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    Charles Gilmore v. Morris W. Fuller.
    1. Negligence — In the Use of Fire-arms. — It is negligence to point the barrel of a loaded gun toward another. As a general rule one handling a fire-arm should always look in the direction in which he points the muzzle before manipulating it, as a higher degree of care is required than in the use of ordinary things.
    Trespass on the Ease, for personal injuries. Error to the Circuit Court of Piatt County; the Hon. William G. Cochrane, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Reed & Edie, C. F. Mansfield and Herrick & Herrick, attorneys for plaintiff in error.
    Tipton & Tipton, attorneys for defendant in error.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

While the plaintiff .in error, Charles Gilmore, and Morris W. Fuller were engaged with other young men in a charivari of a newly married couple, Fuller was accidentally shot by a revolver in the hands of Gilmore. Fuller, by his next friend, Hollis D. Fuller, brought suit against Gilmore and recovered a judgment of $1,500. The case is brought to this court by writ of error, and a reversal of the judgment is urged upon two grounds :

1. The parties were jointly engaged in an unlawful act, disturbing the peace and quiet of a family in the night time; and for that reason there could be no recovery unless the shooting was intentional.

2. The shooting was purely accidental and was accompanied by no negligence upon the part of plaintiff in error.

The evidence shows that on February 2, 1898, ten or twelve boys in the neighborhood of DeLand met at a school house to engage in a charivari of a newly married couple at the house of Daniel Hirsch, a farmer living a half-mile distant. They provided themselves with bells, pans, plowshares and other implements for making a noise. Gilmore and Fuller were among the party. They reached Hirsch’s house in a body between nine and ten o’clock. They were met at the gate by Hirsch’s hired man, who, under the direction of Hirsch, told them not to shoot off fire-arms, as it would frighten the horses that were hitched there. There appears to have been no objection to the noise or the conduct of the boys, except as to the use of fire-arms. Shortly after the noise had begun, Gilmore began shooting a revolver. After he had shot several times, one of the cartridges failed to explode. He was holding the pistol in the air. While he was either in the act of bringing it down or unbreaching it, it exploded, and shot Fuller in the face near the eye. There is a conflict in the testimony as to whether the explosion occurred while he was bringing the revolver from the perpendicular position in which he had been holding it, or while he was making an effort to unbreach it with both hands at about the level of his waist, but the preponderance shows that it occurred while he was in the act of unbreaching it. He was, at the time, facing Fuller and one or two others, not more than eight feet distant.

While the conduct of a party engaged in a charivari may, under certain circumstances, be reprehensible, there is nothing in the evidence in this case to justify the contention that the conduct of Fuller was so reprehensible as to preclude a right of recovery on his part, save for an intentional shooting. Ueither Mr. Hirsch, nor any of his family, so far as the evidence discloses, objected to the young men engaging in a charivavi of the newly married couple. Ho objection was made to the ringing of the bells, or the beating of the pans or the plowshares. The only objection made was to the use of fire-arms. Under the circumstances, Fuller was doubtless led to believe that while the use of bells and pans would be indulged in as a harmless amusement, the request of Mr. Hirsch would be respected and no fire-arms used. Therefore, if his injury was the result of Gilmore’s negligence he was entitled to recover, whether Gilmore intended to shoot him or not.

The defendant insists that the shooting was purely accidental and accompanied by no negligence. The boys were, with others, at the time of the shooting, near the house. It was a clear night; snow was on the ground. Gilmore was facing Fuller not more than eight feet distant and could easily see him. After discovering that at the last time he snapped the trigger, the pistol failed to respond, he should have been extraordinarily careful when he took it down to examine it. It was negligence for Gilmore to hold or have the muzzle in the direction of Fuller. • In the use of fire-arms a higher degree of care is required than in the use of ordinary things. As a general rule, one handling a fire-arm should always look in the direction in which he points the muzzle before manipulating the piece; he should look before he points. It is negligence to point the barrel of a loaded gun toward another. In this case, Gilmore could plainly have seen Fuller by the exercise of ordinary prudence. Upon discovering that the pistol was not working properly, Gilmore was put upon his guard. Then, he should have exercised even a higher degree of care than is usually required in the use of deadly weapons. He was negligent in not ascertaining, before he lowered the revolver, that no one was in front of it. Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Harker

license: Public Domain

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    C. F. Shinkle, Receiver of the People’s Building and Loan Association, v. Frank Knoll et al.
    1. Building and Loan Association — Bound by the Official Statement of Its Secretary. — The secretary of a building and loan association is the agent through whom the corporation ordinarily communicates to the public concerning the condition of its affairs, and when he makes an official statement which is accepted and acted upon in good faith by a third party, the corporation should be bound by it.
    2. Same — Receiver Succeeds to No Greater Rights than His Insolvent Association. — A receiver of an insolvent building and loan association succeeds to no greater rights than his insolvent association had, and he can assert no claim which the association could not have asserted had a receiver not been appointed.

      Bill to Wind Up the Affairs of a Building and loan Association. —Appeal from the Circuit Court of Tazewell County; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    F. Y. Hamilton, attorney for appellant.
    Dan F. Raum, attorney for appellees.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Frank Knoll became a member of the People’s Building and Loan Association and borrowed $1,000, for which he and his wife executed a bond and mortgage to secure payment of the same on certain real estate. In November, 1898, he sold and conveyed the real estate to Leslie Robinson, as trustee for the Gipps Brewing Company, for $3,500. The arrangement was that the .Gipps Brewing CómpahV should pay all incumbrance against the property and pay the balance to Knoll. In March, 1899, the secretary of the brewing company applied to appellant, C. F. Shinkle, then secretary of the building and loan association at Bloomington, Illinois, to ascertain the amount due on Knoll’s loan, with the view of paying it and making final settlement with Knoll. The purpose of the inquiry was fully explained to appellant, who made a statement showing that the amount due on the loan was $546.70, at the date of the conveyance from Knoll to the brewing company. The brewing company then made a settlement with Knoll, after deducting that amount, and paid him the balance due as purchase money.

At the time the brewing company received the statement from Shinkle, the loan association was insolvent, and Shinkle was appointed receiver of it by the United States Circuit Court at Springfield on the 3d of July following. That court entered a decretal order, directing Shinkle, as receiver, to collect the face value of all loans, together with all delinquent sums and five per cent interest from July 3, 1899. Shinkle then notified the brewing company of the order, but it refused to pay more than the amount called for by his statement of March previous. This suit followed, resulting in a personal decree against Knoll and wife for $981.50, and a lien and sale decree against the real estate for $546.70 and $150 attorney fees. The decree also provided for the sale of Knoll’s stock. From that decree, Shinkle, as receiver, prosecutes this appeal.

It is contended that the brewing company assumed the obligations of Knoll to pay the building and loan association and must perform its obligations to the complainant as its receiver. There would be good ground for such contention had the association, at the time when the brewing company applied to Shinkle as secretary to learn the condition of Knoll’s indebtedness and the extent of the incumbrance against the property, been a solvent concern. But it was not solvent; Shinkle knew that it was not. He knew, tooi that the brewing company made its inquiries not for the purpose of becoming a member of the association, but with the sole view of ascertaining what it should pay Knoll. Had he truthfully represented its condition and given the brewing company to understand that the premises might be bound for the face of the mortgage, it could have protected itself against such a contingency because it had over $1,100 still due to Knoll on the purchase. To allow Shinkle, as receiver, to foreclose the mortgage for a greater amount than he represented to be due as secretary would be a fraud upon the brewing company. It would be allowing him, as receiver, to reap the fruits of his false representations as secretary, a thing not to be countenanced in a court of equity.

The secretary of a building and loan association is the agent through which the corporation ordinarily communicates to the public concerning the condition of its affairs, and when he makes an official statement which is accepted and acted upon in good faith by a third party, the corporation should be bound by it. Prairie State Loan Association v. Gorrie, 167 Ill. 414; Prairie State Loan Association v. Nuling, 170 Ill. 240.

Á receiver of such an association succeeds to no greater rights than his insolvent had, and can assert no claim which the association could not have asserted had a receiver not been appointed. If the association would have been estopped from taking advantage of a false representation of its secretary, the receiver is likewise estopped. Gottlieb et al. v. Miller et al., 154 Ill. 44.

The Gipps Brewing Company did not assume or agree to pay up the stock which had issued to Knoll. Upon the' representation of the secretary as to the advantage of a credit to be gained by continuing to pay the monthly dues up to July 1st, it agreed to pay the association an amount as stated by the secretary, less the dividend to be declared in July following. The stock was not transferred to it and it has never made any claim to it. The decree of the Circuit Court will be affirmed.


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    Chicago & Alton Ry. Co. v. J. J. Thompson, Adm’r, etc.
    1. Fellow-servants — Fireman on One Train and an Engineer upon Another. — A fireman upon one train and an engineer in charge, of another train and engine, although not connected with the former, are fellow-servants where both are in the same line of employment.
    2. Master and Servant — Liability of the Master for Injuries Caused by Fellow-servants. — Where two servants are working for a common master in the same line of employment, and one of them is injured through the negligence of the other, the master is not liable.
    3. Same — Liability for Keeping a Wanton or-Willful Servant. — In the absence of proof showing that the common master has been negligent in keeping a malicious, wanton or willful servant in his employ, he is exempt from liability for an injury caused to a fellow-servant by the negligence of such servant, however willful or wanton it may be.
    4. Railroads — Duty "of an Engineer Who Sees a Person Walking upon the Track Ahead of Sim. — A railroad engineer is under no obligation to stop his train every time he sees a person walking upon or near the track in front of him. He has the right to presume that such person will step aside before the train reaches him.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed, with a finding of facts.
    Opinion filed December 10, 1901.

