporate powers. But the question here is, whether that which is a corporation defacto is also one dejure, for, if the validity of the corporation be conceded, so far as any evidence in this record discloses its purpose in condemning,_ it is unobjectionable. It is clear that can be determined only on quo wairanto. The county court is vested with no such jurisdiction in proceedings to condemn right of way. Henry et al. v. Centralia and Chester Railroad Co. 121 Ill. 264; Ward v. M. & N. W. Railroad Co. 119 id. 287.

Sixth—It is objected, no evidence was offered-to show that the petitioner had located and laid out its line of road, within the meaning of the law. But this is admitted in the cross-petition, and hence no proof was necessary. It alleges “that the said Calumet River Railway Company, the petitioner in said condemnation proceeding, has located its right of way over and across the premises, (describing them) and is seeking, by the said condemnation proceeding, to take the land, ” etc. But, in any event, this objection, if tenable, should have been addressed to the court before evidence was given to the jury, and the court would then have required satisfactory proof in that regard. It comes too late now. Smith v. Chicago and Western Indiana Railroad Co. 105 Ill. 511; Ward v. M. & N. W. Railroad Co. 119 id. 287.

On the whole record, we find no cause to disturb the judgment below. The jury were fully and accurately instructed, in instructions not herein set out, as to every phase of the law materially affecting appellant’s rights, and there is ample evidence in the record to sustain the verdict.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    Maria P. Storey v. Eureka C. Storey et al.

      Filed at Springfield October 3, 1888.

    1. Divorce and alimony—by consent of parties. While a husband and wife may not enter into an agreement for divorce, yet the amount of alimony the husband is to pay to the wife, the terms of the payment, and the length of time payment is to be made, may be arranged between them by consent. When husband and wife agree upon alimony, the court will embody their agreement upon that subject in its decree, and it will thereafter conclude the parties.
    2. Same—decree for alimony—as a charge upon the husband's estate after his death. A decree for alimony to a wife in a suit for divorce brought by her, was entered, by consent of the parties, that the husband should thereafter pay the wife, so long as she should remain sole, the sum of $2000 per annum. On the same day the decree was entered, the husband executed to his wife a bond, in the sum of $50,000, conditioned for his performance of the decree, which was secured by a deed of trust upon real estate, which bond and trust deed were made binding upon the obligor, his heirs, executors, administrators and assigns, as also was his agreement to keep the property insured for her benefit: Held, that the agreement to pay the wife $2000 so long as she should remain unmarried, did not terminate with the life of the husband, but was binding upon his estate after his death.
    3. Contract—construction put upon it by the parties may be adopted. It is always allowable to look to the interpretation the contracting parties put upon their agreement, either contemporaneously or in its performance, for assistance in ascertaining its true meaning. No extrinsic evidence can be more valuable.
    4. Same — construction—several writings, when construed together. Where a decree for alimony is entered by consent of the parties, and the payment of the alimony is also secured by the bond of the husband and a deed of trust upon his real estate, all bearing the same date, the decree, bond and deed of trust will be construed together in determining the intention of the parties as to whether the alimony shall terminate at the husband’s death, or shall continue thereafter as a charge upon his estate.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.

      Mr. Melville W. Fuller, and Messrs. Miller, Lewis & Judson, for the appellant.
    Messrs. Trumbull, Willits, Robbins & Trumbull, for the appellee Eureka C. Storey.
    Mr. W. C. Goudy, for the appellees the heirs of Wilbur F. Storey.
   Mr. Justice Magruder

delivered the opinion of the Court:

Maria P. Storey was married to Wilbur F. Storey in June 1847 and lived with him as his wife until February 17, 1868. In a suit in the Circuit Court of Cook County, which she instituted against him for divorce, she obtained a decree on February 17, 1868, granting her a divorce for his fault. By the terms of the decree, and of a bond and trust deed dated as of the same day on which the decree was entered, she was allowed alimony to the amount of $2000.00 per annum to be paid to her quarterly in installments of $500.00 each.

