author: Mr. Justice Mulkey

text:
    Lewis E. Montgomery v. Samuel T. Brush et al.

      Filed at Springfield September 27, 1887.

    1. Trover—whether the action can be maintained. To maintain the ■action of trover, it must appear that the plaintiff had both the right of property and of possession, as against the defendant, at the time of the alleged conversion.
    2. The fact that the plaintiff’s cattle, at the time of their conversion by the defendant, were in the possession of an agent of the plaintiff, under a contract that such agent was to pasture and sell the same for the plaintiff, and of the proceeds pay him a certain amount and keep the balance for his compensation, will not defeat an action of trover by the plaintiff, for the con•version, the defendant having notice of the ownership of the cattle.
    3. Evidence—declaration of agent—whether admissible against his ■principal. An agent, having his principal’s cattle in possession under a con- ■ tract to pasture and sell them, and to pay the owner a certain sum, the agent to have all the proceeds over such sum, put them into the pasture of another, who claimed them under a contract of sale with the agent. It was held, in an action of trover by the principal, against the claimant, that what the agent said •as to his object in putting the cattle in the pasture at the time he did so, being a part of the res gestes, would be admissible in evidence on the part of the ■defendant, but that it was not competent for him to prove the statements of the agent, generally.
    4. Same—statements of third persons. On the trial of a case, the gen•eral statements of persons neither parties to the record nor in privity with the jparty against whom they are sought to be used, are not admissible in evidence.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding-
    The appellees, Edward McGuire and Samuel T. Brush,, recovered a judgment of $1500 in the circuit court of Sangamon county, against the appellant, Lewis E. Montgomery,, in an action of trover,' for the alleged conversion of one hundred and thirty-one head of cattle belonging to the plaintiffs. This judgment, on the appeal of Montgomery, was affirmed by the Appellate Court for the Third District, and the defendant again appealed.
    The cattle in question were a part of a lot of two hundred! and eighteen, which are conceded to have belonged tó the-plaintiffs on the 16th day of June, 1885. They were then, in Jackson county, where the plaintiffs reside. On that day the plaintiffs entered into a written contract with Milligan &• Mcllvane, in respect to.the pasturage, keep and sale of the-cattle, which contract is as follows:
    “This agreement, made and entered into this sixteenth day of June, A. D. 1885, between Edward McGuire and Samuel. Brush, of Carbondale, Illinois, party of the first part, and Milligan & Mcllvane, a firm composed of W. M. H. Milligan,, of Perry county, Illinois, and T. D. Mcllvane, of Christian, county, Illinois, party of the second part, witnesseth: That-the said party of the first part have, on the date of this agreement, appointed the said firm of Milligan & Mcllvane their agents to sell a certain lot of cattle, and 'have this day consigned to the said firm, at Moawequa, in Christian county,. Illinois, to be transported by the Illinois Central Railroad. Company, the said lot of cattle, consisting of two hundred and eighteen (218) head, principally one and two years old, to be sold by the said Milligan & Mcllvane, as the agents of the said McGuire and Brush, under the following limitations: In consideration of the present value of said cattle, and the probable.increase by reason of growth and improved condition, and for other valuable considerations, the said Milligan & Mcllvane are to assume all expense and charge of transportation, feed, pasturage and care of said cattle from and after the date of this agreement, and hereby agree to sell or otherwise dispose of said cattle on or before the first day of November, 1885, and hereby guarantee and agree, and by these presents bind themselves, their heirs, administrators, executors and assigns, to pay unto the said Edward McGuire and Samuel Blush, or their order, their heirs, administrators, executors or assigns, on or before the first day of November, 1885, the sum of thirty-four hundred and forty-four dollars ($3444), with interest at the rate of eight per cent per annum, from the date hereof until the same be paid—it being understood and agreed, that any amount in excess of the above named sum, with interest at eight per cent per annum, from this date until the same be paid, arising from the sale of said cattle, shall be paid to and held by said Milligan & Mcllvane, as their compensation, as agents, for freight charges, feed and pasturage, and all other expenses incurred on account of same until sold.
    “It is further understood and agreed by said Milligan & Mcllvane, that whenever any number or part of said cattle are sold by them, the proceeds of such sale, after deducting, pro rata, expenses and charges, is to be paid to the said McGuire and Brush, such payment to be entered on this contract as a credit, and when the sum of such payments shall amount to* the aforesaid sum of thirty-four hundred and forty-four dollars ($3444), and accrued interest, then this agreement shall be cancelled, and the cattle remaining unsold, if any, shall become the property of Milligan & Mcllvane.
