text:
    George W. Montgomery et al. v. William L. Black et al.

      Filed at Springfield January 18, 1888.

    1. Appeal—reviewing facts—effect of affirmance by Appellate Court. While this court may, upon a finding of fact by the Appellate Court, under the statute, or upon an agreed state of fact properly made up and presented, determine the rights of the parties as a matter of law, it can not go behind the judgment of the Appellate Court, and consider what inferences might arise from particular facts appearing in the bill of exceptions, as this would involve a review of the facts.
    2. The judgment of the Appellate -Court affirming a judgment in an action of assumpsit, must, in the absence of a finding of fact by the Appellate Court, be treated by this court as conclusively settling all controverted questions of fact necessary to the maintenance of the judgment. In such case, this court can look into the bill of exceptions, only for the purpose of determining whether the trial court, in its rulings, properly preserved, coinmitted error, and whether the case has proceeded according to the orderly course of the law.
    3. Partnership—liability of partners for the debt of co-partner. If A, B and C should be partners, under some name other than A & Co., carrying on a particular business, as, selling agricultural implements, and A was engaged on his own account, under the firm name of A & Co., in buying and selling produce, and credit was extended to him in his private enterprise, with a knowledge of the facts by the creditor, B and C would not be liable with A for such debt.
    4. Evidence—on the issue whether defendants were partners. A, B and C were sued as partners, composing the firm of A & Co., B and C alone being served. The latter put in issue the fact of their being partners of A, by pleas in abatement, properly verified: Held, that the representations and admissions of A, that the firm name was A & Co., and as to who composed the firm, made out of the presence of B and C, were properly excluded by the court.
    5. On an issue whether B and C were liable as partners of A, a witness-testified that an account was opened by A, as A & Co., with a bank, whereupon the court asked the witness who composed the firm the bank opened the account with: Held, that the question was pertinent to the issue, and called for the fact who composed such firm.
    6. Practice—improper answer by witness—error waived if no objection.. "Where a witness is pn-operly asked who composed the firm of A & Co., and replies that A told him he had no partners, if the answer is not objected to, or a motion made to exclude it as hearsay, the admission of the evidence can not be assigned for error.
    7. Same—preserving rulings of court trying case without a jury. Where a cause is tried by the court without a jury, the parties may obtain the decision of the court upon all questions of law arising upon the facts, by presenting to the court propositions of law to be held or refused. By this course the rulipgs are preserved in the record, in the same way they are preserved by instructions in trials by jury.
    8. Presumption—in support of judgment below. The presumption being in favor of the legality of the judgment of the lower court, he who insists that error has intervened in the proceedings must make such error manifest by the record, to procure a reversal. It will, in civil cases, be presumed that the law was correctly applied to the facts by the jury, or the court sitting as a jury, unless the record shows affirmatively to the contrary.
    Appeal from the Appellate Court for the Third District;—. heard in that court on appeal from the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.
    This was an action of assumpsit, brought in the Adams circuit court, by appellants, against William L. Black, Samuel N. Black and Charles C. Connor, on a promissory note of $100 and a balance of over-draft in hank of $1038.02. The note was signed W. L. Black & Co., and the over-draft was in the name of the same firm, and to its debit. The declaration contains three counts and the consolidated money count. The first and second counts were upon the promissory note, and the third upon the same instrument, treated as a contract. The declaration charged that the said William L. and Samuel N. Black and Connor were partners, under the name and style of W. L. Black & Co., and as such made such note and overdraft, and were liable therefor. William L. Black was not served. Samuel N. Black and Connor each filed a separate plea in abatement, duly verified, denying their joint liability with each other, or with their co-defendant, W. L. Black. Replications were filed traversing these pleas, and a trial had on the issue thus presented, without the intervention of a jury, which resulted in finding the issues for the defendants, (appellees here,) and judgment thereon, and for cost against appellants. No propositions of law were presented to the lower ■court to be held or refused. On appeal to the Appellate Court for the Third District, the judgment was affirmed, and this further appeal is prosecuted by the plaintiffs below.
    Mr. Ira M. Moore, for the appellants:
    It being established, by the evidence, that defendants were partners, by some name, William L. Black, one of the firm, possessed full and absolute authority to bind all the partners by his acts or contracts in relation to the business of the firm, in the same manner and to the same extent as if he held full power of attorney from all the members of the firm. (Pahlman v. Taylor, 75 Ill. 629.) And this, even if they had not adopted a firm name. Kitner v. Whitlock, 88 Ill. 514.
    While it may be true that the admissions of a defendant, not served, may not be admissible to prove that he was a member of the firm, still, after the fact is shown that he is actually a partner, by other evidence, then his admissions, acts and representations, within the scope of the partnership business, bind the firm. Walsh v. Lennon, 98 Ill. 27; Bridge Co. v. Shannon, 1 Gilm. 15; Pahlman v. Taylor, 75 Ill. 629.
    If W. L. Black falsely represented that the firm name was W. L. Black & Co., and that the other defendants were members of the firm by that name, and thereby obtained the money or the checks of W. L. Black & Co., the other members of the firm thereby became liable. Bigelow on Estoppel, 467; Griswold v. Haven, 25 N. Y. 595.
    The defendants, by their conduct, are estopped from denying that their firm name was W. L. Black & Co., for, by permitting a sign, “W. L. Black & Co., dealers in hay, grain and agricultural implements,” to be put up, or kept up, at their place of business; by contracting in the firm name of W. L. Black & Co.by receiving and selling goods in that name; by advertising in the papers that the firm of W. L. Black & Co. were dealing in hay, grain and agricultural implements; (St. Louis M. P. Co. v. Parker, 59 Ill. 23; Ellis v. Bronson, 40 id. 455 ;) by taking notes for agricultural implements, payable to W. L. Black & Co.; by signing a note by the name of W. L. Black. & Co.; by using the letter-heads in their common business, stating that they were dealing in hay, grain and agricultural' implements; (Ellis v. Bronson, 40 Ill. 455;) by permitting-W. L. Black to open an account in the name of W. L. Black. & Co., and draw checks in their name,—they have held themselves out to the world as partners under that name. Fisher v. Bowles, 20 Ill. 396; Ellis v. Bronson, 40 id. 459; Stark v. Corey, 45 id. 431.
    For the same reason the firm are estopped from denying that they were dealers in hay, grain, etc.
    The defendants Connor and S. N. Black are not relieved from liability because they did not know, or did not have notice, that W. L. Black was dealing with the plaintiffs, as he' did, for he was their agent, and knowledge of the agent binds-the principal, (Singer Manf. Co. v. Holdfodt, 86 Ill. 456,) and notice to an agent is notice to the principal. Insurance Co. v. Wells, 89 Ill. 82; Williams v. Tatnall, 29 id. 553.
    As between the firm and other parties who deal with a firm in good faith and without notice, it is not a matter of any consequence whether the partner is acting fairly with his co-partners in the particular transaction or not. If he is acting within the apparent scope of his authority, and professedly for the firm, his acts and representations are binding upon the' firm in favor of an innocent third party, however grossly, in point of fact, he may violate his duty toward his co-partners.. By holding him out to the world as a partner in the particular-business, they authorize the' world to deal with him, as possessing all the powers of a partner. Parsons on Partnership,. 95, 115, 172; Bigelow on Estoppel, 457; Pahlman v. Taylor, 75 Ill. 629; Carver v. Dows, 40 id. 374.

      There is no evidence in this case that the money received •on the check drawn on the plaintiffs’ hank was not used in the business of the firm. The presumption, in the absence of any such proof, is, that these checks, made by William L. Black, were made in the course of the partnership dealings, .and if the other partners seek to avoid the repayment of the money received on these checks, the burden of proof lies upon them to show that they were given in a matter not relating to the partnership business, and that fact was within the knowledge of the plaintiffs. Gregg v. Fisher, 3 Bradw. 265; Barrtlett v. Powell, 90 Ill. 331.
    Messrs. McMurray & McMubray, and Messrs. Bonney & Woods, for the appellees:
    The finding of this controverted fact, by the Appellate Court, °in favor of appellees, is conclusive upon this court, and precludes any review of such fact. 2 Starr & Curtis’ Stat. p. 1851, par. 90; Brownell v. Welch, 91 Ill. 523; Hewitt v. Normal School District, 94 id. 528; National Bank v. Proctor, 98 id. 558; City of Joliet v. Seward, 99 id. 267; Kreigh v. Sherman, 105 id. 49; Capen v. Glass Co. id. 185; Steinman v. Steinman, id. 348; Railroad, Co. v. Morgenstern, 106 id. 216; Paddon v. Insurance Co. 107 id. 196.
    This cause was tried by the court, without the intervention ■of a jury, and no propositions to be held as law were sub- ! mitted by either party, and in such cases the finding upon mixed questions of law and fact is conclusive upon this court, ■•as the court below is presumed to decide the law correctly, and appellants have not furnished the means of determining that it did otherwise. Hobbs v. Ferguson's Estate, 100 Ill. 233; Steinman v. Steinman, 105 id. 349; Tibballs v. Libby, 97 id. 552.
   Mr. Justice Shops

delivered the opinion of the Court:

The declaration alleged that William L. Black, Samuel N. Black and Charles C. Connor were partners, under the firm ..mame and style of William L. Black & Co., and that said firm made the undertakings and promises therein alleged, and were indebted to the plaintiffs, as therein mentioned. The pleas put-in issue the partnership and joint liability of Samuel N. Black and Charles C. Connor, severally, for the undertakings and' promises of said firm of W. L. Black & Co., to plaintiffs in the-declaration mentioned. No other issue is presented by the-pleadings. The issue of fact thus formed was submitted to-the court, without a jury, for trial. In such cases it is competent for the parties to obtain the decision of the circuit court upon all questions of law arising upon the facts, by presenting-to the court propositions of law, to be held or refused, as provided by section 42 of the Practice act. By pursuing this course the rulings are preserved in the record in the same way they are preserved by instructions in trials by jury.

