author: Mr. Justice Walker

text:
    Otto Young v. Charles H. McConnell.

      Filed at Ottawa May 19, 1884.

    1. Error wmi not aiavays reverse—as to giving and refusing instructions. The refusal of a proper instruction relating to a collateral issue, which, if given, would not probably have induced a different verdict, affords no ground of reversal, as such error works no prejudice.
    2. This court will not reverse, in every case of conflict in the evidence, because of some slight error in giving or refusing an instruction. When the evidence clearly sustains the verdict, this court never reverses for error in instructions.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Goudy & Chandler, for the appellant.
    Mr. A. B. Jenks, and Mr. A. S. Trude, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

We regard it as unnecessary to consider more than one assignment of error in this case, and that is, whether the court below should have given defendant’s seventh instruction. It is this:

“If the jury believe, from the evidence, that either the witness McConnell or the witness Clapp has willfully testified falsely as to any material fact, then they may disregard his evidence entirely, except when it is corroborated by other testimony. ”

It is urged that it is correct, and it was error to refuse it. It related to a collateral and not to the main issue in the case. The question then arises, whether its refusal was calculated to have injured appellant. If it is not apparent that the jury, had the instruction been given, would have reached a different verdict, or we can see they probably would have done so, we are unable to say the error prejudiced appellant. On examining the evidence, we are unable to believe that the result would have been different had it been given. All persons know, without being instructed, that a person who testifies falsely to a material fact in a case is unworthy of belief. The jury would know that any portion of the evidence which was corroborated should have been considered. The Appellate Court has found the fp,cts, and if they are true as found, (and we must so receive them,) the jury have reached a correct conclusion, independent of the instruction. Had the Appellate Court believed there was doubt as to the facts, or that the witnesses named had not made false statements, the judgment would no doubt have been reversed. We can not consider the weight of the evidence. That is for the jury and the Appellate Court. We are not prepared to adopt a rule that we will reverse in every case of conflict in the evidence because of some slight error in giving or refusing an instruction. When the evidence clearly sustains a verdict, this court never reverses because of error in instructions, and the Appellate Court is doubtless governed by the same rule, as it is required by the law. We can not say that court did not so act in this case.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Henry S. Austin v. Hillery Dufour et al.

      Filed at Ottawa May 19, 1884.

    1. Practice—after reversal and remanding order. It either party desires to prosecute a case further, when there has been a reversal and remanding order by an appellate court, he must file a transcript of the reversal and remanding order in the trial court within two years from the date of such remanding order. If this is not done the cause will be deemed as abandoned.
    2. Same—jurisdiction, how acquired after reversal. By the filing of the transcript of the reversal of a judgment and remanding order in the trial court, that court obtains jurisdiction of the subject matter of the suit. But before any steps can be taken in the cause, the court must also obtain jurisdiction over the person of the adverse party, and this, in the absence of a voluntary appearance, can only be done by giving the notice required by section 84 of the Practice act.
    3. If, on the filing of such transcript in the trial court, the adverse party appears voluntarily, and submits himself to the jurisdiction of the court, this will obviate the necessity of notice to him, and it will be too late after such appearance to object to the want of service. Neither will such party so appearing be allowed to say that in appearing he supposed it was to a new suit.
    4. Appearance—binds party to notice of all that is in the record. One who, in the absence of fraud or imposition, by a voluntary appearance makes himself a party to a cause, is conclusively presumed to have notice of everything that appears of record in such suit.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. William W. Farwell, Judge, presiding.
    Mr. Edward J. Hill, for the appellant:
    The cause, as it came back from the Appellate Court on the former appeal, has not been reinstated. It has been abandoned. Haywood v. Collins, 60 Ill. 340.
    Under the decisions it was formerly not necessary to reinstatement that notice should be given. Murray v. Whittaker, 17 Ill. 230; Reaugh v. McConnell, 36 id. 375.

      It was the purpose of the legislature to change the rule, hence sections 84 and 85, chapter 110, of the Revised Statutes of 1874, were adopted. The notice is now a necessary step to reinstatement. The giving of the notice without filing the transcript is nugatory. Heath v. Jones, 12 Bradw. 493.
    The failure to give such notice within the two years, as required by section 85, brings the case within the limitation,— that is to say, the two sections must be construed in pari materia.

    Messrs. Bisbbe, Ahrens & Decker, for the appellees:
    The reinstatement of a case in the court below, after a reversal, is not the exercise of a special statutory power. It falls within the scope of the ordinary powers of a court of general jurisdiction, and as the court below found in its decree that the court had jurisdiction of the subject matter and of the parties, the ten days’ notice required by the statute must be presumed to have been given. Best on Presumptions, 47; Law Lib. secs. 52, 57.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The facts material to an understanding of the legal questions involved in this case, so far as they affect the parties now before the court, are as follows: In 1879 Peter Whaler filed an original petition, in the circuit court of Cook county, to enforce a mechanic’s lien against certain improved lots in Chicago, making Henry S. Austin and others, parties. Hillery and Peter Dufour, and Ebenezer B. Rowe, filed in that proceeding an intervening petition. There was a decree in favor of both the original and intervening petitioners. On appeal to the Appellate Court, the decree as to the intervening petitioners was reversed, on the ground the petition and proofs, in a certain respect, were insufficient, and the cause remanded for further proceedings in conformity with the opinion of that court. The appeal was disposed of in March, 1880, and a transcript of the order reversing and remanding the cause was filed in the circuit court of Cook county, December 8, 1880, but no formal order reinstating the case upon the docket was entered by the court upon the filing of such transcript, as is evidently contemplated by the 84th section of the Practice act. It appears, however, after the filing of the transcript,— to-wit, o^ the 22d of December, 1880,—appellees served the appellant with notice of an application for leave to amend the intervening petition; that the same was subsequently amended, and after such amendment appellant appeared and pleaded to the same, and upon the issues being made up, there was a rehearing of the cause upon the pleadings and proofs, and a decree rendered therein upon the merits, which has been affirmed by the Appellate Court, and the appellant now makes the point he was not personally notified of the filing of the transcript of the remanding order, as provided by the section of the Practice act above cited; and this is the only question presented by the record which we deem of sufficient importance to notice, and even as to this there can be little, if any, room to doubt.

It is very clear that by the 84th section of the Practice act, if either party desires to prosecute a case further, where there has been a reversal and remanding order by an appellate tribunal, he must file a transcript of the reversal and remanding order in the trial court within two years from the date of such remanding order, and if this is not done, the cause will be deemed abandoned. By the filing of the transcript in the trial court that court again obtains jurisdiction over the subject matter of the suit. But this is not sufficient, of itself, to authorize the court to proceed. Before any steps can be taken in the cause, the. court must also obtain jurisdiction over the person of the adverse party, and this, in the absence of a voluntary appearance, can only be done by giving the notice required by the section of the statute above mentioned. It is hardly necessary to add, unless the court has jurisdiction both of the person and subject matter of the suit, its proceedings will be coram non juclice,—or, in other words, void. So it would have been in this case if appellant had paid no attention to the proceedings in the circuit court after the filing of the remanding order. In that event such proceedings, assuming no notice was given,. would have been wholly inoperative and void as to him. But he did not see proper to adopt this course. On the contrary, he' appeared and submitted himself to the jurisdiction of the court, which subserved every purpose of notice, and it is now, as in any other ease where a party voluntarily appears, too late to object to the want of service. Nor can the appellant be heard to say, as he does, that in appearing in the cáse after it was remanded, in the manner we have seen, he supposed he was appearing to a new suit. One who, in the absence of fraud or imposition, by a voluntary appearance makes himself a party to a cause, is conclusively presumed to have notice of everything that appears of record in such suit, and it is clear a mere inspection of the record in this case would have fully apprised appellant of the fact that the proceedings, after the filing of the remanding order, were but a continuation of the original suit. There is nothing in Haywood v. Collins, 60 Ill. 340, that' conflicts with the views here presented.

No reason is perceived why the decree in the case should be disturbed, and we are of opinion' the Appellate Court properly affirmed it.

Judgment affirmed.


author: Mr. Justice Craig

text:
    The Chicago and Evanston Railroad Company v. August Dresel.