    “It is understood and agreed, that the said Milligan & Mcllvane are, and shall act as, agents of the said McGuire and Brush, for the sale of the aforesaid cattle, and in case of the death, or inability to act, of either member of said firm of' Milligan & Mcllvane, then the surviving partner shall carry-Gut and execute the terms of this agreement; and further, if •both members of said firm shall 'die, or be prevented by dis? ability from carrying on their business before compliance with this contract, then the said McGuire and Brush, or their assigns, shall have the right to take possession of any or all of said cattle remaining unsold and unaccounted for at such time, and to sell the same to the best advantage, and apply the proceeds to the payment of the balance that may be due upon the contract, paying over the residue, if any, to the heirs or assigns or legal representatives of the said firm of Milligan & Mcllvane.
    “In witness whereof, the said parties have hereunto set their hands and seals, the day and year first above written.
    . Edward McGuire, (Seal.)
    Samuel T. Brush, (Seal.)
    Milligan & McIlvane, (Seal.)
    “It is hereby mutually agreed, that the within agreement, contract and agency, in all its parts, provisions and' conditions, shall be, and it is hereby, renewed, prolonged and extended to and until the first day of September, A. D. 1886.
    ' “In witness whereof, we, the parties to the within agreement, have hereunto fixed our hands and seals, this 9th day of November, A. D. 1885.
    Edward McGuire, (Seal.)
    Samuel T. Brush, (Seal.)
    Milligan & McIlvane, (Seal.) ”
    In the evening of the day in which the original contract was entered into, the cattle were shipped, in pursuance thereof, to Milligan & Mcllvane, at Moawequa-, by way of the Illinois Central railroad, McGuire accompanying them. On their arrival at Moawequa they were driven to what is known in that locality as the “Tanner farm, ” being the same upon which Mcllvane was then living. The farm contained from four to five hundred acres in grass, and was used by Milligan & Mcllvane for pasturing and handling cattle. The first or second day after the arrival of the stock at the Tanner farm, McGuire, in company with Milligan, went over to the farm of the defendant, some twelve miles distant, in a north-east direction, where they met the defendant, -took dinner with him, examined his pastures, cattle, etc. During the interview, McGuire informed him of having brought the two hundred and eighteen head of cattle to the Tanner farm, but nothing in particular seems to have been said as to their ownership, or the terms or conditions upon which they were put there.
    Before the making of the contract above set forth, Milligan & Mcllvane had entered into a somewhat similar one with Montgomery, in respect to the purchasing and pasturing of cattle. While that contract bears no date, yet Montgomery swears it was finally concluded on the last days of April, 1885. The contract, together with the one supplemental thereto, dated October 7, 1885, is as follows:
    “Memorandum of agreement between L. B. Montgomery, of Springfield, Illinois, of the first part, and W. H. Milligan, of Pinkneyville, Illinois, and T. D. Mcllvane, of Willeys, Illinois, known and doing business under the firm name of Milligan & Mcllvane, party of the second part: Witnesseth, that the said Montgomery agrees to furnish the following described tract of pasture land, to-wit: The Ni E. £ of sec. 23, S. B. £ of see. 28, S. £ N. E. £ of sec. 28, W. £ N. W. £ of sec. 27, W. £ S. W. £ of sec. 27, Tp. 15, N. R. 2 W. of 3d P. M., Christian county, Illinois, and containing 440 acres, more or less, at the sum of $1200, and he is also to furnish five thousand dollars ($5000) in money, one-half by April 1, 1885, and one-half by May 1, 1885, to be used as follows: The said Milligan & Mcllvain are to purchase five thousand dollars ($5000) worth of young, growthy, healthy cattle, to stock said pasture for Montgomery, to consume the season’s grass on the same, and to act as selling agents for Montgomery, said cattle to be marketed at the close of the grazing season, not later than December 1, 1885, to the best advantage. And it is further agreed, that said second parties are to receive and accept for their services in attending to said business for Montgomery, the profit that shall accrue from said deal after Montgomery shall be paid the sum of $1200 for said pasture, on or before December 1, 1885, with eight per cent interest after that date, till paid,—the sum of $5000 furnished to purchase said cattle, with eight per cent interest thereon for the time the same is used by said parties in said stock, and the sum of $750.10, with eight per cent interest thereon from March 1, 1885, being a balance due said Montgomery on a previous deal, provided the said stock brings so much. It is distinctly agreed between said parties, that the stock so furnished shall be the sole and absolute property of said Montgomery, and the said stock on said pasture shall be in his possession and in his control,— said second parties having put no money in the same, all the purchase money having been furnished by said Montgomery. And it is distinctly agreed, that if said cattle put upon said pasture do not bring the sum of .$5000, with eight per cent per annum from the time said money is invested till said cattle are sold, or until December 1, 1885, also, the sum of $1200 for said pasture, to be paid December 1, 1885, that then the said parties of the second part are to be liable, personally, for such deficit, to said Montgomery, as the cattle are to be purchased and selected by them, and said Montgomery does not agree to be bound by the valuation placed by them upon said cattle; and all surplus, after making the payments herein above set forth, is to be the property of said second parties. All' sales are to be made by and with the consent of said Montgomery, and the money to be first used in discharging the amount coming to him.
    L. E. Montgomery.
    Milligan & McIlvane,
    Springfield, III., Oct. 7, 1885.