After the divorce Wilbur F. Storey married Eureka C. Storey, his present widow and one of the appellees in this case. He died on October 27, 1884.

The question to be decided is whether the divorced wife, Maria P. Storey, the appellant herein, is still entitled to receive from the estate of Wilbur F. Storey the annual allowance so awarded to her as alimony, or whether she ceased to be entitled to the payment of such alimony upon the death of Wilbur F. Storey.

The rule, which prevailed at common law, that the death of the husband necessarily and of itself put an end to the payment of alimony, was applicable only in divorces a mensa, et thoro, which did not have the effect of finally and forever terminating the marriage relation, but operated as mere temporary separations, leaving all the other marital rights and obligations in full force. In the case of such divorces, the separation was liable to end at any time by the reconciliation of the parties, and, even if no reconciliation took place, the marriage continued to exist until it was dissolved by death.

But where, as under the statute of Illinois, alimony is awarded upon a decree of absolute divorce, which at once puts an end for all time to the marriage relation, the right of the divorced wife to have the payment of alimony continued to her out of the estate of her deceased husband will depend upon the nature and terms of the decree allowing alimony.

While it is true that husband and wife can not lawfully enter into an agreement for divorce, yet it is well settled that the amount of alimony, which the husband is to pay to the wife, and the terms of the payment and the length of time during which such payment is to continue, may be all arranged between them by consent.

In Buck v. Buck 60 Ill. 242, the recitals of the decree showed that the whole question of alimony was fixed and settled by the agreement of the parties, and it was there held, that it was competent for the husband to consent to the provisions of the-decree, and that, having done so, he was bound by them and could have no relief against his own voluntary agreement. Where the court has jurisdiction of the subject, the consent of the parties will authorize it to enter a valid decree or judgment in accordance with their agreement. Where husband and wife-agree upon alimony, the court will embody their agreement upon that subject in its decree. (Stratton v. Stratton, 77 Me. 377; Fletcher v. Holmes, 25 Ind. 458; Carson v. Murray, 3 Paige, 483; Miller v. Miller, 64 Me. 484).

The decree for alimony entered in the ease at bar was a. consent decree. A portion of its language is as follows: “And the cause further coming on to be heard on the question of alimony and maintenance of the said complainant, it is thereupon, by and with the consent of the said parties complainant and defendant, ordered, adjudged and decreed that the said defendant, Wilbur F. Storey, do from henceforth pay or cause to be paid to and for the use of the said complainant, for so long as she may be and remain sole and unmarried, the sum of $2000.00 per annum to be paid to her quarterly in installments of $500.00 each, the first of which shall be payable on the first day of June A. D. 1868, and the same sum every three months thereafter during the time aforesaid, at such place or places in Chicago as she shall from time to time appoint.”

In addition to the consent embodied in the decree, and on the same day, on which the decree was entered, Wilbur F. Storey executed to Maria P. Storey a bond in the sum of $50,000.00, conditioned for the performance of the decree of alimony, in which bond, after reciting the terms and provisions of the decree, Mr. Storey u'ses the following language: “which said order and the terms thereof the said obligor hath agreed and doth hereby agree, to stand to, abide by and perform.” It thus appears that he made a written agreement to pay appellant $2000.00 per annum in the manner and for the period above stated.

It is claimed that the words: “for so long as she may be and remain sole and unmarried;” were not intended to indicate the period during which alimony should be paid, but merely to designate the time during the life of Storey, when he should cease to pay the alimony. We do not think that this is the proper construction to place upon the words thus quoted. If appellant had married while her divorced husband was alive, the law would have put an end to any further obligation on his part to pay her alimony. (Stillman v. Stillman 99 Ill. 196).

We think that the words in question are to be interpreted according to their natural sense and meaning. Their natural meaning is that alimony shall be paid for so long a time as Mrs. Storey shall remain unmarried whether before or after her husband’s death. This construction receives support from the language subsequently employed, wherein it is ordered that “the same sum” shall be paid “every three months thereafter during the time aforesaid.” The words, “during the time afore said,” designate a continuous period, during which payment is to be made, and hot a mere limit at which payment is to cease.

