text:
    George Panton v. The People of the State of Illinois.

      Filed at Ottawa September 21, 1885.

    1. Cbiminal law—self-defence -when danger only apparent. If a person assaulted in such a manner and under such circumstances as to induce in him a reasonable and well-grounded belief that he is actually in danger of losing his life or suffering great bodily harm, acts under such belief, he will be justified in defending himself, whether the danger is real or only apparent.
    2. Same—as to the grade of the offence—the jury to determine, not the court. Under an indictment for murder the accused may be found guilty of manslaughter, and the instructions in such a case should leave the jury free to find whether he is guilty of murder or manslaughter. Therefore, an instruction that if the jury shall believe, from the evidence, certain facts, they should find the defendant guilty of murder, is erroneous. It should direct no more than to find him guilty.
    3. Witness—credibility of one charged with crime, when testifying in his own behalf. A clause in an instruction, on the trial of a party upon a charge of murder, who had testified in his own behalf, after reciting certain facts, was to this effect: “And if, from all such facts and circumstances in evidence, the jury believe that he (the defendant) has testified falsely upon any material point in issue in the case, then they have the right to entirely disregard his evidence, except so far as it may be*corroborated by other credible proofs or circumstances in evidence. ” The instruction was held erroneous, in omitting the essential element that the witness had willfully and knowingly sworn falsely.
    4. Ebbor will not always reverse—as to instructions. An instruction given on the trial of a person upon the-charge of murder, upon the law of self-defence, against the defendant, though abstractly erroneous may not afford a ground for a reversal of a judgment of conviction, where no case of self-defence is shown by the evidence.
    Writ of Error to the Circuit Court of Boone county; the Hon. C. W. Upton, Judge, presiding.
    Mr. Frank Crosby, Mr. Charles E. Fuller, and Mr. John A. Russell, for the plaintiff in error:
    The fourth of the People’s instructions, to the effect that to make the plea of self-defence availing it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary, is not and never ivas the law. Campbell v. People, 16 Ill. 17; Schnier v. People, 23 id. l7; Maher v. People, 24 id. 241; Roach v. People, 77 id. 30; Davison v. People, 90 id. 221; Steinmeyer v. People, 95 id. 383; Gainey v. People, 97 id. 270; Wilson v. People, 94 id. 299.
    The People’s tenth instruction is equally erroneous. The last clause, “and you should find him guilty of murder, ” is not only a positive order from the court to convict, but it instructs the jury virtually to pay no attention to any otherdefence than that of insanity, and to consider no mitigating circumstances, but to. find defendant guilty of murder. Roach v. People, 77 Ill. 30.
    Mr. A. J. Hopkins, Mr. N. J. Aldrich, Mr. F. H. Thatcher, and Mr. T. E. Ryan, for the People:
    The fourth of the People’s instructions is in the exact language of section 149 of the Criminal Code. (Kinney v. People,
      108 Ill. 520.) In all the cases cited by plaintiff in error the only defence relied on was self-defence.
    Even if improper instructions, have been given or other errors intervened, yet if substantial justice has been done, the judgment will not be disturbed. Greenup v. Stoker, 3 Gilm. 215; Dishon v. Schorr, 19 Ill. 63; Leigh v. Hodges, 3 Scam. 18; Gillett v. Sweat, 1 Gilm. 490; Newkirk v. Cone, 18 Ill. 454; Elam v. Badger, 23 id. 502; Insurance Co. v. Wetmore, 32 id. 251; Railroad Co. v. Swearingen, 47 id. 209 ; Bandalow v. People, 90 id. 221; Ritzman v. People, 110 id. 362.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The judgment in this ease must be reversed for the giving of three erroneous instructions on behalf of the People, as follows:

“The court instructs the jury that when a person charged with murder, and not affected with insanity as explained to you, sets up as 'a justification or defence that he killed such person in self-defence, to make such plea of self-defence availing it must appear that the danger was so urgent and pressing that in order to save his own life or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to.decline any further struggle before the mortal blow was given.
“The court instructs the jury that it is not every degree or kind of insanity that will excuse the commission of a criminal act, and in this case, if you believe, from the evidence, beyond a reasonable doubt, that the defendant committed the homicide charged, and at the time of committing the same that he was able to distinguish between right and wrong, and knew that the act committed was wrong and in violation of law, and that he was liable to be punished therefor, and that .he had the power to abstain therefrom, then, no matter what delusion he may have had or what tendency to insanity from hereditary causes, such1 insanity would not constitute a legal defence in this ease, and you should find him guilty of murder.
“The court instructs the jury that by a statute in this State the prisoner is permitted to testify in his own behalf, but by such permission under the statute the jury are not bound to accept of the prisoner’s statements upon the witness stand as to the truth. They have the right, in determining how much, if any, credence they will give to his statements, to take into consideration the facts and circumstances in evidence in the ease, the manner and conduct of the prisoner while on the witness stand, his interest in the result of the suit; and if, from all such facts and circumstances in evidence, the jury believe that he has testified falsely upon any material point in issue in this case, then they have the right to entirely disregard his evidence, except so far as it may he corroborated by other credibld proofs or circumstances in evidence in this case. ”

In Roach et al v. The People, 77 Ill. 26, a like instruction as the first was held erroneous, in that it would convey to the minds of the jury the idea that the defendants could not sustain their alleged justification of self-defence unless their danger was not only apparently imminent, but was actual and positive. This court has repeatedly held, that if the defendant was assaulted by the deceased in such a manner as to induce in him a reasonable and well-grounded belief that he was actually in danger of losing his life or suffering great bodily harm, when acting under such reasonable belief he was justified in defending himself, whether the danger was real or only apparent. Campbell v. The People, 16 Ill. 17; Schnier v. The People, 23 id. 28; Davison v. The People, 90 id. 221.

The last clause of the second above instruction was wrong in saying, “and you should find him guilty of murder. ” Under an indictment for murder a defendant may be found, guilty of manslaughter, and the-jury, here, should have been left free to find in that respect, without being directed by the court how they should find. The court should have said no more in such respect in the instruction than that the jury should find the defendant guilty.

The last clause of the third above instruction, “and if, from all such facts and circumstances in evidence, the jury believe that he has testified falsely upon any material point in issue in this case, then they have the right to entirely disregard his evidence, except so far as it may be corroborated by other-credible proofs or circumstances in evidence in this case,” was erroneous, in omitting ‘the essential element that the witness had willfully or knowingly sworn falsely. Brennan v. The People, 15 Ill. 512; City of Chicago v. Smith, 48 id. 107; Pollard v. The People, 69 id. 148.

Of the first instruction, although abstractly erroneous, it might be said that it did the defendant no harm, and was not ground for reversal because of there being no case of self-defence presented by the evidence. (Leach v. The People, 53 Ill. 318; Wilson v. The People, 94 id. 327; Ritzman v. The People, 110 id. 362.) But the two other instructions, especially the last, can hardly be passed over as harmless, as not calculated to prejudice, and as not actually prejudicing, the defendant.

The judgment is reversed, a^d the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Edward S. Mulliner v. Charles M. Bronson.

      Filed at Springfield September 23, 1885.

    1. Contract—construed—as to right of buyer, to determine as to the quality of goods purchased and delivered. A contract for the sawing, and delivery to the purchaser, of lumber, providing that he should measure the same when delivered, and that he should measure and pay for only such as was absolutely clear, and suitable for a certain purpose, while it gives the buyer the right to measure the lumber and pass upon its quality, does not make him the sole judge, and his d.ecision beyond review. In such case, he is bound to receive and measure such of the lumber as complies with the contract, although in his judgment it is not of the proper quality.
    2. Evidence—to show quality of lumber delivered. In a suit upon a contract for the sawing and delivery of lumber to the defendant at his yard in a city, containing a clause that defendant should measure the same' after its delivery, and only such as was absolutely clear and would work into tobacco boxes, there is no error in admitting the testimony of witnesses who saw the lumber after it was sawed, in .the timber, and when it was being shipped, to show its quality when delivered. If injured while being shipped, such fact might be shown.
    3. Exceptions—when necessary—in case of remarks of the trial judge, claimed to have been improper. After a cause had been reversed for misconstruction of a contract, and on the second trial the court remarked, in the hearing of the jury, without anything to call for the same, that he had not changed his opinion as to the proper construction of the contract, but that the Appellate Court had decided the question and the court was bound to follow the decision, but no exception was taken to such remark, it was held, that the defendant, by failing to except thereto, waived all objection that might have been made to what was said by the court.
    4. Instruction—whether leaving construction of a verbal contr-act to the jury. An instruction in a suit to recover for lumber sawed and delivered, partly under a written contract, as alleged, and partly under a verbal one, directing the jury that if they found, from the evidence, that a part of the lumber was furnished on a verbal contract made subsequent to the one in writing, then they should find, from the evidence, what the terms of such contract were, and be governed by them, is not obnoxious to the objection that it submits to the- jury the construction of such verbal contract, and is not improper.

      Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    Mr. A. E. Wheat, and Mr. C. A. Babcock, for the plaintiff in error:
    In actions ex contractu, where the preponderance of evidence is great as to the fact of performance, and the finding below is against it, a new trial should be awarded. Lawrence v. Atwood, 1 Bradw. 217; Railroad Co. v. Dingman, id. 162; Drury v. Dungan, 2 id. 15.
    The verdict and judgment must be supported by evidence. Wholly unsupported by evidence it can not stand. Ragor v. Kendall, 70 Ill. 95; Pease v. Collin, 1 Bradw. 88.
    If a contract is ambiguous, it is the duty of the court to determine what it means from the evidence, and instruct the jury as to its meaning. Ogden v. Kirby, 79 Ill. 559.
    It is a question for a jury, and a matter of fact, what contract has been made; but this ascertained, it becomes a question of law for the court to interpret and ascertain the meaning of the parties to it, and to declare their respective rights, and the extent of their obligations. See Sigsworth v. McIntyre, 18 Ill. 128.
    The rule is well settled that the construction of contracts, written or verbal, is for the court, and can not be expounded by witnesses. Lintner v. Milliken, 47 Ill. 181; Streeter v. Streeter, 43 id.. 155; McAroy v. Long, 13 id. 147; Riley v. Dickens, 19 id. 29.
    A jury should find the meaning and intent of a contract under the instructions of the court, and any mistake in the true intent, imparted by the language used in such instructions, is error, and subject to correction. Railroad Co. v. Cassell, 17 Ill. 389; Kamphouse v. Gaffner, 73 id. 453.