      “It is this day mutually agreed between the parties to this ■contract, that Milligan & McIlvane are to remove one hundred and twenty-five (125) head of cattle to their former farm, situated in May township, in Christian county, Illinois, where ihey are to feed them corn in the best manner to cause them to fatten, for sixty (60) days,—the feeding to be done under Montgomery’s direction; and this move is to in no way interfere with Montgomery’s ownership and control of the cattle, as per tenor on this contract, of which this agreement becomes ■a part.
    L. E. Montgomery,
    Milligan & McIlvane.”
    In pursuance of the original contract between Montgomery and Milligan & McIlvane, first set forth, Montgomery advanced to Milligan & McIlvane the $5000 therein set forth, with which they purchased and placed upon his farm, to be pastured, one hundred and fifty-seven head of cattle. Under the supplementary contract of the 7th of October, Milligan •& McIlvane took one hundred and twenty-five head of these ■cattle out of the pasture, to be fed and fattened, as therein ■contemplated. After they were thus prepared for market they were sold, and Montgomery received the proceeds, but just what he got for them he does not state. The remaining thirty-two of the one hundred and fifty-seven head were also sold for his benefit, and he admits to having received for them $1058.76, although he states himself “they were the tail of the lot. ” At the same rates the entire lot would have brought $5194.54. This lot of cattle was in Montgomery’s pasture at the date of Milligan & Mcllvane’s contract with Brush and McGuire. On the 10th of October, 1885, Milligan & McIlvane, assuming that under their contract with Montgomery they had the right to do so, drove one hundred and thirty-one of the plaintiffs’ cattle to Montgomery’s place, and turned them in upon his pasture, for the reason, as stated by them, the grazing was better there, at that time, than on the Tanner farm. At the time of the extension of the plaintiffs’ contract with Milligan & Mcllvane, in November, McGuire went over to look at the one hundred and thirty-one head of plaintiffs’ cattle in Montgomery’s pasture, though it does not seem that anything in particular passed between him and Montgomery in respect to the cattle being there, or the ownership of them.
    It is claimed by Montgomery, that when he consented to the taking of the one hundred and twenty-ñve head of cattle out of his own pasture, it was understood that Milligan & Mcllvane were to replace them with others. It is further claimed by him, that when they placed the one.hundred and thirty-one head of plaintiffs’ cattle in his pasture, as above stated, he understood them to be put there in pursuance of such understanding, and that he did not know, at the time, that they belonged to plaintiffs, nor, indeed, that plaintiffs had any claim upon them. These claims of the defendant are denied by the plaintiffs, and in this they are sustained by both Milligan and Mcllvane. In the latter part of November, some controversy having arisen about the ownership of these cattle, Montgomery Caused them to be removed a few miles distant, to Canney’s place, where they were pastured and cared for a short time, when Montgomery, as he admits, took them (at least one hundred,and twenty-eight of them,) to Chicago, where he sold them, and appropriated the pro-, ceeds to his own use, as heretofore seen. Omitting interest, appellant’s entire claim against Milligan & Mcllvane was but $6950.10. He admits to have received on it, altogether, $6165.66, which would leave only a balance of $784.44, exclusive of interest, or thereabouts.
    Messrs. Connolly & Mather, and Messrs. C. C. & Stuart Brown, for the appellant:
    As to Montgomery, who was without notice, the contract between McGuire and Brush, of the one part, and Milligan & Mcllvane, of the other part, made the latter the owners of the cattle, and Montgomery had the right to treat them as the cattle of, Milligan & McIlvane. Koch v. Willi, 63 Ill. 144.
    When the identical thing delivered is to be returned, it is-a bailment, and the title to the property is not changed; but when there is no obligation to restore the specific thing, but only its value, it is a sale. Lonergan v. Stewart, 55 Ill. 49.
    When the owner voluntarily parts with his goods, and clothes the purchaser with the indicia of ownership, title passes to a third party who has no knowledge of any condition attached to the former sale, or any fraud, if there be fraud. Jennings v. Gage, 13 Ill. 614; Brundage v. Camp, 21 id. 330.
    If the owner has been'deceived and defrauded into parting with his property, he can not reclaim it from one who afterward buys it in good faith. (1 Parsons on Contracts, 520.) The same, of course, would be true of one who is a mortgagee or pledgee in good faith.
    If Milligan & Mellvane had actually sold these cattle to Montgomery in payment of a debt due from them to him, there can be no question that Montgomery would thereby obtain good title to the cattle.
    Appellees had, as against the appellant, neither a right of property nor a right of possession in these cattle at the time of the commencement of this suit, in the spring of 1886. Both right of property and right of possession, as against the defendant, are necessary to maintain trover. Eisendrath v. Knauer, 64 Ill. 396; Forth v. Pursley, 82 id. 152; Bertholf v. Quinlan, 68 id. 297; Owens v. Weedman, 82 id. 409.
    Milligan & Mellvane had a right to require him to account to them for the proceeds of the cattle, and pay to them any surplus remaining after paying him the sums mentioned in their contract with him, but that was the limit of their rights. As soon as they were placed in his pasture, they became a pledge to him for the payment of the money due him under said contract, and he was entitled to hold them against Me. Ouire and Brush, as well as against Milligan & Mcllvane.
    A2>pellant had the right to 23rove what either Milligan or Mcllvane said as to why they put the cattle in his pasture, and the evidence sought was material.
    Mr. William J. Allen, for the appellees.
   Mr. Justice Mulkey