We do not, however, wish to be understood as resting the conclusion announced in "this opinion solely and entirely upon the considerations thus far presented, but upon such considerations in connection with and supported by the views hereinafter set forth.

It is urged by counsel for appellees, that the decree in this case merely directs Storey to pay the $2000.00, but nowhere intimates that such payment is to be made by his estate or his representatives after his death, and, in support of the position that, where no intention to bind the heirs is apparent from the decree itself, the obligation to pay alimony ceases at the death of the husband, reference is made to the case of Lennahan v. O’Keefe, 107 Ill. 620. In that case, the decree was not based upon the agreement of the parties, but, by its terms, alimony was to be paid in installments “until the further order of the cowt.” The right of revision was expressly reserved, and there was an absence of language showing any intention to bind the heirs. Here, however, there is evidence of an intention to bind the heirs.

The decree for alimony in this case further orders “that said sums of money shall be and they are hereby declared to be a lien upon the following premises and lands, but upon none other, situated in the city of Chicago, County of Cook and State of Illinois (to wit: part of lots 1 and 2 in block 57 in the original town of Chicago), and that for the better giving notice of said lien and the security of the payment of the said alimony and the performance of all the requirements of this decree, the said defendant execute and deliver a mortgage or trust deed of said land and premises to Sydney Myers in trust for said Maria P. Storey, in proper form,” and further that he shall pay all taxes and assessments against said premises, and shall keep the rents of the buildings on said premises insured to the amount of $2000.00 per annum for her benefit.

A trust deed dated February 17, 1868, was executed by Storey to Myers, as trustee, in accordance with the directions of the decree. This trust deed recites on its face, that it was given to secure the bond above mentioned, and fully sets forth all the terms and conditions of said bond. The decree, the bond and the trust deed, which all bear the same date, must be regarded as one transaction, and must be construed together in determining the intention of the parties in making their agreement for alimony. “It is always allowable to look to the interpretation the contracting parties place on their agreement, either contemporaneously or in its performance, for assistance in ascertaining its true meaning. No extrinsic aid can be more valuable.” (Vermont Street M. E. Church v. Brose, 104 Ill. 206).

Looking at the terms of the bond, which is in the penal sum of $50,000.00, we find Mr. Storey, the obligor, using the following language: “I bind myself, my heirs, executors and administrators” for the payment of said sum. In another part of the bond, after agreeing to insure the rents of the buildings on the property and to assign the policies to Mrs. Storey, the obligor uses this language: “such insurance to be kept up as long as the said sum of $2000.00 per annum shall be payable as provided in said decree; and the duty of keeping up said insurance shall be binding upon the heirs, executors and administrators of the said Wilbur F. Storey and the grantees and assigns of said premises.”

This language of the bond is Mr. Storey’s own interpretation of the words, “for so long as she may be and remain sole and unmarried,” as used in the decree. If those words did not contemplate that Mrs. Storey was to have her alimony after her husband’s death, provided she then continued to be sole and unmarried, it was absurd to make the duty of keeping up the insurance for her benefit binding upon his “heirs, executors and administrators.”

Looking at the terms of the trust deed, executed by Mr. Storey, as party of the first part thereto, we find that power is therein given to the trustee or his successor to sell the premises upon default in the performance of any of the agreements therein contained “on the part of said party of the first part, his heirs, executors, administrators or assigns.” The trust deed also contains the following language: “Provided, however, that said party of the first part, his heirs and assigns, may hold and enjoy said premises until default shall be made by him or them in the premises; * * * and it is hereby * * * agreed by said grantor * * * for himself, his heirs and assigns, that in case said trustee * * * shall die * * * it shall * * * be lawful for the Judge, etc., * * * with notice to said Wilbur F. Storey, his heirs or assigns to appoint some other person, etc.”