      A. E. DeMange, attorney for appellant; William Brown, general solicitor, of counsel.
    J. J. Thompson, John T. Booz, Frank M. Burwash and John E. Pollook, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

This is an appeal from a judgment of $4,000, rendered against appellant in a suit brought by appellee, as administrator of the estate of Jesse Watkins, a man who was killed while in appellant’s service as a fireman on a freight train.

The facts as disclosed by the evidence are as follows :

While Watkins’ train was standing on the south-bound or west main track at Dwight, he went under his engine with a hoe for the purpose of cleaning out the ash pot. After finishing his work, he crawled out and started to the rear of his engine, for the purpose of hanging his hoe on the tender. At that time, a north-bound passenger train was coming from the south on the east main track at a speed of from thirty to thirty-five miles per hour. The engineer of the passenger train saw Watkins crawl from under his engine and start north between the two tracks when about 150 feet away. The space between the tracks is eight feet wide. Watkins’ back was toward the approaching train, and he evidently had no knowledge of its presence, although its engineer gave an alarm whistle. Escaping steam from Watkins’ own engine was making much noise at the time and doubtless kept him from hearing the whistle. He was carrying the hoe, which had a handle eight or nine feet long, crosswise of his body, the hoe part extending slightly beyond the west rail of the east track. The end of the hoe caught in one of the slats of the pilot of the engine with such violence as to throw the hoe out of his hands and him back against the passenger engine. The cylinder struck him and threw him against the tank of his own engine. He died as a result of his injuries. There was in force at the time an ordinance of the village of Dwight limiting the rate of speed of trains within the corporate limits to ten miles per hour, and the rapid rate of speed at which the train which struck Watkins was running was charged and relied upon as the negligence which caused his death.

The only person chargeable with the negligence complained of was Patrick Mulheran, the engineer in charge of the passenger locomotive. He was a. fellow-servant with Watkins. A fireman on one train and an engineer in charge of an engine and train not connected with such train, where both are in the same line of employment, are fellow-servants. I. C. R. R. Co. v. Swisher, 74 Ill. App. 64; C. & E. I. R. R. Co. v. Rouse, 78 Ill. App. 286. It is contended, however, that Mulheran was guilty of wanton and willful negligence, and that for that reason, the fellow-servant doctrine does not apply. It was the view of the trial court, as evidenced by instructions given to the jury, that where two servants are working for a common master in the same line of employment, and one of them is injured through the negligence of the other, that the master is liable if the negligence was wanton or willful. We do not understand that the fellow-servant doctrine is subject to such an exception. In the absence of proof showing that the common master was negligent in keeping a malicious, wanton, or willful servant in his employ, the master is exempt from liability for an injury caused to a fellow-servant by his negligence, however willful or negligent it may be.

Beally, we see no room in this record for the contention that Mulheran was guilty of willful or wanton negligence.' To run a train at the rate of thirty or thirty-five miles per hour within the corporate limits of a village in violation of an ordinance fixing the rate at ten miles, certainly does not, of itself, constitute willful negligence. When he first saw Watkins, he was within 150 feet of him. He knew he was a railroad man and had the right to presume that he would not get in the way of his rapidly moving train. It is doubtful whether he could have stopped the train in time to avoid colliding with Watkins. A railroad engineer is under no obligation to stop his train every time he sees a person walking upon or near the track in front of him. He has the right to presume that the person so walking will do what the engineer sees other people do every day — step aside before the train reaches him.

As the death, in our opinion, was caused by the negligence of a fellow-servant, it is unnecessary to discuss the point that the injury was an assumed risk and the point that the deceased was not in the exercise of ordinary care for his own safety. There is no cause of action against appellant, and the judgment will be reversed, but the cause not remanded.

Finding of Facts. — -We find that appellee’s intestate, Jesse Watkins, was at the time of receiving the injury which caused his death, a fellow-servant with Patrick Mnlheran; that he was injured by reason of Mulheran operating a train at a greater rate of speed than ten miles an hour within the corporate limits of the village of Dwight, contrary to an ordinance of the village then in force; that Mulheran was not guilty of willful or wanton negligence and that appellee has no cause of action against appellant.


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    William Metzger et al. v. Stephen K. Morley.
    1. Judgments — Entry of Nunc Pro Tunc. — When the clerk of a trial court fails to enter of record in proper form a judgment pronouncedly the court, the court has power at a subsequent term to order it done nunc pro tunc.

    2. Amendments — Of Records, After the Close of the Term. — Courts have the power to amend their records so as to make them speak the truth, and although as a general rule amendments of records will not be allowed after the close of the term at which they are made, unless it can be shown from memoranda, quasi records of the court, judge’s minutes of the previous term, some entry in some book required to be kept by law, or the papers on- file in the case, that a mistake has been made or that the record is not full enough to speak the truth.
    3. Presumptions— Where the Bill of Exceptions Fails to Show that It Contains All the Evidence. — In the absence of something in the bill of exceptions to the contrary, it will be presumed that the trial court had evidence before it, sufficient to justify its finding.

      Assumpsit. — Appeal from the Circuit Court of DeWitt County; the Hon. William G-. Cochrane, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    A. E. DeMange, attorney for appellants; Geo. K. Ingham, of counsel.
    V. Warner, attorney for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

This cause was tried by a jury in the court below at its December term, 1898, and a verdict rendered in favor of appellee against appellants for $1,521.09. The court pronounced a judgment upon the verdict, but the clerk failed to enter it of record in proper form, and appellants prosecuted an appeal to this court. The appeal was dismissed on motion of appellee upon the ground that it did not appear from the record that final judgment had been rendered. Metzger et al. v. Morley, 83 Ill. App. 113. From the order dismissing the appeal appellants prosecuted an appeal to the Supreme Court, which affirmed the judgment of this court. Metzger et al. v. Morley, 184 Ill. 81. Appellee, after giving notice to appellants, then presented a motion to the Circuit Court at its March term, 1900, for an order directing the clerk to enter of record, nunc pro tuno, as of the day when the judgment was rendered (December 6, 1898,) in proper form, the judgment that was rendered and pronounced. After hearing evidence and argument in favor of and in resistance of the motion, the court found “that on the 6th day of December, A. D. 1898, at a regular term of said court, on the verdict of the jury in said cause, the court pronounced and rendered a judgment in favor of the plaintiff and against the defendants for the sum of fifteen hundred and twenty-one and nine one-hundredths dollars ($1,521.09) damages and costs of said cause, and that the clerk of said court failed to enter of record said judgment in full and proper form.” The court sustained the motion and ordered the clerk to enter of record a judgment as of the 6th of December, 1898, which was done accordingly. From that order appellants now prosecute this appeal.

It is contended that appellee was estopped from showing that a judgment in his favor was in fact rendered and pronounced on the 6th of December, 1898, and from having the same entered of record as of that date, because of the position taken by him in the Appellate and Supreme Courts. Appellants contend that the position assumed by him in those courts was that no judgment was rendered or entered, and having secured a dismissal of the appeal upon that ground, he can not be heard to urge afterward that a judgment was in fact rendered.

An examination of appellee’s motion does not show that he moved to dismiss the appeal upon the ground that no judgment was rendered, but it was upon the ground, with others, that no valid judgment was “ entered.” At no time did he contend in this court that no judgment had in fact been pronounced. His motion was based upon the defective condition of the record. True, in the printed argument filed in the Supreme Court by his attorneys, it is stated that they moved to dismiss the appeal because it did not appear that a judgment had been rendered or entered, but it would hardly be safe to hold him estopped by what his attorneys may have said inadvertently by way of argument. There is no ground for applying the doctrine of estoppel to him.

While it is true that parol testimony will not be heard to prove that a judgment was pronounced at a previous term of court or heard in support of a motion to enter a judgment nunc pro tunc, the fact that such judgment was pronounced at a previous term may be shown by the judge’s minutes of any other quasi record of the court, and be made the basis of a motion and order on the clerk to write up and enter a judgment as of the date when it was pronounced. Courts have the right to amend their records so as to speak the truth; and although as a general rule amendments will not be allowed after the close of the term at which they were made, they may be so amended, if it can be shown from memorandam, from quasi records of the court, by the judge’s minutes of the previous term, some entry in some book required to be kept by law, or the papers on file in the case, that a mistake has been made dr that the record is not full enough to speak the truth. The People ex rel., etc., v. Quick et al., 92 Ill. 580; Tynan v. Weinhard, 153 Ill. 598; Howell et al. v. Morlan, 78 Ill. 162.

The court heard evidence on the motion,and in theabsence of something in the bill of exceptions to the contrary, will be presumed to have seen enough in the files, court memoranda, minutes of the judge, or other quasi records, to justify the finding that a judgment for $1,521.09, was in fact pronounced and rendered on the verdict on December 6, -1898. The bill of exceptions filed herein has no recital or statement that it contains all the evidence heard by the court on motion. We must presume, therefore, that the court had before it competent and ample proof to support the finding and order. Howell et al. v. Morlan, 78 Ill. 162; Lagow v. Robeson, 167 Ill. 615.