delivered the opinion of the Court:

No substantial reason is perceived for disturbing the judgment of the Appellate Court. To our minds the case is free from difficulty. On the trial in the circuit court, there was a sharp controversy as to two questions of fact, upon the decision of which it is manifest, from the evidence, as well as the instructions of the court, the case mainly turned. It was claimed by Montgomery, that the one hundred and thirty-one head of cattle belonging to appellees were put in his pasture by Milligan & Mcllvane in part performance of their contract with him, and that at the time he received them, he had no notice of the fact that they were ap23ellees’ cattle, or that the latter had any claim U230n them. On this hypothesis, the court, by a number of instructions, told the jury, that if the evidence sustained this claim of appellant, they should find for him. On the other hand, appellees contended that the cattle in question were 23laced on appellant’s premises by Milligan & Mcllvane, to be pastured, merely, without any understanding, 23urpose or intention, on their 23art, of delivering them to a23pellant, under his contract with them. The jury, upon this 2ilain and single issue, found for the appellees. In doing so, it is manifest that they must have found, as a matter of fact, either that the cattle were not delivered to appellant under his contract with Milligan & Mcllvane, or that he, at the time they were placed in his field, had actual or constructive notice of appellees’ ownership of them, for otherwise, under the instructions of the court, there would clearly be nothing to sustain the finding of the jury. So far as the result is concerned, it is a matter of no consequence which of these facts was found in favor of appellees, for one is just as fatal to appellant’s theory of the ease as the other. "With these questions of fact, of course we have nothing to do, nor with the evidence tending to prove or disprove them, ■except in its relation to the instructions.

Appellant makes the point, that to maintain trover it must ■•appear that both the right of property and of possession were in plaintiffs, as against the defendant, at the time of the ¡alleged conversion, and cites a number of authorities in -its support. The rule contended for is, without doubt, the law. Indeed, it is so elementary in its character that the citation ■of authorities in its support was not at all necessary. Conceding the rule, as we do, we nevertheless fail to perceive that it presents any obstacle to the plaintiffs’ right of recovery,— •assuming, as we must, that the jury found the facts to be as claimed by them.

Appellant was examined as a witness, on the trial, in his ■own behalf. While so being examined, he was interrogated with respect to what he may have heard Mellvane or Milligan ¡say about how they came to put plaintiffs’ cattle in his field. ■On plaintiffs’ objection, the court excluded the answer to the •question, and this is assigned for error. We have no doubt ■of the correctness of the ruling of the court upon this point. 'The exact question propounded to appellant was this: “Have ;you heard either of them say how they came to put the one hundred and thirty-one head in there,—what they put them in under ? If you heard either of them say, state. ” It will be observed that the declarations sought to be elicited by this ■question are not limited to any particular time or place. Had the inquiry been confined to what they may have said on that subject at the time the cattle were put into the pasture, it would doubtless have been a proper question. Declarations made by any of the parties at that time, expressive of the object of putting the cattle into the pasture, would clearly have been a part of the res gestee, and would have been admissible as such.. But no such a case as that is here presented. By the question propounded it was sought to put in evidence the general statements of persons neither parties to the record nor in, privity with those against whom they were sought to be used. This the rules of law governing the production of testimony forbid.

With respect to the instructions, we have no fault to find' with the rulings of the trial court. If any error was committed, it was in the interest of the appellant, and consequently affords no ground for complaint on his part. Appellant’s-refused instructions, we think, were either not the law, or calculated to mislead the jury, and were, therefore, properly-refused.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Magbuder

license: Public Domain

text:
    The Phœnix Grain and Stock Exchange v. William H. Gleason.

      Filed at Ottawa September 26, 1887.

    1. Taxation—over-valuation—remedy—tax-payer is chargeable with knowledge of proper remedy. A court of equity has no power to value property for taxation, or to reduce an assessment. The remedy for an excessive-assessment is by-petition to the town board of review, under section 86 of theBevenue law, and to the county board, under section 97 of the same law.
    2. So where a corporation neglected to furnish the proper list of its taxable-personal property, the assessor listed and assessed the same, according to hi» best judgment and information, at $5000, and notified the corporation of hi» action. The corporation petitioned the town board of review to reduce the-assessment, which was refused, and no appeal was taken to the county board. It was held, that the decision of the town board was conclusive, and that a court of equity could not interfere unless the tax itself was unauthorized by law, or was assessed on property not subject to taxation, or the property was fraudulently assessed at too high a rate.
    3. A party assessed for taxation is bound to take notice of the remedies ■afforded him by law for the review of the assessment, and will be held to know what a document is which he signs, which purports on its face to be a petition to the town board of review for a reduction of the assessment; and his ignorance of its contents and object can not constitute such fraud on his rights as to authorize a court of equity to enjoin the collection of the taxes extended ■on the assessment.
    Writ of Error to the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding.
    Messrs. Bisbee, Ahrens & Decker, for the plaintiff in error:
    A court of equity will interfere to restrain the collection of a tax based upon a fraudulent over-assessment, considering a , fraudulent over-assessment, independent of questions of irregularity, a sufficient ground for granting relief, and treating its jurisdiction as concurrent with the statute remedies through town or other boards. Town of Lebanon v. Railroad Co. 77 Ill. 539; Howard v. Drainage Co. 51 id. 130; First National Bank v. Cook, 77 id. 622; McBride v. City of Chicago, 22 id. 574; Vieley v. Thompson, 49 id. 9; Lemont v. Stone Co. 98 id. 94; Insurance Co. v. Farwell, 102 id. 413; Railroad Co. v. Hodges, 113 id. 323; Felsenthal v. Johnson, 104 id. 26; Adsit v. Lieb, 76 id. 198 ; Pacific Hotel Co. v. Lieb, 83 id. 602.
    An assessment may be so grossly excessive as to imply fraud. Pacific Hotel Co. v. Lieb, 83 Ill. 602.
    An assessment which is not based upon property known to ■exist, is not such an assessment as is contemplated, and is fraudulent. Cases above cited, and sec. 1, art. 9, of the Constitution; Rev. Stat. chap. 120, sec. 3.
    The plaintiff in error was guilty of no negligence in reference to correcting the assessment by methods provided by law; and quaere, whether it was required to go before the ■ board to correct a fraudulent assessment. English v. People,