It is apparent, from the phraseology thus quoted, that the agreement for the payment of appellant’s alimony was to be binding not only upon Mr. Storey in his lifetime, but upon his estate after his death, so long as she continued to remain unmarried. Furthermore, in August, 1882, Wilbur F. Storey conveyed the above premises to one Adams, who executed a note for $30,000.00 and a trust deed to Lambert Tree to secure the same, and, in such note and trust deed, it was agreed between Adams and Storey, that, in case the latter, “his heirs, executors, administrators or assigns” should fail to make the payments specified in Mrs. Storey’s bond, it should be lawful for Adams, his heirs, etc., to make the same in order to keep the premises from being sold under the incumbrance.

Authority is not wanting to show that a husband may make an agreement for the payment of alimony to his wife during her life, (Carson v. Murray, supra,), and that he may make such an agreement' binding upon his administrator. (Miller v. Miller, supra.)

Under certain circumstances, as where the wife owns property at the time of her marriage, or has aided her husband by her own exertions'in acquiring his estate, it has been held, that she may receive as alimony a certain sum of money or a certain amount of property in gross to be kept and retained by her as her own. (Von Glahn v. Von Glahn, 46 Ill. 134).

Here, the equities in appellant’s favor appeal strongly against the withdrawal of the support provided for her by the agreement of her husband. She was the wife of his youth and lived with him twenty years- or more and bore him one child. By her and his joint exertions the value of his fortune had reached nearly a half million of dollars at the time of the divorce.

We are of the opinion, that the annual allowance of $2000.00 to be paid according to the provisions of the decree of February 17, 1868, as above set forth, should be continued to the appellant so long as she remains sole and unmarried.

The decrees of the Appellate and Circuit Courts are reversed and the cause is remanded to the Circuit Court with directions to proceed in accordance with the views herein expressed.

Decree reversed.

Scholfield and Craig, JJ.: We do not concur in the foregoing opinion.


text:
    The De Witt County National Bank v. Ira L. Nixon et al.

      Filed at Springfield September 27, 1888.

    Indorsement of promissory note—by a third person—character of liability assumed—presumption. The placing of the name of a third party on the back of a note is prima facie evidence, only, that the liability intended to be assumed is that of guarantor. It may be shown that the real contract is, that the liability intended to be assumed is that of a simple endorser.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of De Witt county; the Hon. Cyrus Epler, Judge, presiding.