      The jury should.have been left free to consider the evidence given by both parties, without any expression of opinion by the court. Lycan v. People, 107 Ill. 428.
    Mr. George M. Janes, for the defendant in error:
    All the presumptions are in favor of sustaining the verdict, which will not be lightly disturbed. Blake v. McMullen, 91 Ill. 32.
    Even when the evidence in support of the verdict is inconclusive and contradictory, a new trial can not .be awarded. Millikan v. Taylor, 53 Ill. 509; Young v. Rowley, 60 id. 148; Lewis v. Lewis, 92 id. 237; Howitt v. Estelle, id. 218.; Buchanan v. McLennen, 105 id. 60.
    When the evidence is so far conflicting as to present a fair question of fact for the jury, their decision should be regarded as final. Tedens v. Schumers, 14 Bradw. 610.
    There is no error in refusing instructions the substance of which is contained in others given. Freiburg v. People, 102 Ill. 160; City of Burlington v. Perdue, 99 id. 329; Abney v. Austin, 6 Bradw. 49.
    It is the amount of clear lumber that could have been measured out of what was delivered, that is the.subject matter of this suit. Mulliner v. Bronson, 14 Bradw. 360.
    Remarks of the court complained of, whether entirely proper or not, did not prejudice the cause of appellant, and not having been excepted to when made, constitute no ground for a new trial. Beasley v. People, 89 Ill. 580; Wiggins Ferry Co. v. People ex rel. 101 id. 449.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of assumpsit, brought by Charles M. Bronson, in the Adams circuit court, against Edward S. Mulliner, to recover a balance claimed to be due for a certain quantity of lumber which plaintiff had sold and delivered to defendant. The declaration contained the common counts, and on a trial before a jury the plaintiff recovered a judgment for $600, which, on appeal, was affirmed in the Appellate Court.

It appears from the evidence, that on the 28th day of September, 1881, Bronson and Mulliner entered into a contract in writing, under which Bronson agreed to move his saw-mill, and set it up in the sycamore timber growing on land belonging to J. R. Cronk, five miles north-west'of Mendon, and saw for Mulliner two hundred and twenty thousand feet of lumber. The contract contained this provision': “ “Mulliner to measure said lumber after it is delivered, dry, at his yard in Quincy, Illinois, and to measure such, only, as is absolutely clear, and will work into tobacco boxes. ” The lumber was sawed and delivered, but it was contended by the defendant that a portion of it was not absolutely clear, and he was not bound to measure and pay for that portion; while,, on the other hand, plaintiff claimed that the quality of the lumber complied with the contract.

On the trial, the court ruled that the condition of the lumber before it was shipped was immaterial,—that the evidence must show the lumber, after it was delivered at the defendant’s yard, in Quincy, complied with the contract; but the court also admitted evidence of witnesses who saw the lumber after it was sawed, and while it was being shipped, as tending to establish the quality of the lumber delivered,—and the admission of this evidence is relied upon as error. While it is true, under the contract, that the quality of the lumber was to be determined on the measurement at defendant’s yard after it had been delivered, still, where witnesses saw the lumber after it was sawed, inthe timber, and saw it when it was being shipped, such evidence was competent tending to prove the quality of the lumber after it had reached the possession of defendant, and we think such evidence was properly admitted. If the lumber was clear after it was sawed and placed on wagons or cars for shipment to defendant, it could not become different or other than clear lumber on its arrival. The lumber was hauled in wagons some five miles from the mill, to a station on the railroad, and there shipped on cars. The men who loaded the lumber on wagons, and unloaded onto the cars, would doubtless form an opinion as to its quality, and the facts thus obtained were competent evidence tending to show the quality of the lumber when it was to be-measured in defendant’s yard. If the lumber was damaged by shipment, that might readily be proven.

It is also contended that on the trial the presiding judge-made remarks and expressions of opinion that tended to influence the jury in making up their verdict. This was a second trial of the cause. An appeal was taken from the-judgment rendered on the first trial, to the Appellate Court, and the judgment was reversed, the Appellate Court holding that the circuit court had not placed the proper construction on the contract. On the last trial, when the construction of the contract again arose, the circuit judge remarked that he had not changed his opinion as to the proper construction to be placed on the contract, but the Appellate Court had decided the question, and the circuit court was bound to follow the-decision. Other remarks of a similar character were made-during the trial. The remarks which were made by the circuit court were uncalled for by any question which arose in the case, but whether they should be regarded as error for which the judgment should be reversed, it will not be necessary to-determine, for the reason that the record shows no exception whatever taken to the remarks so made. If the appellant desired to raise the question as to the right of the circuit-judge to make the remarks, he should have excepted at the-time; but, under our practice, if he made no objection at the time, his silence will be regarded as a waiver of all objection that might have been made to what was said by the court.

Objection has been made to the decision of the court in. instructing the jury. It is claimed that plaintiff’s second. instruction is faulty, because it submits the construction of a certain verbal contract to the jury. This is a misapprehension of the instruction. The jury were merely directed that if they found, from the evidence, that a part of the lumber was furnished on a verbal agreement made subsequent to the written contract, then they should find, from the evidence, what the terms of the contract were, and be governed by it. We perceive nothing improper in this charge to the jury.

The third instruction, it is claimed, nullifies that clause of the contract which provides for the measurement of the lumber by the defendant. The instruction directs the jury that the measurement should be in accordance with the requirements of the contract,—that the defendant had no right to reject lumber which complied with the contract .because he did not consider it of that quality specified in the agreement. We think this was correct. While the defendant had the right to measure the lumber and pass upon its quality, he was not the sole judge, nor was his decision beyond review. If lumber was delivered, which, as a matter of fact, complied with the contract, he was bound to receive it, although in his private judgment it might not be of that quality which the contract required.

We perceive no substantial objection to plaintiff’s eighth instruction.

The modification of defendant’s fifth instruction, by striking out the words, “in his judgment, ” was done with the view to inform the jury that the decision of defendant in measuring the lumber as to its quality, was not absolutely final, but was subject to review, and as we have heretofore said, we regard this a correct interpretation of the contract.

The instructions, as a whole, presented the law as favorably to the defendant as he could expect or desire, and in this regard he has no just ground of complaint.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    John A. Crain et al. v. The First National Bank of Jacksonville.

      Filed at Springfield September 23, 1885.

    1. Bank officers—agency—evidence—question of authority of a cashier to bind the bank—custom of banks to borrow money. In a suit against a firm of private bankers, upon a note given by their clerk and cashier for money borrowed by him in the firm name and appropriated to his own use, in which the cashier’s authority to give the note is put in issue, evidence ■of the custom of bankers at the place in which the defendants’ bank was located, to borrow money on time, is proper, as tending to show that the borrowing of money was within the scope of the ordinary and customary business of the defendants.
    2. Same—a paper given to a third party containing the signatures of those authorized to bind the defendant bank—as evidence of their authority. In the same suit it was held, a paper, directed to another and distant bank, giving the signatures of persons authorized to sign for the defendants, one of which was in the hand-writing of the cashier and another that of one of the defendants, was proper evidence as an admission of the defendant signing the same, of the cashier’s authority to bind the defendants by the execution of a note in their firm name. And the fact that the paj^ee of the note did not act on the faith of such paper, though detracting from its weight, did not render it irrelevant and improper.
    3. Same—as to prior fraudulent acts of cashier with others. In a suit upon such a note, proof of other fraudulent drafts drawn by the cashier upon other banks is not admissible, without any attempt to show knowledge of such drafts by the payee before making the loan to the cashier.
    4. Same—giving of notes belonging to the bank as collateral for the cashier’s loan, whether notice of cashier’s want of authority in the particular transaction. The giving as collateral security, by a cashier of a private bank, notes of other persons, of over $5000, of his bank, to secure a note of that amount given by him in the name of his principals, with authority, on maturity of the latter note, to sell the collaterals at public or private sale, with or without notice, and apply the proceeds to the payment of the note given, is not of such a nature as to afford notice to the party making the loan and taking the notes, of the cashier’s want of authority to execute the note for the bank, or of fraud in giving it.
    5. Same—as to general operations of the bank, apd the cashier’s connection with them, as showing his authority—an instruction on that question. In a suit by A against 0 & D, private bankers, upon a note given by the cashier of the bank in the firm name of the defendants, in which the cashier’s authority was put in issue, the court instructed the jury, that if they believed, from the evidence, that the defendants were bankers at W., and that the person making the note was their cashier, and intrusted by" them with the general management of their bank and the power to carry on all their general banking operations, and that it was one of the usual operations of a bank at W. and its vicinity to borrow money on time and execute a note therefor, and that such person, while acting as cashier and manager for the defendants, borrowed in their name, of the plaintiff, $5000, and thereupon executed and delivered to the plaintiff the note sued on, they should find for the plaintiff: Held, that the instruction was properly given,, and that it was not faulty in not defining the meaning of “general manager,” or what constituted general management, or in ignoring the question of notice of the agent’s want of authority, when there was no sufficient evidence of such notice.
    6. Same—holding out agent as having authority to act. On an issue as to an agent’s authority to borrow money, and give a note therefor, in the name of his principal, the court modified an instruction of defendant, that when an agent acts beyond his authority the principal is not bound, unless he had held out to the party dealt with, the agent as having authority to do the act, by adding after the words “dealt with,” and before the words “the agent, ” the words, “or to the public generally:” Held, that there was no error in the modification.
    7. General agent—what constihltes. Power to act generally in a particular business, or a particular course of trade in a business, however limited, constitutes a general agency, if the agent is so held out to the world, however restricted his private instructions may be.
    8. Action—as to principal debt—effect of being secured by collaterals. The fact that payment of a promissory note is secured by collaterals, does not affect the right of recovery in an action on the note.
    9. Instruction—singling out a particular fact. In a suit upon a note given by an agent, the court was asked to instruct the jury that the fact that defendants authorized the agent to sign their firm name to notes, to a certain firm named, or to others, did not of itself authorize him to sign their name to the note sued on,—which was refused: Held, that the instruction was bad in singling out a particular fact, and telling the jury that such, alone, would not warrant a recovery.
    10. Error—when obviated by the answer to the question ruled out. The refusal of a proper question can not be assigned as error when the witness, notwithstanding the ruling of the court, substantially answers the same.
    11. Error will not always reverse—refusal of instruction. The' refusal of a proper instruction in respect to certain evidence will not be such material error as to require a reversal, when, from all the evidence, the finding must have been the same had it been given.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cyrus Bpler, Judge, presiding.
    Messrs. Morrison & Whitlock, for the appellants:
    A general agent is one who is authorized by his-principal to take charge of his business in a particular line. Wharton on Agency, sec. 117; Doan v. Duncan, 17 Ill. 272; 18 id. 96; Potter v. Dennison, 5 Gilm. 590.
    Over the objection of appellants, both Mr. Ayers and Mr. Farrell were permitted to prove the custom of banks, in Waverly, to borrow money on time. We insist this was not material, and at the same time it was calculated to mislead. The court made it the basis of instruction. It was not a question whether banks were accustomed to borrow money on time, but whether clerks in like situations were, by custom, authorized to negotiate loans of the character in question, and to bind their employers by promissory notes,—and nothing of the kind appeared.
    The plaintiff introduced a paper, as follows: “Herewith please find signatures of persons authorized to sign for Crain & Manson, ”—with the firm name written three times, one of which was in the hand-writing of W. 0. Manson. This not being addressed to plaintiff, and not acted on by it, was improperly admitted, or if admitted, should have been controlled by instructions.
    The facts and circumstances were such as to put the plaintiff upon its guard, and require its officers to investigate the agent’s authority. Potter v. Dennison, 5 Gilm. 590.
    As to what will amount to a notice, see Rodrigues v. Heffernan, 5 Johns. Ch. 417.
    Notice to the cashier of a bank is notice to the bank. Loring v. Brodie, 134 Mass. 453; Exchange Nat. Bank v. Third, Nat. Bank, 112 U. S. 292.