Judgment affirmed.


author: per Curiam.

text:
    William Metzger et al. v. Alexander P. Wooldridge.
    1. Judgments — Amendments of Records, etc. — In this case the same questions arise as in the case of Metzger v. Morley, ante, p. 280.
    Assumpsit. — Appeal from the Circuit Court of De Witt County; the Hon. William G. Cochrane, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    A. E. DeMange, attorney for appellants; George K. Ingham, of counsel.
    V. Warner, attorney for appellee.
   Opinion

per Curiam.

This case is like the Metzger et al. v. Morley case, decided at this-term of court, and the judgment will be affirmed, for the reasons set forth in the opinion filed in that case. J udgment affirmed.


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    Michael Griffen v. L. C. Henry.
    1. Chattel Mortgages — Extension of, Under the Statute. —The statute (Laws of 1891, p. 171) allowing a chattel mortgage to be extended, provides that the mortgagee shall, within thirty days next preceding its maturity, file for record in the office of the recorder of deeds in the county where such mortgage is recorded and also with the justice of the peace, or his successor, upon whose docket it is entered, an affidavit set-
    ting forth the interest which he has by virtue of such mortgage in the property therein mentioned, and the time when the same will become due by reason of such extension.
    S. Pledges — Of Personal Property at Common Law. — At common law, pledges of personal property were void unless accompanied with possession by the pledgee, and when the pledgor retained the possession, the transaction was fraudulent per se, and incapable of explanation.
    8. Same — Legislative .Changes. — Our legislature has changed the common law in relation to pledges of personal property so as to permit the pledgor to retain possession of the property pledged, where it is so provided in the instrument creating the pledge, and the instrument itself properly acknowledged, with an entry made by the justice taking the acknowledgment, and by having the instrument duly recorded.
    4. Statutes — Constniation of, When in Derogation of the Common Law. — Our statute providing for the execution of chattel mortgages is in derogation of the common law of pledges of personal property, and is always to be strictly construed where the rights of third parties are involved.
    Replevin. — Appeal from the Circuit Court of Shelby County; .the Hon. William M. Farmer, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    John E. Jennings and Frank Spitler, attorneys for appellant.
    Geo. B. Rhoads and B. F. Wilson, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellee, as constable, levied upon certain live-stock as the property of one William Griffen, by virtue of two executions, one in favor of Stumpf and Earl, against Griffen, and the other in favor of Cynthia Keim, against him. Appellant, claiming the property under a chattel mortgage executed to him by Win. Griff en and Timothy Griffon, to secure a promissory note for $1,500, replevied. The note and mortgage were executed January 6, 1898, payable in two years. The mortgagors, at that time, resided in Todd Point township, Shelby county, and the mortgage was acknowledged before Jas. J. Bobertson, a justice of the peace of that township. Later, they moved to Pickaway township, same county, taking the mortgaged property with them. Later still, Bobertson left the State and took his docket to the county clerk, where it remained until Bobertson’s successor was elected in April, 1900.

On December 26, 1899, the mortgagors and mortgagee united in an affidavit before W. K. Cuttle, a justice of the peace for Pickaway township, to extend the mortgage for two years from January 6, 1900. Several such affidavits were executed, one of which was filed with Cuttle, one with Bobert Pierce, a justice of the peace for Todd Point, one with the circuit clerk and recorder, and one with the county clerk.

A jury was waived, and a trial by the court was had, which resulted in a finding and a judgment in favor of the appellee.

While some question is raised as to the good faith of the parties in executing the mortgage, we regard the validity of the attempted extension as the only one involved. The statute allowing chattel mortgages to be extended, provides that the parties to the mortgage shall, within thirty days next preceding the maturity of the same, file for record in the office of the recorder of deeds in the county where the mortgage is recorded, also with the justice of the peace, or his successor, upon whose docket the mortgage was entered, an affidavit setting forth particularly the interest which the mortgagee has, by virtue of such mortgage, in the property herein mentioned, and the time when the same shall become due by extension. It requires that the affidavit be recorded by the recorder, and entered upon the docket of the justice who entered it, or his successor, and thereupon the mortgage lien originally acquired, shall be extended for the term of two years, from the filing of the affidavit, or until the maturity of the indebtedness of the extension thereof. It expressly provides that the time of extension shall not exceed two years from the date of filing the affidavit.

At common law, pledges of personal property were void, unless accompanied with possession by the pledgee. Where the pledgor retained possession, the transaction was fraudulent per se, and incapable of explanation. But our legislature has changed the common law rule in so far as to permit the mortgagor to retain possession of the property, where it is so provided in the instrument itself, when properly acknowledged by having a proper entry made by a justice of the peace taking the acknowledgment, and by having the mortgage duly recorded. The statute being in derogation of the common law, is always strictly construed by the courts, where the rights of third parties are involved. Porter v. Dement, 35 Ill. 478; Frank v. Miner, 50 Ill. 444; Stoner v. Good, 81 Ill. App. 409.

The strict rule of construction which has obtained with reference to the execution, acknowledgment and recording of mortgagés, should apply to all attempts to extend the mortgage, under the amendatory provisions contained in section 4, chapter 95, of the present revision of our statute. In several respects, the attempted extension does not comply with the provisions of that section: First, the affidavit was not filed with the justice of the peace, who took the original acknowledgment, or his successor; second, no entry of the extension was made upon the docket of such justice; third, the extension was for a longer period than two years from the date of the affidavit. We regard the failure to comply with the first mentioned provision alone as fatal. It is no answer to say that at the time of making the affidavit, Eobertson had removed from the State; that his successor had not been elected and that the parties to the mortgage did all that could be done in compliance with the statute regulating the mode of extension. The statute made no provision for any such contingency as existed at that time. The parties were left, therefore, precisely as they would have been, had no provision for extension ever been enacted.

In speaking of the statutory provision which requires a chattel mortgage to be acknowledged before a justice of the peace in the precinct where the mortgagor resides, our Supreme Court says:

“ If there was no officer to take the acknowledgment, or none' capable of acting, the parties were left precisely as they would have been, had the statute not been passed.” Frank v. Miner, 50 Ill. 444.

• The statutory requirement that the affidavit be entered upon the docket of the justice named as the proper officer to take the extension, in our opinion, stands upon the same footing as the statutory provision requiring a memorandum of the acknowledgment to be entered upon the docket of the justice taking the original acknowledgment. The requirement to have the acknowledgment so entered is mandatory. Koplin v. Anderson, 88 Ill. 120.

We do not care to extend this opinion by discussing the proposition that the attempted extension failed for the reason that it extended beyond two years from the date of the affidavit. We have said enough to clearly indicate our opinion that the extension was void as to creditors, and the judgment will be affirmed.


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    City of Danville v. W. H. Schultz.
    1. Damages — By Changing the Grade of a Street. — In case of injury by changing the grade of a street the question of damage is largely a matter of opinion, and where the jury are sent to view the premises they are from such view in a superior position to properly determine whether there has been any damage, and if so, what is the extent of it.
    2. Appellate Court Practice — All Instructions Given and Refused, Should Appear in the Abstract. — Where the instructions complained of are the only ones appearing in the abstract, the Appellate Court will presume that the error, if any, was cured by other instructions given in the same case.

      Action for Damages, occasioned by changing the grade of a street. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    J. H. Lewman, attorney for appellant.
    Geo. G. Mabin and S. M. Clark, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellee is the owner of lots 36, 37 and 33 of Stubbe and Schultz’ Oak Park subdivision in the city of Danville, which lots front north on Main street. On lot 36 is a frame store house, on lot 37 is appellee’s residence, and on lot 38 is his barn. In 1898 -the city graded Main street in front of these lots from three to four feet in depth, destroying the means of egress and ingress by wagon or buggy, which appellee had before then enjoyed from the street to the store and his barn. To recover damages for the injury thereby occasioned to his property he brought suit and recovered a judgment against the city for $300.

While it is urged that the court erred in the admission and exclusion of evidence, and also in refusing certain instructions to the jury asked by the city, it is chiefly contended that the verdict is against the evidence and that the damages allowed by the jury are excessive.

In cases of this kind the question of damages is largely a matter of opinion, and it occasions no surprise to ascertain from the record that in the opinion of quite a number of witnesses the property is not damaged at all by the street improvement, while in the opinion of others the damages are variously estimated at from $250 to $700. The jury were sent to view the. premises, and from their view thev were in a superior position to properly^estimate whether there was damage, and its extent, than they would have been had they been confined to the conflicting testimony of the witnesses. Under such circumstances this court does not feel justified in saying the jury improperly estimated the damages. There was no prejudicial error committed by the court in ruling upon the admissibility of evidence.

As to the alleged error of the court in refusing certain instructions asked by appellant it is sufficient to say that the refused instructions are the only ones appearing in the abstract. If a party desires to have the action of a trial court in refusing instructions reviewed he should have all the given instructions appear in his abstract so that this court may be able to determine whether the principles contained in the refused instructions are not contained in others that were given. Judgment affirmed.


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    The People ex rel. v. J. C. Perdue.
    1. Bills of Exceptions — The Judge Can Not be Required to Sign a Second Bill. — After having signed and lodged a bill of exceptions with the clerk of his court, the judge can not, after the time for presenting it has expired, be compelled to sign and seal another and different bill of exceptions, nor can he be compelled to sign a copy of the one already signed. «
    Original Proceeding. — Petition for a mandamus to compel the judge of the court below to sign a bill of exceptions. Heard in this court on demurrer to the answer at the November term, 1901.
    Demurrer sustained.
    Opinion filed November 21, 1901.
    Andrews & Vause, attorneys for petitioner.
    Golden, Scholfield & Booth, attorneys for defendant.
   Opinion

per Curiam.

