author: Mr. Justice Scholfield

text:
    The Pennsylvania Company v. Kate Conlan.

      Filed at Ottawa November 10, 1881.

    1. Evidence—negligence—evidence to show rate of speed and control of train. Testimony showing how far a train of cars ran after striking a person, is competent evidence in a suit against the railroad company to recover damages for causing the death of the person struck, as tending to show the train was running at a greater speed than allowed by ordinance of the city in which the accident occurred, and also that the train was not under proper control.

      2. Same—employment of party injured is material. In a suit against a railroad company to recover for the killing of a person through negligence, while engaged in his duty as a switchman, the nature of his employment at the time of the injury is material on the question whether he was exercising due care.
    3. " Same—limiting question to particular train. In a suit against a railroad company to recover damages for striking a person by a train of ears through negligence, a witness had been speaking of the train that struck the deceased. He was then asked, “state to the jury, in your opinion, how fast the train was going, ” which was claimed to be objectionable, as not being limited in time or to the particular train: Held, that the objection was not tenable.
    4. ■ Samé—opinions of persons as to matters not scientific, etc. Where a copy of the rules of a railway company, showing what was required of switch-men and other servants, was admitted in evidence, and where what work the deceased switchman was required to do, as well as the means at his hand with which it could be accomplished, was distinctly shown, and where the main and side-track's, and their distance from each other, and the street crossings and yards, with all the other facts deemed necessary, were given in evidence, it was held no error to refuse the testimony of other switchmen, to show that in their opinion it was not necessary for the deceased to have been where he was when he received the injury, or to have passed along the track, and that there was space enough to properly perform his duties without going upon , such track, etc., as the jury were as competent, from the facts shown, as the witnesses, to form an opinion on the questions proposed.
    5. As to matters which do not so far partake of the nature of a science as to require a course of previous habit or study in order to an attainment of a knowledge of them, the opinions of witnesses, though experts, are not admissible.
    6. Negligence—is a question of fact. The question of negligence is not one of law, but of fact, and must be proved like any other. Hence an instruction is properly refused which tells the jury, as a matter of law, that certain facts per se constitute negligence. By this it is not meant that the definition of negligence is one of fact, to be determined by the jury.
    7. Expressions may be found under the old practice, when this court was required to review questions of fact as well as of law, tl*at certain facts were evidence of negligence. But such expressions are mere argument—the expression of a conclusion of fact, and not of law.
    8. Pleading and evidence—variance as to immaterial allegation not fatal. As a party is not bound to prove matters which are merely surplus-age, if the proof does not correspond with such matters alleged the variance is immaterial.
    9. Same—no variance to prove more than is alleged. In an action against a railroad company to recover for an injury by striking the deceased with a moving train of cars, the declaration alleged that the deceased, at the time, was engaged in his duty in passing over and upon a certain track, “to give directions to others of his co-servants, and to aid in the switching, movement and operation of certain cars being switched upon” such track. There was evidence tending to prove this allegation: Held, that proof that deceased had another duty to perform, as, taking the numbers of the cars, in a memorandum book, constituted no variance, .as what the deceased was doing at the time was-no part of the tort complained of, or of the means adopted in effecting it.
    10. In such case the gist of the action is the defendant’s negligence, as alleged, and the motives of the deceased in being upon the track, or why he was there, are wholly immaterial, it being sufficient that he was lawfully there. Any allegation showing why the deceased, as switchman, was upon the track, except that he was rightfully there, is surplusage.
    11. Practice—excluding all plaintiff’a evidence

       A motion to exclude all of the plaintiff’s evidence at its close, being in the nature of a demurrer to the evidence, is properly refused if there is any evidence tending to prove the plaintiff’s case.
    12. Same—remarks of judge.

       The court, on overruling a defendant’s motion to exclude all the plaintiff’s evidence, as not making a case, remarked that he would not give his reason for so deciding, for the counsel did not want him to sum up the testimony and tell the jury why he overruled the motion: Held, that there was no error in such remarks.
    13. Instructions—province of court and of the jury. It is the office of the judge to instruct the jury in points of law, and of the jury to decide on matters of fact.

      li. Same—singling out a single fact. An instruction is properly refused which singles out an isolated fact, saying that it alone does hot constitute willful or wanton negligence, especially when the question does not hinge on such fact alone, and the instruction does not assume to be predicated upon the evidence.
    15. Same—deciding upon a question of fact. An instruction telling the jury, as a matter of law, that an ordinary switchman’s lantern, giving forth a white light, is a sufficient compliance with a city ordinance requiring “a brilliant and conspicuous light on the forward end of each locomotive,” etc., is properly refused, as taking from the jury an important fact which it is their province to find from the evidence.
    16. Witness—credibility. To impeach a witness it must be shown that he willfully and knowingly testified falsely to a material fact, and even then the jury are not compelled to disbelieve him as to other matters. They may do so, but should be left to exercise their judgment in that regard.
    17. Practice in Supreme Court—errors not urged in lower courts. Where no objection is made that the damages are excessive, in the trial court in the motion for a new trial, nor in the Appellate Court, that question is not before this court.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    This was an action on the case, brought by appellee against appellant, in the Superior Court of Cook county, in consequence of the negligence of appellant resulting in the death of her intestate.
    The declaration contains four counts: In the first, the negligent act is alleged to have consisted in wrongfully, unlawfully and negligently driving a locomotive engine and train of cars, within the limits of the city of Chicago, without having a brilliant and conspicuous light on the forward end of said train, as required by an ordinance of said city. In the second, the negligent act is alleged to have consisted in wrongfully, negligently, etc., driving the said locomotive engine and train at a greater rate of speed, within the limits of the city of Chicago, than six miles per hour, contrary to an ordinance of said city. In the third, the negligent act is alleged to have consisted in driving the said locomotive engine and train of cars at a high rate of speed, neglecting to ring a bell on the said locomotive, contrary to law and the ordinance of said city. In the fourth, the negligent act is alleged to have consisted in carelessly, negligently, etc., driving and managing the said locomotive engine and train, etc.
    It was proved on the trial, that at the time the intestate was injured, appellant and the Chicago and Alton Railroad Company operated certain tracks in the city of Chicago, in common. The intestate was a switchman in the employ of the Chicago and Alton Railroad Company, and about half past seven o’clock on the evening of February 13, 1880, and while the intestate, together with another switchman and an engineer and fireman, were. in charge of a switch-engine, gathering up empty cars from off the switches, the intestate was struck by one of appellant’s freight trains, backing up along one of its main tracks, and thereby received the injuries from which he subsequently died.
    Ordinances of the city of Chicago were also read in evidence upon the trial, providing that “every locomotive engine, railroad car or train of cars running in the night time on any railroad track in said city, shall have and keep, while so running, a brilliant and conspicuous light on the forward end of such locomotive engine, ear, or train of cars; ” also, that “no locomotive engine, railroad passenger car or freight car. shall be driven, propelled or run upon or along any railroad track within said city at a greater rate of speed than six miles per hour;” and also, that the bell “of each locomotive engine shall be rung continuously while running within said city. ” The only light on the advancing or forward end of the train, was a common brakeman’s lantern.
    The other facts, so far as they may be material to an understanding of this case, will sufficiently appear in the opinion.

      The jury found the appellant guilty, and assessed appellee’s damages at $5000. Motion for a new trial was made, and overruled by the Superior Court, and judgment rendered upon the verdict, and thereupon appellant appealed to the Appellate Court for the First District, and that court, on final hearing, affirmed the judgment of the Superior Court. The present appeal is prosecuted from that judgment.
    The errors assigned are: -
    First—The Appellate Court erred in not sustaining the points, and each of the points, assigned for errror on appeal from said Superior Court.
    Second—The said Appellate Court erred in not reversing the judgment of said Superior Court.
    Third—The said Appellate Court erred in affirming the judgment of the said Superior Court.
    Messrs. Willard & Driggs, for the appellant:
    What the deceased was doing at the time of the alleged injury was material, and must be proved as alleged, although set forth with unnecessary particularity. City of Bloomington v. Goodrich, 88 Ill. 558; Goodhue v. People, 94 id. 37; Chicago and Alton R. R. Co. v. Michie, 83 id. 427; Toledo, Wabash and Western R. R. Co. v. Beggs, 85 id. 80.
    The court erred in refusing to allow the witnesses Morrisey and Eose, experienced switchmen, to testify as to their opinions, etc. Linn v. Sigsbee, 67 Ill. 75; Carter v. Boehm, 1 Smith’s Leading Cases, 286; 1 Redfield on Railways, 579 ; Beckwith v. Sydebotham, 1 Camp. 116 ; Belfontain and Indiana R. R. Co. v. Bailey, 11 Ohio St. 333; Cincinnati and Zanesville R. R. Co. v. Smith, 22 id. 227; Transportation Line v. Hope, 5 Otto, 297; 1 Wharton on- Evidence', sec. 444.
    Persons not experts may give their opinions as to the value of property. Butler v. Wehrling, IS Ill. 488; McKee v. Nelson, 4 Cow. 350; Steamboat Clipper v. Logan, 18 Ohio, 396.