The presumption is in favor of the legality of the judgment,, of the lower court, and he who insists that error has intervened in the proceedings of that court must make such error manifest by the record. Appellants having failed to preserve the-rulings of the court, as might readily have been done in the-mode provided by the statute, are in no better position to question the correctness of such rulings in this court than if they had submitted their case to a jury without instructions. It will, in civil cases, be presumed that the law was correctly applied to the facts by the jury, or the court sitting as a jury„ unless the record affirmatively shows to the contrary. Tibballs et al. v. Libby, 97 Ill. 552; Hobbs v. Ferguson’s Estate, 100 id. 233; Steinman v. Steinman, 105 id. 349.

The judgment of the Appellate Court, affirming the judgment of the circuit court, must, in the absence of a finding of fact by the Appellate Court, be treated in this court as conclusively settling all controverted questions of fact necessary to the maintenance of the judgment adversely to appellants. Brownell v. Welch, 91 Ill. 523; Commercial National Bank v. Proctor, 98 id. 558; Kreigh v. Sherman, 105 id. 49; Steinman v. Steinman, supra; Paddon v. People’s Ins. Co. 107 id. 196.

In such cases we are permitted to look into the bill of exceptions only for the purpose of determining whether the circuit court, in its rulings, properly preserved, committed error, and whether the case has proceeded according to the orderly course of the law. The facts having been settled beyond question, with no right of review by this court, to be adverse to the right of recovery by appellant, and the presumption being that the law was correctly applied, it follows that the judgment of the Appellate Court must, under the errors here assigned, be affirmed, unless error is shown in the exclusion or admission of evidence. Very many points are made by counsel for appellants upon particular facts appearing in the record, as, that by a certain fact appellees are estopped from denying that the firm name of the firm of which they were members, was W. L. Black & Co.; that the declarations of W. L. Black, put in evidence by appellants, as to the name of the firm, and who composed it, as a matter of law made his contract with plaintiffs, in the name of said firm, binding upon appellees, and others of like purport.

The contention last referred to will serve to illustrate as to all others. Stated in the language of counsel, the proposition is: “It being an uncontroverted fact that W. L. Black was a member of the firm, his representations and admissions, under the circumstances, that the firm name was W. L. Black & Co., as a matter of law binds his partners, and that a contract for his firm, in that name, binds his firm.” If the correctness of the rule stated be conceded, and waiving the question of the admissibility of the declarations of W. L. Black, made out of the presence of appellees, as to who composed the firm of W. L. Black & Co., which, upon the issue made by the plea, can not be conceded, (see Hahn v. St. Clair Savings and Ins. Co. 50 Ill. 456, Gardner v. Northwestern Manf. Co. 52 id. 367, Smith v. Hulett, 65 id. 495, 1 Greenleaf on Evidence, 177,) but of which appellants can not complain, it is manifest appellants, for the reasons already stated, are in no condition to raise that question in this court. On looking into the record, it appears that the premise here assumed by counsel was the central point of controversy. The inquiry was, were appellees members of the firm of W. L. Black & Co., and liable for its obligations ? Suppose it be true thaf the two Blacks and Connor, under some name other than that of W. L. Black & Co., were partners, carrying on a particular business, as, selling dry goods or agricultural implements, and that W. L. Black was ■engaged on his own account, under the firm name of W. L. Black & Co., in buying and selling produce, and the plaintiffs extended credit to W. L. Black, in his private enterprise, with knowledge of the fact, would S. 1ST. Black or Connor be liable for such credit ? Manifestly not. Yet the foregoing was, in substance, the contention of appellees.

While this court may, upon a finding of fact by the Appellate Court, under the statute, or upon an agreed state of facts properly made up and presented, determine the rights of the parties thereon, as a matter of law we can not go behind the judgment of the Appellate Court, in cases like this, and consider what inferences might arise from particular facts appearing in the bill of exceptions. This would necessarily involve ,-a review of the facts, which is not permitted to us, and a determination therefrom of whether the inference to be drawn from the particular fact is or is not controlling, in view of the •other facts and circumstances proved.

There is no force in the contention that the court erred in the admission or exclusion of testimony. Upon the most care-, ful consideration of the record, with a view to determine if •error intervened with this regard, we are unable to say there was prejudicial error. The evidence tended to show that the firm of Black, Connor & Co. was composed of W. L. Black, S. N. Black and C. C. Connor; that said firm was engaged in the sale of agricultural implements, and kept their accounts at the bank of Burguesser & Motter. Also, that there was a firm, styled W. L. Black & Co., engaged in buying and selling hay and other farm products, that usually kept its account at plaintiffs’ hank, but in March, 1882, opened an account with Burguesser & Motter. A witness testified that the account was opened with Burguesser & Motter by W. L. Black, as W. L. Black & Co. Thereupon the court asked the witness, "Who composed the firm you opened an account with ?” The question was objected to by appellants, the objection overruled, and exception taken. The question was pertinent to the issue being tried, and called for the fact as to who composed said firm. The witness, however, replied, “W. L. Black told me he had no partners,” and it is objected that this is hearsay, and incompetent. If so, the answer not having been objected to, or a motion made to exclude it, its admission is not error of which appellants can complain.

The record is very voluminous, and we have carefully considered the various errors pointed out, and in view of the issue being tried, and the complicated state of fact, we are not prepared to say that the court erred in admitting evidence of the dealings of the various firms, and the accounts kept by them, respectively. Such evidence tended to illustrate better, perhaps, than could be done any other way, the course of dealing between the plaintiffs and W. L. Black, and between those parties and appellees. The same may' be said of the evidence called out on cross-examination of appellants, of the publication of notice of the dissolution of a former partnership between W. L. Black and one Hoke, as tending to show knowledge by plaintiffs of who composed the firm of William L. Black & Co. The judgment rendered by the circuit court upon the issues is justified, if the facts proved warranted it. That they did so has been determined by the only tribunals authorized by law to pass upon the questions of fact, and there is no error of law for which a reversal should be entered.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldon

license: Public Domain

text:
    Joel Dalby v. The People of the State of Illinois.

      Filed at Springfield March 28, 1888.