This is an original proceeding in this court, by mandamus, to compel the respondent, judge of the County Court of Clark County, to sign and seal bills of exception in two certain cases heard before him in that court. ■

To the petition the respondent has answered setting up that he signed bills of exceptions in the cases in question and deposited them with the clerk of the County Court, but inadvertently neglected to attach his seal to them; that appeals have been prosecuted to this court; that the original bills of exceptions signed by him were certified to this court and are now on file in this court; that the instruments presented to him and which he refused to sign as set up in the petition were'not the original bills of exceptions.

To the answer a demurrer is interposed. The only act required by respondent to make the bills of exceptions complete was to attach his seal to them. After having once signed and lodged the bills of exceptions with the county clerk respondent could not, after the time for presenting the same had expired, be compelled to sign and seal other and different bills of exceptions. LTor could he be compelled to sign and seal copies of the ones already signed.

The answer to the petition is complete and a demurrer to it will be overruled.


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    Raymond E. Young v. Harbor Point Club House Association.
    1. Principal and Agent — The Principal is Not Bound if the Agent Exceeds His Authority. — When an agency is special the authority must be strictly pursued and the principal is not bound if the agent exceeds it.
    2. Same — Duty of a Person Dealing with a Special Agent. — It is the duty of a person dealing with a special agent to ascertain the extent of his authority and if he fails to do so he must suffer the consequences.
    Assumpsit, for a breach of contract. Error to the Circuit Court -of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Lloyd G. Kirkland and Robert H. Patton, attorneys for plaintiff in error.
    James M. Graham and Albert Salzenstein, attorneys for defendant in error.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

The plaintiff in error brought this suit to recover for breach of an alleged contract with the defendant in error whereby he was employed as room clerk for the hotel of the defendant in error for the summer season of 1899, at a salary of $1Q0 per month. The case was tried by the court by agreement without a jury in connection with the one brought by L. C. Young against the Harbor Point Club House Association already considered in review by this court, post, p. 292. The court found the issues against the plaintiff and entered judgment against him for the costs. We agree with the conclusion reached by the trial court. There was no valid contract of employment made between the plaintiff and his father as agent of the defendant. The agency of plaintiff’s father was a special and not a general one. He was authorized to employ a room clerk subject to the approval of defendant as to salary. The proper construction to place upon the language of Tracy in his letter of March 25th, “We have always-paid $75 per month for this position and trust you can see your way to have your son accept at that price,” is that it was a limitation upon his authority as to price. When the agency is special, the authority must be strictly pursued, and the principal is'not bound if the agent exceeds his authority. It is the duty of a person dealing with a special agent to ascertain the extent of his authority7, and if he does not, he must suffer the consequences. Williams v. Merritt, 23 Ill. 623; Blackmer v. Summit Coal and Mining Co., 187 Ill. 32. All the knowledge the plaintiff had of his father’s agency was derived from Tracy’s letters. His father was not in control of the hotel but was more than a thousand miles away from it.

The contention that the employment was ratified is not well founded, because neither the defendant nor its president received any knowledge of any further action on the part of the father as to the matter after the letter of March 25 th.

The plaintiff was too late in signifying his acceptance of Tracy’s offer of May 8th, and its renewal of May 18th, to make it a contract. An early reply was requested and yet he delayed answering for two weeks after the first letter and for five days after the second. In fact he did not answer until after Tracy had withdrawn the offer and after the letter of withdrawal had reached Pass Christian post-office. The plaintiff did .not testify that the acceptance was wired and written before he received notice of the withdrawal, and all the facts and circumstances lead us to the conclusion that he delayed answering until after his father had received the letter of May 23d, containing the withdrawal of Tracy’s offer, and had notified the plaintiff. Judgment affirmed.


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    Harbor Point Club House Association v. L. C. Young.
    1. Contracts — May be Consummated by Correspondence — Rescission. — Where a contract between parties is consummated by a series of correspondence, neither party has a right to rescind it on the ground that the contract is not complete, because the other party refuses to sign written articles of agreement.
    Assumpsit, for a breach of contract. Error to the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    James M. Graham and Albert Salzenstein, attorneys for plaintiff in error.
    Lloyd G. Kirkland and Rob. H. Patton, attorneys for defendant in error.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Defendant in error brought this suit to recover for breach of an alleged contract with the plaintiff in error, retaining him as manager of its hotel at Harbor Springs, Michigan, for the summer season of 1899, and recovered a judgment for $1,270. The cause was tried by the court without a jury.

Defendant in error contended upon the trial that evidence of a contract of employment was furnished by certain correspondence which passed between him and F. W. Tracy, president of the association. The trial court sustained the contention. Over thirty letters, commencing with December, 1898, and running through the months of January, February, March, April and May, 1899, and several telegrams, were introduced. Among them was a letter from Tracy, dated February 10, 1899, notifying defendant in error that he had been elected manager for the season at a salary of $1,000, for himself and wife (as housekeeper), in accordance with a previous proposition, and instructing him to retain help. The letter instructed him to report to Tracy the amount of salaries demanded by chef, room-clerk and head waiter, and to confer with the association’s assistant secretary, Gr. F. Stearns, of Big Rapids, Michigan, about advertising. Defendant in error, by letter and telegram, notified Tracy of his acceptance, and asked advice as to when the house would open, to which Tracy replied that it would open on June 20th and close about September 30th. Other correspondence, relating chiefly to help, then followed. On March 23d defendant in error wrote to Tracy that he had selected a chef at $125, a head waiter at $100, and a room clerk (his son) at $100 per month, but he had deferred making contracts with them until he should hear from Tracy. To that letter Tracy replied that the selections were satisfactory, but that he wanted his son to accept the position of room clerk at $75 per month. On the 6th of April Tracy again wrote defendant in error, inclosing a written contract which had been signed in duplicate by Tracy, and requesting defendant in error to sign. Defendant in error objected to several matters appearing in the written contract, and upon suggestion of Tracy, made some changes, chief of which were the striking out of a clause— the association to dismiss him as manager on one week’s notice — and substituting for the name of Mrs. L. O. Young, as housekeeper, the words, “ a competent woman.” The changes were not acceptable to Tracy, and considerable other correspondence followed, resulting in a refusal of the association to allow the defendant in error to enter upon its service as manager.

As grounds for a reversal of the judgment, plaintiff in error urges: First, that there never was a complete contract of employment; second, that defendant in error did not show that he was ready and willing to furnish the service of his wife as housekeeper; third, that he employed his son as room clerk at a salary of $100 per month against the express direction of the plaintiff in error, which was sufficient grounds for discharge; fourth, the judgment is excessive in including the value of the services of a housekeeper.

Plaintiff in error bases its contention that the contract was not complete, upon the ground that the defendant in error refused to sign the written articles of agreement sent him by Tracy. As we view the correspondence between Tracy and the defendant in error, the contract was complete long before any mention was made of a written agreement. By his letter of February 10th, Tracy, in behalf of the association, tendered the defendant in error the position of manager of the hotel for the season at a salary of $1,000, including his wife as housekeeper. By letter, dated February 17th, and by telegram, dated February 18th, defendant in error notified Tracy of his acceptance, and the entire correspondence between the parties from then until the 6th of April, the date of the first mention of a written contract, shows that each regarded the contract of employment as complete. All the essential elements of a contract"were covered by the letters of proposal and acceptance. We can not agree with counsel that the parties contemplated entering into written articles. That is refuted by the language of Tracy in his letter inclosing the articles, in which he says: “I suppose you will have no objection to signing.”

It nowhere appears in the evidence that defendant in error was not ready and willing to furnish his wife as housekeeper. He had agreed to do so, and there is nothing indicating that he had anything to the contrary in mind, excepting that in the alteration of the draft of the written contract sent him by Tracy, he substituted for the name of his wife the words, “a competent woman,” and that, in view of the correspondence, that should be regarded more in the nature of a request to be allowed to make such substitution than a refusal or unwillingness for her to act in that capacity. After receiving letters from Tracy to the effect that the association would not receive his services and that it would organize the force to run the house independent of him, defendant in error wrote Tracy that his plans had all been made and the help engaged. Nothing further was required of him by way of notice to the association of the readiness and willingness of his wife to act as housekeeper. Mt. Hope Cemetery Association v. Weidenmann, 139 Ill. 77. The undertaking was only to furnish his wife as housekeeper in the event of his retention as manager, and the association’s refusal to retain and continue him as manager, rendered performance by her in compliance with that undertaking impossible.

The employment of the son of the defendant in error as room clerk at $100 per month furnished no sufficient ground for discharge. In compliance with Tracy’s letter of instructions, he selected the chef at $125, the head waiter at $100 and the room clerk at $100 per month, but before closing contracts with them, he notified Tracy, who replied that the selections were all right, but as the association had always paid $75 per month for a room clerk, he hoped defendant could see his way clear to have his son accept at that salary. There is nothing in any letter of Tracy approaching any further instruction upon the subject, and Tracy evidently was not seriously dissatisfied with the appointment at $100 per month, because after it had been decided to dispense with the services of the defendant in error, Tracy wrote, on the 8th day of May, that the association would retain the son as room clerk at the salary of $100 per month, if he desired. The employment of the son for $100 per month was not even made a pretext for the discharge of the defendant in error and assumed no form in the controversy until the trial. Really, we are led, from the tone of some of Tracy’s letters, to the conclusion that unfavorable reports as to the manner in which the defendant in error had conducted the Mexican Gulf Hotel at Pass Christian, Miss., was the cause of his discharge.