      Filed at Ottawa May 19, 1884.

    1. Eminent domain—loss of profits in business on the premises—as an element of damages. On an application to condemn for a right of way for a railroad, a part of four lots, held by the defendant .under a lease, which leasehold lots were occupied by the defendant in connection with adjacent lots, of which he was the absolute owner, and which were used in carrying on an extensive hot-bed system of flower-gardening, the court instructed the jury that there could be no recovery for loss of business or loss of profits: Held, that the instruction was correct.
    2. Same—of the proper basis for damages, where a part of the premises are held under lease, and the residue in fee. A person occupied fourteen lots in a certain block in carrying on the business of flower-gardening, as one tract, or as an entirety, holding four of them under a lease for two years, and owning the other teti, and a railway company sought to take a portion of the leasehold property for a right of way. It was held, if by so doing the market value of the whole tract was lessened during the two years the lease had to run, the owner and occupant ought to be allowed damages to the extent that the market value of the entire property was thereby depreciated.
    Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Mr. E. Walker, and Mr. F. J. Loesch, for the appellant:
    The loss of business and of profits derived from the use of the land is not a proper element of damages. Booker v. Venice and Carondelet Ry. Co. 101 Ill. 333; Jerseyville and Southeastern Ry. Co. v. Walsh, 106 id. 253.
    Messrs. Beam & Cook, for the appellee:
    Evidence as to the amount of traffic is legitimate to show the extent of the use the lots would be subjected in the operation of the road, as affecting the question of depreciation of value. Lake Shore and Michigan Southern Ry. Co. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21.
    As to the proper measure of damages, and the evidence proper to show the same, see Keithsburg and Eastern R. R. Co. v. Henry, 79 Ill. 292; Chicago and Iowa R. R. Co. v. Hopkins et al. 90 id. 322; St. Louis, Jerseyville and Springfield R. R. Co. v. Kirby, 104 id. 345.
    The personal examination of the premises by the jury is in the nature of evidence, and the facts thus learned may have fully justified the verdict. Chicago and Iowa R. R. Co. v. Hopkins et al. 90 Ill. 322; Peoria and Farmington Ry. Co. v. Barnum, 107 id. 160.
   Mr. Justice Craig

delivered the opinion of the Court:

Appellee, Dresel was in the possession of lots 2 to 15, inclusive, in sub-block 10, subdivision of block 13, in Sheffield’s addition to Chicago. Lots 2 to 9 were held under a lease which expires July 1, 1885. Lots 10 to 15 were owned in fee by appellee. The lots 2 to 15, inclusive, have been occupied and cultivated by appellee as an entirety, within one inclosure, since 1870. The fee to lots 2 to 5, inclusive, was in appellant, having been purchased of appellee’s landlord, Lewis, pending the proceedings. The appellant, by its amended petition, undertook to condemn only so much of Dresel’s leasehold interest in lots 2 to 5 as is contained in a triangular piece shown on the map, and being about one-fifth of the aréa of the four lots. Appellee, upon the lots 2 to 15, was carrying on an extensive hot-bed system of flower-gardening. His residence, barns, sheds, etc., are upon lots 14 and 15. The jury, on the. evidence introduced, and upon a personal examination of the premises, awarded appellee $1500 as compensation for all damages resulting by reason of the taking of that part of the leasehold heretofore mentioned.

It is claimed that the court erred in permitting evidence to go to the jury in regard to the profits to be derived from the land in question. We do not understand that evidence of this character was admitted by the court. When appellee was on the stand as a witness, the court, at the request of counsel for appellant, ruled that “all evidence as to the amount of work that could be done on the property, and all evidence of the probable profits from the business, is excluded from the consideration of the jury. ” There may be some answers to questions propounded to the witnesses Harding and Donovan which might, without close examination of the entire evidence of the two witnesses, indicate that the court had not adhered strictly to the rule announced; but after a careful examination of the evidence we think the rule was substantially observed, and no testimony was admitted by the court on this branch of the case which conflicted with the rule, or which could prejudice appellant.

But it is said the court erred in refusing the first and fourth instructions asked by appellant. The first was modified by striking out the latter portion, which related to the amount of business which could be done on the premises, etc., and given as modified. The fourth, which was refused, related to the same subject. The court, however, gave instruction No. 5, which covered the whole subject in fewer words, and in a more concise form, as follows: “The jury are instructed that there can be no recovery for loss of business or loss of profits.” This instruction obviated the objection made to the decision of the court on the two instructions mentioned.

It is also claimed by appellant that the court erred in giving instructions one and two, on behalf of appellee. The complaint is, that the jury were, in substance, directed, that if by virtue of the lease of certain lots, and Dresel’s ownership of certain other lots in block 10, he is entitled to the exclusive use and enjoyment of these lots and improvements thereon, as one entire tract or parcel, until the expiration of the lease, and if said tract, in its present condition, has a special capacity, as an entirety, for the purposes of flower-gardening, and as an entirety is devoted to such purpose, and if the value of such tract, for the residue of the leasehold term, will be depreciated and lessened by the taking óf the portion of said land proposed to be taken, then Dresel is entitled to recover a sum equal to such depreciation of value. We perceive no valid objection to the instruction. As before observed, appellee occupied the fourteen lots as one tract of land, as an entirety. He owned a portion of the lots, and held the others under a lease. Appellant proposed to take a portion of the lots held by the lease. If by so doing the market value of the whole tract was lessened during the two years which appellee had the right to hold and use the same, to that extent he was damaged, and while no part of the lots he owned in fee was taken, still, by the taking, as his property held in fee and by lease was damaged, he, in justice, ought to be entitled to recover so far as the market value of his property was depreciated.

It is also urged that the damages allowed are excessive. The evidence upon the question of damages is conflicting. Some of the witnesses place the amount much higher than the jury agreed upon, while others place it lower. The jury heard all the evidence, and made a personal examination of the premises, and we are not prepared to say that the amount allowed is so excessive as to justify us, on appeal, to interfere.

The judgment will be affirmed.

Judgment affirmed.


text:
    The People ex rel. Highway Commissioners v. The Board of Supervisors of McHenry County.

      Filed at Ottawa May 19, 1884.

    1. Roads and bridges—county aid in building bridges on demand of a town,—conditions to fix liability of the county—the statute construed. The 110th section of the Road and Bridge law of 1879 does not authorize the county board to pay one-half the cost of bridges already built and paid for by towns, without reference to the requirements of that section.
    2. In order to entitle the commissioners of highways of a town to demand of the county board to pay one-half of the cost of a bridge, they must proceed and act under section 110 of the Road and Bridge law of 1879. To hold the county liable, the commissioners should, on ascertaining the cost of the bridge, have applied to the county board for aid before proceeding to build the bridge. If they proceed under section 111, and call an election, and vote to issue town bonds sufficient to raise money enough to build the bridge, this will show that the town has acted without the intention of calling on.the county for aid.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of McHenry county; the Hon. Charles Kellum, Judge, presiding.
    Mr. William Barge, and Mr. B. N. Smith, for the appellants :
    This case, in every material respect, is like that of People ex rel. v. Supervisors, 100 Ill. 640, where it is held that the county board has no discretion, in a proper case, under section 110 of the Boad and Bridge law of 1879. The commissioners having the discretion to say whether a bridge is necessary, it follows they have the power to determine the kind and cost of the bridge, and also whether its construction will be an unreasonable burden on the town. If charged with this discretion, their judgment can not be reviewed. Brush v. Carbondale, 78 Ill. 74; Eyman et al. v. People, 1 Gilm. 4; Garlinghouse v. Jacobs et al. 29 N. Y. 297; Kingman et al. v. County Commissioners, 6 Cush. 306.
    That they are required to settle the character and cost of the bridge, follows from their being required to determine whether its cost “will be more than can be raised in one year by ordinary taxes for bridge purposes, ” and without fixing the cost they can not decide that the burden will be unreasonable.
    Mr. Ira R. Curtis, Mr. A. B. Coon, Mr. T. D. Murphy, and Mr. E. D. Murphy, for the appellees:
    The evidence is such that the .trial court must have found, ■under the mandate of the Appellate Court, that the bridge in question was built under section 111 of the act of 1879, instead of under section 110.
    In this case, where the money had all been expended before the petition was presented, how could the funds then to be raised be expended by and under the joint control, or any unexpended surplus be paid back into the county treasury ?
    We contend that under any possible view that can be taken under the decision of the Supreme Court in People ex rel. v. Board of Supervisors, 100 Ill. 640, referred to by appellants’ counsel, it is at least doubtful if the relators have clearly brought themselves within and under said section 110. If that be so, according to every principle of law governing mandamus proceedings the peremptory writ of mandamus asked for should have been denied, and the proceedings dismissed at the costs of the relators, by the court below, and in so doing we claim there was no error for which said judgments of the court below and of the Appellate Court should be reversed in this court. People v. Railroad Co. 55 Ill. 95; Commissioners of Highways v. Bank, 66 id. 339; People v. City of Elgin, id. 507; People v. Klokke, 92 id. 104; People ex rel. v. Dulaney, 96 id. 503; People ex rel. v. Johnson, 100 id. 537.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellants filed in the McHenry circuit court a petition for a writ of mandamus, against the county board, to compel it to appropriate $4100, the half of the cost of constructing a bridge across Fox river, in the town of McHenry. On a hearing, the relief was refused, and the. petition dismissed. The case was thereupon removed to and heard in the Appellate Court for the Second District, where the judgment of the circuit court was affirmed, and the case is brought to this court by appeal.