      As to the implied authority of a clerk, see Doan v. Duncan, 18 Ill. 97; Story on Agency, secs. 88, 89; Craighead v. Peterson, 72 N. Y. 279; Hodge v. Combs, 1 Black, 192.
    A cashier of a hank can not, by his own action, impose on the bank any liability not already imposed by law or usage, (Wharton on Agency, sec. 687, note 3,) nor create any agency, (United States v. City Bank, 21 How. 356,) nor sell or mortgage its property. Leggett v. Manufacturing Co. 1 N. J. Eq. 441.
    As to inference of authority to do one act from authority to do another, see Thompson v. Elliott, 73 Ill. 221; Melvin v. Insurance Co. 80 id. 446; Padfield v. Green, 85 id. 529; Reynolds v. Ferree, 86 id. 570; Iron Mining Co. v. Bank, 44 Mich. 344.
    It has been insisted that Crain & Mans on held out W. 0. Manson as their agent having these powers, and having done so, and the appellee having lost its money thereby, appellants must make good the loss. This is not sound, for two reasons:
    First—Because appellee did not make the loan by reason of the fact that W. 0. Manson was so held out as agent. He .acted on the presumption that the letter received was the letter of Crain & Manson. He made no inquiry, and did not know the supposed agent. Appellee can not maintain the position. Thompson v. First Nat. Bank, 111 U. S. 529; Norton v. Richmond, 93 Ill. 373.
    Second—The officers of appellee did not act in good faith. As we have before remarked, the facts and circumstances required the bank to take notice, which it failed to do. A party, in order to hold another bound by the supposed acts of the agent, must act in good faith, and if he has notice before acting, he can not then act in good faith. Iron Mining Co. v. Bank, 44 Mich. 344.
    If the inquiry had been made, the fraud would have been discovered. The facts charge the bank with notice of all the knowledge its officers might have ascertained, and “a principal is not bound by a contract which is a fraud on him, and is known so to be by the person entering into the contract. ” 1 Bindley on Partnership, 299.
    Messrs. Brown & Kirby, and Messrs. Springer & Dummer, for the appellee:
    The question as to who had general charge of the establishment, was fully answered, and called for the conclusion of the witness.
    The modification of appellants’ sixth instruction, by inserting the words, “or to the public generally, ” is warranted by Thompson v. National Bank, 111 Ill. 537.
    Their third instruction was properly refused, as not giving a correct definition of a general agent. Noble v. Nugent, 89 Ill. 522; Insurance Co. v. Advance Co. 80 id. 549; Doan v. Duncan, 17 id. 272.
    When one of two innocent parties must lose from the dishonesty of a third, that one shall bear the loss who by his negligence has enabled the third to occasion it. Merchants’ Bank v. State Bank, 10 Wall. 604; Bank of United States v. Davis, 2 Hill, 465; Holmes v. Trumper, 22 Mich. 427; Farmers’ Bank v. Butchers’ Bank, 16 N. Y. 133; New York County v. Schuyler, 34 id. 30; Canal Co. v. Hathaway, 8 Wend. 488.
    Though limited by his employment to the banking business of Crain & Manson, William O. Manson was their general agent. Story on Agency, sec. 22; Noble v. Nugent, 89 Ill. 524.
    The principal is liable for the acts of his general agent within the scope of his authority, although he may exceed his instructions. Noble v. Nugent, 89 Ill. 594; Insurance Co. v. Advance Co. 80 id. 549; Harris v. Simmerman, 81 id. 413; Chicago Big. Co. v. McMahon, 103 id. 485; Anderson v. Conley, 21 Wend. 279.

      Private instructions not to give notes to any but regular correspondents, are not binding on the public. Packet Co. v. Parker, 59 Ill. 23.
    The public is not bound to inquire into the authority of the bank officer. By putting him in the position they accredit him to the public. Munn v. Burch, 25 Ill. 41; Nolle v. Cunningham, 74 id. 51; Ryan v. Dunlap, 17 id. 45; Story on Agency, sees. 52-56.
    William 0. Hanson being permitted to act as the manager of their bank, he was, as to the public, possessed of all the powers incident to such a position, notwithstanding private instructions narrowing his authority. Story on Agency, sees. 105, 106.
    Whether William O. Hanson was, of right, the manager of the bank, or mere clerk, he was de facto its cashier, and the bank was bound by his acts as such. Bank of United States v. Dandridge, 12 Wheat. 64; Minor v. Mechanics’ Bank, 1 Pet. 46.
    The limitation of the authority of William 0. Hanson, if assumed, did not affect those to whom the limitation was unknown. Commercial Bank v. Norton, 1 Hill, 501; Bank of Vergenes v. Warner, 7 id. 501; Beers v. Phœnix Glass Co. 14 Barb. 358; Farmers’ Bank v. Butchers’ Bank, 14 N. Y. 624; Barnes v. Ontario Bank, 19 id. 156.
    By virtue of his position, William O. Hanson had the power to bind the bank to this loan, and the defence that he intended to apply it to his own use does not affect the National bank, without proof that that bank knew of his purpose to do so. Barnes v. Ontario Bank, 19 N. Y. 152.
    The position of appellants, that since William 0. Hanson applied the money to his own use, or filled with it a vacancy which he had created in the funds of Crain & Hanson, is effectually disposed of in Barnes v. Ontario Bank, 19 N. Y. 152.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a suit by the First National Bank of Jacksonville, •against John A. Crain and James W. Manson, upon a promissory note purporting to be made by Crain & Manson to the plaintiff, for $5000, dated at Jacksonville, Illinois, May 8, 1883, and payable four months after date, with eight per cent per annum interest after maturity. The plaintiff recovered in the circuit court a verdict and judgment for $5303.33, which judgment, on appeal to the Appellate Court for the Third District, was affirmed, and the defendants appealed further to this court.

The defendants’ plea put in issue the execution of the note. It appears from the evidence, that the defendants, under the firm name of Crain & Manson, were retail merchants at Waverly, Illinois, and had been for a good many years, and for a number of years prior to the date of the note they were •also private bankers, having a bank of deposit. Both the banking and goods departments were conducted in the same room. James W. Manson gave his personal attention to the business of the firm, Crain not being all the time an active man in the business, but both partners continuing a general ■supervision over the business of the firm. William 0. Manson was a son of James W. Manson, and was employed as a clerk or cashier, having no interest, but working on a salary. He kept the books of both departments, and more generally ■attended to the banking department. He drew sight drafts, received deposits, issued certificates of deposit, and wrote letters for the firm. The firm had as correspondents, with whom accounts were kept, M. P. Ayers. & Co., Jacksonville, •and a house in each of the cities of St. Louis, Springfield, Chicago and New York. William O. Manson had authority io use the firm name at these particular places, and to sign the firm name to notes in the transaction of business at these banks, but not elsewhere. Defendants had never kept any account with the First National Bank of Jacksonville, nor authorized William 0. Hanson specially to negotiate any loan "there, nor had they any knowledge of his having done so till long after the firm dissolved,—August 23, 1883. The signature of the name of Crain & Hanson to the note in suit ’ was in the hand-writing of William 0. Hanson, and the note was given for money borrowed from the bank.