The amount of the judgment was not excessive. The defendant in error having contracted for the co-operation of himself and wife in service for the plaintiff in error was entitled to recover the salary which the plaintiff in error agreed to pay him for their joint service, $1,000 for the season, and as the evidence shows that it is the custom for manager and housekeeper of a hotel to receive board and lodging in addition to salary, the court properly allowed the value of the board to them. Judgment affirmed.


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    Julius E. Smith, Adm’r, etc., v. Chicago & E. I. R. R. Co.
    1. Railroads — Duty Toward, Trespassers. — Persons who travel longitudinally along a railroad track are guilty of gross negligence, and the owner of the track is responsible only for injuries which are wantonly or willfully inflicted upon them by its servants operating trains. Neither speed ordinances nor statutes imposing the duty of ringing a bell or blowing a whistle are intended for the protection of trespassers while walking along the track, and no duty is owed them that employes while operating trains shall keep a lookout for them.
    2. Same — Ordinances Regulating Speed Not for the Protection of Trespassers. — Speed ordinances are not intended for the protection of trespassers, and the violation of such ordinances does not show a wanton or willful disregard of duty by the servants of a railroad company.
    3. Infants — Not Exempt from the Responsibilities of an Ordinary Trespasser. — A school girl twelve years of age, while she is not to be presumed to have the judgment of an adult on many things, must know as well the dangers of walking on a railroad track.
    Trespass on the Case. — Death from negligent act. Error to the Circuit Court of Vermilion County; the Hon. Ferdinand W. Bookwalter, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed December 10, 1901.
    W. H. Beckwith and F. W. Dundas, attorneys for plaintiff in error.

      H. M. Steely, attorney for defendant in error; W. H. Lyford, of counsel.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Plaintiff in error brought this suit to recover damages for the killing of his minor daughter, who was run over by cars on the railroad track of defendant in error.

The court sustained a demurrer to- all of the six counts of an amended declaration. The plaintiff elected to stand by his amended declaration and judgment was rendered against him for costs. He brings the record here and contends that each one of the six counts correctly states k valid cause of action. From the averments therein contained, it appears that the deceased, a school girl of the age of twelve years, was run over and killed by cars of the defendant in its railroad yards within the corporate limits of the village of Sidell, Vermilion county, Illinois, and that she was killed while using the railroad track as a footway, and not at a highway or street crossing. She was at a place on the defendant’s right of way where she had no right to be. She was a trespasser, to whom the railroad company owed no duty of active vigilance; its sole duty being to refrain from wantonly or willfully injuring her.

Persons who travel longitudinally along a railroad track are guilty of gross negligence; and the published reports of our Supreme Court are replete with holdings that the railroad company is responsible only for injuries which may be wantonly or willfully inflicted against them by servants operating trains. I. C. R. R. Co. v. Godfrey, 71 Ill. 500; I. C. R. R. Co. v. Hetherington, 83 Ill. 510; L. S. & M. S. Ry. Co. v. Hart, 87 Ill. 529; Blanchard v. L. S. & M. S. Ry. Co., 126 Ill. 416; Roden v. C. & G. T. Ry. Co., 133 Ill. 72; Wabash R. R. Co., v. Jones, 163 Ill. 167; I. C. R. R. Co. v. O’Connor, 189 Ill. 559.

Heither speed ordinances nor the statute imposing the duty to ring a bell or blow a whistle were intended for the protection of such trespassers. Ho such duty is owed them that employes, operating trains, shall keep a lookout for them.

The averments of the fifth count are more in detail and more fully stated than in any other of the counts. For that reason and because it is stated that that count more truly sets forth the real facts, we shall devote this opinion chiefly to that count. In it, the plaintiff avers that on both sides of defendant’s road-bed, at the point where his daughter was killed, are two public 'highways leading to Grav street in the village, from which point of intersection there is a sidewalk leading to the public school house; that at the time in question, the two highways were very muddy and almost impassable for school children; that the railroad bed was well covered with cinders, making a smooth and attractive walk; that for years it had for a distance of COO or 700 feet been used as such in rainy, muddy weather by school children living in the northwestern part of the village; that it was not separated from the highways by a fence, and that it was -well beaten and defined as a foot-way; that while deceased was on her way to school using this road-bed as a footwajq and when about eighty or ninety feet from Gray street, a locomotive engine with cars attached approached from the north at the rapid rate of speed of twenty-five miles an hour; that deceased seeing and hearing the engine, stepped from-between the tracks to the side; that at about the time she stepped aside defendant’s servants in charge of the train cut the same into two sections and moved the forward section at a higher rate of speed, so that a gap of. about 100 feet existed between the ends of the two sections; that after the former section had passed, deceased, believing that all the cars had passed, stepped again between the tracks, and, while walking there, was run over and killed by the cars in the rear section. It is further averred that there was an ordinance of the village of Sidell in force limiting the speed of trains to the rate of eight miles per hour; that the servants of the defendant operating the train, cut the same into two sections when running at the rate of twenty-five miles per hour, when they saw the deceased walking between the rails in front of them; that they allowed the second section to proceed along the track at that rate of speed without any signal or warning, or without any brakeman or watchman stationed thereon to warn persons of its approach; wherefore, it is charged, that the deceased was run over and killed by the wanton and willful negligence of the defendant.

In our opinion, the count does not state a cause of action. The deceased was traveling along the defendant’s private road-bed for her own convenience, solely, and not for any purpose of business connected with the railroad. She was there without invitation, and the only excuse furnished for her unauthorized use of the track as a footway, was that the defendant had, by covering it with cinders, made it more attractive than a muddy, street and had suffered her and others to travel there before without interference. There was nothing to exempt her from the character of trespasser further than the implied consent arising from the failure of defendant to interfere with such unauthorized use previous to that time. But because the defendant did not eject people from its premises, no right was thereby acquired to use the track as a footway for public travel. Its use was by sufferance, merely, which amounted to nothing more than a naked license, and imposed upon the defendant company no obligation to provide precautionary measures against accident. Deceased was killed because she stepped in front of the rear section of the, train after the forward section had passed her. Had there been a brakeman or some other employe on that section who, after seeing her, could have stopped the cars or warned her of her peril, but failed to do either, then there would be room for the contention that her death was caused by the wanton and willful negligence of the defendant. But no duty rested upon the defendant, as a precaution, to have an employe stationed there to warn the deceased, or any other trespasser, of danger. I. C. R. R. Co. v. Godfrey, 71 Ill. 500; I. C. R. R. Co. v. Noble, 142 Ill. 578.

Speed ordinances are not intended for the protection of trespassers, and the violation of the speed ordinance of the village, as averred, did not show wanton or willful disregard of duty. I. C. R. R. Co. v. Hetherington, 83 Ill. 510; Blanchard v. L. S. & M. S. Ry. Co., 186 Ill. 416; I. C. R. R. Co. v. O’Connor, 189 Ill. 559. We do not think deceased, because of her tender years, was exempt from the responsibilities of an ordinary trespasser. A school girl twelve years of age, while she can not be presumed to have-the-judgment of an adult on many things, must know as well as an adult the dangers of walking on a railroad track.

The first, second, third and fourth counts are similar to the fifth, although not stated with such detail. In neither of them does it appear that the servants operating the train saw the deceased in her perilous situation before being struck. The demurrer was properly sustained as to them.

The sixth count states an entirely different case. It is there averred that while the deceased was walking upon the road-bed attempting to reach a highway crossing, she was in plain sight of the servants of defendant operating a locomotive and train, and that they then and there saw her between the tracks; that it was their duty to so manage the locomotive as to prevent them from striking her; but that regardless of their duty in that behalf and without any warning or signal, whatever, they willfully, wantonly and recklessly ran such train at a high and unlawful rate of speed, to wit, at a speed of thirty miles per hour, against the body and person of the said Estelle Smith, where she was then and there thrown to the ground and her body run over by the train, and she was then and there killed.”

The substantial averment in this count is that the deceased was struck by the entire train and not by a section of it, as is stated in the fifth count; in our opinion a good cause of action is stated in the sixth count, and the demurrer should have been overruled as to it. The judgment will be reversed and the cause remanded with directions to the Circuit Court to so modify its order as to have the demurrer overruled as to the sixth count of the amended declaration.

Eeversed and remanded.


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    Henry Delawder v. Cordy Jones.
    1. Technical Rules — Of Law, Not Allowed to Work Injustice.— In this case the court has no inclination to allow a technical rule of law to work an injustice, such as hás been attempted by this law suit, and for that reason the judgment will be affirmed.
    Trover. — Error to the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    D. D. Donahue, attorney for plaintiff in error.
    Welty & Sterling, attorneys for defendant in error.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

This is an action in trover brought by Delawder against Jones to recover for the conversion of three cows, eight hogs and some corn fodder, all worth $160.