      The court erred in overruling appellant’s motion to exclude appellee’s testimony. Such motions are in the nature of a demurrer to evidence, and should he sustained when the plaintiff’s proof does not make out a case. Fent et al. v. Toledo, Peoria and Warsaw R. R. Co. 59 Ill. 349; Poleman v. Johnson, 84 id. 269; Phillips v. Dickerson, 85 id. Ill.
    The deceased could have stood .between the two main tracks and performed the service in which he was engaged. He did not do so, hut, on the contrary, placed himself in the most dangerous position possible under the circumstances, and the conclusion is irresistible that the proximate cause of his death was his own want of care. Chicago, Burlington and Quincy R. R. Co. v. Hazard, 26 Ill. 373; Chicago and Northwestern Ry. Co. v. Sweeney, 52 id. 325; Chicago and Northwestern Ry. Co. v. Donohue, 75 id. 255; Chicago and Northwestern Ry. Co. v. Scates, 90 id. 586; Lake Shore and Michigan Southern Ry. Co. v. Clemens, 5 Bradw. 77.
    That defendant’s instructions numbers one and two were proper and correct, counsel cited Bartlett et al. v. Board of Education, etc. 59 Ill. 364; Kendall v. Brown, 74 id. 232; Clevinger v. Dunaway, 84 id. 367.
    That instruction number seven should have been given, see Illinois Central R. R. Co. v. Hetherington, 83 Ill. 510; Chicago, Burlington and Quincy R. R. Co. v. Harwood, 90 id. 425. The court erred in giving the instruction on its own motion. v
    Messrs. Monroe & Leddy, for the appellee: .
    The court did allow appellant to prove what the duties of Conlan were, and how they were usually performed, as well as all the facts relating to the. case, but. not what Conlan might have done.
    On the question whether the plaintiff used due care, or acted imprudently, it is error to admit in evidence the opinions of witnesses engaged in the same business, when no question of science, trade or skill is involved. Hopkins v. Indinapolis and St. Louis R. R. Co. 78 Ill. 32; City of Chicago v. McGiven, id. 347; Chicago and Alton R. R. Co. v. Springfield and Northwestern R. R. Co. 67 id. 142.
    The court did allow appellee and appellant both to show fully the- duties of Conlan, the situation of the ground, tracks, switches, trains, and the circumstances and conditions under which he performed those duties, and left it for the jury to say whether or not Conlan was negligent.
    The first, and second instructions were properly refused, as they took the question of negligence away from the jury, and left it with' the court to say that the deceased, under a certain state of facts, was guilty Of negligence. 'The question of the negligence of the deceased was embodied in the instructions given by the court, and fairly submitted to the jury. The case of Bartlett v. Board of Education, etc. 59 Ill. 364, cited by appellant, has no application.
    Instructions numbers seven and eight, refused, were properly refused, the first leaving out the comparative negligence, and also being an abstract proposition of law, and the eighth infringing on the province of the jury.
    The twelfth instruction was properly refused, as it was faulty in using the word “should” instead of the word “may, ” and omitting other words, “willfully and knowingly.” Reynolds v. Greenbaum, 80 Ill. 416; Pollard v. The People, 69 id. 148.

       Demurrer to evidence. As to the proper office of a demurrer to evidence, what it should contain, and what it admits. Crowe v. The People, 92 Ill. 231; Valtez v. Ohio and Mississippi Ry. Co. 85 id. 500; Phillips v. Dickerson, id. 11.
      On the general subject of an involuntary non-suit, or excluding all the plaintiff’s evidence from the jury, or instructing the jury to find for the plaintiff, or for the defendant. Holmes v. Chicago and Alton R. R. Co. 94 Ill. 440, and cases cited in note; Caveny v. Weiller, 90 id. 158; Hubner v. Feige, id. 209, and note; Crowley v. Crowley, 80 id. 469; Smith v. Gillett, 50 id. 291.

       Practice—remarks of the judge in making his rulings—whether ground of error. Ashbaugh v. Murphy et al. 90 Ill. 182; Beasley v. The People, 89 id. 571; Skelly v. Boland, 78 id. 438; Andreas et al. v. Ketcham, 77id. 377; Farnham v. Farnham, 73id. 498.
      As to improper remarks of counsel. Hennies et al. v. Vogel, 87 Ill. 242; Kepperly v. Ramsden, 83 id. 354; Wilson v. The People, 94 id. 299.

   Mr. Justice Scholfield

delivered the opinion of the Court:

Numerous objections are urged in argument against the rulings below, and they shall be noticed in the order in which they are discussed in appellant’s brief.

First—Certain evidence, admitted over appellant’s objections, it is insisted, was erroneously admitted.

1. A witness testified how far appellant’s train ran after Conlan was struck. This, we think, was competent. An ordinance of the city limited the speed of trains to six miles an hour. It was not indispensable, in proving a violation of this ordinance, that the proof should show the speed was ascertained by actual comparison and measurement with a timepiece. That, of course, would be the very best kind of evidence, but from the nature of things it is absolutely necessary that a lower grade of evidence should be admissible. This evidence would tend to prove the speed of the train, and also whether it was under proper control, and was, in our opinion, legitimate, under the issues.

2. Again, the same witness gave answer, fixing the speed of the train, to this interrogatory: “State to the jury, in your opinion, how fast the train was going.” The only respect wherein it is claimed this is objectionable is, that it is not limited in time. The objection results from a misapprehension. The witness had been previously speaking of the train that struck Conlan. The question is limited to that train, and, we think, must clearly have been so understood by the witness and the jury, and so was free of the objection.

3. The same witness also identified a certain memorandum book as the one Conlan was using in taking the numbers of the cars at the time he was injured. The objection urged against this evidence is, it is not alleged in the declaration that the taking of the numbers of cars was the duty of Conlan, as a switchman, and counsel say: “The allegation in each of the counts is, that it became, and was, necessary for the deceased to pass over and upon said easternmost track, ‘to give directions to others of his said co-servants, and to aid and assist in the switching, movement and operation of certain cars then being switched upon the westernmost track.’” And they cite City of Bloomington v. Goodrich, 88 Ill. 558, Goodhue v. People, 94 id. 37, Chicago and Alton R. R. Co. v. Michie, Admx. 83 id. 427, Toledo, Wabash and Western R. R. Co. v. Beggs, 85 id. 80, as sustaining the proposition that what the deceased was doing at the time was material, and must be proved, as alleged. Counsel are in error as to the effect of what is ruled in those cases. They announce, in substance, that if the pleader, though needlessly, describe the tort, and the means adopted in effecting it, with minuteness and particularity, and the proofs substantially vary from the statement, there will be a fatal variance,—and this was but following an old and well settled rule of common law pleading. 1 Chitty’s Pleading, (7th Am. ed.) 427. But what deceased was doing at the time he received the injury, is no part of the tort, or of the means adopted in effecting it. And although it is alleged, in the language quoted above, there is proof tending to sustain this allegation,—that is to say, that it became, and was, necessary for the deceased to pass over and upon said easternmost track, to give directions to others of his said co-servants, and to aid and assist in the switching, movement and operation of certain ears then being switched, etc. It would be difficult to determine, upon any well established principle of law, that the fact that the deceased had an additional motive for being on the track, viz: taking the numbers 'of cars, would constitute a variance between the proofs and allegations.

There is, however, in our opinion, a still more complete and satisfactory answer to the objection. “A party is not bound to prove matters which are merely surplusage. If the proof does not correspond with such matters, the variance is not material.” West v. Cole, 12 Mod. 127; Gibbs v. Cannon, 9 S. & R. 203; Little v. Blint, 16 Pick. 365; 3 Robinson’s Practice, 562; 1 Chitty’s Pleading, (7th Am. ed.) 262, 263.

It is distinctly averred in the declaration that the'deceased was a switchman in the employ of the Chicago and Alton Bailroad Company, and' that in the discharge of his duties as such it became, and was, necessary to pass upon and over the track of the appellant, and that while he, in the discharge of such duty,- with due care and caution, and without negligence on his part, was so passing over and along said track, etc., appellant wrongfully, negligently, etc., drove its engine and train, without having a sufficient headlight, as prescribed by ordinance of the city, etc.,- and thereby struck and ran against and upon the deceased, thereby wounding him, etc.

The gist of the action is appellant’s negligence. The motives of the deceased in being upon the track are wholly immaterial, it being sufficient that he was lawfully there. Obviously no issue could be formed on the question of deceased’s motives. Hence, all that is alleged in regard to why the deceased was upon the track might have been stricken out without affecting the sufficiency of the declaration. It was what appellant did, not why deceased was there, that was important to be inquired into. The allegation was entirely surplusage, and might have been disregarded, in whole or in part, without affecting the merits of the case, and it is therefore unimportant whether it was proved or not.

Second—Evidence was offered by appellant, which, on objection by appellee, was rejected by the court, consisting of the testimony of several switchmen, 'to show that in their opinion it was not necessary to be where deceased was when he received his fatal injury; that in order to perform the duties enumerated in the declaration it was not necessary for the deceased to pass along upon the east main track; that there was space enough to properly perform such duties without going on said track, and that there was no rule of the Chicago and Alton Railroad Company requiring the switch-man performing the duties before indicated to stand on the main track. The form of the proposition is repeated undervalued phraseology, but it all amounts simply to a proposition to establish that the deceased did not exercise due care, in the opinion of the witnesses, or to give the opinions of other switchmen on that. subject. What the rules of the Chicago and Alton Railroad Company required of switchmen and other servants was proven- by a copy of those rules; and what work the deceased had to do was distinctly pointed out, as well as the means at his hand with which it could be accomplished. The main tracks and side-tracks, distances from each other, street crossings, and yards, were fully described, and all the other facts deemed necessary by the respective counsel to place the case fully and fairly before the jury, were given in evidence. Under these circumstances we can not perceive why' every man on the jury was not as competent to give his opinion on the questions proposed to be proved, as a professional switchman. Whether to be on a track is dangerous, whether there is room to pass by the side of a train without getting on an adjoining track, how far tracks are from each other, how far cars project over the sides of tracks, how far, at any given point, it is necessary for a person to stand from a track in order to see the front or rear of trains, and all kindred questions, are, most obviously, as easily ascertained and testified to by one man as by another of equal intelligence, without regard to experience in railroading.

In Linn v. Sigsbee, 67 Ill. 75, referred to by counsel for appellant, this court held, that in an action for the breach of a contract made by one physician with another not to practice medicine within a given territory, other physicians could not be allowed to give their opinions as experts as to the amount of damages resulting to the plaintiff by the resumption of practice by the defendant. The court, among other things, said: “If they” (the physicians) “did not have a knowledge of the facts, the sickness, and the practice performed by the defendant, an opinion was a mere guess; if they had such knowledge from a detailed statement of the facts, the jury could have assessed the damages and this would seem to have equal pertinency here. If the switchmen did not know all the facts essential to an intelligent opinion, any opinion they might express would be a mere guess. If they did know the facts, they could detail them to the jury, so that the jury could form their own opinion.