    1. Pleading—of the declaration—in debt to recover tax on personal property. A count in a declaration in a suit to recover a personal property tax, in attempting to present a case for the assessment of the property to the defendant at a place other than that of his residence, on the ground that the defendant carried on his business there, as contemplated by section 13 of the Bevenue law, will be defective if it omit to show that such business was one of the kinds of business specified in that section.
    2. Taxation—action to recover personal judgment for taxes—in whose name to be brought. Under section 230 of the Bevenue law, the county board may bring an action of debt, in the name of the People, for the whole amount due on forfeited property, or it may sue, in its corporate name, for the county tax alone, leaving the other corporations to sue for the taxes due them. If the county sues, in the name of the People, for the recovery of any personal tax, a recovery may be had of the entire personal tax, and the county, on collection of the same, will be required to pay over to the several municipal corporations their respective shares.
    3. Same—personal property in hands of agent—at what place and in whose name to be assessed. Where the owner of cattle not attached to any farm, places them in the charge of an agent in a town other than that in which the owner resides, to look after them and feed them, they will properly be listed and assessed in the town where they are in the hands of the agent. The property, in such case, should he listed and assessed in the name of the agent, but the listing and assessing of the same in the owner's name will not invalidate the taxes levied thereon, and such owner will not he allowed to complain of such informality.
    4. Ebbob will not always be verse—■overruling demurrer to defective count. The error in overruling a demurrer to a defective count in a declaration, will be held immaterial, when the evidence makes no case under such count.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    This was an action of debt, brought by the county board of Sangamon county, in the name of the People, against Joel Dalby, to recover the taxes levied against the defendant for the year 1881, on a lot of cattle. The declaration contained seven counts, as follows:
    “First—That defendant is indebted to the-plaintiff in the sum of $234.23, on account of taxes, as follows: State tax, $61.62; county tax, $40.48; town tax, town of Clear Lake, $5.05; road and bridge tax, $18.38; district school tax, $102.70, heretofore levied against defendant and now upon assessment book, roll and other tax books for the year 1881, of the town of Clear Lake, Sangamon county, Illinois, and which were duly returned delinquent by the county collector of Sangamon county for the year 1881, and are still due and unpaid, and were assessed and levied for the year 1881, to and against defendant, and upon divers stock, cattle and sundry personal property of defendant assessed for taxation for the year 1881 by the assessor of Clear Lake township, Sangamon county. Said stock, cattle and personal property were held and owned by defendant on May 1, 1881, and were not in transitu on that day, but were situated in school district No. 6, township 16 north, range 4 west, third principal meridian, in town of Clear Lake, Sangamon county, Illinois, in the hands of an agent or agents, the said school district being the place within which the business of such agent or agents was at that time carried on, wherefore, etc.
    “Second—Whereas, also, on December 20, 1881, defendant was and still is indebted to plaintiffs in the sum of $234.23, for and on account of divers taxes, being, (same taxes as set out in first count,) heretofore levied against said defendant, and now upon the assessment book or roll, and other tax books for 1881 of the town of Clear Lake, Sangamon county, Illinois, and which were duly returned as delinquent for the year 1881 by the county collector of the county of Sangamon, and are still due and unpaid, and were assessed and levied for the year 1881, to and against the defendant, and upon divers stock, cattle and sundry personal property of said defendant, assessed, as aforesaid, for taxation for the year 1881, by the assessor of the town of Clear Lake, in the county of Sangamon, Illinois, which said stock, cattle and sundry personal property were held and owned by said defendant, as aforesaid, on May 1, 1881, and were not in transitu on that day, but were situated in school district No. 6, township 16 north, range 4, west of ■third principal meridian, in town of Clear Lake, Sangamon county, Illinois, said school district in said township being the place within which defendant carried on his business, wherefore, etc.
    “Third—For that, etc., on May 1, 1881, the defendant was ¡a resident of school district No. 6, town 16 north, range 4 west, third principal meridian, in town of Clear Lake, Sangamon county, Illinois, and was owner of six hundred head of -cattle and other personal property within said district and town, which he duly listed as required by statute, a statement of which property, in the form provided by statute, signed and sworn to by him, he delivered, on May 2, 1881, to the assessor of the town of Clear Lake, Sangamon county, and thereupon the assessor assessed the value of said property at $12,320, and entered the same upon the assessor’s books of said township for 1881, which assessed value was reduced by the county board, at its July meeting, 1881, in equalizing valuations betweén towns in said county, to $11,211, and was further reduced by the State Board of Equalization to $10,810, and upon this latter valuation a personal property tax was levied .against said defendant, (same as set forth in first count); that said property was not in transitu, that said several items of tax were duly extended by the county clerk upon the tax collector’s books for the year 1881, and the books were delivered to the -town collector on December 20, 1881, with warrant thereto ¡attached, as required by law; that the town collector duly demanded said taxes from the defendant; that defendant refused to pay; that the town collector used due diligence to ■collect the tax; that no personal property of defendant could, at that time, be found in the town, out of which the taxes could be made; that the town collector returned said taxes as delinquent, to the county collector; that the county collector duly-demanded said taxes from the defendant, and he refused to' pay, and the county collector returned them delinquent to the county clerk on — day of-, 1882; that said taxes are still due and unpaid-, and now appear upon the assessment rolls, books, etc., for said year, on file in the county clerk’s office as delinquent and unpaid, by means whereof, etc.
    “Fourth—Whereas, on May 1, 1881, defendant held and owned certain stock, cattle and sundry personal property, which were, on that day, situated in, (same district, town, etc.,) in the hands of an agent or agents; that said school district being the place where the business of such agent or agents wras at that time carried on, and which stock, cattle, etc., were duly listed for taxation, as required by the statute, on the 2d day of May, 1881, to the assessor of said town, and thereupon said assessor assessed the value of said property at $12,320 ;. that said assessed value was, by the action of the county board and State Board of Equalization, duly changed to $10,810,. and upon this latter valuation a personal property tax was-levied against said defendant to the amount of, (same items-of tax and aggregate as in first count); that said property was not in transitu; that said State, county, town, road and bridge and school taxes were duly extended by the county clerk for the year 1881, on the tax collector’s book for the town of Clear Lake; that said book was delivered to the collector of ■ the town on-December 20,1881, with proper warrant attached; that the town collector, while so having said book and warrant, demanded said taxes from defendant, who failed and refused to pay them; that said town collector used due diligence to collect said taxes, and that no personal property of defendant could be found in the town, at that time, out of which said taxes could be made; that the town collector duly returned them to the county collector as delinquent; that the county collector then demanded them from defendant, and he refused to pay, and the county collector returned them to the county clerk as delinquent, and they now appear as due and unpaid on the collector’s hooks, returns, etc., for said year, on file in ' the county clerk’s office, by means whereof, etc.
    “Fifth—Whereas, on May 1, 1881, defendant then being a merchant and manufacturer, and doing business in school district No. 6, township 16 north, range 4 west, third principal meridian, in town of Clear Lake, Sangamon county, Illinois, was the owner of certain personal property within said district, county and State, to-wit, six hundred and sixteen head of cattle and other personal property, which he duly listed for taxation, as required by statute, on May 2, 1881, to the assessor of said town, and thereupon said assessor assessed the value of said property at,” etc. (Otherwise this count is exactly like the fourth.)
    The sixth count is the common count for taxes and interest, and the seventh the common count for interest. A demurrer was filed to the first, second and fourth counts, which the court overruled. The facts appear in the opinion of the court.
    Messrs. Connolly & Mather, for the appellant:
    The first count was bad, because it shows that at the time the property was assessed to the defendant, it was in the hands of an agent, and that the agent carried on his business at the town and school district where it was assessed.
    By clause 10 of section 6 of the Revenue law, the property of manufacturers and others, in the hands of an agent, shall he assessed by and in the name of the agent, and by section 9 of the same law, property in the hands of agents shall be listed and assessed where the business of such agent is carried on. The property, therefore, was wrongfully assessed to the owner. It should have been assessed in the agent’s name.
    The second count was had, because it sought to make the cattle assessable to defendant in the school district and town where they were assessed, not because he resided there, but because he carried on his business there. It sought to show an assessment under section 13 of the Revenue law. That section relates to property of banks, bankers, brokers, stock-jobbers, insurance companies, hotels, livery stables, saloons, ■eating-houses, merchants, etc., not specially provided for. This count fails to show what kind of business the defendant carried ■on. The fourth count is bad for the same reason as is the first. The other counts fail to show any liability.
    The county, in a suit to collect a delinquent personal property tax, can recover only the taxes due to the county. It can not collect State and other taxes than those belonging to the ■county.
    Messrs. Conkling & Grout, and Messrs. Patton & Hamilton, for the appellee:
    Two questions are presented: First, is the appellant personally liable for the taxes involved in the case; and second, if liable, can the plaintiff recover the whole amount of taxes, or only the county tax ?
    All personal property having a situs in this State on the first day of May of any year, is subject to assessment and taxation, except so much thereof as may be exempt. Revenue Law, sec. 1.
    The Revenue law provides for the listing and assessing of property. The first is the act of the person owning or controlling property, and the latter is the act of the assessor.
    Section 6 provides that every person shall list his personal property, and that held by him as agent, etc. By clause 10 of that section, the property in the hands of an agent shall be listed by and in the name of such agent, and section 9 requires such property to be listed and assessed at the place where the business of the agent is carried on. Section 19 requires that the agent shall list such property separately from his own, specifying the name of the owner. Under these sections the assessment may be against the agent or against the principal.

      No error or informality shall vitiate the tax. Rev. Stat. chap. 120, sec. 19; Lyle v. Jacques, 101 Ill. 649. See, also, Lumber Co. v. Willetts, 118 Ill. 559; Mills v. Thorton, 26 id. 300.
    Under section 230, the county board may sue for and recover any personal property tax. The word “any” means “all,” or the whole amount.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a judgment in the Sangamon county circuit court, against the defendant, in an action of debt, brought under section 230 of the Revenue law, at the instance of the county board of Sangamon county, to recover the State, county, town, road and bridge and school taxes levied for the year 1881 on six hundred and sixteen head of cattle, assessed to the defendant by the town assessor of the town of Clear Lake, in said county, for that year.

The facts appearing from the record are, that on May 1, 1881, Joel Dalby, the appellant, then residing in Capital township, in Sangamon county, in this State, was the owner of six hundred and sixteen head of cattle. These cattle were then being fed at a distillery in school district No. 6, etc., in Clear Lake township, in the same county. They were at the distillery from October 1, 1880, until late in the summer of 1881, during which time they were in the charge of one George Dalby, of the township of Clear Lake, whose business was that of feeding these cattle. Joel Dalby carried on no business in the township of Clear Lake other than having these cattle fed, and they were not connected with a farm anywhere. George Dalby listed the cattle for taxation for the year 1881, in the township of Clear Lake, in the name of Joel Dalby, the assessor of which township duly assessed them for taxation, and upon such assessment the taxes for that year were extended on the collector’s books against Joel Dalby, as the owner of the cattle. It does not appear, and it is not pretended, that the property was assessed for taxation anywhere else.

Demurrers were overruled to three of the seven counts of the declaration. It is insisted there was error in this. The second count attempted to present a case for the assessment of the property to the defendant in the school district and town where it was assessed, under section 13 of the Revenue law, on the ground that the defendant carried on his business there. We think'this count was defective, in failing to show that such business was one of the kinds of business specified in that section. But we regard the overruling of the demurrer to this count as immaterial, as the evidence made no case under that count, further ■ than the cattle being fed, as they were,' at the distillery named. The first and fourth counts set up the facts of the case as shown by the evidence, and we hold the demurrer to those counts to have been- properly overruled. The cause was tried by the court, without a jury.

All the legal questions which are presented upon the record are, whether the property was properly assessed at the place where it was assessed, instead of at the defendant’s place of residence, and if so, whether it should not have been assessed to defendant’s agent, instead of to himself. The further question is, as to the right of the county board to recover for any more personal property tax than such as is due to the county.