      Mr. Thomas F. Tipton, for the plaintiff in error:
    When a note is indorsed in blank by the payee, parol evidence is not admissible to vary the legal effect of such blank indorsement. Beattie v. Brown, 64 Ill. 361; Mason v. Burton, 54 id. 349; Jones v. Albee, 70 id. 37; Skelton v. Dustin, 92 id. 52; Dietrich v. Mitchell, 43 id. 40; Boynton v. Pierce, 79 id. 146; Schnell v. Planing Mill Co. 89 id. 582; Windheim v. Ohlendorff, 3 Bradw. 436; Worden v. Salter, 90 Ill. 165; Wallace v. Goold, 91 id. 19; Courtney v. Hogan, 98 id. 104.
    It is now the well settled law of this State, that a person who is not a party to a promissory note, which is a valid obligation against the maker, by writing his name in blank on the back of the note, is presumed to consent to the obligation of a guarantor. Camden v. McKoy, 3 Scam. 437; Cushman v. Dement, id. 497; Carroll v. Weld, 13 Ill. 682; Klein v. Currier, 14 id. 240; Webster v. Cobb, 17 id. 459; Hance v. Miller, 21 id. 636; Blatchford v. Milliken, 35 id. 439; Stowell v. Raymond, 83 id. 121; Lincoln v. Hinzey, 51 id. 435; White v. Weaver, 41 id. 409; Parkhurst v. Vail, 73 id. 343; Brown v. Reasner, 5 Bradw. 49; Eberhart v. Page, 89 Ill. 550; Allen v. Coffil, 42 id. 293; Penny v. Manufacturing Co. 80 id. 244; Boynton v. Pierce, 79 id. 145.
    That the defendant in the court below was the guarantor of the note in suit, is well settled by the authorities following: Stowell v. Raymond, 83 Ill. 120; Cushman v. Dement, 3 Scam. 497; Camden v. McKoy, id. 437; Carroll v. Weld, 13 Ill. 682 Klein v. Currier, 14 id. 237; Webster v. Cobb, 17 id. 459; Parkhurst v. Vail, 73 id. 343; Glickauf v. Kaufmann, id. 378; Pahlman v. King, 49 id. 266; Eberhart v. Page, 89 id. 550; Brown v. Reasner, 5 Bradw. 49; Pool v. Roberts, 19 id. 441.
    Mr. George B. Graham, and Mr. O. E. Harris, also for the plaintiff in error:
    The signature of a third person on the back of a note, in the hands of the payee, is prima facie evidence that it was-placed there as a guaranty. Camden v. McKoy, 3 Scam. 437; Cushman v. Dement, id. 497; Carroll v. Weld, 13 Ill. 682; Klein v. Currier, 14 id. 237; Webster v. Cobb, 17 id. 459; Parkhurst v. Vail, 73 id. 343; Glickauf v. Kaufmann, 73 id. 378; Pahlman v. Taylor, 75 id. 629; Stowell v. Raymond, 83 id. 120.
    In order to rebut the legal presumption of guaranty, the proof must be clear and satisfactory as to a different intention. Stowell v. Raymond, 83 Ill. 120; Cushman v. Dement, 3 Scam. 497; White v. Weaver, 41 Ill. 409; Glickauf v. Kaufmann, 73 id. 378.
    Messrs. Moore & Warner, for the defendants in error:
    The holder of a negotiable note indorsed in blank may fill up the blank with such undertaking as is consistent with the nature of the instrument and the intention of the parties, and the indorsement of a note in blank by a third party, raises a presumption, only, that it is intended thereby to assume the liability of a guarantor, which may be rebutted by proof that the real agreement between the-parties was different. Eberhart v. Page, 89 Ill. 550; Boynton v. Pierce, 79 id. 145; Webster v. Cobb, 17 id. 459.
    Where the evidence is conflicting, and that produced by either party, considered alone, is sufficient to require a verdict-in his favor, a new trial will not be granted on the ground that the verdict is not sustained by the evidence. Howitt v. Estelle, 92 Ill. 218; Lewis v. Lewis, id. 237; Clark v. Day, 93 id. 480; Buchanan v. McLennan, 105 id. 56; Insurance Co. v. Ellis, 89 id. 516; Sullivan v. Dollins, 13 id. 85; Carroll v. Weld, id. 682; Webster v. Cobb, 17 id. 459 ; White v. Weaver, 41 id. 409; Parkhurst v. Vail, 73 id. 343; Boynton v. Pierce, 79 id. 145; Stowell v. Raymond, 83 id. 120; Eberhart v. Page, 89 id. 550; Rey v. Simpson, 22 How. 331.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The sole question on the trial in the circuit court was, whether the defendants assumed the liability of indorsers, or that of guarantors, when they wrote their names across the back of the note in suit. The jury found that they assumed the liability of indorsers, and not that of guarantors, and the court gave judgment upon that finding, in favor of the defendants. This judgment was affirmed, on appeal, by the Appellate Court for the Third District.

The question in the circuit and in the Appellate courts seems to have been purely one of fact. We have looked in vain through this record to find a ruling upon a question of law raised in the trial court, and considered in the Appellate Court, which can now be urged as ground for reversal.