      Mr. John M. Hamilton, for the defendant in error:
    The law presumes that an officer does his duty. Evans v. School Commissioners, 1 Gilm. 654.
    When the assessor and board of equalization have acted, their valuation can not be reviewed, and the courts have no-power to change the same. People v. Big Muddy Iron Co. 89 Ill. 116; Life Ins. Co. v. Pollak, 75 id. 292.
    A court of equity is not empowered to value property for taxation, and resort must be had to the boards provided by law for the correction of an assessment. Railroad Co. v. Hodges, 113 Ill. 323; Preston v. Johnson, 104 id. 625; Felsenthal v. Johnson, id. 21.
    We know that the Supreme Court of this State have said in their latest decision on this question, (Railroad Co. v. Hodges, 113 Ill. 323,) that the collection of a tax will be enjoined when the tax itself is unauthorized by law, or is levied upon property not subject to taxation, or the property upon which it is assessed is fraudulently valued at too high a rate; but what is a fraudulent valuation of property at too high a-rate ? We can best judge of what is meant by a fraudulent assessment or valuation, by referring to the cases which the Supreme Court have held fraudulent.
    In Darling v. Gunn, 50 Ill. 424, the court held that before a board can increase an assessment, the person to be affected must have notice and opportunity to be heard. To raise it-without notice would be fraudulent.
    In McConkey v. Smith, 73 Ill. 313, it was held that the board of supervisors have no power to raise an assessment of personal property without notice to the tax-payer.
    In Cleghorn v. Postlewaite, 43 Ill. 428, it was held that after the owner had delivered his list of taxable property to the-assessor, if the latter, without notice to the owner, increases the assessment above the amount listed, equity would enjoin, collection of the tax on the increase.

      In People v. Ward, 105 Ill. 620, it was held that after the assessor had made an assessment of personal property of a tax-payer, and entered the same on his books, he could not lawfully increase such assessment without notice to the taxpayer, for it would be fraudulent.
    In First National Bank v. Cook, 77 Ill. 622, it was held that the altering of an assessment on personal property, after it was made, by either the assessor or county board, without notice to the owner, was such fraudulent assessment as equity would enjoin.
   Mr. Justice Magbuder

delivered the opinion of the Court:

This is a bill filed in the Superior Court of Cook county by plaintiff in error against the defendant in error as collector for the town of South Chicago, to enjoin the latter from collecting a personal property tax, which is alleged to have been fraudulently assessed. The collector answered and a hearing was had by stipulation upon bill and answer and certain affidavits. The trial court dissolved the preliminary injunction which had been granted and dismissed the bill for want of equity.

The plaintiff in error was assessed upon personal property to the amount of $5000, which was intended to cover not only its office furniture, but also its cash capital on hand and in use in its business. Its complaint was that the valuation was too high. It filed a petition with the town board, consisting of the assessor, supervisor and town clerk, and therein complained of the assessment as being too high and prayed for a review and correction of it, as provided for in section 86 of the Revenue act. The town board overruled the prayer of the petition and approved the assessment, as made by the assessor. No further complaint was made to the county board at its meeting on the second Monday in July, as provided for in section 97 of the Revenue act.

A court of equity is not empowered to value property for taxation. The applications to the town and county boards, for which provision is made in sections 8.6 and 97 above referred to, furnish ample remedies for all errors in valuation. Plaintiff in error resorted to the town board "for relief and took no appeal from the decision approving of the assessment. That decision is final under the repeated rulings of this court, “unless the tax itself is unauthorized by law, or the tax is assessed upon property not subject to taxation, or the property, upon which it is assessed, is fraudulently valued at too high a rate. ” Illinois Central Railroad Co. v. Hodges et al. 113 Ill. 323; Preston et al. v. Johnson, 104 id. 625; Felsenthal v. Johnson, id. 21; People v. Big Muddy Iron Co. 89 id. 116; Spencer v. People, 68 id. 510; Republic Life Ins. Co. v. Pollak, 75 id. 292.

There is no pretence that the tax in this ease is unauthorized by law or assessed upon property not subject to taxation. Nor do we see any sufficient evidence of the claim made by plaintiff in error, that its property, upon which the tax objected to was assessed, was fraudulently valued at too high a rate.