Appellants claim that the proceeding is under the 110th section of the Eoad and Bridge law. (Sess. Laws 1879, p. 281.) It provides, that when it shall be necessary to construct a bridge in any town where it would be an unreasonable burthen to it, and the cost of which will be more than can be raised in one year by ordinary taxes for bridge purposes in such town, the commissioners of highways desiring to build such bridge shall present a petition to the county board of the county in which such town is situated, praying for an appropriation to aid in building such bridge, and the board shall, when one-half of the necessary funds have been provided by such town, appropriate the other half: “Provided, all unexpended surplus of any appropriation that may be granted by the county under the provisions of this section shall be paid back into the treasury. And all funds provided to be raised under this section shall be expended by and under the joint control of the commissioners of highways of the town asking such aid, and two persons appointed by the county board granting the same. ”

The 110th section does not authorize the county board to pay one-half the cost of bridges already built and paid for by ■towns, without reference to the requirements of that section. In this case it does not appear that the town authorities did anything under that section, but built and paid for the bridge out of funds provided by the town. To have rendered the county liable the commissioners should, on ascertaining the cost of the bridge, have applied to the county board for aid before proceeding to build the bridge. This the statute requires. The towns may borrow money to build such a bridge, under the power granted by the 111th section. From what appears in the record the commissioners seem to have acted under that section, as they complied with its requirements in voting to issue bonds to raise money to build the bridge. Not only so, but the election was held, and the vote was to issue $7500 of bonds, when it was intended to build a bridge to cost no more than $8000. From this action of the town it is manifest the town acted without the intention of compelling the county to furnish aid for the purpose. . In fact there is no act which shows any intention of looking to the county for such aid.

The circuit court committed no error in refusing the relief, nor did the Appellate Court in affirming its judgment. The judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    Clara H. Bangs et al. v. John J. Brown et al.

      Filed at Ottawa May 19, 1884.

    1. Appeal--whether a freehold involved—in partition. A freehold is involved in a proceeding for the partition of land, and the Appellate Court has no jurisdiction of an appeal taken from a decree in such a proceeding.
    2. Jurisdiction—want of jurisdiction—awarding costs. Although the Appellate Court has no jurisdiction of an appeal in a case involving a freehold, it may enter an order dismissing the same, and as an incident of such power it may award costs on a dismissal.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. S. M. Millard, for the appellants,
    to show that a freehold is not involved in a suit for partition, cited Chicago, Burlington and Quincy R. R. Co. v. Watson, 105 Ill. 217.
    Neither in the original nor cross-bill is a freehold involved. Hutchinson v. Howe, 100 Ill. 11; Richards v. People, id. 424; Galbraith v. Plasters, 101 id. 444; Chicago Theological Seminary v. Gage, 103 id. 176; Conkey v. Knight, 104 id. 337.
    Messrs. Hutchinson & Partridge, for the appellees:
    In all partition suits a freehold is involved. Carter et al. v. Penn, 99 Ill. 390. See, also, Theological Seminary v. Gage, 103 id. 180.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This appeal brings before us for review an order of the Appellate Court for the First District, dismissing an appeal from a decree of the Superior Court of Cook county, in a partition proceeding, on the ground the Appellate Court had no jurisdiction in such case. The action of the Appellate Court is based upon the legal hypothesis a freehold is necessarily involved in a proceeding for partition, and it was therefore held the appeal should have been taken directly to this court. The ruling of the court in this respect presents the main question for determination.

The question is not a new one in this court. The case of Carter et al. v. Penn, 99 Ill. 390,, expressly holds that a freehold is involved in a partition proceeding, and the rule laid down in that ease must govern this. Counsel for appellants, however, claims that under the rule, as laid down in Chicago, Burlington and Quincy R. R. Co. v. Watson, 105 Ill. 217, which is a later case, a freehold is not involved in this case. It was there said: “A freehold is never involved, within the meaning of the statute, except when the primary object of the suit is the recovery of a freehold estate, the title-whereof is directly put in issue, and where the suit, if prosecuted to a final determination, will, by virtue of the judgment or decree rendered therein, as between the parties, result in one gaining and the other losing the estate. ”

We perceive nothing in the language here cited that at all conflicts with what is said in the Carter-Penn case, and there was certainly no intention of modifying the rule as announced in the latter case, nor does the language used in the Watson case have that effect. Under the rule, as stated in the Watson case, we think it clear every partition suit necessarily involves a freehold. In addition to the fact that the parties are bound to set forth and prove their titles and respective interests, each co-tenant, upon a partition being effected, loses his title and interest in every part of the land divided except the parcel assigned to himself, and as to that he becomes the sole and exclusive owner. Of course in this -process, by which one of the co-tenants acquires an exclusive interest in a specific part of the partitioned premises, the others must necessarily lose what he gains. If, on the other-hand, the land itself can not be partitioned, and a sale is ordered, in that event all the co-tenants will necessarily lose their estate or title in the subject of partition, but will receive, as an equivalent for it, its value in money. Thus it will be seen, every partition suit, whatever may be the state of the title, provided the subject of partition is a freehold estate, will necessarily involve a freehold.

It is also claimed the Appellate Court erred in entering a decree against appellants for costs on dismissal of the appeal. While the Appellate Court had no jurisdiction to entertain the appeal, yet it clearly had power and jurisdiction to enter-an order dismissing it, and we are of opinion, as an incident of such power, it was authorized to award costs, as it did.

The judgment will be affirmed.

Jlldgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    Joseph Peacock v. John Carnes et al.

      Filed at Ottawa May 19, 1884.