No objection was urged, on the trial, to the defense interposed, because of the condition of the pleadings, or, so far as we have been able to discover, for any other cause; and in instructions asked in behalf of plaintiff in error, it was assumed and stated that the placing of the name of a third party on the back of a note is prima facie evidence only, that the liability, intended to be assumed is that of guarantor. But that this is prima facie evidence only that such liability is intended to be assumed, and that it may be shown that the real contract is that the liability intended to be assumed is that of indorser, is established by many adjudged cases. Carroll v. Weld, 13 Ill. 682; Webster v. Cobb, 17 id. 459; White v. Weaver, 41 id. 409; Parkhurst v. Vail, 73 id. 343; Boynton v. Pierce et al. 79 id. 145; Stowell v. Raymond, 83 id. 120; Eberhart v. Page, 89 id. 550.

We find no error of law justifying a reversal of the judgment of the Appellate Court. It is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Arthur Christian v. James Irwin.

      Filed at Ottawa June 16, 1888.

      1. Master and servant—respondeat superior. Where the plaintiff has been injured by the gross misconduct of the defendant’s servant while engaged in the service of his principal in driving a wagon and team along a street, in driving into and colliding with the wagon and team of the plaintiff passing along the highway, and the plaintiff, at the time of the injury, was observing due care for his personal safety, the master will be liable for the injury.
    2. Appeal—whether damages are excessive, as a question of fact—the rule of damages, a question of law. Whether the damages awarded in a case are excessive or not, is a question of fact, not reviewable in this court. The amount of damages a party may have sustained from a personal injury, is a question of fact, but the rule for ascertaining the damages is a question of law.
    3. Instruction—omission in one cured by another embodying the principle. In an action to recover for a personal injury caused by the misconduct and negligence of the defendant’s servant, it was objected that the first and second of the plaintiff’s instructions omitted to present the question whether the plaintiff exercised ordinary care to avoid the injury. The third instruction of the series, however, contained the principle which was wanting in the two preceding ones, and this was held to obviate the objection, and that there was no occasion for stating the doctrine insisted upon in the first and second of the series.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Grant, Brady & Northrup, for the appellant:
    If Francis Smart, who owned and was driving in the buggy in which appellee was riding at the time of the collision, failed to exercise ordinary care and prudence to avoid a collision, his negligence is chargeable to appellee, and he can not recover. Otis v. Janesville, 47 Wis. 422; Payne v. Railway Co. 39 Iowa,
      523; Railroad Co. v. Miller, 25 Mich. 274; Houfe v. Fulton, 29 Wis. 296; Beck v. Ferry Co. 6 Rob. 82; Lockhart v. Litchtenthaler, 46 Pa. St. 151; Forks Township v. King, 84 id. 230.
    Although appellant may have been guilty of negligence contributing to the injury complained of, still, if appellee could, by the exercise of ordinary care and prudence, have avoided the injury, he can not recover. Railroad Co. v. Jacobs, 63 Ill. 178; Railroad Co. v. Johnson, 103 id. 512; Myers v. Railway Co. 113 id. 388; Railway Co. v. Jones, 76 id. 312; Railroad Co. v. Manly, 58 id. 300; Abend v. Railroad Co. Ill id. 202; Coal Co. v. Taylor, 81 id. 590.
    Appellee was under the burden of proving that the injury he complains of was produced by the negligence of appellant’s servant, Carroll,—that appellee himself exercised due care and caution to avoid injury, or that his own negligence did not contribute to the injury. Dyer v. Talcott, 16 Ill. 300; Railroad v. Grimes, 13 id. 585; Railroad Co. v. Jacobs, 20 id. 488; Railroad Co. v. Hazzard, 26 id. 386; Kepperly v. Ramsden, 83 id. 356; Railroad Co. v. Gregory, 508 id. 276; Railroad Co. v. Johnson, 103 id. 512; Railway Co. v. Thorson, 11 Bradw. 631.
    If appellant is liable at all in this action, compensatory damages only are recoverable, neither malice nor willful wrong being alleged or proved. Bridge Association v. Loomis, 20 Ill. 251; Kolb v. O'Brien, 86 id. 210; Railroad Co. v. Payzant, 87 id. 125.
    Messrs. Brandt & Hoffman, for the appellee:
    The uncontroverted facts in the case demonstrate appellee’s right to recover. Harpel v. Curtis, 4 E. D. Smith, 78; Payne v. Smith, 4 Dana, 497; Davies v. Mann, 10 M. & W. 546; Schienfeldt v. Norris, 115 Mass. 17; Wood v. Luscomb, 23 Wis. 288; Brooks v. Scheverin, 54 N. Y. 343; Moody v. Osgood, id. 488; Coursen v. Ely, 37 Ill. 338.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought in the circuit court of Cook county, by James Irwin, against Arthur Christian, and was to recover for personal injuries alleged to have been caused by the negligence of defendant’s servant. It seems, plaintiff was in a buggy with another man, and as they were riding south on Des Plaines street, at the intersection and crossing of Van-Buren street, they were run into by the horse and wagon of defendant, then being driven by his servant, by which plaintiff sustained severe injuries. To the declaration, alleging with the usual fullness and formality the facts upon which plaintiff based his right of action, defendant pleaded the general issue. On the trial the jury found the issues for plaintiff, and assessed his damages at $2500. The motion to set aside the verdict, and for a new trial, was overruled, and the court pronounced judgment on the verdict. That judgment, on the appeal of defendant, was affirmed in the Appellate Court for the First District, and defendant brings the case to this court on his further appeal.