Section 7 of the Revenue law provides that personal property, except such as is required in the act to be listed and assessed otherwise, shall be listed and assessed in the county, town, city, village or district where the owner resides. Section 6, item 2, provides, that every person shall list all personal property controlled by him as the agent or attorney, or on account of, any other person. Section 9 requires that the property of manufacturers and others, in the hands of agents, shall be listed and assessed at the place where the business of such agent is carried on.

Under this last section, we think the cattle were listed and assessed at the proper place,—the place where they were in the hands of the agent. The agent there did list them for taxation, but not in his own name, but in the name of Joel Dalby, the real owner. Section 6, item 2, as we have seen, provides, generally, that agents shall list all personal property controlled by them as agents; but item 10, same section, requires the property of manufacturers and others, in the hands ■of an agent, to be listed by and in the name of such agent, as merchandise.

Section 19 directs that persons required to list property on behalf of others shall list it separately from their own, specifying, in each case, the name of the person to whom it belongs. Under these provisions, no doubt, the property might have been assessed to the agent who had it in his charge. But is it fatal to the validity of this tax that it is assessed against the owner, instead of against his agent ? The property was •subject to taxation, and the owner is the person who, of right, •should pay the tax. Piad it been assessed against the agent, :and he have paid the same, he could have had recourse to the ■owner for reimbursement, so that ultimately it is for the owner to pay the tax, although it may have been assessed against and paid by his agent. Why may not the payment of the tax here be enforced directly against the person who owns the property, instead of circuitously through his agent, who had the property in charge ? It seems to be an ungracious defence for the owner of taxable property to make, that his agent should pay the taxes on his (the principal’s) property,—to set up that his property should be taxed against his agent.

The provision of the statute for taxing property in an agent’s hands against the agent, is for the purpose of subjecting all the taxable property in the State to taxation,—that in the hands of agents as well as that in the owner’s own hands,— and for security of payment of the tax. The purpose was not to shift the burden of taxation from the owners of property to their agents. There may be the case where it would be a .security for enforcing the collection of taxes, to have the taxes imposed upon the agent having property in his possession, as where the owner is a non-resident, and could not be personally reached for the collection of taxes imposed upon his property in this State, which might afterward be removed. But this consideration would not apply in a case like this, where the owner and his agent both reside in the same county in this State; and the consideration, too, is one- which affects the public, in securing the payment of taxes, and would not seem to concern the owner of the property taxed, as anything looking to his benefit. It would not seem to be a just cause of complaint with him, that his property was assessed to himself instead of to his agent. At least, under the circumstances of this case, we do not consider it a valid objection to the maintenance of this suit, that the property was assessed to the owner, and not to the agent who had the property in his charge.

As to the right of recovery for all the taxes, section 230 of the Revenue law, in its first clause, provides that the county board may institute suit, in an action of debt, in the name of the People of the State of Illinois, for the whole amount due •on forfeited property; or any county, city, town, school district, or other municipal corporation to which any such tax may-be due, may institute suit, in an action of debt, in its own name, for the amount of such tax due any such corporation on forfeited property. The second clause provides that the county board may also institute suit, in an action of debt, in the name of the People of the State of Illinois, against any person, for the recovery of any personal property tax due from such person. Thus it appears that the first clause, with respect to forfeited property, provides that the county board may sue for the whole amount of the taxes due on forfeited property, or only for the amount due the county,—the suit, in the former case, to be brought by the county board in the name of the People, in the latter case in the name of the county. The second clause respects personal property tax alone, and provides that the county board may also bring suit, in the-name of the People, for the recovery of any personal property tax due from any person. Any personal property tax due from a person, embraces every personal property tax due from the= person. Had the intention been to give to the county board the right of recovery only for the personal property tax due-the county, we must think the limitation to the tax due the-county would have been expressly named, and the right of action have been given in the name of the county, as was-done in the first clause, in providing for recovery, by a county,, of the amount of the tax due the county on forfeited property. We think, under the section last named, the right of recovery here is for all these personal property taxes due from the defendant, and when recovered, it will be the duty of the county-board to distribute them to the several municipal corporations- ■ to which they belong, as would have to be done in the case of a recovery by the county board, under the first clause of the-section, of the whole amount of taxes due on forfeited property.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    J. W. Dulin et al. v. Ezra M. Prince.

      Filed at Springfield March 28, 1888.

    1. Contract—to procure homestead right—construed, as to character of right intended. One party to a written contract agreed to procure for the other “a good right to the north-east quarter of section 26, town 13, range 23, in Trego county, Kansas, as a homestead.” The proof showed that the parties had in view government lands, and that the right of homestead in contemplation was that secured by the United States laws to set--tiers: Held, that the covenant was only to procure for the covenantee the Tight to become an occupant of the tract as the claimant of a homestead, •and not to procure the title.
    2. Specific performance—refusal to perform, rendering an offer to perform by the other parly a useless act. A agreed in writing to convey to B twenty acres of land in this State, in consideration that the latter should procure for the former a good right to a certain quarter section of land in the State of Kansas, as a homestead, under the United States law. A wholly abandoned the contract and refused to perform it before the date at which B was required to or could have procured the homestead right: Held, ■on bill by B for a specific performance of the contract to convey the twenty acres, that no tender of the homestead right was necessary to the relief ■sought.
    3. And in such case, the fact that the homestead right was forever lost -through the non-compliance of A with the contract, and had ceased to exist, furnished no ground for the court to refuse to decree a specific performance ■of the contract by A.
    4. Practice—time to object—for va/ria/iice. An objection that there is .a variance between the allegations in a bill and the proofs, comes too late on appeal or writ of error. It should bo made in the trial court before the •case passes beyond its control.
    Writ of Error to the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Messrs. Tipton & Beaver, for the plaintiffs in error:
    Prince was never in a condition to comply with his part of -the agreement, nor was there any time when the Dulins could have compelled specific performance of him. Sutherland v. Parkins, 75 Ill. 339.
    Prince never put himself in a position to demand a conveyance. (Cronk v. Trumble, 66 Ill. 428.) It is not only necessary that a party asking to enforce a contract for the purchase ■ of a tract of land should make a tender of the purchase money, hut he must bring the money into court and deposit it with -the clerk. Doyle v. Teas, 4 Scam. 202; Wright v. McNeely, 11 Ill. 241; DeWolf v. Long, 2 Gilm. 679.
    In this case they do not bring into court any right to the -Kansas homestead whatever. We ask defendant in error, and we ask the court, what has Mrs. Dulin got for her land that, it is sought to divest her of in this proceeding ?
    This is not a case in which a court will enforce a specific-performance. Defendant in error was not in a condition to come into a court of equity and ask for a specific performance. Bates v. Wheeler, 1 Scam. 54; Doyle v. Teas, 4 id. 202; Frisby v. Ballance, id. 287; Johnson v. Dodge, 17 Ill. 433; Lear v. Chouteau, 23 id. 39; Kimball v. Tooke, 70 id. 553; Temple v. Johnson, 71 id. 13.
    It is manifestly true, Mrs. Dulin gets nothing for her land, and that the decree should be reversed and the bill dismissed.
    Mr. Ezra M. Prince, pro se:

    On May 10, 1886, Henderson filed a claim to the land as a homestead. This was a valuable right, that in time would grow into an absolute title. Switzer v. Skiles, 3 Gilm. 529.
    By Henderson relinquishing his right to the land, it would be open to entry by the next applicant,—so that it was necessary for Dulin to be present at the relinquishment. U. S. Stat. 1880, chap. 89, sec. 1.
    If there was a variance between the bill and the proof, it should have been objected to in the trial court, or it will be too late. Lyman v. Gedney, 114 Ill. 390; Ladd v. Pigott, 114 id. 652; Horne v. Walton, 117 id. 131; City of Elgin v. Kimball, 90 id. 356; City of Mattoon v. Fallin, 113 id. 249.
    Complainant in error, after neglecting to be at Wakeeny at the time the transfer of filings was to have been made, and could have been made, and after an unqualified refusal to accept a release of the claim at Joplin, while the land was yet clear and could have been filed on, now comes and objects the release was not formally filed in court. It is now too late to make that objection, “for when a purchaser announces his intention to the vendor not to comply with his contract before bill for specific performance is filed against him, no tender of a deed will be necessary.” Lyman v. Gedney, 114 Ill. 390; Towner v. Ticknor, 112 id. 217; Mathison v. Wilson, 87 id. 51.
    They further urge, that the decree did not give them the ' homestead right that they contracted for, and had had abundant opportunity to file upon, and might now be enjoying, had they not so willfully refused. There are some cases where a court will justly refuse the specific performance of a legal contract, but we are told “it is as much a matter of course for courts of equity to grant specific performance of a contract for the conveyance of land, when it is valid and unobjectionable in any of its features which address themselves to the judicial discretion of the chancellor, as it is for courts of law to award damage for a breach of a like contract.” McClure v. Otrich, 118 Ill. 320; Cohn v. Mitchell, 115 id. 124; Towner v. Ticknor, 112 id. 217.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This writ brings before us the record of a decree of the circuit court of McLean county, directing the specific performance of a contract for the conveyance of a twenty-acre tract of land therein described. The contract was reduced to writing, and the consideration for the conveyance of the twenty-acre tract was, that “said Prince agrees to procure for said Dulin a good right to the north-east quarter of section 26, township 13, range 23, in Trego county, Kansas, as a homestead.” It is contended, on behalf of plaintiffs in error, that the defendant in error never was in a condition to comply with his part of the contract, because he never had title to the land, and never had any right of homestead in himself.