The quotation made in that case from Garter v. Boehm, 1 Smith’s Leading Cases, 286, we dó not think applicable here, because the subject matter of inquiry is not such that only persons of skill and experience in it are capable of forming a correct judgment upon it,—or, in other words, it does not so far partake of the nature of a science as to require a course of previous habit or study in order to the attainment of a knowledge of it. And this precise question has been thus decided by us in Hopkins v. Ind. and St. L. R. R. Co. 78 Ill. 32. To a like purport are also City of Chicago v. McGiven, 78 Ill. 347, and Chicago and Alton R. R. Co. et al. v. Springfield and Northwestern R. R. Co. 67 Ill. 142. Questions of value, as in Butler v. Mehrling, 15 Ill. 488, which are compounded of fact and opinion, are not analogous.

The questions whether deceased had been in employment long enough to know about this train, and whether his employment had been such that he saw or might have seen this train every evening, which were asked, and their answers disallowed by the court, belong to the same class as those we have commented upon, and require no further remarks. See Wharton on Evidence, vol. 1, sec. 436.

Third—Appellant’s counsel, at the close of appellee’s testimony, moved to exclude it from the jury, but the court refused to allow the motion.

Counsel insist that such motions are in the nature of demurrers to evidence, and should be sustained where the plaintiff’s proof does not make out a case, and they cite Fent et al. v. Toledo, Peoria and Warsaw Ry. Co. 59 Ill. 349, Poleman v. Johnson, 84 id. 269, Phillips v. Dickerson, 85 id. 11, sustaining the proposition. Counsel are mistaken in the limitations of the rule recognized by these cases. The motion, it is true, is in the nature of a demurrer to evidence ; but, as a demurrer to evidence, it was never heard that a judge could take the question of fact from the jury, and interpose his own judgment as to the weight and preponderance of evidence in the place of theirs. The rule, on the contrary, is, as is shown by these cases, the demurrer admits not only all that the plaintiff’s testimony has proved, but all that it tends to prove,—and hence, if there is evidence tending to prove the issues in favor of the plaintiff, the judgment must be in his favor. There was evidence here tending to prove the issues in favor of appellee, and the court very properly, therefore, overruled the motion.

Fourth—The court refused certain instructions asked by appellant, of which the first, second, seventh, eighth, twelfth, thirteenth and fourteenth are specifically pointed out in argument as having been erroneously refused. The others were practically abandoned on argument, and no notice, therefore, need be taken of them.

As to the first and second, it is enough to say the court properly refused them, because they assumed to tell the jury, as matters of law, that certain facts per se constituted negligence on the part of the deceased. In Great Western R. R. Co. v. Haworth et al. 39 Ill. 353, this court ruled, “negligence is not a legal question, but is one of fact, and must be proved like any other, ” and this ivas followed in Chicago ancl Alton R. R. Co. v. Pennell, 94 Ill. 448. Of course this does not mean that the definition of negligence is one of fact, and that the jury shall be left to their own fancies to determine what, in each case, shall be the measure to which the proof shall he applied in determining whether there is negligence, but, simply, the general rule being declared as matter of law, the jury must determine whether such facts have been proved as bring the case within that general rule. Thus, in the Haioorth case, supra, negligence was defined 'to be “the opposite of care and prudence—the omission to use the means reasonably necessary to avoid injury to others, ” and it was left to the jury to determine, from all the evidence, whether the party charged with the negligent act was thus guilty—that is, whether the party had failed to exercise care and prudence, or, in other words, omitted to use the means reasonably necessary to avoid injury to the other party. It is sometimes said that negligence is a mingled question of law and fact. Shearman & Bedfield on Negligence, (2d ed.) sec. 11. If by this it is meant it is a question of law to determine the rule—that is, the definition of negligence, and a question of fact to determine, from the evidence, whether the particular case falls within the rule or definition,—it is entirely in harmony with the rulings of this court in the cases supra.

Expressions may frequently he found in opinions of this court, where, under our old Practice act, we were required to review questions of fact as well as of law, that such and such facts were evidence of negligence. But this is always mere argument—the expression of a conclusion of fact, not of law,—from certain other admitted or proved facts. In such cases, and as to such questions, the court is exercising precisely the same function as does a jury in the trial court, only, unlike the jury, giving its reasons for its conclusions; and it is this blending, in such cases, of the distinct and independent functions exercised by court and jury at nisi prius, that has occasionally misled counsel, and induced the belief that the court has declared the result of purely controverted questions of fact as conclusions of law. “It is the office of the judge to instruct the jury in points of law,—of the jury to decide on matters of fact.” Broom’s Maxims, (4th ed.) 103, *77.

The seventh instruction is faulty in singling out a single fact and saying that it, alone, does not constitute willful or wanton negligence. No one, perhaps, claims that it does. But the case did not hinge on that isolated fact, and to single it out and give it this undue prominence could have but tended to mislead the jury. Besides, it does not assume to be predicated upon the evidence, and if it did, it would be but the expression of an opinion of fact, and not of law. Whether such running would constitute willful or wanton negligence, would depend entirely upon the attending circumstances, all of which should be taken into consideration in order to give an intelligent answer to a question of that character.

The eighth instruction told the jury, as matter of law, in substance, that an ordinary switchman’s lantern, giving forth a white light, was a sufficient compliance with the city ordinance requiring “a brilliant and conspicuous light on the forward end of each locomotive, ” etc. The instruction does not purport to give a legal construction of the ordinance. It simply takes from the jury a question of fact. The law said there “must be a brilliant and conspicuous light, ” etc., no matter how produced, and it is merely a question of fact whether there was such a light. The court, therefore, properly refused the instruction.

The twelfth instruction was properly refused. The jury are not compelled to disbelieve a witness merely because his testimony as to some material point in the case may not be true. To impeach him it must be shown that he willfully and knowingly testified falsely, and even then the jury are not compelled to disbelieve him as to other matters. They may do so, but should exercise their judgment in that regard. Reynolds v. Greenbaum, 80 Ill. 416; Pollard v. The People, 69 id. 148.

The substance of the thirteenth instruction is clearly and distinctly embodied in the instructions given by the court, and so its refusal could have done no harm.'

The fourteenth instruction was also properly refused. The nature of the employment of deceased at the time he was injured, was material on the question of whether he was exercising due care, and the purport of the instruction was to assert the contrary. The court gave to the jury a charge, of its own motion, embodying with substantial accuracy all the principles of the law we think essential to a full comprehension of their duties, by the jury.

The objections urged are, in our opinion, hypercritical, for the most part, and all untenable. They are not of sufficient practical importance, in our opinion, to justify stating and answering them seriatim and at length, and we shall therefore forbear further comment.

An objection is made to a remark of the judge in overruling appellant’s motion to exclude appellee’s testimony, to the effect that he would not give his reasons for deciding as he did, for the counsel did not want him to sum up the testimony and tell the jury why he overruled the motion. It is impossible to conceive that this improperly affected the jury. The motion was overruled, and from this the jury must have inferred it was not well founded, and we are unable to perceive that anything more prejudicial to appellant could have been inferred from these remarks of the judge. We regard the objection as frivolous.

There seems to have been an objection urged in the Superior Court in regard to the competency of a juryman, but since it is not pressed in argument here, we infer it has been abandoned, and, we think, very properly so, as it was plainly destitute of merit.

The question of whether the damages are to be regarded as excessive, is not before us, since that objection was not raised in the motion for a new trial in the Superior Court, nor assigned for error in the Appellate Court. Emory v. Addis, 71 Ill. 273; Thayer v. Peck, 93 id. 357; Diversey v. Johnson, Admx. id. 547; Page et al. v. People ex rel. 99 id. 418; Litchtenstadt v. Rose, 98 id. 643.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    Marshall Field et al. v. Lavinia A. Herrick et al.

      Filed at Ottawa November 10, 1881.

    1. Guardian—leasing wards’ land—approval by probate court. A lease of property by a widow in her own right, and as guardian for her minor children, can not be avoided by the lessee for want of its approval by the probate court. A lease executed by a guardian in behalf of his wards for a term not exceeding their majority, is valid, unless disapproved by the probate court. The approval of that court is not essential .to the validity of the lease.
    2. Landlord and tenant—prior tenant holding over

      —rights of the parties to the second lease. A lessee can not have his lease set aside and be released from his covenants to pay rent, from the mere fact that a prior tenant, whose term has expired, holds over, without right. The lessee, having the right of possession, should take legal steps to obtain possession against such prior tenant.
    3. Same—prior tenant in possession—acceptance of rent by landlord from second lessee. Where the assignee of a lease makes an arrangement with a prior lessee holding over without right, dismissing a suit for possession, whereby the prior lessee is to pay the same rent the lessee was to pay, the payment of such rent for several months by such prior tenant to the agent of the lessor, and its acceptance by him as payment of rent under the last lease, is no cause for setting aside such last lease and discharging the last lessee from his covenants to pay rent.
    4. Lease by an ineant—who may avoid it. A lease executed by a minor is not void, but. only voidable at his election, and the lessee can not set up the disability of the lessor to defeat the lease or be relieved from its covenants.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. John H. Thompson, for the appellants:
    1. Mr. Myers, the agent, agreed with appellants to obtain the approval of the probate court to the lease, which was not done, and hence the lease was not operative and binding.