    1. Setting aside tax sale—upon terms. On bill in chancery to set aside a tax sale of land, the complainant must do equity; and if the purchaser at a tax sale, by his purchase, has discharged the lien of taxes upon the complainant’s land, the court will require the money paid to discharge such lien," to be refunded, with interest, as a condition to granting the relief sought.
    2. Same—as to evidence of amount of taxes due. A judgment of the county court, in 1878, against certain lots for taxes due thereon, in which judgment are included city taxes on the premises for the years 1873 and 1874, is sufficient evidence, on a bill to set aside a sale of the lots made under a subsequent judgment, that such taxes were due, and of their amount.
    3. Preserving the evidence—in chancery—certificate of evidence—• findings in the decree. A decree setting aside a tax sale of lots for taxes, and requiring the complainant to refund the taxes paid by the purchaser, found the amount of city taxes for the years 1873 and 1874. The certificate of evidence stated that it contained all the evidence heard, but did not embrace these taxes. It also showed that certified copies of the judgment and sale for the city taxes of those years, etc., were given in evidence, and yet neither of these copies was preserved in the certificate: Held, that as the certificate, taken as a whole, showed it did not contain all the evidence, this court could not say the findings in the decree were not sustained by the proofs.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. Consider H. Willett, and Mr. George L. Thatcher, for the appellant.
    Messrs. J. P. & T. R. Wilson, for the appellees.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

In this ease Joseph Peacock filed his bill for a perpetual injunction against the county clerk of Cook county, to restrain him from issuing a tax deed upon tax certificates of sale held by John Carnes. The bill alleges that the tax certificates describe the property sold as lots 10, 11 and 12, block 107, school section addition to Chicago, and that the county clerk threatened and insisted that upon such certificates he would issue a tax deed, conveying property owned by complainant, of the following description: lots 10, 11 and 12, in Stowell’s subdivision of blocks 106 and 107, school section addition to Chicago. The court decreed the relief sought, upon the condition of the payment of $4839.36, (the amount, with interest, of the bid at the tax sale,) which amount had been applied to the payment of the taxes and penalties due and delinquent upon the last described lots, owned by complainant. On appeal to the Appellate Court for the First District the decree was affirmed, and complainant appeals to this court.

It is insisted that the condition in the decree is erroneous. It has been frequently held by this court, in applications of this character in a court of equity to have set aside tax sales, that the complainant must do equity, and if the purchaser at tax sale, by his purchase, has discharged the lien of taxes upon the complainant’s land, that the money paid to discharge such lien should be refunded-, with interest, as a condition of his having relief in a court of equity. (Moore v. Wayman, 107 Ill. 192; Reed v. Tyler, 56 id. 288; Farwell v. Harding, 96 id. 32; Barnett v. Cline, 60 id. 205.) The decree found all the facts, which, according to the foregoing and other decisions, made it a proper condition of the relief granted that complainant should refund to defendant Carnes the taxes upon the former’s land, which had been discharged by the tax sale to Carnes.

It is claimed, further, that the decree is not sustained as to the amount of taxes which it requires to be paid as the condition of relief. The tax sale was made on October Í1, 1880, under a judgment on a return of lands delinquent under a warrant issued for the collection of the taxes for the year 1879, and prior years, to and inclusive of the year 1873. It is in respect of the city taxes of Chicago for the years 1873 and 1874, that this claim is made. Although the decree finds the amount of the city taxes for those years, yet there is a certificate of evidence in'the case which states expressly that it contains all the evidence offered or given on the hearing, and the city taxes for those years are not embraced in the certificate, therefore it is said the certificate of evidence must control, and it does not warrant the finding of fact by the decree of the amount of these taxes for those years, so that as respects those taxes the decree is not supported by the proofs.

It appears from the certificate of evidence that defendants offered in evidence a certified copy of the judgment, and sale under the warrant, for the city taxes of 1873 and 1874, and also the warrant issued for the taxes of 1879, and previous years, and also a copy of the judgment and order of sale on which the sale in question took place, all of which documents were objected to by complainant, objections overruled, and exceptions taken, from which we understand these documents were in evidence, yet neither of them is preserved in the certificate of evidence. Hence, although the certificate does purport to contain all the evidence, it appears upon its whole showing that it does not,—that from some cause these documents were riot preserved, and without them we can not say that the findings in the decree were not sustained by the proofs. Further, there was in evidence the judgment for the year 1878, in which complainant’s lots were properly described, and in that judgment were included these taxes for 1873 and 1874, and under it the lots were forfeited for said taxes, and the amount of such forfeiture, including said taxes, was brought forward and included in the sale set aside by the decree. That judgment of the county court would be sufficient evidence that said taxes were due, and of their amount.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Harriet Miller v. The Union Central Life Insurance Company.

      Filed at Ottawa May 19, 1884.

    1. Appeal—reviewing controverted questions of fact—effect of affirmance by Appellate Court. Where a judgment of the trial court, in an action of assumpsit upon a policy of life insurance, for the defendant, is affirmed by the Appellate Court, this will settle all controverted questions of fact against the plaintiff, and this court, on appeal, can not assume that any agent of the defendant was authorized either to waive a forfeiture already accrued, or to make a renewal contract of insurance.
    2. Insurance—waiver of forfeiture—renewal of policy. A waiver of a right presupposes knowledge of the right waived, and is not to be inferred from a merely negligent act, or one done under a misapprehension of the real condition of the rights of the parties at the time; and a renewal contract of insurance necessarily requires the continued existence of that which is insured.
    3. Same—life insurance—payment of premium after death of the assured. A person whose life was insured, on demand refused to pay the second annual premium, and died in about ten days after default in payment. Two days after the death, a subordinate agent of the company, and friend of the assured, being ignorant of his death, paid the premium, taking the insurance company’s receipt renewing the policy. On learning of the death of the assured, the friend returned the receipt to the company, and it returned the money paid by him: Held, that the payment by such friend, which was made, and received by the company, in ignorance of the fact of the death of the assured, could then amount to nothing, and that the party to whom the policy was payable acquired no rights thereby.
    Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    This was assumpsit, on a policy of insurance on the life of George W. Miller, for $1000,—annual premium $56.24, payable oh or before the 30th of November in each year, for ten years. The amount secured by the policy, in the event of the death of the assured, was payable to his wife, the appellant. The following clause was in the policy:
    “This policy-is issued’and accepted upon the express conditions and agreements contained upon the back hereof. Signed November 22, 1880. J. Cochrane, President.
    “N. W. Harris, Secretary. ”
    And the following conditions were on the back of the policy:
    “Third—Premiums shall be paid on days same become due, at office of defendant, or to agent holding receipt therefor, signed by the president, vice-president or secretary of company, no agent having authority to extend or postpone time of payment of any premium.”
    “Eleventh—None of terms of policy can be modified, nor any forfeiture under it waived, except by an agreement in writing, by president, vice-president or secretary, whose authority for this purpose shall not be delegated. ”

      “Poivers of agents.—Agents not authorized to make, alter or discharge contracts, waive forfeitures, or bind the company in any way. The company may, if it see fit, restore a forfeited policy upon a new application. ”
    The first premium was paid at the time of issuing the policy. The second premium was due November 30, 1881. At the time this premium was due, the company sent an agent to the assured, with a renewal receipt, to make demand for payment of the premium. This agent made the demand, and Miller refused to pay, and the receipt was returned to the company. Miller died on the 10th of December, 1881. On the 12th of December, 1881, one Farnham, a subordinate agent of the company and friend of Miller, being ignorant of the death of Miller, paid a part of the last installment to the company, and had the balance charged against his account on the books of the company, and took from the company the following receipt:

      “ Union Central Life Insurance Co., Cincinnati, Ohio:

    “Received $56.24, renewing- policy 21,386, of GeorgeH. Miller, from the 30th day of November, 1881, to November 30, 1882. This payment, if made when overdue, will not be valid in continuing the policy, unless the party insured is in good health at the time. It is also agreed that the statements in application, and for the revival of said policy, are true. This receipt not valid unless paid in cash, and countersigned and dated the day of payment.
    “By R. H. Eddy, Agent. E. S. Marshall, Secretary.
    “Paid at Chicago, Ill., this 30th day of November, 1881.
    R. H. Eddy, Agent.

      “Agents are not authorized to sign receipts or waive forfeitures. ”

    Farnham retained this receipt for a short time, and having learned that Miller was dead when he made the payment to the company, he returned the receipt to the company, and they returned the money to him. The cause was tried by the court, without the intervention of a jury, and the judgment was for the defendant. On error to the Appellate Court for the First District this judgment was affirmed. This appeal is prosecuted to reverse that judgment.
    Mr. Thomas Morrison, and Mr. John L. King, for the appellant :
    Payment of the premium by Earnham was as effectual as if Miller had paid it during his lifetime. Burn v. Smith, 21 Barb. 262; Sandford v. McLean, 3 Paige, 117; Tracey v. Irwin, 18 Wall. 549; Bennett v. Hunter, 9 id. 326.
    The act of the company in accepting payment on the 12th of December, 1881, is conclusive that up to that time they had elected to treat the policy as being in full force and effect, and that up to that time they had not elected to forfeit the policy for non-payment of the premium. Chicago Life Ins. Co. v. Warner, 80 Ill. 410.