It is assigned for error that the circuit court erred in •sustaining the plaintiff’s objection to the following questiopp put to James W. Hanson, one of the defendants, by his own ■counsel: “Was the banking department exclusively under "the control of any one?”—“Who had general charge of the ■establishment, if any one?" Notwithstanding the objection was sustained, the witness appears to have answered, substantially, both questions,—as to the first, saying: “Banking was under control of defendants, as was the merchandising. W. 0. Hanson was hired to attend to that. He was some times away, but not long at a time.” And to the second: “Both partners attended to the bank when it was necessary; we thought we -had a good clerk in W. 0; Hanson for that; I often received deposits and paid out money and drew drafts; Mr. Crain generally left it to myself and son; firm had other clerks; we thought it was all right; no other clerk in banking department. ”

Objection is made to the admission of proof of the custom of banks in Waverly to borrow money on time. We think this was proper testimony, as tending to show that the borrowing of money was within the scope of the ordinary and .customary business of the defendants.

Another question raised on the admissibility of evidence ■offered by the plaintiff, is as to the following paper, which the court permitted to be read to the jury:

“Waverly, III., April, 1888.
“Herewith please find signatures of persons authorized to •sign for Crain & Hanson: ”

—With the firm name written three times, the first being in the hand-writing of William 0. Hanson, and the second in that of J ames W. Hanson. The paper was properly admitted as an admission of James W. Hanson, one of the defendants - It is said this paper was not furnished to the plaintiff, and it did not act upon the faith of the paper; that defendants’' commenced business with the Commercial National Bank of Chicago about Hay 1, 1883, and that this was a private paper, which was forwarded to that bank in a letter, for its guidance alone. All this might have detracted from the force of the paper as an admission, and rendered it of but little weight; but still it can not be said to have been evidence, which was irrelevant and erroneously admitted.

. The refusal of the court to permit proof of other fraudulent drafts drawn by William 0. Hanson in the name of the defendants, upon their correspondents in St. Louis, which is complained of by defendants, was proper. There, being no attempt to bring knowledge of such drafts to the plaintiff, they were irrelevant as evidence in this suit.

Appellants complain of instructions Nos. 1, 2 and 5, given for the plaintiff. .Numbers 1 and 5 were substantially alike, being to the purport that if the jury believed, from the evidence, that the defendants, Crain & Hanson, were bankers at Waverly, Illinois, and that William 0. Hanson was their cashier, and intrusted by them with the general management of their bank, and the power to carry on all their general banking operations, and that it was one of the usual operations of a bank in Waverly and its vicinity to borrow money on time, and execute a note therefor, and that said William 0. Han-, son, while so acting as cashier and manager for the defendants, borrowed in their name from the plaintiff the sum of $5000, and thereupon executed and delivered to the plaintiff the promissory note in evidence, then the verdict of the jury should be for the plaintiff, even though the said sum was appropriated by said William 0. Hanson to his own use. The criticism made upon these instructions is, that they ignore the question of notice to plaintiff of sufficient facts to put it on guard and make inquiry as to the authority of William 0. Manson to execute the note, and that the instruction was faulty in not defining the meaning of “general manager, ” or what constituted “general management. ” We do not think there was enough of evidence of such notice to have required the making of any reference to it in the instruction. All that is relied upon as tending to show any such notice, is the fact that at the time of the giving of the note there were delivered over several promissory notes of other persons, of over $5000 in amount, as collateral security, with authority, on maturity of the note given, to sell the collaterals at public or private sale, and without notice, and apply the proceeds to the payment of the note given. This may have been a transaction of a- somewhat extraordinary character in its details, but it was all for the better securing of the payment of the note, and did not point to want of authority to execute the note, or to fraud in the giving of it. In the giving of such an instruction there was no occasion for defining what constituted a “general manager, ” or “general management. ” It was open to the defendants to have asked any instructions in that regard which they might have thought necessary. As propositions of law, we perceive no error in the instructions.

There is plainly no ground of complaint as to the second instruction, which was .to the effect that the fact of the note being secured by collaterals did not affect the right of recovery.

Complaint is made of the modification by the court of defendants’ sixth instruction. As modified, it was, in substance, that when an agent acts beyond his authority, the principal is not bound, unless he had held out to the party dealt with, or to the. public generally, the agent as having authority to do the act,—the modification consisting of the insertion of the words in italics. The ease cited by appellants’ counsel (Thompson v. First National Bank, 111 U. S. 537,) as against such medication, seems to lend somewhat of countenance thereto, in its. being there said: “There may be cases in which the holding out (as a partner) has been so public and so long continued that the jury may infer that one dealing with the partnership knew it, and relied upon it, without direct testimony to that effect. ” As asked, the instruction was erroneous in ignoring any holding out to the public. Such holding out, here, might, have been to the extent above indicated, and the instruction was properly enough modified so as to recognize that element of holding out to the public. The modification might have been made more full by laying down to what extent the “holding out” must have been; but we are not prepared to say there was error in this regard. Had the defendants desired a more full instruction in that respect, it was open to defendants to have asked it.

The third instruction asked by defendants, “that a general agent is defined to be one who has authority to transact all the business of his employer, ” was properly refused. Power to act generally in a particular business or a particular course of trade in a business, however limited, would constitute a general agency, if the agent is so held out to the world, however so restricted his private instructions may be. Doan v. Duncan, 17 Ill. 272; Story on Agency, sec. 17.

Defendants’ tenth refused instruction respected the question of notice, remarked upon in passing upon the first and fifth instructions for the plaintiff, and what was there said sufficiently disposes of the objection in not giving this tenth instruction.

Defendants’ fifteenth refused instruction was, that the fact that defendants authorized William 0. Hanson to sign their name to notes to the firm of H. P. Ayers & Co., or to other correspondents, would not of itself authorize said William 0. Hanson to sign the name of defendants to the note in suit, was objectionable in singling out a particular fact, and telling the jury that such alone would not warrant a recovery.

Defendants’ sixteenth refused instruction, though somewhat exposed to the same objection as the last, and claimed by appellants to be equally faulty, we think to be distinguishable, and that it should have been given. It was in reference to the paper which has been before mentioned, and set out as having been given by defendants to the Commercial National Bank of Chicago,—that the furnishing of that paper to that bank would not of itself confer authority upon William 0. Hanson to execute to the plaintiff the note sued on. The paper purported on its face to give the signatures of persons who were authorized to sign for Crain & Hanson, and it was without limit. The paper was extremely liable to mislead the jury to think that the authority was unlimited to sign the name of Crain & Hanson not only at that, the Commercial Bank, but at any other bank; and to guard against the jury being thus misled, the instruction was a very proper one. Yet there was such a weight of evidence, besides, of the holding out by defendants of William 0. Hanson as possessing authority to borrow money and execute notes in their name, that we can not think the not giving of this instruction was of any harm to defendants, and that it was a material error.

The refusal to give the seventeenth instruction asked by defendants was manifestly correct.

We find no material error in the record, and the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Frona Ann Ransom v. Samuel E. Henderson et al.

      Filed at Springfield September 23, 1885.

    1. Tax title—whether a precept must be shown in support of a tax deed—since the amendment of 1879. Prior to the amendment of the Revenue law of 1879, the failure to produce in evidence a precept, was fatal to a tax title; but since that amendment, making the tax deed prima facie evidence of the regularity of the proceedings, it is not necessary, in the first instance, for the party claiming title under the tax sale to produce such precept. It is sufficient that he gives in evidence his tax deed.
    2. The production of a tax deed regular on its face, affords prima facie evidence “that the sale was conducted in the manner required by law;” but such prima facie case may be rebutted by evidence showing there was in fact no valid precept, or that the sale was not conducted according to law.
    3. Practice in the Supreme Court—■considering ruling affecting interests of parties not complaining. On the appeal of one of several defendants, only, from a decree in partition, this court may refuse to consider a ruling as to the interests of other defendants not joining in the appeal and taking no steps to have the decree as to them reversed. A party can not assign for error that which does not prejudice his or her rights.
    Appeal from the Circuit Court of Brown county; the Hon. Asa C. Matthews, Judge, presiding.
    Mr. William L. Vandeventer, for the appellant:,
    Appellees’ rights, except as to one-seventh derived from Mrs. Masterson, are claimed under a tax sale, and no precept of sale appears in the evidence. Without it the sale is void. Bell v. Johnson, 111 Ill. 374; Eagan v. Connelly, 107 id. 459; Gage v. Lightburn, 93 id. 249; Williams v. Underhill, 58 id. 137; Holbrook v. Dickinson, 46 id. 285; Hinman v. Pope, 1 Gilm. 131.
    Mr. William H. Barnes, and Mr. O. P. Thompson, for the appellees:
    A party will not be permitted to question a transaction which in no way affects his interests. Manufacturing Co. y.

      Cady, 96 Ill. 430; Willemin v. Dunn, 93 id. 511; Robinson v. Brown, 82 id. 281; Greenman v. Harvey, 53 id. 390.
    The tax sale was fully sustained. The act of 1879, (Rev. Stat. sec. 224,) enacts that tax deeds shall he prima facie evidence,—first, that the lands were subject to taxation, and had been listed and assessed properly; second, that the taxes were not paid; third, that the lands were not redeemed; fourth, that the lands were properly advertised; fifth, that the lands were sold for taxes, as stated; sixth, that the grantee was the purchaser, or his assignee; seventh, that the sale was conducted in the manner required by law, and that the judgment shall estop all parties from raising any objection thereto, or to a tax title based thereon, which existed at or before the rendition of such judgment, and could have been presented as a defence, etc.; and the judgment shall be conclusive evidence of its regularity and validity in all collateral proceedings.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a proceeding for partition, prosecuted by Samuel E. Henderson, Owen P. Thompson and William H. Barnes, against Hiram E. Henry, Robert Ransom and Prona Arm Ransom and others, in the circuit court of Brown county. The substantial allegations of the bill are, the lands of which partition is sought originally belonged to Jesse Orr, who died intestate on the 1st of January, 1876, leaving surviving him a widow and seven children, namely, Sarah E. Masterson, John Orr, Lorano Caroline Orr, Susan Orr, Elliott Orr, Julia Orr and Mary Orr; that John, Elliott and Julia subsequently conveyed their respective interests in the tract, and the widow relinquished her right of dowrer in the interests so conveyed, to Hiram E. Henry, Robert Ransom and Frona Arm Ransom, as tenants in common; that after such conveyance, the complainants, as tenants in common, purchased and became the owners of the respective interests of Sarah E. Masterson, Susan Orr and Mary Orr, leaving one-seventh interest owned by Lora no Caroline Orr. Proper jsarties are made defendants, and brought before the court. Hiram E. Henry and Robert and Prona Ann Ransom answered, jointly and severally, among other things denying that they are seized of only the parts or interests in the premises as alleged in the bill, and also denying that complainants, or either of them, have or has any right, title, interest or estate in the premises. They allege that Prona Ann Ransom acquired and owns six-sevenths of the premises, and that some person other than either of the complainants owns the other seventh. The other defendants failed to answer, and decree was rendered against them pro confesso. The court, on final hearing, found that the complainants, each, was the owner in fee of an undivided one-seventh, and that the defendant Prona Ann Ransom is entitled to an undivided four-sevenths of the premises, and commissioners were appointed to make partition accordingly. The commissioners reported, at a subsequent day, that the lands were insusceptible of partition, and thereupon the court decreed that they be sold, and that the proceeds be divided and paid over in accordance with the several interests as previously found, etc.