The evidence shows that the parties, when they made this contract, had in view government lands, and that the right of homestead in contemplation was that secured by the United States statute to settlers, as a means of becoming owners. In that light we think the covenant was only to procure for plaintiffs in error the right to become occupants of the particular tract, as claimants of a homestead. It was not necessary that the defendant in error should have made any formal tender of performance, because the evidence clearly shows that plaintiffs in error wholly abandoned the contract and refused to perform it before the date at which defendant in error was required to or could have procured for plaintiffs in error the stipulated right. Mathison v. Wilson, 87 Ill. 51; Towner v. Tickner, 112 id. 217; Lyman v. Gedney, 114 id. 390.

But it is objected that plaintiffs in error are not awarded the homestead right by this decree. That was impossible, since it is shown by the evidence that by reason of their noncompliance with the contract the right is wholly lost. When the decree was rendered the right had ceased to exist in the defendant in error, through no fault of his.

It is finally objected, that there is a variance between the allegations and the proofs, in this: It is alleged in the bill that the defendant in error had fully performed all the covenants and agreements, but the proofs only show a waiver of performance by the plaintiffs in error. This objection comes too late. It should have been made in the lower court, before the case had passed beyond its control. Muttoon v. Fallin, 113 Ill. 249.

We perceive no sufficient reason for disturbing the decree. It is therefore affirmed.

Decree affirmed.

Mr. Justice Scott : I do not concur in this opinion.


author: Mr. Justice Magruder

text:
    The North British and Mercantile Insurance Company v. Charles F. Steiger.

      Filed at Springfield March 28, 1888.

    1. Insurance—agents knowledge of change of appliances, as a waiver of the question of the increase of risk thereby. A policy of insurance provided that if the insured premises should at any time be occupied or used so as to increase the risk, the policy should become void. After the giving of the policy, and before any loss, a fire-dryer was substituted for a steam-dryer used in the building insured, in making hominy and meal, which the’ company claimed increased the risk. On the trial in an action to recover for a loss, the court instructed the jury, that if the existence of the fire-dryer in use in connection with the insured property was known to the agent of the defendant company before the loss by fire, and the company did not cancel the policy, then the company waived the right to insist, on the trial, that the use of such dryer was in violation of the condition of the policy: Held, that while the instruction might not be technically correct, in omitting to submit to the jury the question of the agent’s knowledge of the increase of the risk, the rule in respect to the question of waiver was correctly given.
    2. Same—over-insurance—knowledge of agent as a waiver of condition. If an insurance company, with knowledge on the part of its agents that a party has already insured property for a greater sum than it allowed, or if such agents are chargeable with notice of such over-insurance, and after-wards deliver to him a policy on the same property, containing a clause against over insurance, this will amount to a waiver of the condition as to over-insurance, and the policy will be good, notwithstanding such over-insurance.
    3. Appeal—reviewing facts—and what is a question of fact. Whether the substitution of a “fire-dryer” in the place of a “steam-dryer” in a hominy mill increases the risk of an insurance company insuring the mill and machinery, etc., is a question of fact, and the decision of the Appeliate Court in relation thereto is final.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

      Messrs. John M. & John Mayo Palmer, for the appellant:
    An increase of the risk, after the delivery of the policy, by the assured, or those in privity with him, avoids it as conclusively as the breach of any other condition. May on Insurance, (2d ed.) secs. 220, 221.
    The court erred in instructing the jury as to the waiver of the condition as to act's increasing the risk. Knowledge of improvements by the company’s agents, without knowledge that they increased the risk, did not make it necessary to cancel the policy.
    The terms “estoppel” and “waiver,” though not technically identical, are so nearly allied, and, as applied in the law of insurance, so like in the consequences which follow their successful application, that they are used indiscriminately by the courts. May on Insurance, (2d ed.) sec. 505.
    A waiver presupposes a 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. Miller v. Insurance Co. 110 Ill. 102.
    A party should not be held to have waived a forfeiture, in the absence of facts constituting an estoppel, unless he intended to waive it, nor can he be held to have waived it unless he knew the facts constituting the forfeiture.
    It is therefore held, that in every instance, knowledge of the forfeiture is made necessary before there can be a waiver. (Robertson v. Insurance Co. 88 N. Y. 541.) And so it is held, with respect to the unauthorized acts of the agents, as binding upon the principal. Bennecke v. Insurance Co. 105 U. S. 355.
    While the knowledge of the agent is imputable to the principal, yet this holds only -as to knowledge, acquired in his capacity as agent. Mere rumors, or matters coming to his knowledge in his individual capacity, are not imputable to the principal. Neither is the insurer affected by knowledge as to the risk, or any changes therein, that come to the agent, in his individual capacity, after the contract is made. Wood on. Insurance, sec. 682.
    Mere casual conversations, in which the change is talked about with the insurer, or his agent, do not establish notice or knowledge of the change. Knowledge in fact, or notice of the extent of the change, must be shown. Sykes v. Insurance Co. 34 Pa. St. 79.
    Upon familiar principle, if there is no knowledge, or if the state of facts be not such that knowledge ought to be inferred of the breach of the condition or neglect of duty, there can be no waiver, as no one can be presumed to have waived that, the existence of which he has not known. May on Insurance, sec. 506.
    In order to estop the insurer, the act claimed as a waiver must be shown to have been done with a full knowledge of the forfeiture. Wood on Insurance, sec. 681.
    Messrs. Bradley & Carpenter, for the appellee:
    When the assured fully discloses to the company, or its agent, the necessary facts, or they are otherwise cognizant of them, and they dispense with any act on his part, they are estopped from denying the description adopted in the policy. Insurance Co. v. Fish, 71 Ill. 620; Insurance Co. v. Wright, 22 id. 473; Insurance Co. v. Cormick, 24 id. 461; Insurance Co. v. Chesnut, 50 id. 116; Martin v. Insurance Co. 11 Barb. 624; Insurance Co. v. Schettler, 38 Ill. 166; Insurance Co. v. McDowell, 50 id. 128; Insurance Co. v. Nelson, 65 id. 415; Insurance Co. v. Nelson, 75 id. 548; Insurance Co. v. Wells, 89 id. 82; Insurance Co. v. McKee, 94 id. 494.
    Insurers can not take advantage of omissions or misstatements as to any fact which it was their duty to state correctly. Burley v. Insurance Co. 36 N. Y. 550; Peck's case, 22 Conn. 575; Bebee’s case, 25 id. 51; Franklin’s case, 42 Mo. 457; Beal's case, 16 Wis. 241.

      In the case of Malleable Iron Works v. Insurance Co. 25 Conn. 465, the court says of an agent equipped for business, as Giehlman was here: “He had an implied power to explain the questions and answers required, and that his error or omissions could not be given in evidence as a breach of warranty by his principals. ” This rule is supported by Plumb’s case, 18 N. Y. 392; Rowley’s case, 36 id. 350; Moleet’s case, 5 Rawle, 342.
    The same rule is applicable to a case where the policy is prepared by the agent without any written application therefor, as to the recitals of fact in the written portion of the policy, as would be to a case where such application was made,—that is, that the same rule applies to the preparation of the policy that would apply to the preparation of the written application therefor. May’s case, 25 Wis. 306; Schettler’s case, 38 Ill. 166; Wilkinson’s case, 13 Wall. 236; Insurance Co. v. Mahone, 21 id. 156.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of assumpsit upon a fire insurance policy, dated October 6, 1881, and running one year, brought by appellee against the appellant company in the circuit court of Sangamon county, which resulted in verdict and judgment for the plaintiff, and in the affirmance of such judgment by the Appellate Court, whence the case is brought before us by appeal.

The property insured consisted of a hominy mill, being a two-story brick building and one-story brick building adjoining, together with engine, boilers, shafting, etc., situated just outside of the western limits of Springfield. It was destroyed by fire on April 16,1882. The ease has been three times tried in the circuit court and has also been passed upon three times by the Appellate Court.

The defence made was two-fold. First, it was claimed that the plaintiff had violated the contract of insurance by increasing the risk after the execution of the policy and before the occurrence of the fire. Second, it was contended, that the plaintiff was guilty of a further violation of the contract by procuring a larger amount of insurance in other companies, than was permitted by the terms of the policy sued upon.

With reference to the first ground of defence, the policy provides that, if the premises shall at any time be occupied or used so as to increase the risk, or the risk be increased by the erection or occupation of neighboring buildings, or by any means whatever within the control of the insured, without the consent of the company indorsed on the policy, the policy shall become void. The manner, in which the risk is said to have been increased, was by the substitution of a “fire-dryer” for a “steam-dryer.” The proof shows that a “dryer” is always used in mills, where hominy, meal, etc., are manufactured, in order to decrease the moisture in the grain and thus render the product more salable in the market. When the policy in this case was issued, the “dryer” in use in plaintiff’s mill was a “steam-dryer.” Before the destruction of the property on April 16, 1882, the occupants of the mill, holding as tenants under the plaintiff, had introduced, a “fire-dryer” and were using it in the place of the “steam-dryer.” The difference between a “steam-dryer” and a “fire-dryer” was explained in German-American Ins. Co. v. Steiger, 109 Ill. 254, and need not be repeated here.