      2. Appellants, or their assignees, Hagedon & Boyle, were unable to obtain possession from a prior tenant of the appellees. It was not possible for Hagedon & Boyle to have succeeded in their suit, for the lease they held was not approved by the probate court, and the guardian had no authority to lease except with such approval. Rev. Stat. chap. 64, sec. 23; Miller v. Benner, Guardian, 69 Ill. 108.
    That when a lessee is prevented from the beneficial enjoyment of his lease by the acts of his landlord, he is entitled to treat the lease as at an end, as these lessors did, can not be doubted. Berrington v. Casey, 78 Ill. 317.
    3. When a tenant is substituted in place of the original lessee, and takes possession and pays rent, this operates as a discharge of the original lessee from all liability on the lease. Such an agreement may be inferred from the conduct of the parties. Taylor on Landlord and Tenant, secs. 314, 315; Fry v. Partridge, 73 Ill. 51; Stobie et al. v. Dills, 62 id. 432; Amory v. Kannoffsky, 117 Mass. 351; Bedford v. Terhune, 30 N. Y. 457; Smith v. Niver et al. 2 Barb. 180; Thomas v. Cook, 2 B. & Ald. 119; Walker v. Richardson, 2 M. & W. 882; Dills v. Stobie et al. 81 Ill. 202.
    Mr. John V. Le Moyne, for the appellees:
    1. There is nothing in the lease making the promise to pay the rent conditional, and it contains no stipulation that the lessors would obtain the approval of the court. If there had been any agreement made prior to the making of the lease, it was merged in the writing, and can not now be insisted upon to defeat the lease.
    2. As to the second point, that the appellants or their assignees were unable to obtain possession, we say the lessors were only required to give the right of possession. The tenant alone can maintain an action for possession. Gazzolo v. Chambers, 73 Ill. 75.

      3. The lessors did not accept Cox as their tenant, but refused to make any arrangement with him and release appellants.
    4. A lease made by a guardian, extending beyond the minority of his ward, was once considered void; but the modern rule treats such leases as void only for the excess, at the election of the ward. Schouler on Domestic Delations, p. 471; Bacon Abr., Leases, 1; 2 Kent’s Com. 228; 1 Washburne on Deal Property, 307; Rex v. Oakley, 10 East, 494; Putnam v. Ritchie, 6 Paige, 390; Field v. Schieffelin, 7 Johns. Ch. 150; Sedges v. Riker, 5 id. 163; Richardson v. Richardson, 49 Miss. 29.
    5. The lease was certainly not void, but, at most, voidable, and even if voidable at the option of appellants, because not approved, as they, did not exercise such option before the lease was approved by the court they .could not exercise it afterward.

       As to the character and extent of the liability of a tenant holding over, see Clinton Wire Cloth Co. v. Gardner et al. 99 Ill. 151.

   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Marshall Field and Levi Z. Letter, against Lavinia A. Herrick, Anna M. Herrick, Elijah W. Herrick, and Sarah L. Herrick, to cancel a lease executed February 2, 1878, by the defendants, by the terms of which certain premises in the city of Chicago were leased to Field & Leiter, from the 1st day of March, 1878, to the 29th day of February, 1880. The bill prayed that the ■ lease may be decreed to be at an end, and complainants may be decreed to be released and discharged from the covenants of the lease, and defendants may be enjoined from prosecute ing any suit against the complainants on any covenant of the lease. The defendants put in an answer to the bill, a replication was filed, and a hearing had upon the evidence, which resulted in a decree dismissing the bill, which decree was affirmed in the Appellate Court.

The property embraced in the lease was owned by defendants, the widow and children of Elijah W. Herrick, deceased. The widow, Lavinia A. Herrick, had a dower interest in the property, and the fee was owned by Ann M., Elijah W., and Sarah L. Herrick, who were minors, Lavinia A. Herrick being their .guardian. E. B. Myers acted as agent of the defendants in leasing the property.

It is first urged that there was an agreement on the part of appellees to have the lease approved by the probate court, which was not complied with. There is some evidence in the record that appellees agreed to have the lease approved by the probate court, but the decided preponderance of the evidence is the other way. Myers testified that during the negotiation for the lease he notified the parties that it could not be made for two years. His evidence on this point is as follows: “I said, I can not make a lease for two years, as one of the children will arrive at her majority about the first of June. I will make you a lease for Mrs. Herrick’s interest and the two children for two years, and I will make you a short lease for the other child until June, when she will, undoubtedly, ratify the arrangement. . Somebody, I think Borden, said that will be all right; you make the lease, and let that young Miss sign it, and we will take the chances. He said, of course you can not get the lease approved by the county court beyond the majority of the children. ” Borden was acting for complainants, and after the terms and conditions of the lease had been agreed upon, Myers says Borden walked over to his store and dictated the lease. It was signed by Anna Herrick, as Borden had requested. Again, the fact that the lease contains no provision that the lessees shall have it approved, in connection with the further fact that complainants accepted the lease and took and retained it in then-possession without a word of objection that it was not approved, would seem to repel the presumption that appellees had agreed to have it approved.

It is next urged, that if the complainants, or their assignees, were unable to obtain possession of. the premises on account of the invalidity of the lease, or the claim which Cox had acquired to the premises through the defendants, complainants were warranted in treating the lease as at an end, and are entitled to have it cancelled. It appears from the evidence that two leases were executed by the parties, the second one, however, to take the place of the first. The two differed only in this: the first was signed by Lavinia A. Herrick in her own right, and as guardian of Elijah W. and Sarah L. Herrick, minors, and the second lease was signed by Lavinia A. Herrick- in her own right, and as guardian of Anna M., Elijah W. and Sarah L. Herrick, minors. Anna M. Herrick signed both leases in person. The lease was not approved by the probate court until August 20, 1878. Was it void for the reason that it was not approved ? We think not. The lease was executed by Lavinia A. Herrick in her own right, and as to her interest there can be no doubt in regard to the validity of the instrument. Anna M. Herrick executed the lease in person. This she had the right to do, and as to her interest it was only voidable at her election; and as she never disaffirmed the act, the complainants in the bill can not set up her disability to defeat the lease. In regard to the other two owners of the premises, Elijah W. and Sarah L. Herrick, the lease was executed by their guardian. There can be no doubt in regard to the right of a guardian to lease the real estate of the ward,—it is not only the right, but the duty of the guardian to do so.

But is a lease made by a guardian void unless it is approved by the probate court ? We do not think such a lease can be held void. Sec. 23, chap. 64, Bev. Stat. 1874, p. 561, declares that the guardian may lease the real estate of the ward upon such terms and for such length of time, not exceeding. beyond the majority of the ward, as the county court shall approve. All that can reasonably be claimed under this statute is that a lease made by a guardian may, when it is submitted to the probate court, be rejected and set aside by the court. Such a lease is not, however, void, but voidable merely,—it may be regarded as binding until the court should examine it and refuse approval.

It is, however, claimed, that Cox was in the possession of the premises as a tenant under a valid agreement with the defendants, and complainants had a right to treat the lease as cancelled, for the reason they could not obtain possession. This position is not sustained by the proof. It is true that Cox was in the possession of the premises and refused to surrender up the possession to complainants, but the evidence shows that his term had expired, and he was holding over without right. He went into possession under a written lease for a certain time, ending January 1, 1878. The lease contained a provision that he should deliver up the possession upon the expiration of his term, without notice. He claims that he had an agreement or understanding with Myers that he should have a lease for another year. Myers expressly denies that he ever made any such agreement, but even if he did, Cox could not hold possession upon a verbal agreement to execute a lease in the future • and this is all that can be claimed for the arrangement. If, however, there was any doubt upon this question, why was it that Hagedon & Boyle, to whom complainants assigned the lease, failed to prosecute the suit brought to recover possession, to final judgment ? Under the lease the right of possession was in them, and had they prosecuted the action to final judgment, and been defeated by a prior lease set up by Cox, then they might have claimed, with much reason, that this lease was at an end. But this they failed to do. After having brought a suit they abandoned it, and dismissed their action.

But it is said that after an action had been brought to recover possession of the premises the defendants accented Cox as a tenant, and thus terminated the lease in question. This is a question of fact, to be determined from the evidence. It is not claimed that any new lease was made, or the lease to Field & Leiter surrendered nr cancelled. Whatever was done rested entirely in parol. Nor do complainants contend that the defendants in person said or did -anything in regard to the transaction. Whatever was done by defendants was done by Myers, acting as their agent. He testified, that “after the execution of the lease to Field & Leiter no agreement of any kind or nature was made by me or anybody for the Herrick estate, to:my knowledge, that Cox should remain on the premises'. * * * Asa wanted to let Cox remain in possession and pay the rent, which I declined, time and again. ” We think it is apparent from the evidence that an arrangement of some character was made between the attorney of Cox and the attorneys of Hagedon & Boyle, by which Cox should remain in the possession of the premises and pay the same rent which Field & Leiter had agreed to pay, and that the rent was actually paid for several months; but we do not think the evidence sufficiently connects Myers with the arrangement further than he received the rent, claiming that he received it under the lease to Field & Leiter.

In conclusion, we are of opinion-that the evidence fails to show any ground whatever for equitable relief.

The decision of the Appellate Court will be affirmed.

Decree affirmed.


author: Mr. Justice Walker

text:
    Percival P. Oldershaw et al. v. Stephen S. Knowles.

      Filed at Ottawa November 10, 1881.

    1. Evidence—on cross-examination—as to character of transaction between commission merchant and his customer—on ma/rgins. In a suit by a commission merchant or broker to recover of a person for whom a purchase was made, for loss on a re-sale, for want of putting up of a further margin, the defendant will have the right, on cross-examination, to inquire when, where, and in what manner the purchase was made for him, and whether the plaintiff has settled the purchase, and if so, what was paid, to whom, and the manner it was paid, to show whether the mode of dealing was fair, and free from fraud and injustice or wrong to him.
    2. A commission merchant has no right to adopt methods in making purchases for his customers that he may refuse to explain, or that are so intricate or tortuous that they are incapable of being explained to the full comprehension of an ordinarily intelligent jury.
    3. In a suit where the plaintiff claims that he made a contract for lard for the defendant, for future delivery, and that in consequence of the defendant’s failure to indemnify him against loss he was compelled to sell the lard, and pay the loss to the person from whom the purchase was made, and that he has paid and settled the loss, 'and has the right to recover the same of the defendant, the latter will have the right to learn the particulars of the entire transaction, on the trial.
    4. Practice in the Supreme Court—what may be assigned as error. On appeal from the last judgment of the Appellate Court in a case, this court cannot consider the propriety of the admission of evidence on a second trial in the lower court, under the prior ruling of the Appellate Court when the case was first before it.
    . 5. Error wild not always reverse—as to admission of evidence. The admission of evidence technically inadmissible, to prove a fact already proven beyond dispute by unobjectionable proof, the improper evidence not being calculated to mislead the jury, affords no ground for a reversal.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.