The evidence introduced upon the hearing proves the ownership of Jesse Orr in his lifetime, his death, and that his surviving children and only heirs-at-law were as alleged in the bill; that Prona Ann Ransom ha’s conveyances of the interests of Susan, Mary 0., Lorano 0. and Elliott, and that Sarah Masterson conveyed by deed to complainants. Complainants claim the interests, and the claim was sustained by the circuit court, of John and Julia, by virtue of a judgment and sale for taxes, and a deed thereunder, purporting to convey their interests. The only question discussed upon the record is, whether the evidence is sufficient to justify the decree as to those two interests. But the only parties adversely» affected by the ruling,—namely, John and Julia,—are not before us. They have assigned no errors upon this record, and have taken no steps to reverse the decree below. Frona Ann Ransom, who alone appeals, makes no pretence, by her proofs, of ownership of their interests. Her answer, not under oath, was but a pleading, putting in issue the allegations of the petition. (Jones v. Neely, 72 Ill. 449; Willis v. Henderson, 4 Scam. 13.) The evidence shows that she entered into possession having title to a certain undivided interest, and fails to show a disseizin of her co-tenants, or any attempt to disseize them; and the law, therefore, construes her possession as being under and by virtue of the title she is proven to have had, and in maintenance of the rights oJ^all the tenants. (Freeman on Co-tenancy, sec. 166; Busch v. Huston, 75 Ill. 344; Ball et al. v. Palmer, 81 id. 370.) She gets her full distributive share of the proceeds of the sale of the property under the decree, and whether other shares to which she is not entitled are paid over to the right parties or not, can not concern her. The principle is of familiar application that a party can not assign for error that which does not prejudice his or her rights. Greenman v. Harvey, 53 Ill. 390; Robinson v. Brown, 82 id. 281; Willemin v. Dunn, 93 id. 511; Manufacturing Co. v. Cady, 96 id. 430.

But we may go further, and sustain the decree upon the hypothesis that this question is properly before us. The judgment was for the taxes due for the year 1879. A record of the judgment, and sale thereunder, a copy of the affidavit made for the purpose of obtaining a tax deed, and a tax deed in due and regular form of law, were read in evidence, without any objection being interposed against the competency or sufficiency of the evidence at the time,—at all events, the record discloses no such objection.

Section 224 of the Revenue law, in force when this sale was made, (2 Starr & Curtiss, 2101,) makes tax deeds, like that here read in evidence, prima facie evidence in all controversies and suits in relation to the right of the purchaser, his heirs or assigns, to the real estate thereby conveyed, of seven distinct, specified facts, among which are, “that the real estate was sold for taxes or special assessments, as stated in the deed, ” and “that the sale was conducted in the manner required by law.” "Very clearly, if the sale was not conducted in the manner required by section 194 of the same chapter, which prescribes the record which shall authorize the sale, it was not conducted in “the manner required by law;” and, conversely, if it was conducted in the manner required by law, it was conducted as required by said section 194, and so it must follow that the tax deed itself was prima facie evidence that £he sale was conducted in the manner required by that section.

The objection now urged is, that the evidence introduced failed to show compliance with said section 194,—in other words, the existence of a precept authorizing the sale. The reading of the deed in evidence, alone, by the petitioners, would have made a prima facie case in their behalf, and the burden would then have been on the defendants to have disqn'oved that prima facie case. They were under no obligation, in the first instance, to have introduced any other evidence; but, having unnecessarily introduced some evidence of the proceedings anterior to the sale, may it be said they have waived the prima facie case made by the introduction of the deed ? We think not, especially as no objection was made, at the time, to the sufficiency of this evidence or the admissibility in evidence of the tax deed. Had the objection now urged been urged at the time, the petitioners might, for aught that appears in this record, have obtained and introduced the evidence claimed to be wanting. It now comes too late. (Daniels v. Burso, 40 Ill. 307; Hyde v. Heath, 75 id. 381.) Bell v. Johnson, 111 Ill. 374, was totally unlike the present ease. There, the proceeding was to set aside the tax deed as a nullity,' because there was no precept. The complainants affirmatively introduced what was claimed to be all the record evidence, and no precept was included. It was then incumbent on the defendant to introduce other proof of the precept if such evidence was in existence, and no such evidence being introduced, it was concluded there was none. The prima facie case made by the introduction of the tax deed was overcome. There was no question as to the admissibility of evidence, or of waiver, by reason of failure to object to the introduction of evidence.

We have made some changes in the argument in this opinion, but none in the rulings, since considering the able petition for rehearing filed herein. We perceive no reason to change from our former conclusion, and the decree is therefore affirmed, and the petition for rehearing denied.

Decree affirmed.


text:
    The National Benefit Association v. Louisa Jackson.

      Filed at Springfield September 23, 1885.

    1. Instjbance—waiver of cash payment of premium and dues by tabling an order—notice. An insurance company has the right to waive a cash payment of the premium and dues required in the policy, and accept in lieu thereof an order for the same, given by the assured on a third person; and when it does so, and gives a receipt for the amount, it can not defeat a recovery upon the policy, and insist upon a forfeiture as for non-payment of the premium and dues, without having given the assured notice of the nonpayment of the order. Such a case differs from one where the assured gives his promissory note for the premium, which he fails to pay when due, and in which the policy provides for a forfeiture for non-payment of the note.
    2. Same—accident insurance—death from accident while engaged in the discharge of duty—voluntary exposure. Where a party insured against injuries effected through external, violent and accidental means, receives an injury while in the discharge of his regular duties as yard-switchman or brakeman of a railway company, from which he dies, a recovery can not be defeated on the ground of voluntary exposure to danger, when the accident is one contemplated by the parties to the insurance.
    3. Amendment—as to capacity in which plaintiff sues. The widow of a person insured against accidents, improperly brought suit upon the policy or certificate in her name, as administratrix, the policy being made payable to her. Before the trial she amended her declaration, by leave of court, by striking out the word “administratrix," after her name. Thereupon the defendant moved to strike the declaration from the files, because of a variance from the summons, and the court then allowed an amendment of the writ and all other papers, so that they might correspond: Held, that the amendments allowed were fully authorized by section 24 of the Practice act.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding!
    Mr. James Buchanan, and Messrs. Gere & Beardsley, for the appellant:
    The court erred in allowing motions of plaintiff to strike out of the declaration and-writ the word “administratrix,” etc., and in overruling defendant’s motion -to strike the declaration from the files. Section 24 of the Practice act does not authorize such a radical change in the parties to a suit. This court has held that the- statute does not allow the substitution of one plaintiff for another.
    The order for $5.20, the “binding receipt,” and the certificate of membership, were concurrent, mutual contracts, and the failure to pay the order according to its terms forfeited all rights of the assured.
    If a policy of insurance by its terms is forfeitable for nonpayment of premium, or any note given therefor, when due, a failure to pay such note at maturity, or any part thereof, works a forfeiture, and no notice of non-payment is required. May on Insurance, sec. 341; Pitt v. Insurance Co. 100 Mass. 500; Caton v. Insurance Co. 33 N. J. 487; Baker v. Insurance Co. 43 N. Y. 283; Gorton v. Insurance Co. 39 Wis. 121; Joliffe v. Insurance Co. 39 id. Ill; Wall v. Insurance Co. 36 N. Y. 157; Hammond v. Insurance Co. 10 Gray, 306; Patch
      v. Insurance Co. 44 Vt. 481; Williams v. Insurance Co. 19 Mich. 491; Watrous v. Insurance Co. 35 Iowa, 582; Insurance Co. v. McMillen, 24 Ohio St. 67; Ferebee v. Insurance Co. 68 N. C. 11; Insurance Co. v. Reese, 8 Ga. 584; Tarleton v. Stainforth, 5 T. R. 695; Want v. Blunt, 12 East, 183.
    The circumstances which occasioned Jackson’s death were not such as would render the association liable had Jackson been a member. The certificate contains this clause: “No claim shall be made under this certificate when death happens in consequence of any voluntary exposure to unnecessary danger.” Tuttle v. Insurance Co. 134 Mass. 175.
    Mr. J. L. Ray, for the appellee:
    The court was right in permitting the amendment to be made by dropping the word “administratrix,” etc., and proceeding in the name of Louisa Jackson. Insurance Co. v. Mueller, 77 Ill. 22.
    The recital of the policy that the admission fee and two advance assessments had been paid, can not be contradicted. The association is estopped from proving such fact. Insurance Co. v. Mueller, 77 Ill. 22.
    They can not cancel a policy for non-paymént of order, or any other thing, when the same moneys are, by the policy or certificate of membership, acknowledged to have been paid, on grounds of public policy. Insurance Co. v. Anderson, 77 Ill. 384.
    This association took orders on the railroad company paymaster in payment for this insurance, and they must. look alone to the railroad company for payment, (Insurance Co. v. Mueller, 77 Ill. 22,) and it makes no difference whether the order was paid or not.
    Jackson was killed while following his regular business in the line of his duty. But even if he were not, it would make no difference under this policy. Insurance Co. v. Fennell, 49 Ill. 180; 32 id. 223; Insurance Co. v. Wolfe, 37 id. 354.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought in the name of Louisa Jackson, administratrix of the estate of Joseph Jackson, deceased, against the National Benefit Association, on a policy of insurance issued by the association, under which Jackson was insured against injuries from accident.