Delawder was a tenant farmer, living with his wife and nine children on a rented farm in McLean county, in December, 1899. On the eleventh of that month, his wife, after a lingering illness, died. The oldest of the children was a girl nineteen years old and the youngest was a year old. The next day after his wife died, he called his daughter to him, told her that he was going to Virginia and directed her to sell the property and pay his debts with the proceeds. Two of the children were sick with fever and five were quite small. Delawder left for Virginia within a day or so and did not return to Illinois for six months. The daughter set about at once to dispose of the property as directed by her father and to procure homes for the other children. She called to her aid, an aunt, Mrs. William May, who had for four weeks been nursing and caring for her mother. At their instance, four of the children were by the county judge committed to the Industrial Home. The youngest was taken by Mrs. May, and the daughter, with the two children next in age to her, procured temporary homes with Mrs. May. The daughter told Mrs. May’s husband of her father’s directions concerning the property and called upon him to assist her in disposing of it. He consented. He found that all the property except the- fodder (worth about $10) was covered by a chattel mortgage. He induced the mortgagee to discount his claim by giving his personal note to him and then offered the property for sale. Jones, the defendant, purchased it for $160, its fair market value, and May applied the proceeds to the payment of Delawder’s debts. There is no merit whatever in Delawder’s suit on the facts. He contends that he never appointed his daughter as his agent to sell his property and pay his debts, and that if he did so appoint her, it was a personal trust and confidence reposed in her, which could not be delegated by her to Maj. Hot withstanding his contradiction, we are fully satisfied that he did make her his agent and that she told the truth when she testified that when he started to Virginia, he said :

“ You have everything in your hands — the children and everything. Sell the things and pay the debts, and by the time you have them paid, I don’t think you will have a spoon left to eat with.”

He calls to his aid the familiar rule of law that where one reposes in another a trust and confidence by making him an agent to sell his property and pay his debts a power is conferred which can not be delegated. An application of that rule to the facts and circumstances of this case would accomplish a defeat of justice. Plaintiff practically deserted his nine motherless children, one of them a helpless babe, two of them sick and three others so small as to require constant attention.

He left them in care of a nineteen-year-old daughter with directions to dispose of the meager amount of property left (worth less than $200, the most of 'which was mortgaged) as best she could. .Because of her inexperience in business affairs, she co-operated with her uncle, and through them the property was disposed of on the very best terms and every dollar of the proceeds applied as Delawder had directed. This court has no inclination to allow a technical rule of law to work an injustice, such as has been attempted by this lawsuit; and for that reason the judgment will be affirmed.


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    Patrick R. Clancey v. The People of the State of Illinois.
    1. Intoxicatin a Liquors— What is a Sale of, Within a Given Coun i y. —Where an order is taken for intoxicating liquor in one count}' and sent to a wholesale dealer in another, the delivery by the wholesale dealer to the common carrier consummates the sale in the county where the order is accepted by such dealer at the point of shipment.
    Indictment for Illegal Sales of Intoxicating Liquors. — Error to the County Court of Douglas County; the Hon. William H. Bassett, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Mr. Justice Weight dissenting.
    Opinion filed December 10, 1901.
    Eckhart & Moore and N. C. Lyrla, attorneys for plaintiff in error.
    John H. Chadwick, State’s Attorney, and Roy F. Hall, attorneys for defendant in error.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

The plaintiff in error was indicted and convicted upon a charge of selling intoxicating liquor in less quantities than one gallon, in Douglas county, in violation of the first section of the dram-shop act.

The evidence shows that for some months prior to his indictment, the plaintiff in error was engaged in traveling and soliciting orders for the sale of intoxicating liquors for one Thomas Coffey, a liquor dealer, whose place of business was in Champaign, Illinois. His method of doing business was to solicit orders from divers persons and when given, send or deliver them to his principal at Champaign, who in turn would fill the orders and ship the liquor, by freight or express, to parties ordering. In that way several packages of liquor were sold and delivered to parties residing in Tuscola, Douglas county, Illinois. In some instances the sales were made upon credit; and collections were subsequently made by the plaintiff in error when he again visited Tuscola. In other cases a bill of lading was attached to a sight draft and sent to the First National Bank of Tuscola, to be taken up and paid before the purchaser could get the goods.

It does not appear that the plaintiff in error acted otherwise than as the traveling salesman and agent of Coffey. In every sale testified to, the consignment was made by Coffey directly to and in the name of the purchaser as consignee at Tuscola. Every consignment was made by him at Champaign, and the purchaser paid the express or freight charges. We are unable, therefore, to see any room for serious contention that the sales were consummated in Douglas countv.

To constitute a sale of personal property, especially under a penal statute, delivery is essential. Orders for goods may be received, but until they are transferred or set apart to the purchaser the sale is incomplete. It is a familiar rule that the delivery of goods by the vendor to a common carrier is generally deemed a delivery to the consignee. An application of that rule makes every sale of liquor disclosed by this record, a sale in Champaign county. We are constrained to hold, therefore, that where an order is taken for intoxicating liquor in one county and sent to a wholesale dealer, in another, the delivery by the wholesale dealer to the common carrier consummates the sale in the county where the order was accepted by the dealer at the point of shipment. We are supported in such holding by the following authorities : Finch v. Mansfield, 97 Mass. 89; Garbracht v. Commonwealth, 96 Penn. St. 449; Brechwald et al. v. The People, etc., 21 Ill. App. 213; Village of Coffeen v. Huber, 78 Ill. App.456. In Brechwald et al. v. The People, etc., the dealers resided in Knox county, received orders for liquor at various times from one Phillips, a resident of McDonough county, then filled the orders and sent the packages C. O. D. to Phillips. They were prosecuted and convicted of unlawful sales in McDonough county but this court reversed the judgment, holding that the sales were in Knox county.

We are unable to see any difference, in principle, between the sales made on a credit and those where the purchasers were required to pay a sight draft before getting the goods. In either case the sale was consummated in Champaign county and a conviction could not be had legally in Douglas county. Reversed and remanded.

Mr. Justice Weight dissents.


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    William A. Jones v. The People.
    1. Intoxicating Liquors — What is a Sale Within a Given County. —Where an order for intoxicating liquor is taken in one county and sent to a wholesale dealer in another, the delivery by the wholesale dealer to the carrier consummates the sale in the county where the order is accepted by such dealer at the point of shipment.
    Indictment for illegal sales of intoxicating liquors. Error to the County Court of Douglas County; the Hon. William H. Bassett, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Mr. Justice Wright dissenting.
    Opinion filed December 10, 1901.
    Eckhart & Moore, J. M. Newman and N. C. Lyrla, attorneys for plaintiff in error.
    John H. Chadwick, State’s Attorney, for defendant in error; Thomas D. Minturn, of counsel.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

The plaintiff in error was convicted in the County Court of Douglas County upon an indictment charging him with selling intoxicating liquor in that county in violation of the first section of the dram-shop act.

The evidence shows that for some months prior to the finding of the indictment the plaintiff in error acted as the soliciting and collecting agent at Tuscola, Douglas county, for one P. J. Breen, a wholesale and retail liquor dealer at Metcalf, Edgar county, Illinois. He received orders from time to time from various residents of Tuscola and forwarded them to Breen. The orders were filled by Breen and the packages of liquor so ordered were delivered by him to the agent of the American Express Company at Metcalf, for shipment to Tuscola, and the goods were shipped by that company, and its agent at Tuscola delivered to the persons ordering. At the time of receiving the packages from Breen the company issued to him a receipt, each one of which contained the number of the package and the name of the person ordering as consignee. The packages were designated by numbers only, which numbers corresponded with the numbers contained in the express receipts. The receipts were by Breen sent to the plaintiff in error, who collected the amount due from the persons who had ordered the liquors and then delivered to them the receipts. Hpon receiving the express receipts the persons ordering presented them to the company’s agent at Tuscola, paid the express charges and received the goods.

It does not appear that the plaintiff in error, in a single instance, delivered liquor to the person ordering. In its legal aspect the case is like that of Clancey v. The People, etc., decided at this term {mite page 303), and the judgment must be reversed for the reasons set forth in the opinion in that case delivered. The sales were consummated only when Breen delivered the goods 'to the express company at Met-calf, to be shipped to the persons ordering them. Although the orders were given in Douglas county, they were accepted and filled in Edgar .county. A delivery of goods by the seller to the common carrier is delivery to the consignee. The fact that packages or some of them were designated by numbers and not by the names of the consignees constitutes no exception to the general rule. The express receipt in every instance named the consignee and fully set forth the undertaking of the express company. Had the goods been lost the company would have been responsible to the consignee.

The sale was consummated in Edgar county and for that reason a conviction in Douglas county was wrong.

Judgment reversed and cause remanded.

Mr. Justice Weight dissents.


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    Perry State Bank v. James Elledge et al.
    1. Books of Account— Admissibility as Evidence. — An account book of original entries, truly and justly made by the person testifying, or made by a deceased person, by a disinterested or a non-resident person, and entered in the usual course of trade, where it tends to contradict or corroborate a witness on material points of his testimony is admissible and should go to the jury subject to contradiction and explanation.
    2. Same — Admissibility Under the Common Law Rule Enlarged by the Statute. — The common law rule relating to the admissibility of books of account in evidence is not abrogated but simply enlarged by the statute.
    Assumpsit, on a promissory note. Appeal from the Circuit Court of Pike County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed December 10, 1901.
    Matthews & Grigsby and A. G. Crawford, attorneys for appellant.
    Jefferson Orr and L. T. Graham, attorneys for appellees.
   Opinion

per Curiam.