Plaintiff in error made no schedule of its personal property, as required by sections 6 and 24 of the Revenue act. Thereupon, the assessor listed and assessed the same according to his best judgment and information, as he was authorized to do by sections 24 and 83. He then sent a notice, dated June 16, 1885, to the plaintiff in error, notifying it that its personal property, subject to assessment at No. 143 Madison street, and which it was required by law to list, had been valued at $5000, and• requesting that a schedule should be furnished within five days if the valuation so made was not .satisfactory. The president or manager of plaintiff in error then went to the assessor’s office and demanded a reduction of the assessment. He wras referred to the town board by one of the deputy assessors and was furnished with a blank form of petition on which to make his application to the town board. He filled up the blank, writing in it in full the nature of his «complaint and signed to it the name of plaintiff in error by himself as president. The petition so filled up and signed was presented to the town board and acted upon.

The president or manager now says that he regarded the signing of the petition as a mere matter of form, and did not read it over, and supposed it was merely designed to enable ilie assessor to correct the erroneous assessment. The only ground for any charge of fraud is the allegation, that the president was deceived into looking upon the paper filled up and signed by him as a memorandum for the guidance of the assessor, when it was in fact a petition to the town board. He was bound to know what his remedies were under the law for the review of the assessment, and was also bound to know what the document was, which he wrote in at length and then •signed. It purports on its face to be a petition. It is addressed to the assessor, supervisor and town clerk, “in session as the town board for the purpose of reviewing the assessment •of the property of the town.” It concludes with a prayer that the board will review and correct the assessment.

Moreover, the deputy assessor swears, that he refused to reduce the assessment, as requested by the manager of plaintiff in error, and referred the latter to the town board as the proper tribunal to be applied to for a review, and supplied him with blank forms for the purpose of enabling him to make ihe application.

The decree of the Superior Court is affirmed.

Decree affirmed.


author: Mr. Justice Magbudeb

text:
    The Chicago Gas Light and Coke Company v. The People’s Gas Light and Coke Company.

      Filed at Ottawa September 26, 1887.

    1. Cobpobations—of their powers, generally. The powers of corporations created by statute are such only as the statute confers, and they are-confined to the exercise of such powers as are expressly granted, and such incidental ones as are necessary to carry into effect those specifically conferred.
    2. Cohtbaots in partial restraint of trade—as to corporations owing a duty to the public. The general rule that contracts in partial restraint of trade are not invalid, does not apply to corporations engaged in a public business in which the public are interested. Such corporations can not be allowed, by contract, to disable themselves, even partially, in the discharge of duties of a public nature, the performance of which is beneficial to the public. Any private contract by them which is injurious or prejudicial to-the public interests, is void, on the ground of public policy.
    3. Gas companies—public nature of their franchise—power to abandon their duties to the public, by contract. The manufacture and distribution of illuminating gas, by means of pipes or conduits placed, under legislative-authority, in the streets of a town or city, is a business of a public character. It is the exercise of a franchise belonging to the State. The services rendered and to be rendered for such grant are of a public nature. Such right is conferred by legislative grant, as well for the benefit of the public as of the corporation taking the same.
    4. A private corporation to which is granted by its charter the privilege-of manufacturing and supplying a city and its inhabitants with gas for illuminating purposes, can not, by contract with another company, disable itself from the performance of its duty to the public, and transfer, absolutely, its right to furnish gas to any part of the city, and a court of equity will not enforce such a contract, it being contrary to public policy.
    5. Where a corporation having a franchise for the manufacture and supply of illuminating gas for a city and its inhabitants, and owing a duty to the public, actually enters upon its business and the discharge of its duties, a court of equity will not enforce the specific performance of a contract by which it agrees to abandon the discharge of its duties to the public, and not thereafter to engage in its business, in a certain portion of the city.
    6. Power in a gas company “to borrow money and to mortgage or lease any of its property or franchises,” does not carry with it, by implication, the authority to assign and transfer any of its privileges and business. So-where a gas company was invested with the power to manufacture and supply gas to a city and its inhabitants, and to borrow money and to mortgage or lease its property, it was held, that it had no power to sell and assign the exclusive privilege of making and selling gas in a certain part of the city.
    7. Same—the particular case. In 1849 a gas company was chartered, with the exclusive privilege of supplying a city and its inhabitants with gas for the period of ten years. In 1855 another gas company was formed under a special charter empowering it to manufacture and sell gas in the same city, after the expiration of the exclusive privilege given to the prior company, thus giving the business to two competing companies. Each company erected the necessary works in the city for the manufacture and supply of gas, when the two companies entered into a contract, whereby the old company exchanged its mains and pipes in a part of the city, to the new company, for its mains and pipes in the other part of the city, and each agreed with the other to have the exclusive right of supplying gas in its part of the city for one hundred years, neither to interfere with the business of the other in its territory: Held, that by the grant of the second charter, the legislature intended to do away with the monopoly, and afford competition in the business, and that the contract was void, as tending to create or continue a monopoly, and as against public policy.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. John N. Jewett, for the appellant:
    The subject matter of the contract must he within the scope of the powers of the contracting parties. The transfer of its privileges by the old company was not authorized by its charter.
    The contract must not contravene any rule of public policy. The object of the legislature in chartering the two companies was to prevent a monopoly and create competition,—not to create two monopolies instead of one. Contracts tending to the creation of monopolies are void, unless expressly authorized.
    An agreement by a telephone company to receive and transmit telegraph messages for one telegraph company only, is void. State v. Telephone Co. 36 Ohio St. 296.
    Contracts to maintain prices and prevent competition in prices, are held to he void in the following eases:—Common carriers: Sayre v. Benevolent Association, 1 Duv. (Ky.) 143. 'Owners of boats for passengers and freight: Hooker v. Vanderwater, 4 Denio, 349; Stanton v. Allen, 5 id. 434. Insurance -companies: Greenwood on Public Policy, 655.
    Such a contract as this is against the policy of the State in granting the charters, opposed to public interest and beyond the powers of the corporations. Railway Co. v. Railway Co. 7 Eng. L. and Eq. 505; McGregor v. Official Manager, 16 id. 180; Mayer v. Railway Co. 30 id. 120; Tracy v. Talmadge, 14 N. Y. 163; Talmadge v. Tell, 3 Seld. 328.
    The privileges granted by the State for the public convenience and benefit can not be abandoned or relinquished to another by contract, except it be a contract authorized by the State granting the privileges. State v. Railroad Co. 29 Conn. 538; Thomas v. Railroad Co. 101 U. S. 71; Beman v. Rufford, 6 Eng. L. and Eq. 106; Railway Co. v. Railway Co. 21 id. 319; Railway Co. v. Railway Co. 12 id. 224; Winch v. Railway Co. 13 id. 506; Railway Co. v. Railway Co. 19 id. 515; Johnson v. Railway Co. 19 id. 585.
    Contracts are void, if covenants in restraint of trade, as against public policy, enter into and form a part of them; and both parties are at fault in respect to such covenants. Bank v. King, 44 N. Y. 87; Craft v. McConoughy, 79 Ill. 346.
    There can be no doubt that the parties in this case are in pcuri delicto. ■ The illegal covenants are mutual covenants, and the common motive and purpose of them was to create and foster a monopoly. Such covenants are as much against public policy as covenants in restraint of trade. Arnot v. Canal Co. 68 N. Y. 558; Coal Co. v. Coal Co. 68 Pa. St. 173; Railroad Co. v. Mathers, 71 Ill. 592; 104 id. 257.
    Mr. Melville W. Eulleb, also for the appellant:
    The supplying of illuminating gas is a business of a public nature, to meet a public necessity. Gas Co. v. Light Co. 115 U. S. 650; Gas Co. v. Gas Co. id. 692; Shepard v. Gas Co. 6 Wis. 539.