Whether or not the risk was increased by the substitution of one kind of “dryer” for another was a question of fact, and the decision of the Appellate Court in reference thereto is final. Schmidt v. Peoria Marine and Fire Ins. Co. 41 Ill. 295; German-American Ins. Co. v. Steiger, supra.

Complaint, however, is made of the second instruction given for the plaintiff. That instruction told the jury, that, if the existence of a fire-dryer, in use in connection with the insured property, was known to the agent of the defendant before the happening of the loss of the property by fire, and the defendant did not cancel the policy, then the defendant waived the right to insist at the trial upon the existence and use of such dryer as being in violation of the conditions of the policy. The objection urged is, that the defendant is held responsible if its agent knew of the existence of the fire-dryer, whereas it should only be held responsible in case such agent knew of an increase of the risk. In other words, it is said, that the defendant must have had knowledge not merely that the fire-dryer was in use hut that the effect of such use was to increase the risk, and that the instruction is erroneous in ignoring this distinction. The instruction may not be technically accurate in the respect thus indicated. But we do not think that it could have misled the jury when read in the light of the testimony and in connection with the other instructions given for the defendant.

It was contended, on the trial, by the defendant, that the use of the fire-dryer increased the risk, and, by the plaintiff, that it did not increase the risk. Both sides introduced a large amount of testimony in favor of their respective positions upon this question. The risk was not claimed to have been increased in any other way than by the use of the fire-dryer. Hence, the subject of the fire-dryer was only presented to the jury in connection with and as bearing upon the effect of its use upon the risk. They could not have understood under the instructions given for defendant, that knowledge of the existence of a fire-dryer implied anything else than a knowledge of increase of risk. The first instruction given for defendant told them, if they believed from the evidence, that, after the issuance of the policy, the plaintiff or his lessees increased the risk without the knowledge or consent of the defendant, etc., then the verdict should be for the defendant. The fifth instruction given for defendant told them, if they believed from the evidence, that, after the delivery of the policy, the premises were so occupied or used as to increase the risk, without the knowledge or consent of the defendant, such increase of risk would avoid the policy, and the verdict should he for the defendant. The seventh instruction, given for defendant, was as follows:

“The court instructs the jury, that the defendant can not be held to have waived the condition of the policy with respect to the increase of risk, unless the jury believe, from the evidence, the defendant, by its agents, had knowledge of the extent and character of the increase of risk, if the risk was increased; and with such knowledge of the extent and character of such increase of risk, consented thereto, or so conducted themselves toward the plaintiff as to induce a reasonable belief in the mind of the plaintiff that such increase of risk would not be insisted upon by the defendant as a defence to the policy.”

As to the second ground of defence set up on the trial below, no instruction in relation to it was given for the plaintiff, nor was there a refusal of any instruction asked by the defendant upon that subject. The policy provides, that it shall become void, “if the assured shall have, or shall hereafter make any other contract of insurance, whether valid or not, on the property hereby insured, or any part thereof, without the consent of the company written hereon.”

The evidence tends to show that, on October 6,1881, plaintiff had more insurance in other companies upon the property afterwards destroyed than was permitted by the terms of the policy in the defendant company. But the evidence also tends to show, that defendant’s agents, before delivering to plaintiff the policy sued on in this case, had knowledge of the amount of such over-insurance, or were referred by plaintiff, in answer to their own inquiries upon the subject, to parties within easy reach, from whom they could have derived such knowledge. In other words, the proof tends to show a waiver by defendant of the requirement of the policy as to over-insurance. Whether there was such a waiver or not was a question of fact fairly presented to the jury under the instructions asked by defendant and given in its behalf.

By one of those instructions the jury were told “that if they believed from the evidence, that, by the terms of the policy the plaintiff was permitted to obtain or carry concurrent insurance to the amount named in the policy, and that at that time or afterwards or both, without the knowledge or consent of the defendant, he obtained a larger amount of insurance than that limited in the policy, such act would avoid the policy” and the finding should be for the defendant. By another, they were instructed as follows: “If the plaintiff relies upon a waiver of any of the conditions of the policy by the defendant, the burden of proving such waiver is upon himself, and unless the plaintiff has proven, by a preponderance of the evidence, that the conditions of the policy which he insists were waived, were actually waived, and, if the jury believe, from the evidence, that the conditions were disregarded by the plaintiff, then their verdict should be for the defendant.”

We find no error in the record which would justify us in a reversal of the judgment.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    The City of Springfield v. Mahlon H. Mathus et al.

      Filed at Springfield March 28, 1888.

    1. Special assessment—ordinance for sewer—location of man-holes. An ordinance requiring the construction of a sewer in a certain street, provided that “said sewer shall be two feet inside diameter, and shall be constructed of the best brick and cement, in the best workmanlike manner, with necessary man-holes and inlets for surface drainage, ” etc.: Held, that the ordinance was sufficiently certain in specifying the location of the manholes.

      2. The word “necessary,” in such ordinance, should he taken as a restrictive term, as respects the location of the man-holes, going to show where they should be constructed,—that is; they were to be where it was necessary and proper they should be. The words “necessary man-holes” would enable a civil engineer to determine where the man-holes should be built.
    Appeal from the County Court of Sangamon county; the Hon. James H. Matheny, Judge, presiding.
    Mr. Joseph M. Grout, and Mr. Clinton L. Conkling, for the-appellant.
    Mr. Thomas S. Casey, and Mr. Alex. J. Walker, for the appellees.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This is an appeal by the city of Springfield, from an order of the county court of Sangamon county sustaining objections by certain lot owners, to a special assessment made by the city for the construction of a sewer, and dismissing the special assessment proceeding as to the objectors. The question presented upon the record is, whether the ordinance under which the special assessment was made, sufficiently describes the improvement.

The statute under which the ordinance was passed, jirovidesthat when any such local improvement as this is to be made by special assessment, the city council shall pass an ordinance to that effect, specifying therein the nature, character, locality and description of such improvement. (Bev. Stat. 1874, chap. 24, see. 134, p. 234.) The ordinance, so far as material to the present inquiry, is as follows:

“Sec. 1. That the following local improvement be and the same is hereby ordered to he made in said city, to-wit: That a single-ring brick sewer be laid in College street, in said city, from the center of its intersection with Allen street, connecting properly with the sewer in Allen street, north to a point one hundred and seventy-two feet north of Cook street, said sewer to be built as near the center line of College street as may be.

“Sec. 2. Said sewer shall be two feet inside diameter, and shall be constructed of the best brick and cement, in the best workmanlike manner, with necessary man-holes and inlets for surface drainage of the street and adjacent property, and shall be laid at a proper depth and grade to give it proper fall and outlet, and shall be constructed under the supervision of the city engineer, and in accordance with the plans and specifications furnished by him.”

The insufficiency in the description of the improvement relied on is, in not specifying the location of the man-holes. It is supposed by counsel to be sufficient for the sustaining of this objection to refer to the cases of Village of Hyde Park v. Spencer, 118 Ill. 446, and Ogden v. Town of Lake View, 121 id. 422. It is true, that in the first named case, after pointing out other substantial particulars wherein the ordinance failed to specify “the nature, character, locality and description” of the improvement, the court did say: “The ordinance is also defective in not specifying, with sufficient definiteness and certainty, the location of the man-holes and man-traps, and in giving no specifications from which the cost of the pumping engines and boilers, and their foundations, can be estimated.” The court there placed its decision upon the authority of Levy v. City of Chicago, 113 Ill. 650, and City of Sterling v. Galt, 117 id. 11, the former of which cases merely decided that an ordinance for the improvement of a street was sufficiently definite in its using the term of “filling” the street,—that it might be shown by civil engineers and street contractors what was comprehended by the term “filling,” as generally understood by them, and thereby make the description in the ordinance sufficiently definite. What was said further on this subject but repeated the language of the statute that it was necessary the ordinance ■should specify the nature, character, location and description of the improvement. In City of Sterling v. Galt, there was no description at all of the size, grade or materials of the sewer.

All that Ogden v. 'Lake View holds is, “that the ordinance which provides for the construction of certain sewers, manholes and catch-basins, does not, so far as the man-holes and catch-basins are concerned, conform to the requirements of section 135 of the City and Village act, in this, that it fails to specify ‘the nature, character, locality and description of the improvement.’ It has been repeatedly held that an ordinance which does not do this, is invalid, and that any assessment founded upon it is equally so. Levy v. City of Chicago, 113 Ill. 650; City of Sterling v. Galt, 117 id. 11; City of Kankakee v. Potter, 119 id. 324.” The ordinance there does not appear in the report of the case, nor does the opinion point out wherein it was that the man-holes were not sufficiently described. In that last ease there cited,—City of Kankakee v. Potter,—like as in City of Sterling v. Galt, the ordinance gave no idea of the nature of the sewer to be built, there being no description whatever of the size or materials of the sewer. Certainly these cases, upon the authority of which Village of Hyde Park v. Spencer, and Ogden v. Lake View, are declared to be founded, decide nothing as to the necessity of an ordinance designating the location of the man-holes of a sewer. Manifestly, declaring that the ordinance must specify the nature, character, locality and description of the improvement, and that an ordinance for the construction of a sewer, merely, without specifying its size or materials, does not do this, decides nothing in the respect named.