As the case comes before this court there are and can be but few questions in the case that admit of any discussion. Of course the finding of all controverted facts by the trial and Appellate courts is conclusive on this court, under the statute. There is evidence tending to show, and the jury must have so found, that plaintiff was injured by the gross misconduct of defendant’s servant while he was engaged in the service of his principal, and that plaintiff, at the time he sustained the injuries, was observing due care for his personal safety. These facts are not open to review in this court, and they are conclusive as to plaintiff’s right to recover.

It is said the damages awarded by the jury are excessive. That is also a question of fact that can not be reconsidered by this court. The amount of damages a party may have sustained is a question of fact, but the rule for ascertaining the damages is, of course, a question of law. On looking into the instructions given by the court, it is not seen the jury were misdirected as to the rule that should guide them in ascertaining the damages plaintiff had sustained. The third instruction of the series given for plaintiff, which is said to be erroneous as to the damages recoverable, seems to have been supplemented by one given by the court, and does not appear to contain anything objectionable, when both are considered together, as no doubt they were.

The sixth error assigned on the record in the Appellate Court is, “the court erred in giving to the jury the first, second, third and fourth instructions on behalf of plaintiff.” The only error assigned on the record of the Appellate Court in this court is, “the Appellate Court erred, in that it affirmed the judgment of the circuit court.” One phase of the third instruction of the series has already been remarked upon, but it may be necessary to refer to it further on. No particular infirmities are suggested as to the first and second instructions. It is said, however, that on reading the instructions given on behalf of plaintiff, it will be seen that in none of them was the question whether or not plaintiff exercised ordinary care to avoid the accident, submitted to the jury. There could be no occasion for stating the doctrine insisted upon, either in the first or second instruction, but in the third of the series the principle contended for is distinctly stated, where it is said: “If the jury find, from the evidence, that neither he, (plaintiff,) nor the person who was driving the buggy in which he sat, was guilty of any negligence which contributed to said injury, ” in connection with .other facts as to which there was evidence, then they should find defendant guilty. This is certainly a sufficiently strong statement of the doctrine which defendant wished to have applied to the facts, and the series of instructions are not open to the criticism made upon them. In the fourth instruction the court undertook to give expression to the doctrine of comparative negligence as heretofore held by this court, and it is not perceived it contains anything hurtful to the defense.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed,.


text:
    Pierson W. McNail et al. v. Andrew Welch.

      Filed at Mt.Vernon September 28, 1888.