This suit was brought upon a promissory note for $113.74, executed by James Elledge and T. P. Elledge on September 1, 1897, payable in ninety days to the Perry State Bank. The defense of payment was interposed, and to support it testimony was introduced to show that it had been paid out of money paid to the bank cashier by T. P. Elledge. Some confusion as to the facts arose by reason of the cashier contradicting T. P. Elledge, and claiming that the money which had been paid into the bank, instead of being $115, was $90, and that it was placed to the credit of James Elledge and checked out by him. To corroborate the testimony of the cashier one of the bank’s books was offered in evidence and admitted. It was afterward excluded, however, and the jury were instructed to disregard it. It is contended the court erred in excluding it.

It is urged here by appellees that inasmuch as the suit was upon the note and the sole defense was payment, that the court properly excluded the book. The contention is that unless the claim sued on or the defense interposed is founded on a book account, the account book and the entries therein contained are not admissible in evidence. The contention is based upon the phraseology of Sec. 3, Chap. 51 of the Revised Statutes, entitled Evidence and Depositions. We are unable to take so narrow a view of that statute. We think that an account book of original entries truly and justly made by the person testifying or made by a deceased person, by a disinterested or non-resident person, and entered in the usual course of the trade, if it tends to contradict or corroborate a witness on material points of his testimony, is admissible. It should go to the jury subject to contradiction and explanation, of course.

The book was admissible under the common law rule, which was not abrogated but simply enlarged by the statute.

Eor the error of that court in excluding the bank book, we reverse the judgment and remand the cause for another trial.

For the reason that the case should be submitted to another jury we refrain from expressing any views as to the merits. Reversed and remanded.


author: Mr. Presiding Justice Burroughs

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    John Ziemens, Impleaded, etc., v. Willis S. Harwood et al., Surviving Partners, etc.
    1. Verdicts — When Conclusive upon Questions of Fact. — When the evidence is conflicting upon an issue tried by a jury and the decided weight of it is with the finding, and all the rulings of the court upon the evidence and the instructions are in accordance with a fair trial, the finding will be sustained.
    Assumpsit, for merchandise sold and delivered. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Chas. I. Will, attorney for appellant.
    Kerrick & Bracken, attorneys for appellees.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

Willis S. and Harry B. Harwood, as the surviving partners of the firm of T. F. Harwood & Sons, sued John Ziemens and H. B. Hall in the Circuit Court of McLean County in an action of assumpsit to recover a balance of $353.60, claimed to be due upon a bill of lumber and other building material sold and delivered by the former to the latter at their request.

The declaration consisted merely of appropriate common counts, to which John Ziemens alone pleaded the general issue and a verified plea denying joint liability, upon which issue was joined, and Hall, although summoned, filed no plea. The case was tried by jury and resulted in a verdict and judgment in favor of the plaintiffs against both of the defendants for $340. Ziemens moved for a new trial which was overruled, and he excepted. He brings the case to this court by appeal, and assigns errors, calling in question the ruling of the court in the admission and rejection of evidence, in the giving and refusing of instructions, and in overruling the motion for a new trial, in which one of the claims made was that the verdict and judgment are contrary to the evidence.

The record has been so imperfectly abstracted, that we have had to refer to and examine the record to ascertain properly just what the evidence and the rulings of the court upon the same were, and find that the greater portion of the matter which found its way into the record throws but little light upon the real issue that was tried, which was whether appellant, Ziemens, and Hall, together purchased the lumber,' etc., in question, or whether Hall alone purchased it.

We will not, therefore, enter into a discussion of the evidence or the rulings of the court upon the vast amount of collateral and foreign matter that found its way improperly into the record, but will merely state, in general terms, the conclusion we have reached after a very careful reading and consideration of all the evidence.

The evidence is somewhat conflicting upon the issue tried, but the decided weight of it is with the finding of the jury, and "all of the rulings of the court upon the evidence and the instructions, were in accordance with a fair trial and proper directions to the jury as to the law applicable to the issue tried. The judgment, it seems to us, upon the whole record does justice between the parties, and therefore ought to and will be affirmed.


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    Supreme Court of Honor v. A. P. Turner.
    1. Accident Insurance — What Constitutes the Loss of a Hand.— Under a by-law of an accident insurance company providing that “ if a member loses a hand or foot by accident he shall receive one-fourth of his certificate of membership in cash and the other three-fourths at his death,” to constitute the loss of a hand it is not necessary that it should be severed from the arm. It is lost within the meaning of the by-law if it be so badly injured that it can not perform the functions intended for it.
    Assumpsit, on a policy of accident insurance. Appeal from the Circuit Court of Shelby County; the Hon. William M. Farmer. Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.

      William B. Risse and Chafee & Chew, attorneys for appellant.
    W. H. Kelley and J. C. & W. B. McBride, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellee became a member of the Supreme Court of Honor and took from it a certificate of insurance providing for the payment of $2,000 at his death to his wife, or to him if disabled, “such an amount as is provided by the laws and regulations governing such cases.” Some two or three years afterward, he accidentally shot himself, the contents of the gun passing through the palm of his left hand and most seriously crippling it.

The section of the by-law of the society applicable to his case, reads as follows:

“If a member loses a hand or foot by accident, he shall receive one-fourth of the amount of his certificate of membership in cash and the other three-fourths at his death.” He brought suit upon his certificate, claiming $500 by virtue of that section, and recovered judgment for that, amount.

Appellant contends that the judgment should be reversed because the evidence does not show a total and complete loss of the use of appellee’s hand. It is insisted that to entitle a member to recover under a certificate like appellee’s, the loss of the use of the hand must be as complete as it would be were the hand amputated. We can not adopt a construction so narrow. To constitute the loss of a hand within the meaning of the certificate of insurance, it is not necessary that the hand be severed from the arm. It is lost if it be so badly injured that it can not perform the functions intended for it.

The testimony shows that a gun load of shot passed through the palm of appellee’s hand, coming out at the back of the hand; that the muscles of the thumb were torn away; that the abductor muscles were, injured; that the nerves were badly torn; that three fingers were paralyzed and that appellee has no practical use of the hand for laboring purposes. Within the meaning of the policy, his hand was lost.

Complaint is made of the action of the court in refusing certain instructions offered by appellant and in modifying others. But wTe shall not consider them because all the instructions are not printed in the abstract. If a litigant desires to have an alleged error in refusing instructions considered, he should embody all the given ones in his abstract, so that the court may see that the principles involved in those refused are not contained in others given. McKowan v. Harmon, 56 Ill. App. 368; Mayer v. Lawrence, 58 Ill. App. 194. Judgment affirmed.


author: Mr. Justice Burroughs

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    Wabash Railroad Co. v. Burchard Jensen.
    1. Instructions — Omission of Requisite Elements in Actions far Personal Injuries. — An. an action for personal injuries, where the plaintiff testifies in his own behalf on vital questions of fact and is flatly contradicted by disinterested witnesses, it is prejudicial error for the court to omit from the instructions the element of law that the jury, in considering the weight to be given to the testimony of the witnesses should consider then- interest in the result of the suit.

      2. Same — Limiting the Time for the Exercise of Ordinary Care. — In an action for personal injuries, where the evidence shows that at the time of the accident there-were a number of persons in wagons waiting to cross the track when the plaintiff ventured to cross, it is prejudicial error for the court, by an instruction, to limit the time when the plaintiff should have been in the exercise of ordinary care, to the time when he ventured to cross the track and was injured.
    3. Same — As to Contributory Negligence. — In an action against a railroad company for personal injuries, it is error to refuse an instruction that if the jury believe from the evidence that the plaintiff and the defendant were both negligent and that the negligence of both contributed directly to cause the injury, they should find for the defendant.
    4. Personal Injuries — Requisites of a Recovery. — Where a party seeks to recover damages for a loss which has been caused by the negligence or misconduct of another, he must be able to show that his own negligence or misconduct has not concurred with that of the other party in producing the injury, and the burden of proof is upon him to show not only the negligence or misconduct of the other party but also that he, himself, exercised proper care and circumspection, or in other words, that he was not guilty of negligence or misconduct.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed December, 10, 1901.
    Hugh Crea and I. A. Buckingham, attorneys for appellant.
    Mills Brothers and Jack & Deck, attorneys for appellee.
   Mr. Justice Burroughs

delivered the opinion of the court.

Appellee sued appellant in the Circuit Court of Macon County in an action on the case to recover damages for personal injuries received by him in a collision at a street crossing in the city of Decatur, alleged to have been occasioned by the negligence of appellant.

The case was tried by jury and resulted in a verdict and judgment in favor of appellee for $2,500.

Appellant brings the case to this court by appeal and urges the reversal of the judgment on the grounds that the verdict is not supported by the evidence and that the court gave improper and refused proper instructions.

The first count of the declaration charged that on November 10, 1899, appellant left a long train of cars standing partly on Broadway street crossing in the city of Decatur, which obstructed the view of persons approaching the crossing from the north, or trains going west on a track just south of the standing train.

That appellee on that day approached said crossing from the north in his wagon drawn by two horses, and was signaled by appellant’s flagman there, to drive over the same, and in attempting to do so, with due care for his safety, a locomotive of appellant, which was going west on the track of appellant just south of said standing train, struck his wagon, throwing him to the ground and causing him severe personal injuries from which he has not yet recovered.

The additional count of the declaration charges that appellant negligently drove á locomotive engine over Broadway street crossing in the city of Decatur, without constantly ringing a bell while it was in motion, contrary to an ordinance of said city; and that by reason of the failure to ring the bell, appellee did not know said engine would cross over said crossing, and appellee’s wagon, while he was in it and driving over said crossing, with due care for his own safety, was struck by the engine, and he personally injured.