      Messrs. Needham & Milleb, for the appellants.
    Mr. A. B. Jenks, for the appellee-.
   Mr. Justice Walker

delivered the opinion of the Court:

It appears that appellants were commission merchants or brokers, and members of the board of trade in Chicago. As such they purchased, at the instance of appellee, in the month of February, 1877, for April delivery, a quantity of lard, at a specified price. Appellee’s name was not known in the transaction, but he placed in the hands of appellants a sum of money as a margin. After the purchase, and on the 20th of that month, there was a heavy decline in the price of lard, leaving a difference between the price on that day and the contract price, of over $2000. Appellants called on appellee for $2000, to protect them on the contract. On the evening of that day, Culbertson, a member of appellants’ firm, called on appellee, and notified him that unless he put up the money they would sell the lard. It was then agreed that appellee should go home to Jacksonville that night, to see if he could raise the money to make his margins good, and if he succeeded he was to return with it the next day. To this point there is no dispute as to the facts. -

Appellants contend that it was further agreed, that if appellee succeeded in procuring the money, he was to telegraph appellants, and they would not sell him out, but would await his return. But appellee claims the agreement was, that he should return to Jacksonville, and if he obtained the money, and returned with it the next day, they would hold it, and would not sell. He went to Jacksonville, obtained the money, and returned to Chicago, reaching there at five o’clock on the afternoon of the 21st, with the money; but before his arrival they had sold, as they claim, at a loss of $2400 on the contract; and deducting from that sum the $700 which appellee had deposited with appellants as a margin, and adding their commissions, they claim there is fine to them $1858.10, for the recovery of which they sued him in assumpsit.

Appellee filed a plea of set-off, claiming that by the sale of the lard, not only without authority but against instructions, appellants had no right to recover anything, but, on the contrary, he was entitled to recover back the $700 he had deposited with them. On a trial in the Superior Court of Cook county the jury rendered a verdict against plaintiffs, and in favor of defendant, for $700, and plaintiffs appealed to the Appellate Court for the First District. On a hearing in that court the judgment of the Superior Court was affirmed, and they bring the record to this court, and assign errors.

The jury having found the facts in favor of appellee, and the Appellate Court having, by affirming the judgment, found them the same way, we are precluded by the statute from considering them, further than they are important in discussing questions of law arising upon them.

It is first insisted that the Superior Court erred in permitting appellee’s counsel, on cross-examination, to examine Culbertson as to the manner of settling the identical or original contracts for this lard, by the usage of the board of trade. It is insisted that appellee had no interest in the contract made upon his order, and for that reason it was improper to inquire into that matter, and that it was intricate, and its investigation tended to confuse and prejudice the jury. There can be no question that when appellants are claiming to recover money from appellee, as having been paid by them on a contract they claim to have made for him at his request, he has a right to know when, where, and with whom it was made; and he has the further right to know if they have paid or settled it, and if so, what was paid, to whom, and the manner in which it was paid. He has a right to know; and have the jury to know, whether the mode of dealing adopted by appellants was fair, and free from all fraud, injustice or wrong to him. They have ho right to adopt methods • in making purchases for their customers that they can refuse to explain, or that are so intricate or tortuous that they are incapable of being explained to the full comprehension of ordinarily intelligent men. They can not fall back behind methods that will not bear scrutiny, or which are too complicated to be understood by men of ordinary intelligence and business capacity. Appellants claim that they made the contract for appellee; that he failed to indemnify them; that they were therefore compelled to sell the lard, and pay the loss to the person from whom they purchased, and that they have paid or settled the loss, and have the right to recover the amount from appellee. To learn the particulars of the entire transaction we are of opinion that the examination was proper, and the court committed no error in permitting it.

This fully answers the objection, that as the Appellate Court had held such an examination, when the case was previously before it, immaterial and improper, it was therefore error in the Superior Court to permit the examination. Be that as it may, we have nothing before us but the last judgment of the Appellate Court. It is from that judgment plaintiffs appeal to this court, .and which they seek to reverse. The previous judgment of that court is not before us, and we have no power to examine or review it. There is no force in this objection.

It is next insisted that the Superior Court erred in permitting appellee’s pass-book to be read in evidence, showing he had $2000 deposited in the Stock Yards Bank to his credit, as tending to show he had returned to Chicago on the 21st of February, with that amount ready to put up, according to agreement, as a further margin on the purchase of the lard. We deem it unnecessary to determine whether this evidence was, or was not, strictly proper, because there is an abundance of evidence, independent and outside of that evidence, to prove, beyond a reasonable doubt, that appellee did have the money in Chicago on the afternoon of the 21st of February. The pass-book only corroborated the other evidence. To reverse for the admission of improper evidence, we must he able to see that it may have worked injury to the party objecting. We are unable to see that it could have misled the jury, and for that reason a reversal can not be had on that ground, even if it was not admissible. To entitle a party to a reversal he must show error that has, or presumably has, worked him an injury. Appellants have failed to show such error in this record, and the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon Mr. Justice Dickey:

text:
    William Tobin v. The People of the State of Illinois.

      Filed at Ottawa November 10, 1881.

    1. Instructions—failure to mark as “given.” A judgment of conviction in a criminal case will not be reversed merely because the court failed to mark two of the defendant’s instructions as “given,” where the record shows they were given to the jury as asked.
    2. New trial—/or newly discovered evidence. A new trial will not be granted on the ground of newly discovered evidence, where it does not appear but the evidence might have been had on the trial by the exercise of reasonable diligence, nor where such evidence is in its nature impeaching, only.
    3. Same—absence of witness by sickness. Anew trial will not be granted in a criminal case because an important witness was prevented from attending the trial by sickness, and the prisoner’s counsel failed to bring such fact to the notice of the court. The party in such case should have asked for a continuance.
    Wbit of Ebbob to the Criminal Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.

      Messrs. Holden & Tebhune, for the plaintiff in error:
    The law intends that every one shall have a fair trial. If, by any misfortune or accident, without any fault on his part, a party has been unable to present the merits of his case before the jury, the court should allow him another hearing. Schlencker v. Risley, 3 Scam. 483.
    It was error, and calculated to mislead the jury, for the court to give two of defendant’s important instructions without marking them as given. Rev. Stat. 1874, chap. 110, sec. 54; Kepperly v. Ramsden, 83 Ill. 354; Calef v. Thomas, 81 id. 478.
    The affidavits of newly discovered evidence were sufficient, and the court ought to have granted a new trial-.
    Mr. Lutheb Laelin Mills, State’s Attorney of Cook county, and Mr. Geobge C. Ingham, Assistant State’s Attorney, for the People:
    It is the settled law in this State, that a judgment will not be reversed simply because the instructions were not marked, if the record shows what was done with them. Cook v. Hunt, 24 Ill. 550; McKinzie v. Remington, 79 id. 390.
    To be adequate in support of the motion, these affidavits must set forth evidence discovered since the trial, and it must appear that such evidence could not have been discovered, by reasonable diligence, before the trial. 1 Bishop’s Grim. Proc. sec. 1279.
    The affidavit should have negatived every circumstance from which negligence may be inferred. Crozier v. Cooper, 14 Ill. 139; Wright v. Gould, 73 id. 57.
    Newly discovered evidence, which in its nature is impeaching, will not authorize the granting of a new trial. 1 Bishop’s Crim. Proc. sec. 1279; 80 Ill. 388; 69 id. 355; Higgins v. People, 98 id. 520.
   Mr. Justice Sheldon

delivered the opinion of the Court:

At the April term, 1881, of the Criminal Court of Cook county, William Tobin was convicted of the crime of robbery, and sentenced to imprisonment in the penitentiary for the term of one year. This court is asked to reverse the judgment of the-court below, for two reasons:

First—Because two of the instructions asked by the defendant were not marked “given, ” or “refused, ” by the presiding judge.

The statute provision is: “And when instructions are asked which the judge can not give, he shall, on the margin thereof, write the word ‘refused,’ and such as he approves he shall write, on the margin thereof, the word ‘given.’ ” The record shows that both instructions were given to the jury as asked.

We do not perceive that any harm resulted to the defendant from the instructions not being marked “given.” In Cook v. Hunt, 24 Ill. 550, we said this statute was directory to the court, and should be obeyed, but that a judgment should not be reversed simply because the instructions were not marked “given, ” if the record shows that they were in fact given; and see McKenzie v. Remington, 79 Ill. 388. Calef v. Thomas, 81 Ill. 478, and Kepperly v. Ramsden, 83 id. 354, in nowise militate against those decisions, as is contended by plaintiff in error. We do not consider, as is urged, that the marking of some of the instructions for the defendant “given, ” and the failure to so mark the two instructions in question, was such an omission as to mislead the jury, to the prejudice of the defendant, and require a reversal of the judgment.

Second—It is urged that the court below erred in overruling the motion for a new trial, based upon certain affidavits submitted to the court, of newly discovered evidence. These were the affidavits of Byan, the proprietor of the bar-room in which the robbery occurred; of Nelson, his assistant barkeeper, and of one Boche, that they were all present in the bar-room at the time of the robbery, and that the defendant was not then present in the room.