      Any act showing an intention to waive a forfeiture in a policy of insurance will be construed to be a waiver. Boeher v. Williamsburg Ins. Co. 35 N. Y. 131.
    Conditions in a lease making an assignment work a forfeiture, are waived, even after condition broken, by the lessor accepting rent. 1 Smith’s Leading Cases, 93.
    The inclination of the courts is to give every act- or declaration which evinces an intention to overlook the breach, the effect of a waiver, and the law will not suffer its legal effect to be varied by the declaration of a different design. Croft v. Lumley, 5 E. &. B. 647.
    The right to forfeit is waived by any course of conduct inconsistent with the intention of insisting upon a forfeiture. Fry on Specific Per. sec. 745.
    The condition of forfeiture is for the company’s benefit, solely, and a waiver of a strict compliance continues the obligation. Mutual Benefit Life Ins. Co. v. Robertson, 59 Ill. 127.
    A condition of forfeiture in a policy of insurance may be waived, and the policy continued, after the happening of the event which might have worked a forfeiture, by any act by which the consent of the company might be inferred. Sherman v. Niagara Ins. Co. 46 N. Y. 526.
    Messrs. Willard & Driggs, for the appellee:
    Where the receipt itself expressly stated that the acceptance of an overdue premium should not have the effect of continuing the policy unless the assured was at the time in good health, and in point of fact he was dangerously ill, it was held there could be no recovery. May on Life Insurance, (2d ed.) see. 362.
    Renewals, like an original policy, are clearly only for the future assurance of a living person. Ibid. see. 353.
    A payment after death is no contract—there is no consideration for insurance, no mutuality. Bliss on Insurance, 316.

      There can be no valid contract for the insurance of the life of a dead man. Bliss on Insurance, sec. 355.
    Waiver after death is not binding upon the company. Ibid. 311.
    Where payment was made, and the company received it, and gave a receipt dated as of the date the premium was due, the insured being dead at date of payment, it is held to be no waiver of the right of forfeiture. Ibid. 314.
    Each payment is a condition precedent to the continuance of the policy. Application is invalid if founded on fraud or mistake. Payment to company’s agent of amount due for permit to assured to travel in a locality where policy forbids, after death of assured, is not a waiver. Hudson v. Knickerbocker Ins. Co. 28 N. J. Eq. 167; Rochner v. Knickerbocker Ins. Co. 63 N. Y. 160.
    Waiver must be made intentionally, and with knowledge of the circumstances, even if made by the company and not a general agent. Bennecke v. Insurance Co. 105 U. S. 355.
    Forfeiture can not be waived by an agent unless there is a contract to that end, supported by a sufficient consideration, and having the requisites of a legal contract or the necessary elements of a legal estoppel. Hayes v. Huston, 86 Ill. 486.
    A waiver of forfeiture can not be inferred from acts done by the company’s agent in ignorance of material facts. Robertson v. Metropolitan Ins. Co. 88 N. Y. 531.
   Mr. Justice Scholfield

delivered the opinion of the Court:

No question of law was raised upon the trial in the circuit court, and the judgment of the Appellate Court, affirming that of the circuit court, conclusively settles all questions of controverted fact against appellant. (Edgerton v. Weaver et al. 105 Ill. 43.) We are not, therefore, authorized to assume, here, either that there was a payment of the last installment of premium due at the date of the death of the assured, or a waiver of the forfeiture resulting from the failure to make that payment. We can not, as against the conclusions of fact settled by the judgment of affirmance of the Appellate Court, assume that any agent of the appellant was authorized either to waive a forfeiture already accrued, or to make a renewal contract of insurance. A waiver presupposes knowledge of the right waived, and is not to be inferred from a purely negligent act, or one done under a misapprehension of the real condition of the rights of the parties at the time; and a renewal contract of insurance necessarily requires the continued existence of that which is insured. The payment by Farnham, which was made by him and received by the company in ignorance of the fact that Miller was then dead, could, then, amount to nothing, and appellant acquired no rights thereby.

The judgment is affirmed.

Judgment affirmed.


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    Edward J. Hill et al. v. John D. Parsons et al.

      Filed at Ottawa May 19, 1884.

    1. Settlement—as operating to cut off defences hnoion prior thereto. Where notes are given on a settlement for a balance found to be due the payee, after all the causes of set-off and other claims of damage by delay have arisen, which are fully known to the maker when he gives the notes, he will be precluded from urging such matters of set-off or recoupment in defence to a suit upon the notes.
    2. Measure op damages—delay in the manufacture of boohs. On a failure to complete the work on books, and deliver the same within the time agreed upon, it is not admissible to prove, on the question of .damages, from the delay, that there may have been a demand for the books had they been ready at the proper time. If the party for whom the books were manufactured had made sales of books, and suffered a loss of profits thereon in consequence of the delay in completing the work, evidence of such facts would be competent on the question of damages.
    3. Error will not. always reverse—exclusion of evidence. Slight error in the exclusion of evidence, as, when its admission could not have changed the result, is no ground of reversal.
    4. ■ Instructions — given by the court instead of those asked by the parties. Where the court refuses all the instructions asked on both sides, and on its own motion gives others, containing all the law involved in the case, there will be no error in refusing the instructions asked, even though they contained correct propositions of law, as no injury could result in such case.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. R. S. Williamson, Judge, presiding.
    Mr. E. J. Hill, for the appellants:
    The court erred in ignoring the testimony as to defects in the books, and the damages arising therefrom. Peck v. Brewer, 48 Ill. 54; Burroughs v. Clancy, 53 id. 30.
    The account for the price of the books was closed by promissory notes, it is true, but does this show a settlement of all claims and differences between the parties? Waterman v. Clark, 76 Ill. 428; Ramsey v. Tully, 12 Bradw. 463.
    The execution of a promissory note is not evidence of a settlement of all accounts between the parties prior to the date of the note. Ankeny v. Pierce, Breese, 225; Crabtree v. Rowand, 33 Ill. 421; White v. Jones, 38 id. 159; Rosencrantz v. Mason, 85 id. 262; Phy v. Clark, 35 id. 37; Eddie v. Eddie, 61 id. 134; Rayburn v. Day, 27 id. 46; Archibald v. Argall, 53 id. 307; Borchsenius v. Canutson, 100 id. 82.
    There is no account stated here. The doctrine of account stated has no application except between merchant and merchant. 1 Greenleaf on Evidence, sec. 197; Miller v. Bruns, 41 Ill. 293.
    The testimony as to the damages for the delay, which was offered, should have been received. Ramsey v. Tully, 12 Bradw. 463.

      Mr. Chas. L. Easton, for the appellees:
    The testimony of appellant Hill, when he attempted to show contracts of sales without producing them, they being in writing, was properly excluded. Priestly v. N., Q. and C. R. R. Co. 26 Ill. 205; Olmstead v. Burke, 25 id. 86; Moline Water Power Co. v. Watriss, 10 Bradw. 159; Sedgwick on Measure of Damages, chap. 24, see. 575; 1 Chitty’s Pleading, 397.
    Appellees insist that the notes upon which the judgment was obtained are evidence of an account stated between the parties, and it is incumbent upon the appellants to show what the items of the account were, and that some one or more of them were erroneous. Phy v. Clark, 35 Ill. 377; White v. Jones, 38 id. 159; Crabtree v. Rowand, 33 id. 421; Rosencrantz v. Mason, 85 id. 262; Eddie v. Eddie, 61 id. 134; Niles v. Harmon, 80 id. 403; Wickenkamp v. Wickenkamp, 77 id. 94; Morrison v. Smith, 81 id. 221; Straubher v. Mohler, 80 id. 21; Gore v. Campbell, 4 Bradw. 661; Ritchie v. Cherist, 8 id. 534; Moline Water Power Co. v. Watriss, 10 id. 159.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by appellees, surviving members of the firm of Weed, Parsons & Co., against Edward J. Hill and Henry S. Austin, upon two promissory notes, amounting in the aggregate to $1350, and interest from the date of the notes. These notes, with others, were given in settlement of an account between the firm of Weed, Parsons & Co. and appellant Hill, for printing and binding a certain number of the four volumes of “Hill’s Illinois Digest. ” To the declaration the defendants pleaded, first, the general issue, with affidavit of merits; second, set-off as to volume 1, for delay, etc., claiming special damages; third, set-off as to volume 2, for delay, etc., claiming special damages; fourth, set-off as to volume 3, for delay, etc., claiming special damages; fifth, set-off as to volume 4, for delay, etc., claiming special damages; sixth, set-off for delay, etc., as to the two hundred and eighty sets under' order of January 11, 1882, claiming special damages; seventh, set-off common counts for money had and received, etc., claiming, specially, the payment for the five hundred and fifty-nine hours, and the overcharge above contract price of thirty-three cents per page for volumes 2, 3 and 4; and eighth, an additional plea of recoupment for unskillful workmanship, and damages for breach of implied warranty, etc., claiming special damages. On a trial of the cause in the Superior Court, before a jury, a verdict and judgment were rendered in favor of the plaintiffs for the full amount of the notes sued upon, and, on appeal, that judgment was affirmed in the Appellate Court.