Appellant pleaded not guilty.

The evidence shows that about 11:45 a. m. on November 10, 1899, appellee was coming south on Broadway street in the city of Decatur, in a farm wagon drawn by two horses going in a fast trot, and as he approached where the appellant’s railroad crosses the street with five tracks, he found there was a train of cat’s standing on .one of the northerly tracks so as to extend about half way across the street from the east side. Appellant had a flagman there, whom appellee testified signaled to him to pass over, which he proceeded to do by driving his horses in a fast trot, and after he had passed the west end of the standing train, a locomotive going west on the track south of the standing train without ringing its'bell, struck the hind part of his wagon, threw him violently to the ground, broke three of his ribs anu otherwise greatly injured him.

Appellee Was corroborated by his son, who-was in the wagon with him at the time, and by several other witnesses.

The flagman testified that he did not signal appellee to drive across, but on the contrary, not only signaled him not to do so, but did all in his power to prevent him from crossing, and he was corroborated by a number of disinterested witnesses.

The evidence was also very conflicting as to whether the bell on the locomotive in question was ringing before and when the locomotive struck appellee’s wagon.

The court gave appellee’s second instruction, as follows:

“ The requirement of the law that the plaintiff must establish his cause of action by a preponderance of the evidence before he is entitled to a verdict in his favor does not mean that he is required to have more witnesses than the defendant; it simply means that he must sustain his cause of action by the greater weight of evidence. The testimony of one witness may have greater weight than the testimony of many. The weight of the testimony of a witness or person depends upon many circumstances. His opportunities to see and know the facts about which he testifies, his apparent candor, his intelligence and conduct upon the stand, are all circumstances to be considered by the jury in determining the weight to be attached to the evidence of the several witnesses.”

Inasmuch as appellee testified in his own behalf, and his testimony on vital questions of fact was flatly contradicted by disinterested witnesses, we think it was prejudicial error for the court to omit from the instruction that the jury, in considering the weight which ought to be given to the testimony of the witnesses, should consider the interest of the witnesses in the result of the litigation.

And the court gave appellee’s sixth instruction, which is as follows: t,

“The court instructs the jury that the degree of care which the plaintiff was called upon to exercise in this case, in order for him to recover, in case you believe from a preponderance of the evidence that he was injured by the defendant’s negligence, is what is termed in the law, ordinary care — that is, such care as an ordinary prudent and careful man would have exercised under like circumstances; and if you believe from the evidence in this cause that the plaintiff, Jensen, at the time of the injury in question exercised such care as an ordinary careful and prudent man would have exercised under like circumstances, and, that he was injured by the negligent conduct of the defendant as charged in the plaintiff’s declaration or some count thereof, then in that state of the proofs your verdict should be for the plaintiff in such amount as you believe him entitled to from a preponderance of the evidence, not exceeding the amount claimed in his declaration.”

As the evidence shows that there was, at the time in question, a number of persons in wagons on both the north and south sides of the crossing, waiting to pass over it when appellee undertook to cross over, and that none of them but appellee ventured to cross at the time, we think it was prejudicial error for the court, by this instruction, to limit the time when appellee should have been in the exercise of ordinary care, to the time he was injured, when, under the circumstances disclosed by the evidence, he should have exercised such care before, as well as at the time he was injured.

The court refused to give the jury appellant’s fourth refused instruction as follows:

“ If the júry believe from the evidence that the plaintiff and the defendant were both negligent and that the negligence of both contributed directly to cause the injury in this case, then the jury should find for the defendant.”

We think this instruction ought to have been given, and that it was error to refuse it, for the reason that where a party seeks to recover damages for a loss which has been caused by negligence or misconduct, he must be able to show that his own negligence or misconduct has not concurred with that of the other party in producing the injury; and the burden of proof is upon the plaintiff to show not only negligence on the part of defendant, but also that he exercised proper care and circumspection, or in other words, that he was not guilty of negligence.” West Chicago St. Ry. Co. v. Liderman, 187 Ill. 463, and Cicero St. Ry. Co. v. Meixner, 160 Ill. 328. There was evidence tending to show negligence on the part of appellee in attempting to go over the crossing under the prevailing circumstances; and there was no other instruction given covering this question.

There was sufficient testimony offered by the appellee to support the verdict if it was believed by the jury, but if the jury believed the testimony offered by the appellant, then the verdict should have been for it, and in such a state of the record, the instructions should be clear, perspicuous and free from uncertainty, so the conflicting questions of fact may be properly settled by the jury uninfluenced by any doubtful or uncertain instructions. And the instructions referred to in this opinion, were not of that character.

For the errors in the instructions above indicated, we will reverse the judgment of the Circuit Court of Macon County, and remand this case there for another trial in accordance with law and justice. Eeversed and remanded.


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    Samuel P. Kelley v. Charles S. Maguire.
    11. Factor and Principal— Where a Person Selects a Particular Place Ms His Market He Will be Bound by Its Usages and Customs.— Where a person selects a particular place as his market and consigns his commodities to such place for sale, he will be held as intending that his sales are to be conducted by his agent or factor there, according to the general usages and custom of the place.
    2. Same — Degree of Care Required. — A factor is only required to act with reasonable care and diligence in bis employment. The known usages of trade and business enter into his employment and he is only required to conduct his business according to such usages and customs.
    3. Same — Re-inibursement, Where the Factor Advances Money for His Principal. — A factor is entitled to be re-imbursed for money necessarily advanced for his principal in carrying out his business.
    Assumpsit, for money paid out, etc. Appeal from the Circuit Court of Ford County; the Hon. John H. Moeeett, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    O. H. Wylie and Tipton & Tipton, attorneys for appellant.
    McQuiston & Frederick and C. H. Payson, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellant is a grain merchant at Clarence, Illinois. Appellee is a commission merchant at Cincinnati, Ohio. In October, 1900, appellant shipped to appellee to be sold in the Cincinnati market, two car loads of corn and two car loads of oats. He made two sight drafts of $350 each on the corn and a sight draft of $725 on the oats, all of which appellee paid.

The grain was sold in the usual way in the Cincinnati market, and the net proceeds, after deducting freight charges, etc., amounted to $1,249.88, $175.88 less than the amount of the drafts paid by him. This suit was brought to recover the amount of the overdrafts, and a trial resulted in a judgment in favor of appellee for $175.88.

The evidence shows that the relation between the parties was that of factor and principal. The tone of certain letters written by appellant to appellee, in which he directed appellee to do the best he could with the grain, ancl expressed the hope that he would be able to get a good price for it, indicates that. All that was required of appellee, then, was to use reasonable diligence in receiving the grain and in disposing of it. If he did so, and performed his duties in accordance with the recognized usages of the trade at Cincinnati, and accounted to his principal for the proceeds, he did all the law imposed upon him. Phillips et al. v. Moir, 69 Ill. 156.

Appellant, having selected Cincinnati as his market, will he held as intending that the business should be conducted by appellee according to the general usage and custom of that market. Bailey v. Bensley et al., 87 Ill. 556; Lyon v. Culbertson, 83 Ill. 33; Samuels et al. v. Oliver et al., 130 Ill. 73.

The evidence shows that it is the custom in Cincinnati, in receiving consignments of grain, for the railroad company to notify the consignee of the arrival of the cars, for the grain to be then inspected by official inspectors, appointed by the chamber of commerce, for the grain to be sold by sample on ’change and to be weighed by regular weighers, who make out and return weight certificates, showing the quantity of grain in each car. The grain in question- was received by appellee and disposed of at the full market price, in accordance with each of the above named regulations. In all he did, he was governed by the usages and customs of the .trade of the market in. which the business was transacted, and for aught that appears in this record, he secured the highest price obtainable for the grain.

Appellant nowhere charges appellee with negligence or fraud, but insists that a mistake was made somewhere in the weighing of the grain. But if a mistake was made in that regard, it was an error for which appellee, as a factor, could not be held liable. When appellant shipped the grain to appellee to be sold in Cincinnati, he must be held to have intended that the grain should be weighed in the manner that grain is usually weighed in that market. He must be held to have intended that appellee should rely on the weight certificates issued by regular weighers; and even though the weighers who weighed appellant’s grain made a mistake, appellee could not be held liable therefor unless he could have prevented the mistake by the use of reasonable diligence.

The court properly refused to allow appellant to prove what the grain weighed when shipped from Illinois. Appellee being a mere factor, the question at issue was not how much grain was shipped. Had the evidence shown that appellee did not exercise proper care and diligence in his employment, or had there been evidence tending to show a fraudulent collusion between him and the weigher, such proof would have been proper. But as he acted honestly and diligently, and in strict compliance with the rules and regulations which governed the market in Cincinnati, he could not be held liable for any shortage in weights.

The admission in evidence of the weight certificates was proper because the evidence shows that it is the usage of the trade at Cincinnati for commission men to rely upon the weight certificates as correct. It is the customary mode of ascertaining the amount of grain sold. Appellee having, by the payments of the sight drafts drawn by appellant when he shipped the grain, advanced more than he realized from the sale, was entitled to recover back the surplus. A factor is entitled to be re-imbursed for money necessarily advanced his principal in carrying out his business. Samuels et al. v. Oliver et al., 130 Ill. 73.

Numerous objections were made in the court below during the examination of witnesses to certain questions and answers and are renewed here. They are unimportant and evidently had no controlling influence on the verdict. The judgment does justice between the parties and will be affirmed.