This is all the purport of such former decisions; and as Village of Hyde Park v. Spencer, and Ogden v. Lake View, profess to decide no more than what had been held in the cases they cite, we do not think that they, at least in view of other decisions of this court, and the differing circumstances of the present case, are to be taken as requiring the decision that the ordinance here is invalid, in that it does not designate the exact spot where the man-holes of the sewer are to be placed.. The ordinance must specify “the nature, character, locality and description of such improvement.” The improvement here was the sewer, and its locality was definitely described.

In Lake v. City of Decatur, 91 Ill. 596, a ease of a street improvement, the ordinance itself did not fix the grade of the street, but required the city engineer to fix its grade, and it. was held the ordinance was not rendered invalid by this fact, when the cost had been estimated by a committee appointed by the city council, and their report approved.

In Railway Co. v. City of Jacksonville, 114 Ill. 562, a case of the improvement of a public street, the ordinance provided: “The pavement shall be what is known as the ‘Bloomington Brick Pavement.’ The foundation thereof shall be laid of cinders, sand, gravel, or other materials equally suitable, at least six inches deep, conforming to the grade to be established by the city, through the city engineer,” etc. The opinion gives the report of the committee appointed by the city council to make estimates of the cost of the improvement, wherein cinders and sand were estimated for,- giving the cost of each, specifically, and it was remarked upon, that the report which was approved by the city council showed that sand and cinders, alone, were estimated for the foundation of the pavement. It was held that the ordinance was not fatally defective in that it did not determine, specifically, the material of which the foundation of the pavement was to consist.

It is thus seen, that in both these cases the report of the committee appointed in pursuance of section 135 of the statute, to make an estimate of the cost of the improvement, approved by the city council, wras taken, in connection with the ordinance, in helping out any supposed uncertainty of the latter in describing items of the improvement. In the present case, the report of the committee thus appointed, which was approved by the city council, was, as to its estimate of the cost of the improvement, as follows:

In Village of Hyde Park v. Spencer, the committee’s report •of its estimate of the cost of the improvement was, total cost, $116,000, composed of items named, one of which was: “Cost of main sewer, with wells, man-holes, catch-basins, house-•connections, slants, etc., $44,000.” Thus, in that case, there was no estimate, in the report of the committee, of the cost of the man-holes, of themselves. And in the same manner, in Ogden v. Lake View, it will be found, from the record, that the committee’s report was but an aggregate estimate of the cost •of the sewers, ($108,000,) without an itemized statement of any particular parts of the work. So that such reports, taken in connection with the ordinances, were of no aid there, in fixing any certainty with respect to the man-holes, whereas, in the case before us, the report contains a specific estimate of the cost of each man-hole.

The ordinance here provides that the sewer shall be constructed with necessary man-holes. The word “necessary” is here a restrictive term, as respects location, going to show where, upon the sewer, the man-holes should be constructed,— that they were to be where it was necessary and proper that they should be. The description, “necessary man-holes,” no doubt, would enable a civil engineer to determine where the man-holes should be built, as well as from the word “filling, ” used, in the ordinance in the case of Levy v. City of Chicago, an engineer and street contractor would understand of what material the filling of a street was to be composed. There was not the use of the term “necessary” in the case of Village of Hyde Park v. Spencer, or that of Ogden v. Lake View, hut ■man-holes, simply, were named, without any qualifying word of description whatever. In City of Kankakee v. Potter, in reference to such an ordinance, it was said: “It is not expected that an ordinance of this kind should set forth the details and all the particulars of the work. Indeed, this is not contemplated, and the statute requires nothing of the kind. A substantial compliance with its provisions is all that is required.” Section 135 of the statute provides that the city council shall appoint three of its members, or three other competent persons, who shall make an estimate of the cost of the improvement contemplated by the ordinance, including labor, materials, and all other expenses attending the same, and the cost of making and levying the assessment, and shall report the same in writing, to the council. And by section 136, on the report being made and approved by the council, it may order a petition to be filed for proceedings to assess the cost of the improvement.

The purpose of the requirement that the ordinance shall specify the nature, character, locality and description of the improvement, is thus stated in Levy v. City of Chicago: “Indeed, no intelligent estimate of the cost of the improvement could be made by the commissioners to be appointed under section 135 of the statute, unless the ordinance prescribes definitely the nature and character of the improvement,— hence the necessity for such a description in the ordinance.” And that was recognized as the reason for such requirement in City of Kankakee v. Potter.

If, then, such be the object of the requirement of a specification of the nature, character, locality and description of the improvement, that the committee to be appointed under section 135 may make an intelligent estimate of the cost of the improvement, does not the ordinance, here, fully serve that object? The committee appointed here, do make an estimate of the cost of each one of the man-holes, specifically. Their estimate of the cost of each one is the same, ($25,) which was approved by the city council. What useful end, then, could have been served by the designation of the exact spots upon the sewer where the man-holes should he constructed? We see none in this case, and are of opinion that the ordinance, here, was in sufficient compliance with the requirement of the statute in specifying the nature, character, locality and description of the improvement, that the object of the requirement was sufficiently fulfilled, and that the ordinance should not he held invalid for want of any certainty in the description of the improvement contemplated.

The order of the county court will be reversed, and the cause remanded for further proceedings.

Order reversed.


author: Mr. Justice Mulkey

text:
    The People ex rel. Lewis E. Ijams, Collector, v. J. A. Meyers et al.

      Filed at Springfield March 28, 1888.

    1. Special assessments—under Drainage la/w—benefits—of their distribution and apportionment—the statute construed. Taxes levied for drainage purposes are required to be distributed or apportioned among the different tracts of land, according to the classification to be fixed by the commissioners. The land owner has the right of appeal from the assessment of benefits to his land, and the judicial determination of that question is conclusive as to the amount of benefits his land will receive, and he can not be required to pay anything beyond such amount. An assessment under the Drainage act, in excess of the benefits, is void as to such excess.
    2. The commissioners of a drainage district required a certain amount to be levied upon the lands in the district, according to their classification, which was done, and on appeal to the county court the sums assessed against the lands of those appealing were considerably reduced. In the meantime the Auditor of Public Accounts certified to the county clerk, as provided by law, the amount necessary to be raised to pay interest on bonds which had been issued under the Drainage law, and incidental expenses, and the clerk apportioned this tax among the several tracts in the district according to their benefits, as shown by the original assessment thereof, the appeal not having yet been tried. On application for judgment, the assessment not having been paid, the county court sustained an objection to the tax, and reduced the same so as to make it conform to the amount of benefits as fixed by the judgment of the county court, on the trial of the appeal: Held, that the reduction as made by that court was proper and right.
    Appeal from the County Court of McLean county; the Hon. C. D. Meyers, Judge, presiding.
    Messrs..Tipton & Beaver, and Mr. E. A. Wallace, for the appellant.
    Messrs. Fiber & Phillips, and Mr. James S. Ewing, for the .appellees.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Esterbrook Special Drainage District No. 1, in McLean •county, was duly organized in 1882, under the general Drainage act. The district includes within its boundaries parts of four different townships. The lands within it were properly platted and classified by the commissioners, as required by section 21 of the act of 1885, and no appeal was taken by appellees from ihe classification as finally corrected, and it is conceded by their counsel that the same is still in full force and effect. On the 28th of July, 1886, to meet the estimated •cost of the entire improvement, the commissioners levied a tax of $30,000 on the lands within the district, which was properly certified and duly extended against the several parcels, according to acreage and the ratio of benefits, as fixed by the •classification already established. The gross amounts charged to appellees, when so extended, were, respectively, as follows: J. A. Myers, $710.66; Thomas B. Creigler, $195.09; A. N. Brittin, $1144.16; H. Merritt, $1270.36; William Moore, .$348.18; 0. A. Green, $435.55; Oscar Willis, $599.14; 0. Orendorff, §180.26. From these assessments, appellees severally took appeals to the county court, where the cause was tried hy a jury, resulting in a verdict greatly reducing the amounts. Myers’ was reduced to §150; Creigler’s to §40; Brittin’s to §400; Merritt’s to §300; Green’s to §50; Orendorff’s to §40; Willis’ to §300, and Moore’s to §50; and the court entered judgments for these reduced amounts. In the meantime the district had issued and negotiated interest bearing bonds to raise funds to meet the expenses of the proposed improvement, as provided by the act, and they had been filed with the Auditor of the State for registration. On the 8th of November following, the Auditor certified, as required hy law, to the county clerk of McLean county, that.the interest on said drainage bonds, together with the costs of collecting and disbursing the same, amounted to §2027, and directed him to apportion the same against the lands within said district. This the clerk did, according to the acreage and ratio of benefits, as fixed hy the established classification of the same. Indeed, it could not have been done in any other way at that time, as the judgments in the county court reducing the original assessments on this basis were not rendered until in April, 1887, some five months later. Appellees refused to pay the taxes thus extended against their lands, and they were accordingly returned by the county collector as delinquent. On application by him for judgment, it was contended by appellees, that the assessment should he so reduced as to make it conform to the amount of benefits, as fixed by the judgments of the county court. This contention of appellees was sustained hy the court, and judgments were entered against the lands accordingly. Whether the county court erred in thus holding, presents the only question to be determined on the present appeal.