Before the trial of the cause the court allowed the plaintiff to amend her declaration by striking out the word “administratrix.” After the amendment the defendant entered a motion to strike from the files the declaration, because of a variance between it and the summons. At the same time the plaintiff asked leave to amend the writ, and all other papers in the case, in order that they might correspond. This motion the court allowed, and overruled defendant’s motion. The amendments allowed by the court were fully authorized by section 24 of the act in relation to Practice. Rev. Stat. 1874, page 778.

It is claimed that the admission fee of $8, and two assessments, of $1.60 each, were not paid, and in consequence of the non-payment the policy became void. The application, which was signed by Jackson, contained the agreement that he should pay, on becoming a member of the association, an admission fee of $8, and two assessments, of $1.60 each,— total, $11.20. The certificate or policy issued to Jackson, contained, among other things, the following:

“The National Benefit Association, in consideration of representations, agreements and warrantees, and of the admission fee of $8, and $3.20, being for two advance assessments paid, the receipt whereof is hereby acknowledged, and the agreement to pay $4 annual dues before twelve o’clock on the first day of January of each year, and the further sum of $1.60 for each benefit assessment in manner required by the. board, does issue this certificate to Joseph Jackson. The sum to be paid is not to exceed $1000, and to be paid to Mrs. L. S. Jackson, or his legal representatives, within ninety days after satisfactory proofs that said member has sustained, during the continuance of membership, bodily injuries effected through external, violent and accidental means. * * * The member agrees to pay the dues above specified. All payments to be made at the home office of said association. No delivery of this certificate shall be of any validity whatever, unless the holder of the same shall have previously paid the first payment, as specified in his application, or shall pay, or secure the payment thereof, at the time of such delivery. The holder agrees and accepts the same upon express condition that if either dues or assessments are not paid to the association within the time limited, then this certificate shall become null and void, and of no effect. ”

The sum of $11.20 required to be paid to make the policy valid between the parties, was not paid in money at the time the policy was issued and delivered; but Jackson, who was then an employe of the Indiana, Bloomington and Western Railroad Company, gave to the association, in payment of the amount, two orders on the paymaster of the railroad company,—one for $6, and the other for $5.20. The first wras payable out of his March time, and was duly paid when due. The second was dated March 21, 1882, and read substantially as follows:

“To J. F. Allen, Paymaster, I., B. and W. Ry. Co.:
“Please pay the National Benefit Association * * * $5.20 out of my wages for the month of April, 1882.
Joseph Jackson.”

This order was presented to the paymaster, but was subsequently returned by him, with the statement that Jackson had “no time, ”—which was a mistake of the paymaster. Under these facts it is insisted that the association was not liable on the certificate of membership, or policy, which had been delivered to the insured.

We have given this matter a careful consideration, and we are not able to concur in the view of appellant’s counsel. The association had the right, if it saw proper, to waive a cash payment, and accept, in lieu of cash, the orders on the railroad company, and if these orders were taken as .cash, then, although the association failed to collect one of them, that fact can not be held to defeat the policy. In the application which was prepared by the company and executed by Jackson, will be found the following statement: “If the number of a binding receipt is inserted, it becomes conclusive evidence that the above amount has been paid.” The “above amount” named is the $11.20. The binding receipt which acknowledged the payment of $11.20, was executed by the association. No. 5364 was inserted therein, and delivered to Jackson. This receipt never would have been given unless the association treated and accepted the orders as cash. Indeed, all the facts bearing upon the question point to the fact that the orders were accepted as cash, and the association having accepted them as cash, it must be bound by that act. At all events, the association having accepted the orders as cash, when one of the orders was returned to it by the railroad company not paid, good faith required that Jackson should be notified of the non-payment of the order, and the association could not, on any principle of fair dealing, claim a forfeiture of the policy for non-payment without giving Jackson notice, which was never done. There is no similarity between this case and a case where a promissory note has been given for a premium due at a future day, and the policy provides that it may be forfeited for the non-payment of the note when due, and the authorities cited which sustain a forfeiture in such a case have no application to the facts of this case.

It is also insisted that Jackson’s death was occasioned by voluntary exposure to unnecessary danger, and hence the company is not liable. From the evidence it is plain that Jackson was killed while in the discharge of his regular duty as yard-switchman or yard-hrakeman, while handling broken cars, and his death arose, not from voluntary exposure, but from an accident, for which the contracting parties intended the association should be liable.

The decision of the Appellate Court will he affirmed.

Judgment affirmed.


text:
    The People ex rel. Eureka C. Storey v. Joshua C. Knickerbocker, Probate Judge.

      Filed at Springfield September 23, 1885.

    1. Probate of will—within'what time—the statute construed as to probate “without delay.” The statute requiring the court to receive the probate of wills “without delay, ” is not to be construed so literally as to make it the duty of the court to proceed immediately in the probate of a will when presented. Its meaning is no more than that the court shall proceed without unreasonable delay.
    2. Same—discretion of court as to time of hearing proof of will. The probate court is invested with a reasonable discretion as to advancing or postponing cases, and may properly, in the exercise of such discretion, during the pendency of an appeal from its order refusing the probate of a paper purporting to be a last will, stay and postpone the hearing of an application to probate another paper of a prior date claimed as the will of the same person; and the exercise of such discretion, when not abused, will not be interfered with by mandamus. In such case the good faith of the party appealing from the order refusing probate is not a matter of inquiry.
    3. Same—probate of will as a judicial act. Under the present legislation, the probate court exercises a judicial, and not a mere ministerial, power, in the probating of a will, or in granting a motion for a postponement of the hearing of an application to admit a will to probate.

      4. Mandamus—as to matters involving discretion—of time of receiving probate of a will. Where the exercise of a discretion is involved, a writ of mandamus will not be allowed against an inferior court or tribunal. So the discretion of the county or probate court as to the time it will receive probate of a will, or which of two papers purporting to be the wills of the same person, shall be passed upon first, will not be interfered with by this writ.

      This was a petition in this court for a writ of mandamus, against the judge of the probate court of Cook county.
    This is a petition for a mandamus, to the judge of the probate court of Cook county. An answer has been filed to the petition, to which the relatrix has interposed a demurrer. The facts appearing are, in brief, that the relatrix is the widow of Wilbur F Storey, deceased, late of the city of Chicago, who died on October 27, 1884, without issue, leaving Anson L. Storey, his brother, Mary E. Farrand, his sister, Mary E. Anderson and Edward P. Chapin, his niece and nephew, respectively, children of a deceased sister, his only next of kin. As is stated in the petition, he left a large estate, consisting of real estate in Cook county, improved, unimproved and in process of improvement, of the value of about $490,000, and the newspaper establishment from which is published the “Chicago Times,” valued at $1,000,000, besides other personal property of small value, there being upon the real estate mortgages to the amount of $228,000, and debts of the estate in addition, amounting to $100,000.
    The deceased left two writings, each of which purports to be his last will and testament. One bears date February 1, 1881, the other August 16, 1879. The former will was deposited in the probate court of Cook county on November 5, 1884. By this will of 1881, the relatrix is appointed sole executrix, without bonds, and as such is given authority to manage such estate, and to continue the publication of the “Chicago Times” until she shall find it practicable to make an advantageous sale thereof. The will further directs that the relatrix should, during her natural life or until her remarriage, have the use or interest of all the estate, or so much thereof as in her judgment she should need for her support and maintenance. When, however, the annual income of the estate shall be $12,000 or more, she is directed to pay to both said Mary E. Farrand and Anson L. Storey, during his or her natural life, the sum of $1000 per annum. The will further directs that the income of the estate in excess of the amount so used by her for her support and maintenance, and to pay the above legacies, should be added to the corpus of the estate, which should, upon the relatrix’s death or remarriage, descend to Mr. Storey’s legal heirs. The relatrix is also empowered, as executrix, to sell or mortgage any part of the estate to pay debts, and is directed as soon as practicable to convert all the estate into interest-bearing seéhrities. The will of August 16, 1879, was deposited in the probate court on November 11, 1884. This will also constitutes the relatrix the sole executrix, without bonds, and in its other provisions is substantially like the will of February 1, 1881, except that it does not, like the will of 1881, provide that the interest of relatrix shall cease upon her remarriage.
    On November 5, 1884, and at the same time that the will of 1881 was deposited in the probate court, Anson L. Storey presented a petition, alleging that Wilbur F. Storey died intestate, and asking that letters of administration be issued to Austin L. Patterson. With the petition was presented a paper, signed by all the heirs-at-law, relinquishing all rights and preferences which either of them might have to administer, and requesting the appointment of Patterson. The petition for letters of administration was opposed by the relatrix, and she, on November 14, 1884, presented a petition asking the probate of the writing dated February 1, 1881. The court heard the testimony of the subscribing witnesses, and refused to admit the writing to probate as a will, for the reason that the testimony of the subscribing witnesses showed that Wilbur F. Storey was not of sound mind and memory at the time he signed the writing. From the judgment of the court the relatrix on the same day prayed an appeal, which was granted upon her filing an appeal bond within twenty days.
    On December 2,1884, Mary E. Farrand, the sister, prayed an appeal from the judgment, which was allowed on her filing an appeal bond. On the same day, the relatrix filed her appeal bond, and Mrs. Farrand hers, both of which were approved. Subsequently each of the appellants procured a transcript of the record, and filed the same in the circuit court.
    On December 22, 1884, the relatrix presented a petition to the probate court. asking the probate of the writing bearing date August 16, 1879. An answer thereto, by Mrs. Farrand, was filed, which was verified by oath. No proof was received of the allegations of either petition or answer. There are some allegations in the petition as to the want of good faith of Mrs. Farrand in prosecuting her appeal, which "are denied by her in the answer. Mrs. Farrand moved the court that the proceeding, and reception of proof, be postponed until the disposition of her appeal, or until the further order of the court. After the hearing of counsel the court made the following order:
    “It is ordered that the prayer of the petition be refused at the present time, and that the taking of the testimony of the subscribing witnesses be postponed until the further order of this court, for the reason that the appeal of Mary E. Farrand from the order of this court, entered on the 14-th day of November, 1884, refusing the probate of the writing of February 1, 1881, purporting to be the last will of Wilbur F. Storey, deceased, is still pending and undetermined in the circuit court of Cook county. ”
    The prayer of the present petition is for a command to the judge to proceed and make a final order upon the probating of the will bearing date August 16, 1879.
    Messrs. Swett, Haskell & Grosscup, for the petitioner:
    When the will of August 16, 1879, was presented to the probate court, and an offer made to prove the same as required by law, it became the duty of that court to receive probate thereof without delay. Rev. Stat. 1874, chap. 148, secs. 2, 7.