As to the delay in the completion of the work, complained of, the evidence tended to prove that it was mainly caused by defendants’ failure to pay. In regard to the overcharges on volumes 2, 3 and 4 beyond contract price, the evidence tends to prove that a new agreement was made, and that Hill agreed to pay the amount claimed as an overcharge,—and, indeed, such claim of set-off was met with testimony which would authorize the finding of the jury. But in addition to the evidence alluded to, the testimony tended to establish, to the satisfaction of any reasonable jury, that the notes sued upon were given in settlement of a balance due plaintiffs after-all the supposed causes of set-off had arisen in favor of the defendant Hill, and were fully known to him. If this was the case, as the jury were authorized to believe, and so found, from the evidence, that would dispose of the defence attempted to be set up to the notes.

But it is insisted the court erred in the exclusion of certain evidence offered by the defendants to prove damages sustained on account of a failure of plaintiffs to complete the work on the books within the time agreed upon. The fact that there may have been a demand for the books had they been ready at a certain time, was not sufficient, and this is the character of evidence excluded by the court. If defendants had made sales of books, and suffered a loss of profits thereon in consequence of the failure of the plaintiffs to complete the work and have the books ready for delivery within a specified time fixed by the contract, evidence of such facts was competent for the consideration of the jury, and upon an examination of the record it will be found that the court ruled that the defendants were entitled to introduce evidence of that character. If the defendants had orders for hooks, it was an easy matter to produce them, and then follow this up by proving that in consequence of a failure to receive the books at a specified time, the sales and consequent profits were lost,—and had such evidence been offered, no doubt it would have been admitted. But even if there was slight error in the ruling of the court on the admission of evidence, it would not be sufficient ground to reverse the judgment, as we are satisfied, if all the evidence offered had been admitted, the result would have been the same.

It is also claimed that the court erred in the instructions to the jury. • The plaintiffs requested the court to give seven instructions in their behalf, and the defendants requested the court to give eight instructions for them. The court, however, refused all of the instructions thus presented, and, on its own motion, gave to the jury three carefully prepared instructions, which contained all the law involved in the case. Whether any of defendants’ instructions contained correct propositions of law or not, is not a material inquiry here, as the instructions given by the court fairly instructed the jury on all legal questions involved in the case. No injury was done by the refusal of the instructions prepared by them.

So far as is disclosed by the record, the parties have had a fair trial, and we perceive no error in the record for which the judgment of the Appellate Court should be reversed. It will therefore be affirmed.

Judgment affirmed.


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    Thomas Richter v. William Schroeder et al.

      Filed at Ottawa May 19, 1884.

      Receivership—care as to expenses'—over-payment of attorney’s fee. ■ Funds in the hands of a court for administration should be jealously watched over, to guard against their absorption by expenses of litigation. The court' should not direct a receiver to pay his attorney, for his professional services and outlays, any greater sum than the attorney asks in his petition; and it is error to give him more than he claims he ought to have.
    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. W. B. Cunningham, and Mr. Adolph Moses, for the appellant.
    Mr. H. H. Anderson, pro se.

   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

Thomas Richter having filed his bill in chancery, against William Schroeder and certain insurance companies, to enforce the payment to him of insurance moneys claimed to be due to him under a mortgage made by Schroeder, which provided for the keeping of the mortgaged premises insured, an agreement was entered into between the parties for the appointment of a receiver, who employed H. H. Anderson, Esq., as his attorney, to institute suits against the insurance companies. There resulted considerable litigation, and Mr. Anderson afterward presented his petition in the case to the court, for an allowance for his services. Reference was made to a master to inquire into the value of the services, and on report made the court entered an order for the payment to Anderson of $1007.10, which order was affirmed on appeal to the Appellate Court for the First District, and Richter appeals to this court.

In his petition the petitioner gives a statement, in detail, of the services he had rendered, concluding as follows: “That petitioner has expended, for costs and expenses, $150, and prays for an order upon said receiver to pay him $650.” Before the master the petitioner gave testimony, as follows: “My net outlay is $157.10. I ask on account $650, though I think I am entitled to more. I ought to he paid that amount on account.” And on cross-examination he says: “I have not made any definite charges in the case. I simply stated to you what my services have been, and I intend to leave it to the evidence of lawyers, and the judgment of the master and court, in regard to what my services have been worth. I ought to have the money I paid out, and $500 fees."

Funds in the hands of a court for administration should be jealously watched over, to guard against their absorption by expenses of litigation. Allowance to a claimant of more than he thinks he ought to have, and more than he asks for, should not, we think, be approved. The sum of $657.10,— the petitioner’s own measure of the value of his services,—is all, in our opinion, that should have been allowed, although there was other testimony in the case which might have warranted the allowance of as large a sum as that ordered to be paid.

Appellant makes the point that much of the litigation which arose came through the petitioner’s own neglect, and that he should have nothing for his services. Upon an examination of the evidence in the case we can not say that it sustains this point made by appellant, and we are satisfied with the finding below in this regard.

The judgment will be reversed, and the cause remanded for further proceedings in accordance with this opinion.

Judgment reversed.


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    The Wabash, St. Louis and Pacific Railway Company v. Thomas Wallace.

      Filed at Ottawa May 19, 1884.

    1. Negligence—contributory and comparative—of the degree of care required, under different circumstances. Although a railway company may omit the statutory duty of ringing a bell or sounding a whistle at a public road crossing, still a party claiming to recover for an injury in consequence of such omission of duty, must have used due care and caution. The negligence of the company does not absolve him from all care. The plaintiff in such case, to recover, is required to exercise such care as might be expected of prudent men generally, under like circumstances.
    2. Where it is well known to the servants of a railway company and a person injured at a road crossing, that such place is unusually hazardous, it is the duty of both parties to use more care than at ordinary crossings where the danger is not so great. In such case the servants of the company should ring the bell and sound the whistle to the full extent of the statutory requirement.
    3. If a plaintiff who is injured at a highway crossing by a railway train does omit some slight precaution for his safety, and the railway company omits all care on its part, the plaintiff will not be without remedy. If the plaintiff’s negligence is slight, and that of the company, when compared with that of the plaintiff, is gross, a recovery may be had.
    4. What is prudence and proper care under some circumstances may be negligence in others; and so, negligence in danger under some circumstances might be regarded as prudence under others. Each case must depend largely on its own facts.
    5. Same—former decision—omission of railway company to give signals at highway crossings. The rule laid down in Chicago and Alton R. R. Co. v. Elmore, 67 Ill. 178, in regard to the liability of a railway company for a personal injury caused by a neglect of the statutory duty of sounding a whistle or ringing a bell at public road crossings, has not been followed, but has been disregarded in subsequent cases, and that case is overruled.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. Francis Goodspeed, Judge, presiding.

      Messrs. Sleeper & Whiton, for the appellant:
    Under the circumstances of this case the engineer and fireman were not required to slow up the train when they saw the plaintiff approaching the crossing, having a right to infer that as a man of ordinary sense he would not venture upon the track. The authorities supporting our views are numerous: Railroad Co. v. Jones, 76 Ill. 311; Railroad Co. v.