      1. Assignment on error—as to matters favorable to the party alleging error—absence of cross-errors. On bill to forclose a mortgage, the defense of usury was interposed and sustained, thereby reducing the amount to be paid below that expressed on the face of the obligation- On appeal, however, the decree was reversed, but upon grounds other than that involving the question of usury. On remandment, the mortgagor set up that the clause upon which the defense of usury had been predicated, was improperly inserted in the instrument after its execution and delivery. On this second hearing that contention was not sustained, but it was again decided that the transaction was usurious, and decree accordingly. On appeal from that decree by the mortgagor, it was considered unnecessary to inquire whether the finding upon the question of usury was right or not, because the appellant could not complain of it, as it operated in his favor by reducing the amount of the decree against him, and because the appellee had assigned no cross-errors.
    2. Admission—interposing one lime of defense, as admitting the nonexistence of another. On foreclosure, usury was interposed as a defense. At a subsequent stage of the cause, by amended answer, the defendant alleged that the clause in the contract in respect of which the question of usury arose, was an unauthorized alteration of the contract after its execution and delivery. But it was considered that the defense of usury impliedly admitted the execution of the contract with that clause in it.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on writ of error to the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.

      Mr. J. M. Durham, for the appellants.
    Messrs. Pollock & Pollock, for the appellee.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill filed in the Circuit Court of Washington County by the appellee to foreclose a note and mortgage executed by the appellant, P. W. McNail. The Circuit Court rendered a decree in favor of the appellee, and that decree has been affirmed by the Appellate Court.

But two questions are involved and they are questions of fact. The first is whether or not the words: “if not paid within three days after due, then two per cent as damages for non-payment, ” were inserted in the note with the consent of the maker. The Circuit Court decided this question in the affirmative, and, as we think, correctly.

Appellee testifies as follows: “when I got the note from McNail I read it * * * ; I told him that I had been in the habit of taking notes with a clause providing that, if it was not paid within three days after due, then two per cent to be added for damages for non-payment; McNail said, ‘put it in,’ using the same words twice; I then wrote the words in, according to his direction; McNail was standing by me when I wrote the words in the note.”

Appellant McNail testifies, “that, when he signed the note and mortgage, the stipulation as to two per cent damages was not in note, and that he never consented to the alteration, and never knew of it, so far as he remembers, until he was informed of it by his attorney.”

The two parties in interest thus flatly contradict each other, and their testimony is the only direct evidence upon the subject. There are a number of circumstances, however, which tend to sustain the statement of appellee, only one of which we deem it necessary to refer to. The original bill was filed March 24, 1886, and the original answer on April 5, 1886. In this first answer McNail did not claim that there had been any alteration in the note by the improper insertion of the clause in question, but he claimed therein that the clause was an usurious agreement. The Circuit Court found that it was usurious and rendered a decree for only $1025.00, although the note is for $1250.00. The case was taken to the Appellate Court by writ of error at the August term 1886, and the finding of the Circuit Court was sustained, but the cause was reversed for some error in figures and sent back to the Circuit Court. After its reinstatement in the latter court, McNail filed an amended answer, and, therein, for the first time claimed that the clause in question had been inserted in the note without his consent. Upon a second trial, the Circuit Court found that McNail had consented to the insertion of the clause and that there had been no improper alteration of the note, but that the note was usurious by reason of the two per cent clause. Whether the finding upon the question of usury was right or not, it is not necessary for us to inquire, because appellant can not complain of it, as it operated in his favor by reducing the amount of the decree against him, and because the appellee has assigned no cross-errors.

The defense of usury impliedly admitted the execution of the note with the two per cent clause in it, and it was only after. McNail had been defeated in the Appellate Court upon his defense of payment, as hereafter set forth, that he set up a claim of alteration in the note.

The second question is, whether or not a certain payment, claimed by the maker to have been made upon the note before the bringing of this suit, was in fact made. The lower courts found that there had been no such payment.

It would serve no good purpose to enter into a discussion of the evidence. It is sufficient to say, that we have carefully examined all the testimony on both sides. We think the conclusion reached by the Appellate Court is correct. The judgment of that Court is therefore affirmed.

Judgment affirmed.