      That court has no power to name conditions other than those found in the statute. Doran v. Mullen, 78 Ill. 342.
    Under the English chancery practice an appeal did not stay the execution of the decree appealed from, unless made só by a special order. Daniell’s Ch. Pr. 1467.
    Where the statute provides that an appeal shall supersede the decree, the decree remains intact, and its execution only is stayed until the appeal is heard. Curtis v. Root, 28 Ill. 367.
    The stay is limited to the execution of the order appealed from. The order appealed from makes no reference to the prior will, and can not operate to stay proceedings to probate it. Thompson v. Tracy, 60 N. Y. 31.

      Mandamus is the appropriate remedy to compel the probate judge to take action upon the will presented, and either to allow or disallow the same without delay. High on Ex. Legal Bern. see. 152.
    To proceed to trial is an executive duty, and may be enforced. Costello v. St. Louis Circuit Court, 28 Mo. 259; Brem v. Arkansas County Court, 9 Ark. 240; Ex parte Cox, 10 Mo. 742; Ex parte Bradstreet, 7 Pet. 634.
    Where a cause is continued without a proper showing, mandamus lies to compel the court to proceed with the trial. Dixon v. Field, 10 Ark. 243 ; People v. Pearson, 1 Scam. 458; People v. Jameson, 40 Ill. 93.

      Mandamus lies to compel all inferior tribunals to perform any duty enjoined on them by law, not involving judicial discretion. Commonwealth v. Hampden, 2 Pick. 414; Springfield v. Hampden, 4 id. 68; Johnson v. Randall, 7 Mass. 340; Strong v. Petitioner, 20 Pick. 484; Carpenter v. Bristol, 21 id. 258; Nelson v. Justices, 1 Coldw. 207.
    Admitting a will to probate is a ministerial act. Rev. Stat. chap. 148, secs. 3, 7; Manus v. Givens, 7 Leigh, 689; Dawson v. Thurston, 2 Hen. & Munf. 132; Delaney v. Goddin, 12 Gratt. 266; Mauer v. McCall, 5 Ga. 522; Williams v. Saund

      ers, 5 Coldw. 60; Moses on Mandamus, 50; City of Galena v. Amy, 5 Wall. 708; Ferguson v. Hunter, 2 Gilm. 657.
    Messrs. Trumbull, Washburns & Robbins, and Messrs. Dexter, Herrick & Allen, also for the petitioner:
    Where the prohate court declines to proceed in the probate of a will, having no justifiable excuse therefor, mandamus lies to compel the court to act. 3 Redfield on Wills, *54; Rex v. Raines, 1 Ld. Raym. 361; Justice v. Jones, 1 Barn. K. B. 280.
    The appeal of Mrs. Farrand from the order refusing probate of the will of 1881, is prosecuted in bad faith, and therefore should be no obstacle to the probate of the prior will.
    The subsequent probate of the will of 1881 on the appeal, would authorize the court in revoking the probate of the prior will; but acts done before such revocation would be sustained. Morgan v. Dodge, 44 N. H. 258; Goods of Harris, 18 W. R. 901; Bowen v. Johnson, 5 R. I. 118; Waters v. Stickney, 12 Allen, 1; Campbell v. Logan, 2 Bradf. 92; Schultz v. Schultz, 10 Gratt. 358; Patton’s appeal, 31 Pa. St. 465; 3 Redfield on Wills, *64; Rev. Stat. chap. 3, sec. 29.
    Acts done under a will before its revocation, are valid. 3 Redfield on Wills, *120; Aliens. Dundas, 3 T. R. 125; Appeal of Peebles, 15 S. & R. 40; Bigelow v. Bigelow, 4 Ohio, 147; Ragland v. Green, 14 S. & M. 195; Woods v. Nelson, 9 B. Mon. 601; Jones v. Jones, 14 id. 379; Price v. Nesbit, 1 Hill, (S. C.) 445 ; Waters v. Stickney, 12 Allen, 1; Ketterge v. Fulsom, 8 N. H. 98.

      Mandamus will not direct a court having judicial discretion, how to act, but will direct it to hear and finally dispose of the case. People v. Dental Examiners, 110 Ill. 185; People v. McCormick, 106 id. 188; Rhodes v. Craig, 21 Cal. 421; People v. Scales, 3 Scam. 351; People v. Pearson, 1 id. 461; Avery v. Superior Court, 57 Cal. 249; Williams v. Saunders, 5 Cold. 82; Dunphey v. Belden, 57 Cal. 458.

      Mr. W. C. Goudy, for the respondent:
    Under the present laws, and since the act of 1849, the probate of a will is a judicial act. But were it not, the decision of the court on a motion to continue or postpone is clearly judicial. High on Ex. Legal Bern. sec. 168; People v. Superior Court, 19 Wend. 701.
    This court has repeatedly held that where the exercise of a discretion is involved, a writ of mandamus will not be allowed. People v. Williams, 55 Ill. 178; Village Council v. People, 78 id. 382; County of St. Glair v. People, 85 id. 396; Hildreth v. Heath, 1 Bradw. 82; People v. Pearson, 2 Scam. 189.
    The writ will not be allowed for the purpose of correcting errors of the lower court. It has been refused where it was sought to compel the inferior court to admit certain evidence. It will not be allowed to correct or revise questions of pleading, nor where the court below has acted in a judicial capacity. High on Ex. Legal Bern. secs. 192, 257.
    , The writ of mandamus is never issued in doubtful cases of any kind. People v. Village of Crotty, 93 Ill. 180; Railroad Co. v. County Clerk, 74 id. 27; People v. Klokke, 92 id. 130; People v. Davis, 93 id. 133.
    The probate court properly declined to receive proof as to the writing dated August 16, 1879, until the question as to the proof of the writing dated February 1, 1881, should be decided. The prior contest is a good reason for postponing action. High on Ex. Legal Bern. sec. 260; Steward v. Eddy, 7 Mod. 143; Raine’s case, 5 id. 374; Lovegrove v. Bethel, 1 Black. 668; State v. Mitchell, 6 S. C. 703.
    Mr. John P. Altgeld, for Mary E. Farrand:
    A mandamus will not lie against a judge of an inferior court to control his judgment, or to direct a decision either way. It will not be issued where the question decided is one within the discretion of the court.

      The probate court has not refused to act in the matter,, but, on the contrary, has acted by determining to grant a motion for a postponement of the hearing until further ordered. The application for the postponement was a matter addressed to the sound discretion of the court.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Stress is laid upon the language of the act in regard to-wills, in section 2, chapter 148, of the Revised Statutes of' 1874, that when any will shall be exhibited for probate, it shall be the duty of the court to receive probate of the sameloithout delay, as being peremptory on the court to proceed at once in receiving probate of a will which is offered for that, purpose. No doubt it is the j>olicy of the act that there should be made settlement of the estates of deceased persons at as-early a day as practicable. But the language referred to is-not to be taken in the sense so literal that the court, on presentation of a will for probate, must immediately proceed in the probate thereof. The meaning is no more than that the court shall proceed without unreasonable delay. The courts-are vested with more or less discretion as to the order of business before them, and as to advancing or postponing causes. This is recognized in the provision of our Practice act for the keeping of a docket of all the causes pending, and that the causes shall be tried or otherwise disposed in the order they are placed on the docket, unless the court, for good and sufficient cause, shall otherwise direct. And it must be the-rule that ordinarily there will not be interference by mandamus-to direct when another court shall proceed with the hearing-of any particular cause.