Defendant sets out in his own affidavit which he made, that he had expected to have present at the trial, Byan, to testify in his behalf, but that Byan was, on the day of trial, confined to his bed by sickness; that that fact was communicated to defendant’s counsel, but they failed to bring it to the notice of the court, or to apply for a continuance of the cause. If Byan was a material witness for defendant, and unable to attend the trial from sickness, application should have been made to the court for a continuance of the cause. Having voluntarily gone to trial without such application for a continuance, and an adverse verdict having been rendered, the absence of the testimony of Byan can not be made the ground for a new trial. As to Nelson and Boche, it does not appear but that their evidence might have been had at the trial by the exercise of reasonable diligence. The affidavits of Mary Tobin and Kitty Devitte were to the effect that after the trial they had an interview with Young, the prosecuting witness, who testified on the trial that defendant robbed him, and that in such interview Young admitted that it was not defendant who robbed him. This is in the nature of impeaching evidence. Newly discovered evidence, which is in its nature impeaching, will not authorize the granting of a new trial. Martin v. Ehrenfels, 24 Ill. 187; Kendall v. Limberg, 69 id. 356; Knickerbocker Ins. Co. v. Gould, 80 id. 388.

Finding no cause for reversing the judgment, it is affirmed.

Judgonent affirrmed.

Mr. Justice Dickey:

The affidavits presented on the motion for a new trial, taken with the proofs on the trial, convince me that Tobin was not present when the robbery was committed, and really had no connection with the offence. The robbery occurred in a drinking room connected with a dancing hall, about midnight, when some sixty persons were present, amid much confusion and considerable drunkenness.

The only testimony at the trial tending to show that Tobin was present when Young was robbed of his watch, was that of Young and one King. This testimony shows that King is a confessed thief, and that at the time of the robbery he and Young had been drinking very freely, and that the doors of the room were closed instantly, for the purpose of searching each' person in the room. The testimony of Kennedy, given on the trial, is, that he witnessed the scuffle in which the robbery occurred, and did not see Tobin there. Annie Stark and Minnie Duly swear, that when the doors were closed Tobin was not in the room where the robbery occurred, but had been in the dancing hall, and was then on his way escorting one of these girls towards that room, and by the closing of the doors was shut out. Tobin’s affidavit shows the same thing, and that he entered the room with the police officers, when the door was opened for the officers. The affidavit of Byan, the proprietor of the bar-room, and that of Nelson, his assistant bar-keeper, and that of John Boche, who were all in the bar-room when the scuffle and robbery occurred, and when the doors were closed, all agree in saying Tobin was not there. The affidavits of Kitty Devitte, Mary Tobin, and of the accused, show that Young, after the trial, said he had become satisfied that Tobin was not engaged in the robbery, and that he had ascertained who the real thieves' were.

Being convinced that Tobin is not guilty, I do not think that any arbitrary rule as to newly discovered evidence should bind the court, so as to require a man to be sentenced to the penitentiary who so plainly seems to be innocent.


author: Mr. Justice Mtjlkey

text:
    Charles W. Wright v. The People of the State of Illinois.

      Filed at Ottawa November 10, 1881.

    1. Intoxicating liquors—sale by druggists without license, prohibited. The sale of intoxicating liquor in less quantity than one gallon, by a regular druggist, even if it be in good faith for medical purposes, without a license or permit to do so from the proper municipal authorities, is prohibited by our statute, and any druggist or other tradesman, though not the keeper of a dram-shop or tippling house, who shall so sell the. same without license, is liable to indictment, though the liquor is bought and sold, and in fact used, solely for medicinal purposes.
    2. Statute—rule of construction. In construing a new statute on any subject, it is proper to consider it with reference to the state of the law before its adoption, and the previous legislation on the same subject.
    Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Stark county; the Hon. D. McCulloch, Judge, presiding.
    Mr. M. Shellenbarger, for the plaintiff in error,
    in quite a lengthy and exhaustive argument, made among others the following points:
    Section 1 of the Dram-shop act, while sweeping in its terms, making no exceptions in favor of any persons or class of persons, was not intended to apply to a sale made by a druggist in good faith for medical and domestic purposes.
    Mr. Dwarris says, in his Fifth Maxim: “When statutes are made, there are some things which are excepted and fore-prized out of the provisions thereof by the law of reason, though not expressly mentioned; thus, things for necessity’s sake, or to prohibit a failure of justice, are excepted out of statutes. ” Dwarris on Statutes, 123. See, also, Yattel <?n Buies of Int. 128-130; Dwarris on Statutes, 144, 145; Hart
      v. Kleis, 8 Johns. 44; McCarter v. Orphan Asylum, 9 Cow. 437; Leavitts. Blatchford, 5 Barb. 13; Peoples. New York Central R. R. Co. 13 N. Y. 81; Holmes v. Corby, 31 Barb. 289; Commonwealth's. Kimball, 24 Pick. 370; Pearce v. Atwood, 13 Mass. 343.
    As to 'further instances of a construction to avoid a wrong, or particular hardship, or to prevent an absurd consequence, and to promote right, see People v. Utica Ins. Co. 15 Johns. 358; 1 Kent’s Com. 462; Bryan v. Buckmaster, Breese, 408; 3 Scam. 160; Zarresseller v. People, 17 Ill. 101; Burgett v. Burgett, 1 Ohio, 221.
    It can not be supposed the legislature intended to make it criminal, and punishable by fine and imprisonment, for a regular druggist to fill a physician’s prescription, or even sell without license, when necessary to save life, or in other extreme cases, and yet the statute makes no express exceptions. Other courts have, by construction, supplied exceptions in proper cases. See Dowell v. State, 2 Ind. 658; Thomason v. State, 15 id. 449; Haber v. State, 19 id. 457; Jakes v. State, 42 id. 473; Ball v. State, 50 id. 595; State v. Wray, 72 N. C. 253; Hooper v. State, 56 Ind. 153.
    Mr. B. F. Thompson, State’s Attorney, for the People:
    1. Where the terms of the statute are general, and no exceptions are made for medicinal purposes, no necessity of the purchaser to use the liquor, even if prescribed by a physician as an indispensable medicine, and there is no person in the county with authority to sell, will protect the vendor. Commonwealth v. Sloan, 4 Cush. 52; Commonwealth v. Kimball, 24 Pick. 366.
    2. Unless there be an express exception in the statute, the fact that the liquor was sold for a medicine is no defence. Phillips v. State, 2 Yerger, 358; State v. Whitney, 15 Verm. 298; State v. Chandler, 15 id. 425; State v. Brown, 31 Maine, 522; State v. Hall, 39 id. 107.

      3. The Indiana courts, it is true, hold that a druggist may, upon a proper occasion, bona fide and with duo caution, retail liquors to be used merely as a medicine. But the courts of that State also hold that the prosecutor must prove that the defendant had no license (Sheaver v. State, 7 Blackf. 99) ; that the defendant is not responsible for salé to a minor, if the minor looked like, or represented himself to be, an adult, or his family, or the community, treated him as of age (State v. Kalb, 14 Ind. 403); that the principal is not responsible for the sales made by his clerk, without his knowledge or consent (Lathrop v. State, 51 Ind. 192), and many other like opinions upon the “liquor question, ” which are contrary to the decisions of this court, and inconsistent with the spirit and policy of the laws of this State.
    4. As to rule of construction, see Way v. Way, 64 Ill. 406; Potter’s Dwarris on Statutes, 188; Biggs v. Clapp, 74 Ill. 335; Scott v. Reed,, 10 Pet. 524. And as particularly applicable to the construction of our statute forbidding the sale of liquor without license, Bishop on Stat. Crimes, sec. 1019; State v. Wray, 72 N. C. 253; State v. Larrimore, 19 Mo. 391; State v. Gummer, 22 Wis. 442; State v. Downer, 21 id. 274.
    5. And if the sale is made in good faith for lawful purposes, the burden of proof is on the defendant to show that fact. Gunnarsshon v. City of Sterling, 92 Ill. 569; Harbaugh v. City of Monmouth, 74 id. 356; State v. Wray, 72 N. C. 253 ; State v. Wray, 1 Am. Cr. R. 480.
   Mr. Justice Mtjlkey

delivered the opinion of the Court:

Charles W. Wright was convicted at the March term, 1879, of the Stark county circuit court, for the selling of intoxicating liquors without a license, and on error to. the Appellate Court for the Second District that conviction was affirmed. Thereupon the plaintiff sued out the present writ of error, and the ease is now here for review.

Plaintiff in error admits the selling of intoxicating liquors without a license, but insists that under the circumstances he incurred no criminal liability in doing so. The evidence shows that at the time of the sales for which the indictment was preferred, plaintiff in error was a regular druggist, doing business in Toulon, Stark county, and we think the weight of evidence clearly establishes the fact that these sales were made by him as such druggist without any intention of violating the Criminal Code, and that the liquors so sold by him were in good faith bought, sold and used for medical purposes only; and the question presented for our determination in this case is, do these facts constitute a defence to the indictment.

The answer to this question depends upon the construction which must be given to sec. 2 of chap. 43, of the Revised Statutes, entitled “Dram-shops, ” the title of the act being, “An act to provide for the licensing of, and against the evils arising from, the sale of intoxicating liquors.” The first section defines a dram-shop to be “a place where spirituous, vinous or malt liquors are retailed in less quantity than one gallon,” and declares that “intoxicating liquors shall be deemed to include all such liquors, within the meaning of the act. ” The second section then provides: “Whoever, not having a license to keep a dram-shop, shall, by himself or another, either as principal, clerk or servant, directly or indirectly, sell any intoxicating liquors in any quantity less than one gallon, or in any quantity to be drunk on the premises, or in or upon any adjacent room, building, yard, premises or place of public resort, shall be fined not less than $20 nor more than $100, or imprisoned in the county jail not less than ten nor more than twenty days, or both, in the discretion of the court. ”

It is conceded by counsel that the sales of intoxicating liquors proven against the accused fall within the letter of this section, and that if it is to be enforced according to the literal import of the terms used, the accused was properly convicted; but it is earnestly, and with much force of reasoning, contended, that notwithstanding the comprehensive and sweeping terms of this section it was only intended to apply where intoxicating liquors are sold as a beverage,—or in other words, it is claimed that in the construction of the section, an exception is to be understood or supplied which will exclude from its operation all sales made in good faith by druggists or other tradesmen, in the regular course of business, for purely medical, mechanical, or other like purposes. That such exceptions are sometimes implied and given effect in the construction of statutes, even where the language is clear and unambiguous, as in the present case, is not to be denied; but this latitude of construction is never permissible except where, in order to avoid imputing to the legislature highly improbable or absurd purposes, it must be presumed that such construction was intended.