      Jacobs, 63 id. 178; Railroad Co. v. Austin, 69 id. 426; Railroad Co. v. Manly, 58 id. 300; Railroad Co. v. Sweeney, 52 id. 325; Railroad Co. v. Van Patten, 64 id. 510; Railroad Co. v. Bell, 70 id. 102; Railroad Co. v. Godfrey, 71 id. 500; Railroad Co. v. Goddard, 72 id. 567; Railroad Co. v. Harwood, 80 id. 88; Burling v. Railroad Co. 85 id. 18; Railroad Co. v. Damerell, 81 id. 450; Railroad Co. v. Dimmick, 96 id. 47. See, also, cases cited in Thompson on Negligence, 426.
    If the jury believed the testimony of Handy and Many-penny as to the ringing of the bell, then there was no possible ground of recovery by the plaintiff. They were not at liberty to disregard this testimony, and believe the simple negative, uncorroborated testimony of the plaintiff himself, that he did not hear the bell. Edler v. Achtman, 10 Bradw. 488 ; Haycroft v. Davis, 49 Ill. 455; Hartford Life Ins. Co. v. Gray, 80 id. 28; Evans v. George, id. 51.
    To recover, the plaintiff must have exercised ordinary care, such as a reasonably prudent person always will adopt for the security of his person. Railroad Co. v. Lee, 68 Ill. 580; Railroad Co. v. Johnson, 103 id. 521.
    The rule of comparative negligence laid down in the fourth instruction does not conform to the law as declared in Railroad Co. v. Dimmick, 96 Ill. 47, and Railroad Co. v. Johnson, 103 id. 524. The want of ordinary care is fatal to a recovery, no matter how gross the negligence of the defendant may have been.
    The seventh instruction completely ignores the necessity of due care on the part of the plaintiff, and attempts to substitute in its place only slight .negligence, which is a very different thing. Railroad Co. v. Harwood, 80 Ill. 88; Railroad Co. v. Johnson, 103 id. 512.
    Mr. C. W. Brown, and Mr. F. Bennett, for the appellee:
    The fourth instruction comes squarely within the rule of comparative negligence, drawn even as closely as it is. (Railroad Co. v. Johnson, 103 Ill. 524.) It avoids the very error complained of in that ease, by not asking the jury to determine whether or not plaintiff’s negligence was slight, as compared with negligence of defendant.
    It is sufficient to say in reference to the criticism upon the seventh instruction, that it is precisely in the language that has been approved twice by the Supreme Court. Chicago, Burlington and Quincy R. R. Co. v. Triplett, 38 Ill. 483; Chicago and Alton R. R. Co. v. Elmore, 67 id. 178.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action on the case, instituted by appellee, Wallace, against appellant, to recover for injuries claimed to have been inflicted by the servants of appellant, in the negligent management of a train on its railroad. There were three counts in the declaration, in which it was averred that appellant’s servants drove an engine and train on its road over the crossing of a highway so negligently that appellee was struck and injured, and his horse was 'damaged; that no whistle was sounded or bell rung, as required by statute, nor was there the sign required by the statute placed at the crossing ; also, that the company had negligently permitted high piles of dirt and other substances to remain on its right of way, so as to obstruct the view of an approaching train on the railroad, whereby appellee and his horse were struck and injured. On a trial in the circuit court the jury found a verdict in favor of appellant for $1150. A motion for a new trial was entered and overruled, and judgment rendered on the verdict. An appeal was perfected to the Appellate Court for the Second District, where, on a hearing, the judgment was affirmed, and the company brings the case to this court by appeal.

The facts are settled by the findings of the circuit and Appellate courts, and we are relieved from their consideration, further than as they are a basis for the rulings of the court in trying the cause. We shall examine some of the objections urged against such rulings.

Objections are urged against the appellee’s seventh instruction. It is this:

“The jury are instructed that if they believe, from the evidence, that a bell was not rung, or a steam whistle sounded, at a distance of eighty rods from the crossing of said defendant’s railroad across said north and south highway, and kept ringing or whistling until the crossing was reached, and the plaintiff was lulled into security by reason of such neglect on the part of the defendant, then the plaintiff would have the right to recover for any injury caused thereby, even though he was guilty of slight negligence.”

Appellee cites in support of this instruction the case of Chicago and Alton R. R. Co. v. Elmore, 67 Ill. 178, and it seems to support the rule contained in the instruction. But the rule has been disregarded in subsequent cases. The cases of Chicago, Burlington and Quincy R. R. Co. v. Harwood, 80 Ill. 88, and Chicago, Burlington and Quincy R. R. Co. v. Johnson, 103 id. 512, clearly modify the rule announced by that case. They hold, that although the railroad company may omit the duty imposed by the statute, of ringing a bell or sounding a whistle, still the plaintiff must use care and caution,—that the negligence of the company does not absolve him from all care. Such a neglect of duty on the part of the company will no doubt exonerate the plaintiff from as high a degree of care as would have .been required had it performed the duty. Plaintiff, under such circumstances, is required to exercise care, and such care as might be expected from prudent men generally, under like circumstances. So far, therefore, as the Elmore case conflicts with the views here expressed, it is overruled.

In this case both parties knew that the place where the .accident occurred was more than usually hazardous, and knowing that fact, both parties were under the duty of using more caution than at ordinary crossings. The road on which appellee was traveling bore almost due north and south, and he was traveling from the north. The railroad was located at an angle of about thirty degrees east of the road, north of the crossing. Where the collision occurred both appellee and the train approached it, the one from the north, and the other from thirty degrees east of north. The train approached appellee from behind, or nearly so, and to have seen the train he would have been compelled to almost turn facing that part of the road behind him,—hence the great necessity that the servants of the company should have rung the bell or sounded the whistle to the full extent of the statutory requirement. The omission of duty, and the want of care on the part of appellee, should not absolve the company from the use of care. Human life can not be thus sacrificed under the sanction of law. If the injured party does omit some slight precaution for his safety, and the company omits all care on its part, still the injured party is not without a remedy. If the plaintiff’s negligence is slight, and that of the company, when compared with that of the plaintiff, is gross, a recovery can nevertheless be had. If both parties were to use the highest possible degree of care, such accidents as this could never occur; but the law does not demand that degree of care, because it is impracticable in the ordinary affairs of life, hence reasonable care is required.

It is impossible, in the nature of things, to lay down more than general rules, as exactness and precision are impossible, because two cases are never more than approximately the same. Nor can there be any precise requirement demanded of individuals. Perhaps two persons of the highest order of intelligence and caution would not act precisely alike when menaced with the same imminent peril. Under the facts in each case we can only say that men have not acted as prudent men would be expected to do under the circumstances, and omitting to thus act, we can say they have not used due care when menaced with sudden and unexpected danger, or we can say they have done all that prudence requires. What is prudence and proper care under some circumstances is negligence under others, and so, negligence in danger under some circumstances would be regarded as prudence under others. Each case must necessarily depend largely on its own facts. But the instruction lacked the qualification that appellee was required to use care to avoid the accident, and was erroneous.

The judgment of the Appellate Court is reversed, and the cause remanded.

Judgment reversed.


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    Edward R. Oliver et al. v. Revilo Oliver.

      Filed at Ottawa May 19, 1884.

    1. Evidence—to prove a deed a forgery—clear proof required. An allegation in a bill filed to set aside a certain deed as a forgery,—that the grantor executed and acknowledged the deed, and after its execution and delivery the defendant erased the name of the complainant, the grantee therein, and inserted his own name in its place,—is one that the complainant is bound to establish affirmatively by clear and convincing proof.
    2. In this case it was alleged that the defendant took a deed of land, made to his son, to have the same recorded, and fraudulently erased his son’s name and inserted 'his own as grantee, and then had the same recorded, after which it was lost. The court reviews the evidence, and holds that it fails to sustain the allegation as to the alteration or forgery.