In the present case- there were two writings, of different dates, before the probate court at ‘the same time, each purporting to be the last will and testament of Wilbur F. Storey,, the one last in date revoking all former wills. Which one-should the court proceed to receive probate of first P Suppose-the relatrix had insisted that the one first in date,—that of August 16, 1879,—should be first acted upon. There would be a case for the exercise of discretion. • And in proceeding first to receive probate of the last writing, and postponing until afterward the probating of the first writing, must be admitted would be a most fit exercise of discretion. Had the refusal of probate of the last will remained the final order of the probate court, then the probating of the first would have been proceeded with without hindrance. But such refusal of probate did not remain a final order, but it was appealed from, and the matter of probating the last will was still pending and undetermined. But, notwithstanding that, the probate court might have the power to go on now and receive probate of the first will. Yet is there not a fair question as to the propriety of so doing ? It may be thought that • the same reason of fitness which dictated the course of first receiving probate of the last will and postponing thereto the probate of the first will, still operates to continue such postponement until there be had a determination of the controversy pending whether the paper last in date be a will or not. If that shall be found to be the will of the decedent, then the first will is annulled, and the probating thereof would be-nugatory. The motion to postpone the hearing as to the first will, under the circumstances, called for the exercise of the court’s discretion. It was exercised in making a postponement until the further order of the court, for the reason of the pending appeal from the order refusing probate of the-last will. This is such an exercise of a court’s discretion as. we do not feel called upon to interfere with. There does not. appear to have been any abuse of discretion. This court has repeatedly held, that where the exercise of a discretion is involved, a writ of mandamus will not be allowed. (The People v. Pearson, 2 Scam. 204; Village of Glencoe v. The People, 78 Ill. 383; County of St. Clair v. The People, 85 id. 396; The People v. Williams, 55 id. 178.) In High on Ex. Leg. Rem. sec. 260, it is laid down: “The existence of other litigation in another forum, affecting the matter which is the foundation of the proceedings in mandamus, may sometimes operate as a bar to relief by this extraordinary writ. And it has been refused where it was sought to compel the granting of administration, it being shown that a contest was already pending as to a pretended will of the deceased. ” And see The People v. Superior Court, etc. 19 Wend. 701; Stewart v. Eddy, 7 Mod. 143; Sir Richard Raines’ case, 5 id. 374; Lovegrove v. Bethell, 1 Blackstone, 668; Rex v. Hay, 4 Burr. 2295; Rex v. Bettesworth, 2 Strange, 1111.

On the part of the relatrix, reference is made to the statement of the law as made in 3 Bedfield on Wills, 54: “Where the probate court declines to proceed in the probate of a will, or to give the executor letters testamentary, having no justifiable excuse therefor, the Superior Court, by mandamus, will compel the probate court to proceed in the matter. ” There is here no declining absolutely to proceed, but only at the present time, for what the court deems the justifiable reason, —that there is a proceeding pending for the establishment of a later will,—amounting but to a continuance on motion made therefor. The authority cited should not control in such a case.

A point is made by the relatrix that the probate of a will is a ministerial act, and reference is made to Ferguson v. Hunter, 2 Gilm. 657, and Ayers v. Clinefelter, 20 Ill. 473, as so holding. These decisions were under former statutes, and previous to 1849. The statute of 1819 authorized probate of a will to be made before the county commissioners. In 1837 a probate court was created, presided over by a justice of the peace, and the statute declared the probating of a will to be a ministerial act. The present statute has no such provision. A change was made in 1849, establishing the county court a court of record to be held by one judge, the court being vested with all the powers and jurisdiction of the probate court as then established,—the act declaring that granting letters testamentary or of administration, determining who are entitled to said letters, should be considered as general judicial powers under the act. The constitution of 1870 provided for a county court to be a court of record to be held by one judge, and conferred upon it original jurisdiction in all matters of probate. The constitution also provided for the establishment of a probate court in certain counties, and under this section the probate court of Cook county has been created with an original jurisdiction of all probate matters. In Duncan v. Duncan, 23 Ill. 364, it was held that parties in interest might contest the validity of a will before the probate court as well as by bill in chancery, and should be allowed to examine the attesting witnesses as well as others. We have no doubt that the court, here, in acting upon the motion for postponement, should be regarded as in the exercise of judicial functions, and that the same doctrine is to be applied as in a case of such kind.

The similarity of the provisions of the two wills, and the fact that the same person is appointed executrix in each, is remarked upon as removing the objection to the immediate probate of the earlier will. This would diminish the inconveniences which would result from the probating of two wills of different dates, but would not entirely obviate the same.

It is insisted that there is a want of good faith on the part of Mrs. Farr and in the prosecution of her appeal from the older refusing probate of the later will,—that it is for her interest that the order should stand and the will not be established, as in the case of intestacy she would come into immediate possession of one-third of the estate. On the hearing before the probate court, on the motion for postponement, such want of good faith was averred on the one side and denied on the other, and in view thereof the court made its decision. The motive for taking the appeal hardly seems to be a proper subject of inquiry. There was the right to take the appeal, and it was taken, which left the question of the validity of the later will undisposed of and still pending for decision. That there was ground for the taking of an appeal, there is the evidence furnished by the relatrix’s action in herself taking an appeal. We can see that it appears to be for the interest of Mrs. Farrand that there should be a case of intestacy,—that there should be no will whatever established; yet, as between the two wills, it is for her interest that the one later in date should be established, rather than the earlier one. She has, at any rate, exercised her right to take an appeal, and her motive in so doing seems hardly inquirable into to do away with the effect of the appeal in its bearing upon the decision of the probate court.

Upon consideration of the whole matter, there is not made to appear, here, the clear right to the writ of mandamus which must be shown in order to its allowance, and we are of opinion the demurrer to the answer should be overruled, and that there should be judgment in favor of the defendant, denying the writ.

Mandamus denied.


text:
    John Springer v. Joseph E. Springer.

      Filed at Springfield September 23, 1885.

      1. Besotting trust—when it arises—and in what proportion. Whera a party receives money of another, to be invested in the purchase of land, and pays out the same, with other money of his own, in a purchase, taking a deed in his own name, he will hold the land so acquired in trust for the person whose money he has so used, in the proportion it bears to the entire consideration paid.
    2. Laches—from what time to be computed—as against the establishment of a resulting trust. A party who takes a conveyance of land in his ■own name, partly paid for with the money of another placed in his hands, can. not set up as a defence to a bill to enforce a resulting trust, the laches •or delay of the complainant for the time he has admitted and recognized his equitable rights. Such defence will avail him only from the time he sets up •an adverse claim, and denies the complainant’s rights.
    Appeal from the Circuit Court of McLean county; the Hon. 0. T. Beeves, Judge, presiding.
    Messrs. Blades & Neville, for the appellant:
    A complainant must recover according to the case made by his bill. Swift v. Castle, 28 Ill. 209 ; Randolph v. Oustall, 58 id. 53; Hertle v. Hall, 60 id. 344; Herne v. Cantrell, 59 id. 329.
    The laches of complainant is a bar to the relief sought. Cox v. Montgomery, 36 Ill. 398; Carpenter v. Carpenter, 70 id. 457; Hall v. Fullerton, 69 id. 448 ; Mahoney v. Mahoney, ■65 id. 406.
    Messrs. Stevenson & Ewing, and Messrs. Piper & Phillips, for the appellee:

      Laches not being set up in the answer, can not be availed, of as a defence. Harris v. Cornell, 80 Ill. 54; O’Halloran v. Fitzgerald, 71 id. 53.
    Being a case of trust, limitation does not apply. Russell v. Peyton, 4 Bradw. 473.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Joseph E. Springer, in the circuit court of McLean county, against John Springer and Nicholas Bisser, to enforce the conveyance of an undivided interest in certain lands in McLean county, which the •complainant in the bill claimed to own, and where the legal title vested in defendant Nicholas Bisser. The defendants put in an answer to the bill, to which replication was filed, and the cause proceeded to a hearing on the pleadings and the evidence, and the court rendered a decree requiring defendants to convey to complainant an undivided one-fourth of the premises described in the bill, within a short day named in the decree; and defendant Springer was also required to pay the complainant the sum of $1334.60, as a reasonable rent for the premises while the lands were occupied by the defendants. To reverse this decree, John Springer, one of the defendants, appealed.

There is a decided conflict between the evidence of the complainant in the bill, and the defendant John Springer, in regard to the principal matters involved in the controversy. It is alleged in the bill that the.eomplainant sent from Hamilton, in the State of Ohio, to John Springer, in Bloomington, Illinois, in the years 1868 and 1869, large sums of money, to be invested in lands; and it is also claimed that a portion of this money was invested in the “Otto farm,”—the land in dispute. The court, in the decree rendered in the cause, found that complainant had sent $2000 to the defendant, which was invested in the land in dispute. We have examined the evidence in the record carefully, and we are of opinion that this finding is fully sustained. The complainant proved by the secretary and treasurer of a mining company, that he obtained the money for his services while in the employ of the company, and this "was followed by the evidence of the cashier of a national bank in Bloomington, who testified that, the drafts sent by complainant to John Springer were cashed by the latter at the bank. In connection with this evidence the letters of the defendant were read in evidence, which seem to establish the fact that the money was used in the purchase of the land for complainant and defendant, but the title was-taken in the name of the latter. In his letter of October 28, 1868, he says: “As I said before, D. J. Otto’s farm is for sale, and I think of buying him out. * * * I will buy the land for us.” On March 4, 1869, he wrote as follows: “Tours of February 26 came to hand to-night, with draft for $550.50. I settled with D. J. Otto. Got $1600 in the bank of Bloomington, for ninety days. We must make it so the bank can be paid when due. ” There were other letters of a similar character, but it will not be necessary to set them out here. It seems clear from the letters, in connection with the other evidence, that the undivided half of the Otto farm was purchased by John Springer for the complainant and himself, and that complainant’s money paid at least one-half of the purchase price of the land.

The appellant has interposed the defence of laches as a bar to the relief claimed in the bill. The land was purchased in February, 1869, and this bill was filed in August, 1876. If appellant, from the time of the purchase, had denied that the complainant had any rights in the land, and all the time claimed it as his own property, there might be some ground for relying on this defence. But such was not the case. Complainant testified that in November, 1870, the defendant promised to make him a deed. He also testified that he had many conversations trying to get a settlement of the matter, “from spring to fall, and from fall to spring. ” One witness testified that as late as 1875 John Springer told him that he and complainant owned eighty acres of the Otto farm together. This was only a short time before the bill was filed. If the defendant held the land in trust for complainant, admitting complainant’s rights to the property, while this state of things continued he could not set up as a defence that complainant was guilty of laches in asserting his rights to the property.

The complainant has assigned a cross-error, claiming that the court erred in not giving him more land than an undivided one-fourth. There is some evidence that more than $2000 of complainant’s money was invested in the purchase of the land; but after due consideration of all the evidence, we are inclined to think the decree is right, and that it ought not to be disturbed.

Decree affirmed.