We have no serious doubt as to how the question should be decided. The only difficulty encountered in its consideration consists in the fact that there is an apparent repugnance in some of the provisions of the statute bearing upon it. In every instance where taxes are authorized to be levied for drainage purposes, the statute expressly directs that they shall be distributed or apportioned among the different parcels of land, according to the graduated scale or classification to be fixed by the commissioners, and the statute in this respect has been literally complied with. While this is true, the statute at the same time gives to each land owner the right to appeal from an assessment and apportionment so made, for the purpose of questioning the amount of benefits charged against his land. The appellees availed themselves of this right, and it resulted, as we have seen, in a large reduction, in each case, of the amounts respectively assessed against them. That the judgments, on appeal, thus reducing the assessments, are con-elusive as to the amount of benefits, and that appellees, in no-event, can be required to pay anything beyond them, is too clear to admit of serious question. It is also equally clear that an assessment under the Drainage act in excess of the benefits, is simply void as to such excess. Notwithstanding all this, in making a subordinate assessment under the act, we find no provision in it expressly authorizing the substitution of the judgments for the corresponding amounts fixed by the original apportionment; yet the right, or rather duty, to make such substitution, must be inferred from the very necessity of the case, and to prevent a manifest failure of justice.

Since, as we have just seen, the full measure of appellees’ liability is irrevocably fixed by the judgments, it is manifest that if the court below had not adopted them as the basis of ' its findings, the appellees would have been compelled to pay more than their proportionate share of the installment of taxes then due. This, of course, was not admissible, and any construction of the statute leading to such results can not be accepted as the true one. This view, which certainly is the only one that can be accepted, may, and probably will, result in hardships to those who did not appeal from the original assessment. This will certainly he the case, assuming the commissioners’ classification of the lands, and the judgments on appeal from the assessment, are both right. And this we must do, since the first is conceded to be right, and the second, being res judicata, can not be questioned. The error, theoretically at least, we must assume, was in fixing the total amount of benefits. But what the real fact as to this is, of course no one can tell. It is a matter of pure conjecture, hut as no appeal was taken from the classification or the judgments, they are both, for the purposes of this suit, conclusively presumed to be correct, whatever the real facts may be. As to the apparent hardship upon those who did not appeal from the assessment, the answer of course is, that they had the same right of appeal that appellees had, and if they neglected to exercise it, it is their own fault. The most serious trouble, however, is the fact that the course matters have taken will probably leave the district between $3000 and $4000 short of funds with which to meet their bonded indebtedness. This will certainly be the case, assuming that the lands of those not appealing from the assessment were assessed to the full amount of the benefits, of which there can be hut little, if any, doubt. But these are matters, however much to be regretted, we are powerless to alleviate or control. Nor is any remedy perceived, so long as the judgments on appeal from the original assessment remain unreversed, or are not otherwise set aside.

The judgment will he affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    The Northwestern Benevolent and Mutual Aid Association v. John W. Primm.

      Filed at Springfield March 28, 1888.

    1. Continuance—want of diligence.. The only excuse for having taken no steps to procure the attendance of witnesses in a case, or for not having taken their depositions, was an agreement to take depositions before a stenographer, and have him write out the testimony without being signed by the witnesses. The affidavit showed that after the testimony of several witnesses had been so taken, plaintiff's attorney refused to proceed further until the pleas were filed. The defendant failed to file pleas until required by rule of court, in term time, and took no steps to take further depositions, by notice or otherwise: Held, that there was no such diligence as entitled the defendant to a continuance under the statute.
    2. Same—absence of counsel. On application for a continuance, one of the counsel filed an affidavit showing that he was the only one of those associated in the case familiar with the facts, that the case was a complicated one, and that he was engaged as counsel in another court, in a case of great importance, set for the same time, which it would take two days to try. The court refused to continue, but set the case for trial on a day subsequent to his engagement in the other court, on which day another motion for a continuance was made, which was also denied, and the cause tried two days later: Held, that the applications for continuance were properly refused.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Logan county; the Hon. Cybus Eplee, Judge, presiding.
    Messrs. McNulta & Weldon, and Mr. Hamilton Spencer, for the appellant.
    Messrs. Blinn & Hoblitt, and Mr. John L. Bevan, for the .appellee.
   Per Curiam :

The question here presented arises upon the ■overruling of the motions for continuance by the circuit court. This suit was brought upon the certificate of membership in appellant association, by which the sum of $3000 was payable to appellee, as beneficiary, upon the death of his wife, Laura L. Primm, the member insured. The suit was brought and declaration filed on the 25th of June, 1885, returnable to the September term, 1885, of the Logan circuit court. The appearance of the defendant below (appellant here) was entered. Under a rule of court, pleas were filed September 23, the cause tried on the 30th of the same month, and judgment rendered on the verdict October 7, 1885. On the 23d of September, appellant moved the court to continue the cause to the next term, and filed in support thereof the affidavits of its solicitor, and its adjuster, Lambert. The affidavit of the solicitor stated that he had had charge of the case for the defendant, and was; familiar with the facts, while none of his associates were, and that his attendance was necessary to the proper trial of the case, etc.; that he was engaged as counsel in an important case in the McLean circuit court, set for trial that day, in which some fifty witnesses had been subpoenaed, and the trial of which would consume two or more days; that his presence was necessary to the proper trial of each of said cases; that he could not attend, for this reason, on the trial of this cause-on September 25, and showing, that by reason of the complicated facts of this case, no other counsel could, in the time available, so familiarize himself as to secure a fair trial to appellant. The affidavit of the adjuster, Lambert, was to the effect that the defendant could not safely proceed to trial because of the absence of Frank L. Sabin, and others named, by whom defendant expected to be'able to prove false representations, set out as to the health and physical condition of the insured, prior to and at the time of the application for the certificate sued on.

It is not seriously questioned, but that the facts expected to be proved by the absent witnesses, as set forth in the affidavit, were material upon the issues made by the pleadings. No effort is shown to have been made to procure the attendance of these absent witnesses, or to take their depositions. It is sought, however, to excuse the want of diligence by the statement that appellant’s appearance was entered by his attorney upon the verbal agreement with plaintiff's attorney that the evidence of each party might be taken before a stenographer, and written up by him, the signatures of the witnesses being waived, and the evidence thus taken should be used as if taken by deposition; that in pursuance of this agreement, about June 25, 1885, the testimony of a number of witnesses was taken, and appellant’s attorney had arranged for taking others, when appellee’s attorney refused to proceed further, under this agreement, until after the filing of pleas to the declaration, for the reason that he, as attorney for plaintiff, desired to know on what points evidence would be necessary, and that he might intelligently cross-examine witnesses; and thereupon the taking of testimony was suspended, and plaintiff’s attorney was notified that pleas would be filed within the rules-of- the court.

In this application for continuance, no reason is shown, or attempted to be shown, why pleas might not have been filed at once; nor is it pretended that there was any agreement, by which, after the filing of pleas, under the rule, the cause should be continued for the taking of testimony. Appellant’s attorney must have known, from the scattered condition of its witnesses, as disclosed, that such continuance would be necessary if the pleas were withheld until the term. Appellant chose to withhold its pleas, and also' to abstain from taking testimony, on notice or otherwise, until the coming on of court. We think no such diligence was shown as entitled appellant to a continuance, under the statute; nor do the facts disclosed constitute any legal excuse for appellant’s failure to prepare for trial. So much of the application as'related to the inability of counsel to be present in the Logan circuit court, was addressed to the sound discretion of the court, and the court very properly overruled the motion for continuance, and set the case for a day beyond which, as - appeared from the affidavit, the professional engagement of the attorney would necessitate his absence from said court, the cause being set by the court for the 28th of September. On the 28th another motion was made for continuance of the cause, by defendant, based upon the affidavits of the same parties, that of the solicitor setting up more in detail the principal facts relied upon on the first application,—which motion was also overruled by the court.

There is nothing shown in the second application to have occurred subsequent to the first application, authorizing a continuance. Everything set up as grounds for a continuance existed at the time of the application first made. It has been repeatedly held by this court, that amendments to affidavits for continuance will not be allowed. The practice is unwarranted by any decisions of this or other courts, of which we are aware. Second applications for continuance, for the same ground relied upon in the first, or which existed at the time of such application within the knowledge of the party making it, so far as we know have never been permitted. This question was before this court in Stockley, Admr. v. Goodwin, 78 Ill. 127, where it was said: “Such a practice would, in effect, be allowing an affidavit for a continuance to be amended, which has never been permitted by any court of which we have any knowledge.”

In the second affidavit of the solicitor, the fact that he was a receiver of a railroad, and would be required to attend upon the United States court, is set up. This, and other matters of a kindred nature, were addressed to the discretion of the court, and we are not prepared to say that there was any abuse of the discretion in overruling the motion. It is apparent that the attorney of appellant knew of his engagements, and of the •probable necessity of his attention to them, in ample time to have permitted other counsel to have become familiar with appellant’s case and prepared it for trial.

Upon the coming in of the second application the cause was further postponed until the 30th of September, when it was tried; and it is not apparent, from the showing, that appellant’s solicitor and his associates could not have been present; nor does it appear, in any way, that they were not present conducting appellant’s defence, nor that any application was made for further postponement of the case until a later day in the term.

The judgment of the Appellate Court will therefore he affirmed.

Judgment affirmed.