The whole controversy, therefore, in the present case, resolves itself into this: Did the legislature intend that an exception of the kind we have just stated is to be understood and supplied in construing and giving effect to the section in question ? That there is no express declaration of such intention, either in the section itself, or in other parts of the act, is not pretended; hence, if it exists at all, it must be deduced either from matters apparent upon the face of the act, or from extrinsic considerations, or in part from both. Although counsel for plaintiff in error has favored the court with a very elaborate and able argument, devoted almost exclusively to this question, yet he nowhere in it claims there is anything upon the face of the act indicating such intention, and we may, therefore, fairly presume nothing of the kind exists, otherwise he would have directed the attention of the court to it. We have, however, with a view of ascertaining for ourselves, carefully examined the various provisions of the act, and from such examination have no hesitancy in saying nothing can he found in it evidencing such intention. On the contrary, we find in the enumeration contained in the seventh section of the act, of the places where liquors are sold in violation of the provisions of the second section, drug stores,—not mere pretended drug stores, as counsel would have it,—are specifically mentioned, and all such places are expressly declared to he nuisances. This clearly shows that druggists, as a class of dealers, were not inadvertently overlooked by the legislature, but, on the contrary, were in the legislative mind at the very time of the adoption of the act, and the seventh section expressly denounces a penalty against them, as possible violators of its provisions.

If, then, the legislature intended, as is claimed, the act should not apply to sales made by druggists for medicinal or other like purposes, it was certainly a very opportune time,. when declaring their establishments nuisances for selling liquors in contravention of the act, to have expressly declared that its provisions were not intended to extend to that class of eases, and the very fact that no such declaration was made, under the circumstances stated, we regard as evidence strongly tending to show that nothing of the kind was intended.

It is universally conceded that one of the most efficient means in ascertaining the legislative intent in the adoption of a new statute is to consider it with reference to the state of the law before its adoption, and particularly with reference to the previous legislation on the same subject. A passing notice, therefore, of some of the previous legislation with respect to the granting of licenses for the sale of intoxicating liquors, may aid us somewhat in our present inquiries.

It will not be necessary to go back further than the act •of 1845. This act contained an absolute prohibition against the sale of intoxicating liquors in a less quantity than one quart, without a license. Like the present statute, it contained no saving clause with respect to druggists. (Sec. 132, Eev. Stat. 1845.) In 1851, the legislature passed an act popularly known, at that time as the “quart law, ” abolishing the license system altogether, and prohibiting absolutely all sales of spirituous liquors in a less quantity than one quart. It was, however, provided, by the sixth section of that act, that its provisions should not extend to druggists or physicians who should sell or give away liquors, in good faith, for purely medical, mechanical or sacramental purposes. Now, it is but fair to presume that the legislature, in adopting this act, understood the act of 1845 to extend to such sales as are specified in the sixth section of the act of 1851, and that the • latter act would also, in like manner, extend to such sales without some express provision taking them out of its operation, otherwise it would not have been deemed necessary to adopt the sixth section, and the legislature is not to be presumed as ever doing an unnecessary and useless act. We regard this important, as showing the legislative understanding upon.this question. (Laws of 1851, p. 18.) ■ In 1853, the legislature passed an act repealing the act of 1851, and also another act restoring the license system, and all laws relating to that subject which were in force at the time of the adoption of the act of 1851. (Laws of 1853, pp. 91, 153.)

Neither the repealing act, nor the act restoring all former laws 'on the subject, contained any provision continuing in force the exemption in favor of druggists and physicians, and by no subsequent legislation has such exemption been reenacted or otherwise recognized. We are not authorized to say the dropping, by the legislature, of this provision in favor of druggists and physicians, out of the statute, was merely accidental. On the contrary, we must assume that it was purposely done. And if such is the fact, the only rational object the legislature could have had in doing so ■ was to place druggists and physicians upon the same footing with all other persons with respect to the retail of intoxicating liquors. After the acts of 1853 the law remained without any substantial change till 1872, when there was a general revison of the law on the subject. The act of 1872 remained in force until in March, 1874, when the legislature passed what is known as the “Dram-shop act, ” which, with the exception of one or two amendments not affecting the present inquiry, is the same act now in force. Neither the act of 1872, nor the present act, as we have already seen, contains any exception in favor of druggists or any other class of persons.

Again, in the general Incorporation law, relating to incorporated cities and villages, the municipal authorities are expressly given the power to grant permits authorizing druggists to sell intoxicating liquors by the retail. Now, if druggists did not fall within the general inhibition on this subject, what necessity would there have been for conferring this power of granting permits upon the municipal authorities? We can see none whatever. This provision must, therefore, be regarded as tending strongly to show that the legislature understood the Dram-shop act to extend to druggists, as well as other persons.

The argument upon which counsel chiefly relies, and presses upon the court in vigorous terms, and with an unusual degree of confidence, is drawn largely from what are assumed to be the objects and purposes of the act, and in this connection great significance is given to the particular phraseology of its title, and the legislative use of the term “dram-shop.” It is said, in substance, that the act, as shown by its title, is intended to suppress the evils arising from tippling, which “ are drunkenness, debauchery, idleness, crime, destitution, loss of health, property, character,” etc.; that drunkenness, from which this train of evils flows, is chiefly contracted at tippling houses and dram-shops, and hence it is concluded that the “whole statute is leveled at dram-shops. ” If, as is claimed, the entire statute is directed against dram-shops and tippling houses, of course it would logically follow that a sale by a druggist for purely medical purposes would not fall within the provisions of the act. However plausible this argument may appear, yet upon a close examination of the premises from which it is drawn we are of opinion it is not sound. It seems to us undue importance is given to the term “dram-shop, ” as used in the act. Now, if the act had, in general terms, simply prohibited the selling of intoxicating liquors without a license to keep a dram-shop, and had not defined what was intended by that term, then it would be but reasonable to presume the legislature used the term in the sense of tippling houses, for this is, without doubt, its popular meaning, and in that event' the argument of counsel drawn from the use of that term would seem just and proper. But such is not the case. The legislature having, in the first place, expressly defined what was meant by the term, its meaning or application can not, by any sound rule of construction, be extended by reference to its popular signification.

In determining, therefore, what, if any, importance should he attached to the use of the term, we should keep in view its meaning as defined in the act, and exclude from our consideration altogether its popular meaning, at least so far as it differs &om the statutory definition. By doing so, the force of the argument drawn from the use of the term “dram-shop” will be greatly impaired, if not altogether destroyed, for if by the use of that term, as the language of the act defining a dram-shop clearly indicates, the legislature meant any place where liquors are sold in less quantities than a gallon, any well provided drug store as fully answers that description as a tippling house, for all regular druggists are daily and almost hourly in the habit of selling liquors in that way.

For the purpose of keeping in the background the popular idea of a dram-shop, let us suppose, by way of illustration, the legislature, instead of using the term “dram-shop” at all, had, wherever that term occurs, used in its stead the definition given of it in the act. Thus, commencing with the second section: “Whoever, not having a legal license to keep a place where spirituous or vinous or malt liquors are retailed in less quantity than one gallon, shall, by himself or another, sell any intoxicating liquors, ” etc. Had the act been thus drawn, we presume no one for a moment would ever have seriously doubted that druggists, who are constantly in the habit of retailing liquors in less quantities than a gallon, would be bound to take out license before they could legally sell; and yet the case supposed does not at all differ in principle from the one before us.

It may be admitted that the chief ulterior object of the act in question was to mitigate and diminish, as far as possible, the great train of evils that flows from the immoderate use of intoxicating liquors; but the immediate object of the act was to regulate the retail traffic in liquors, rather than to suppress it altogether, without regard to the business callings of those who might happen to be engaged in it, and as a secondary consideration at the same time provide means for defraying at least a portion of the expenses of local municipal government. Long experience has shown that the license system is reasonably efficient for the accomplishment of both these purposes. At any rate, nothing better, so far, seems to have been discovered. In order to properly regulate the retail traffic in liquors, it is important that the officers who are entrusted with the duty of enforcing the law relating to it should be able to know definitely all persons, without distinction, who are engaged in the business, and all places where it is permitted to be carried on. Without such knowledge on their part, it would be utterly impossible to efficiently discharge their duties and see the law faithfully executed. Under the license system this very essential information is always at hand. A few moments examination of the municipal records will enable any one who has an interest in knowing, whether one who appears to be engaged in the business is a legitimate dealer or not, and by this means the whole retail traffic may be easily and properly regulated. But let it be once understood that the druggist or other tradesman, merely because his chief business is confined to traffic in other classes of merchandise, may retail intoxicating’ liquors ad libitum, so long as he in good faith sells for some legitimate purpose other than as a mere beverage, the chief safeguards which the law, as now understood^ throws around the subject will soon be frittered away, and the doors will be thrown wide open to all manner of frauds and evasions of the law, which would bid defiance to the highest degree of watchfulness and diligence the officers of the law could possibly bring to the official discharge, of their duties, in endeavoring to enforce the law on the subject. If the druggist may sell for sickness, the family grocer may, on the same principle, sell for culinary purposes, and there is no telling where the thing would stop. The only safe course is to enforce the law as the legislature has made it, and not defeat its execution upon some hypothetical theory of public policy that finds no place or "recognition in the act itself. If the legitimate business of druggists or other tradesmen necessarily involves the retail of liquors in small quantities, we see no reasons, founded upon public policy or otherwise, why they should not, like other dealers, pay for the privilege of doing so. This construction, moreover, compels all persons who engage in the traffic to equally contribute to the support of local municipal government. The contrary construction would be discriminating between individuals engaged in the same business, with respect to the burdens of local government, without any sufficient reason for doing so.' The municipal authorities of cities and villages incorporated under the general incorporation law, may, however, subject to certain restrictions provided by ordinance, thus discriminate, if they think proper to do so, by granting, to druggists permits for the sale of liquors for medicinal, mechanical, sacramental and chemical purposes only; but where this has not been clone, druggists are placed upon the same footing in this respect with other dealers.