      Appeal from the Circuit Court of Livingston county; the Hon. Franklin Blades, Judge, presiding.
    Mr. C. C. Strawn, for the appellants.
    Mr. A. E. Harding, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill brought by Be vilo Oliver, in the circuit court of Livingston county, to set aside a deed executed by Amorretta Oliver, purporting to convey a certain tract of land in Livingston county, consisting of four hundred acres, to Franklin Oliver, Sr., which was executed on the 25th day of October, 1879, and recorded October 28, 1879. The complainant was the son of Franklin and Amorretta Oliver, and the latter was the divorced wife of Franklin Oliver. . The four hundred acre tract of land embraced in the deed had been obtained by Amorretta Oliver from Franklin Oliver, her former husband, in the divorce proceedings. The consideration named in the deed was $10,000. On the same day the deed was executed, Franklin Oliver, Sr., conveyed, by quitclaim deed, to Amorretta Oliver, section 33 and other lands, amounting to eight hundred acres, in the same township where the four hundred acre tract is located, the consideration named in the deed being $10,000. It is alleged in the bill that the four hundred acre tract of land was conveyed on the 25th day of October, 1879, by Amorretta Oliver, to the complainant, Bevilo Oliver, and that Franklin Oliver took the deed to carry it to the recorder’s office for record, and that he erased complainant’s name as grantee, and inserted his own name, and then left the deed for record. On the other hand, it was claimed by the defendants in the bill that Franklin Oliver conveyed section 33, and the other lands named in the deed, to Amorretta Oliver, in exchange for the four hundred acres which she conveyed to him.

The evidence introduced on the hearing was very conflicting, hut the circuit court rendered a decree in favor of •complainant, as prayed for in the hill. Amorretta Oliver testified that the deed was made to her son, the complainant. The complainant testified that he purchased the land of his mother; that he wrote the deed, and his name was inserted as grantee. The deed was acknowledged before Minnerly, a justice of the peace. He testified that he did not read. the deed, but from the conversation had between the three (Franklin, Amorretta and Revilo Oliver,) he supposed the deed was made to complainant. Wilson testified that Franklin Oliver came to his house one day and handed him a deed, which he read, and it was a deed from Amorretta Oliver to Revilo Oliver for four hundred acres of land,—the land in question. Sears testified that he had frequent conversations with Franklin Oliver, who told witness that he had traded Amorretta section 33, with a mortgage on it, for which he was to have the four hundred acres where they lived, and “he thought they were playing sharp on him,—that they had deeded the four hundred acres; I don’t know whether she deeded it to him or Revilo first; she had deeded it to Revilo, and he thought their calculation was for Revilo to get his deed on record before he did, but he was too -old, or too sharp, and got his deed on record first.” Elizabeth Webster testified that she had a conversation with Franklin Oliver, in which he said that he was as competent to do business as he ever was; “that he was smart enough to beat or cheat the old woman and Revilo out of their land, and he laughed about it exultingly.”

This, in substance, was the evidence relied upon by complainant. On behalf of the defendants, Franklin Oliver testified that the deed was executed in Mrs. Oliver’s house; she delivered it to him; he was grantee therein; Revilo was not mentioned in it; the deed was taken from him when he was robbed; he gave Mrs. Oliver his claim on section 33 and other lands, for the four hundred acres; she gave him no money; Minnerly wrote the deed. Heald testified that he had a conversation with the complainant. He said his mother had traded four hundred acres for section 33, with his father. Gillespie testified that complainant told him that his mother had traded the four hundred acres for section 33, in October, 1879. William Turner testified that he saw the deed in November, 1879; that the deed had no appearance of having been changed; that Franklin Oliver’s name in the deed appeared to be in the same handwriting as the balance of the deed. Cordeal recorded the deed, and he and Payson both testified that they examined the deed after it was filed in the clerk’s office for record; that there were no erasures or interlineations of any kind as to the names in the deed. W. G. McDowell, who was attorney for Mrs. Oliver in obtaining the divorce for her, and who procured the four hundred acres of land as alimony for her, testified that he had cautioned her not to deed the land away, or sign any papers whatever concerning it, and when he heard she had traded the land away he was led to examine it in the recorder’s office. As to the appearance of the deed he testified: “I examined it carefully ; there was no interlineation, erasure, or other change in the deed, that I could discover.”

The record contains other evidence on minor points or collateral issues, but we have given the substance of the evidence bearing upon the controverted question in the case,— whether the deed in question was made to Franklin Oliver, Sr., or to his son, Eevilo, and the name of the latter subsequently erased and the name of Franklin inserted. Had the deed been produced on the trial for inspection, much of the difficulty involved in the question would have been obviated; but after the deed was recorded and returned to Franklin Oliver, as appears from the evidence, he was robbed, and the deed, with other papers, was carried away, and could not be produced.

The charge in the bill, as will be observed, is one of forgery. It is conceded on all hands that Amorretta Oliver executed and acknowledged the deed; but the allegation of the bill to be proven is, that after the deed was executed and delivered, Franklin Oliver, Sr., erased the name of the grantee, Revilo Oliver, and inserted his own name as grantee. This proposition was one which the complainant was bound to establish affirmatively by the evidence, and one, too, which should be established by clear and convincing proof, before relief should be granted. Has that been done in this case? The complainant and his mother, who may be regarded as the immediate parties to the transaction on one side, testify that the deed was made to complainant, while Franklin Oliver, the party on the other side, denies that the deed was made to complainant, and testified that it was made to him. Thus far there seems to be no preponderance. The evidence of the only other person present when the deed was executed, (the justice of the peace,) throws but little light on the transaction. He did not read the deed, and can not say who the grantee named in the deed was. From the conversation he understood that complainant was the purchaser. But this evidence we do not regard as having much bearing on the question. Had the justice read the deed, and been able to testify to whom it was made, his evidence might have been a controlling factor in the case; but such is not the fact. Franklin Oliver says he deeded section 33 and other lands to Amorretta Oliver, on the same day, for the four hundred acre tract. In this he is corroborated by the fact that a deed was executed by him to her for the lands he mentioned. True, Amorretta and Bevilo testify that she bought those lands of Franklin, and paid him in cash $1500 for the same; but this he denies, and they are not corroborated by any other evidence in the ease. On the other hand, several witnesses testify to admissions of the complainant, to the effect that the four hundred acres of land was exchanged with Franklin Oliver for section 33, and other lands conveyed in the deed made by Franklin.

But the strongest evidence in the case, in our judgment, is the testimony of the witnesses who saw the deed, and examined it after it was filed for record. Cordeal, Payson, Turner and McDowell, all disinterested and reliable witnesses, testify that they saw and examined the deed, and that there were no interlineations, erasures or alterations in the names of the parties grantor and grantee, and that the name of Franklin Oliver, Sr., appeared as grantee. It will be remembered that the deed was executed on October 25, 1879. On the 28th of the same month it was filed for record. If Franklin Oliver, who was at the time over ninety-three years old, had, within the three days that the deed was in his possession, erased the name of the grantee and inserted his own name, some trace of the forgery would without doubt have appeared in the deed. These witnesses examined it closely, especially McDowell and Cordeal, and they were in the habit of handling deeds and instruments of writing relating to real estate, and if the crime had been committed which is alleged, it seems incredible that these men failed to detect some evidence of it. It is true that the complainant called one Wilson as a witness, who says he saw the deed the next day after it was executed, and that the name of complainant appeared as grantee. While the memory of this witness is clear and definite in reference to matters in favor of the complainant, on cross-examination his memory in relation to other matters occurring at the same time seems to be much at fault. He had no interest in the matter. At the time he says Franklin Oliver showed him the deed, there was nothing to direct his attention particularly to the person named as grantee in the deed, and it seems probable he was mistaken. At all events, if the deed was as he states, and was changed during the next two days, the witnesses who examined it at the recorder’s office would have been likely to detect the alteration in the instrument.

But we do not deem it necessary to refer to other evidence. We have carefully examined all the evidence contained in the record, and we do not regard it sufficient to sustain the decree. The evidence is not of that clear and convincing character that it should be to overturn a deed which passes the title to real property.

The decree of the circuit court will be reversed, and the cause remanded for further proceedings consistent with this opinion.

Decree reversed.