It is claimed, however, that the views here expressed are in conflict with the decisions in Indiana and North Carolina, construing statutes similar to our own. In construing a statute, so much depends upon other legislation bearing upon the same subject, it is often difficult to determine, with any degree of certainty, the value of a decision upon a mere statutory question. Again, sometimes, where two statutes are in the main alike, there may be slight differences in some portions of the acts, which will lead to different conclusions in construing them, and yet both be right. Without stopping to inquire whether this is so in the present case or not, it is sufficient to say that the conclusion reached by us in this case is, by other authorities of equal respectability, fully sustained. 2 Wharton on Crim. Law, (8th ed.) secs. 1506, 1507; State v. Gummer, 22 Wis. 442; State v. Downer, 21 id. 274.

But the question, however, is not a new one in this court. Noecker v. The People, 91 Ill. 494, was in all its material features like the one before us. That, like the present case, was a prosecution, by indictment, against a druggist for selling liquor without a license in a less quantity than one gallon, where the evidence tended to show the sales were made by him in good faith, for purely medicinal purposes. Under this state of facts the court below was asked to instruct the jury, that if they found from the evidence the sales were so made, they should find the defendant not guilty, which the court refused to do, and on a review of the case in this court the ruling of the circuit court'in refusing the instruction was held proper, and the conviction sustained.

Thus, it will be perceived, the question is clearly settled by the case just cited, and we might have simply contented ourselves with a reference to that case; but in deference to the very able argument of counsel for plaintiff in error, we have deemed it not improper to reconsider some of the grounds upon which that decision rests.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Mark A. Devine v. Henry C. Edwards.

      Filed at Ottawa November 10, 1881.

    1. Money paid—under mistake of fact, recoverable bach.

       Where a person buying milk pays for the same, counting each can as containing eight gallons, supposing the cans to hold that much, when in fact they do not, he may set off the money paid by him for the shortage out of any sum he may. owe the seller, in a,suit for its price.
    2. Contract of sale—place of delivery. Where a contract for the sale and delivery of personalty, such as milk, expressly provides that it is to be shipped by the seller to the place of business of the purchaser, at the expense of the seller, the place of delivery is the business place of the purchaser, and any loss on the way must fall upon the seller.
    3. Interest—when recoverable on an account, in the absence of any agreement to pay. Under the statute, to entitle a party to recover interest upon an open account, there must be something more than mere delay in making payment after demand. The delay of payment must be both unreasonable and vexatious,

      • Appeal from the Appellate Court for the Second District;:— heard in that court on appeal from the Circuit Court of DuPage county; the Hon. C. W. Upton, Judge, presiding.
    Messrs. Gaby, Cody & Gaby, for the appellant:
    If, by the mistake of the parties, the amount of the milk was short, and the seller on that account received more money ' than he was entitled to, he must account for the same, even though the mistake resulted from negligence on the part of the purchaser as well as on the part of the seller. Devine v. Edwards, 87 Ill. 177; Bradford v. City of Chicago, 25 id. 411: Rutherford v. McIron, 21 Ala. 750; Gooding v. Morgan, 37 Maine, 419; Thomas v. Brady, 10 Pa. St. 164; Tybout v. Thompson, 2 Pa. Br. 27; Miles v. Stevens, 3 Barr, 37; Shearer v. Fowler, 7 Mass. 32; Goddard v. Bank, 4 Conn. 147; Chitty on Contracts, 543.
    Where it is the express contract that the property is to ' be shipped to the place of business of the purchaser, at the expense of the seller, then the place of delivery is the place of business of the purchaser. Dunlap v. Lambert, 6 Cl. & F. 600.
    To authorize the allowance of interest upon an open account, the delay of payment must not only be unreasonable, but also vexatious. Sammis v. Clark, 13 Ill. 544.
    Messrs. Botsfobd, Babby & Bussell, for the appellee:
    No fixed rule can be laid down to determine in every case what shall constitute such unreasonable and vexatious delay in 'payment as will entitle the creditor to interest. This question must necessarily be determined to a great extent upon the circumstances of each particular case. Sammis v. Clark, 13 Ill. 547. See, also, Mattman v. Williamson, 69 Ill. 423; Casey et al. v. Carver et al. 42 id. 225; Heiman v. Schrader, 74 id. 158; Walker v. Hadduck, 14 id. 399; Knickerbocker Ins. Co. v. Gould, 80 id. 388.

       Where a person, by mistake, overpays another, he may recover the sum so overpaid, notwithstanding a receipt may have been given. Stempel v. Thomas, 89 Ill. 146. Or where the services for which the money was paid have not been performed. Moore v. Robinson, 92 id..491. And generally, as to voluntary and compulsory payments. County of LaSalle v. Simmons, 5 Gilm. 513, upon a review of authorities by Treat, O. J.

       As to allowance of interest for unreasonable and vexatious delay of payment, see Bedell v. Janney, 4 Gilm. 193; Hitt v. Allen, 13 Ill. 596; Kennedy et al. v. Gibbs et al. 15 id. 406; Newlan v. Shafer, 38 id. 379; McCormick v. Elston, 16 id. 204; Aldrich v. Dunham, id. 403; Daniels v. Osborn, 75 id. 615; Jassoy v. Horn, 64 id. 379; Chapman v. Burt, 77 id. 337.
      Whether there has been an unreasonable and vexatious delay of payment is a questión of fact for the .jury. Davis et al. v. Kenaga, 51 Ill. 170; Kennedy et al. v. Gibbs et al. supra.

   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a suit to recover a sum claimed to be due to plaintiff from defendant, for a quantity of milk shipped by the former to the latter from Dundee, Illinois, to Chicago, during the month of March, 1875. Defendant filed a plea of set-off, alleging that for five years next prior to the commencement of the suit he had been purchasing milk of plaintiff by the gallon; that it was shipped in cans supposed by both parties to hold eight gallons each; that payments for the milk, from time to time, were made, on the basis of a capacity of eight gallons to a can; that in fact the cans held a less quantity, and that by the error defendant had overpaid plaintiff a large sum of money, which he offered to set off in this case. There were a verdict and judgment in favor of plaintiff for the full amount of his claim, including interest. On appeal to the Appellate Court for the First District the judgment was affirmed, and defendant appealed to this court.

At the trial in the circuit court defendant asked the following instruction, which the court refused to give':

“The jury are instructed, that even if they believe, from the evidence, that at some time in December, 1870, at Chicago, ■ it was agreed between the plaintiff and defendant that the narrow neck cans (so called) of the plaintiff held eight gallons of milk, yet if the jury further believe, from the evidence, that such agreement was made under the mistaken belief by the defendant that such cans actually held eight gallons, then the defendant would not be bound by such agreement. ”

This same case was before us on a former occasion, (87 Ill. 177,) when we said with reference to the subject of this set-off: “The contract under which the milk was sold was for a given price per gallon. It was the duty of appellee to see to it that his cans should hold the quantity which he professed they held. It does not lie in his mouth to complain that appellant did not watch him with the care which the circumstances seemed to demand. If, in truth and in fact, by the mistake of appellant and that of appellee, the amount of the milk was short, and appellee received more money on that account than he -was entitled to, he must account for the same, even though the mistake resulted from negligence on the part of appellant as well as on the part of appellee. The real question is as to the fact of the alleged shortage. If that existed, the appellant is entitled to have the wrong corrected, by way of set-off. ” We think the same remarks are applicable, although there was the agreement stated in the instruction, if it was made under the mistaken belief as therein named, and that the instruction should have been given.

There was some evidence tending to show that some of the milk, shipped from time to time, was spilled from the cans while on the cars, and the following instruction on that point was asked by the defendant, and refused:

“The jury are instructed, that if they believe, from the evidence, that during the five years immediately prior to the commencement of this suit the defendant purchased milk of the plaintiff by the gallon, to be shipped from Dundee to Chicago, and that the plaintiff agreed to pay the freight on such milk, and that nothing was said by either the plaintiff or defendant in regard to the place of delivery, then the law makes Chicago the place of delivery. ”

We incline to think this instruction should have been given; that where it is the express contract that the property is to be shipped by the seller to the place of business of the purchaser, at the expense of the seller, then the place of delivery is the business place of the purchaser. (Benjamin on Sales, sec. 693.) And that so, as contended by defendant, if Chicago was the place of delivery, the quantity of milk in the cans upon their arrival at Chicago was the quantity to be considered as having been actually received by defendant.

The following instruction was given in behalf of plaintiff, and excepted to:

“If the jury believe, from the evidence, that' the plaintiff shipped to the defendant milk, in the month of March, 1875, to the value of nine hundred and twelve dollars ($912), which the defendant received and has never paid for, or any part thereof, and that the defendant has no legal set-off against said demand, then the jury should find a verdict in favor of the plaintiff for said sum; and if the jury further believe, from the evidence, that the plaintiff made demand of defendant for such sum, and that the defendant neglected and refused to pay said sum, and that there has been an unreasonable or vexatious delay in such payment, then the plaintiff is entitled to recover interest on said sum from the date of such demand (if the evidence shows any such demand was made.) ”

The allowance of interest in the case of an account like the one in question, is under the statute which gives interest on money withheld by an unreasonable and vexatious delay of payment. This provision does not authorize the recovery of interest where there has been an unreasonable or vexatious delay of payment, but only where there has been such unreasonable and, vexatious delay of payment. Sammis v. Clark, 13 Ill. 544, so decides, where this court said: “But it must be clear that there must be something more than mere delay to authorize a recovery of interest under this clause of the statute,—the delay of payment must have been both unreasonable and vexatious.”

For error in giving the last instruction and refusing the two others, the judgment of the Appellate Court is reversed, and the cause remanded.

Judgment reversed.