      Combinations among those engaged in business impressed with a public character, or which, though not public, has become a necessary adjunct to commerce, to control their rates to the public, are void. Thus, combinations between common carriers, to destroy competition, were held void. Sayre v. Benevolent Association, 1 Duv. (Ky ) 143; Hooker v. Vanderwater, 4 Denio, 349; Stanton v. Allen, 5 id. 434.
    So a combination between insurance companies to stifle competition. Greenwood on Public Policy, 654.
    Any contract to prevent competition between rival railroads is void. Railroad Co. v. Railroad Co. 3 Robt. (N. Y.) 411; Const, art. 11, see. 11; 1 Starr & Curtis, 163; Rev. Stat. chap. 114, sec. 222; 1 Starr & Curtis, 1915.
    The sale of a controlling interest in the stock of a railroad company, to a rival railroad company, is void. Railroad Co. v. Collins, 40 Ga. 582.
    Two railroad companies agreed to accept no freight for certain places, except to be carried on the road of the other, and this agreement was held void. 4 McCrary, 325.
    The contract was void, because ultra vires. The charter of a corporation is the measure of its powers, and the enumeration of these powers implies the exclusion of all others. Thomas v. Railroad Co. 101 U. S. 82; Railroad Co. v. Railroad Co. 107 id. 100; Davis v. Railroad Co. 131 Mass. 258; Attorney General v. Railway Co. 5 App. Cases, 473; Balsley v. Railroad Co. 119 Ill. 68.
    Mr. Francis Adams, for the appellee:
    The exercise, by appellant or appellee, of the powers granted by then respective charters, is permissive, and not mandatory or compulsory. Gas Light Co. v. Brady, 27 N. J. 245; Gas Light Co. v. Gas Co. 25 Conn. 19; People v. Railroad Co. 24 N. Y. 261; Railway Co. v. Queen, 72 Eng. C. L. 858; Railway Co. v. Philip, 2 McQueen, 514; Railway Co. v. Stewart, 3 id. 382; King v. Carnal Navigation, 2 Black. 708.

      A private corporation having received and appropriated the benefits accruing to it under its contract, can not escape liability on the ground that the contract was ultra vires. Navigation Co. v. Weed, 17 Barb. 878; Bradley v. Ballard, 55 Ill. 413; Darst v. Gale, 88 id. 186; Thomas v. Railway Co. 104 id. 462; Millard v. Academy, 8 Bradw. 321; Brown v. Mortgage Co. 110 Ill. 235.
    The defendant ought not to retain the money borrowed, and escape its repayment on the plea that it had no right to borrow it. See DeGroff v. Linen Thread Co. 24 Barb. 275; Bissell v. Railroad Co. 22 N. Y. 258; Railroad Co. v. Dow, 19 Fed. Rep. 388; Wood’s Field on Law of Corp. sec. 233.
    The contract is not contrary to public policy, as being in restraint of trade, or tending to prevent competition, or create a monopoly. Ferry Co. v. Railroad Co. 78 Mo. 389; Bowser v. Bliss, 7 Blackf. 344; Peltz v. Eichele, 62 Mo. 171; Dunlap v. Gregory, 10 N. Y. 241; Chappel v. Brockway, 21 Wend. 157; Warren v. Jones, 51 Me. 146; Craft v. McConoughy, 79 Ill. 346.
    Mr. C. Beckwith, also for the appellee.
   Mr. Justice Magbudeb

delivered the opinion of the Court:

This is a bill for the specific performance of a contract, the nature of which will be explained hereafter. Upon final hearing in the Superior Court of Cook county the preliminary injunction, which had been granted, was dissolved and the bill dismissed. The bill was filed in that court by appellee against appellant. The cause was heard upon the pleadings and exhibits thereto, and upon certain affidavits filed with the answer. The Appellate Court, to which an appeal was taken, reversed the decree of the Superior Court and remanded the case with directions to “enter a decree enjoining and restraining the said Chicago Gas Light and Coke Company from laying gas mains or pipes in the said West Division, or entering into contracts for supplying the city or the inhabitants in said West Division with gas and from in any manner violating said contract.” The case is brought before us by appeal from the Appellate ■Court.

The Chicago Gas Light and Coke Company was incorporated by an act of the legislature approved February 12,1849, the second section of which is as follows:

“The corporation hereby created shall have full power and authority to manufacture and sell gas to be made from any and all of the substances, or a combination thereof, from which inflammable gas is usually obtained, and to be used for lighting the city of Chicago, or the streets thereof, and any buildings, manufactories, public places or houses therein contained, and erect all necessary works and apparatus, and to lay pipes" for the conducting of the gas in any of the streets or avenues of said city: Provided, that no permanent injury or damage shall be done to any street, lane or highway in said city. The real estate which the corporation is entitled to hold shall not exceed in value $50,000.”

Section 3 provides, among other things, that the capital ■stock of the corporation shall not exceed $300,000, and that “said company shall have the exclusive privilege of supply- ¿ ing the city of Chicago, and its inhabitants with gas for the purpose of affording light for ten years.”

An amendment, approved January 17, 1855, authorized an increase of $1,000,000 to the capital stock of the company, and also authorized the company to borrow money for constructing, carrying on and completing its works under the direction of its board of directors, and to issue bonds and mortgage its property. The company was also authorized to .acquire and hold real estate necessary for its business.

The second and only other amendment to the original charter, was approved March 12, 1869, and simply authorized an increase of the capital stock of the company “to an amount not to exceed $5,000,000.”

The People’s Gas Light and Coke Company (the appellee) was organized under a special charter, approved February 12, 1855. The bill states the substance of the powers conferred and rights granted, as follows: “With power and authority to erect the necessary works for the manufacture of gas and coke within the city of Chicago, and, on and after the 12th day of February, 1859, to manufacture and sell gas tó be made from any and all substances, or a combination thereof, from which illuminating gas is usually obtained, and to be used for the purpose of lighting the city of Chicago, or the streets thereof, and any buildings, manufactories, public places or houses therein contained, and to erect all necessary works and apparatus for that purpose. And on and after the 12th day of February, 1859, or sooner, and by and with the consent of the Chicago Gas Light and Coke Company, to lay pipes for the purpose of conducting the gas, in any of the streets or avenues of said city, with the consent of the city council.”

The bill also states, that by an amendment to the said act of February 12,1855, approved February 7, 1865, the People’s company “was granted full power and authority forthwith to proceed to the erection and maintenance of the necessary works for the manufacture of gas and coke within the said city of Chicago, and to manufacture, supply and sell gas, to be made from any and all substances, or a combination thereof, from which illuminating gas is usually obtained, and to be used for the purpose of lighting the city of Chicago, any streets, buildings, manufactories, public places, or houses therein contained, and to erect and use all necessary works and apparatus for such purposes aforesaid, and, with thp consent of the common council of said city, to lay down and use all necessary pipes for the conducting of gas, in and along any of the streets, alleys, avenues or public squares of said city.”

In 1858, an ordinance was passed by the common council of Chicago, authorizing the People’s company “to lay its gas mains, pipes, feeders and service pipes in any of the streets, alleys, avenues, highways, public parks and squares through said city, subject to then existing rights, and, at all times, to the resolutions and ordinances of the common council of said city.”

On April 21,1862, a contract was made between appellant, of the first part, appellee of the second part, and Cornelius K. Garrison of the third part, the material portions of which are as follows:

“ Third—For and in consideration of the sale and conveyance of the said improvements, by the said party of the first part, to the said party of the third part, as aforesaid, and of the covenants and agreements herein contained, to he kept and performed by the said parties of the first part, the said parties of the second and third parts, separately, each for themselves, hereby covenant and agree to and with the said party of the first part, that they, the said parties of the second and third parts, or either of them, will not, during the period of one hundred years from this date, either jointly or separately, in their own names or in the names of any other party or parties, lay, or cause to be laid, any gas mains or gas pipes, of any kind, in the North and South Divisions of the said city of Chicago, or in such parts of said city as now lie, or may hereafter lie, east of the north and south branches of the Chicago river, nor furnish nor sell illuminating gas to any person or persons, for consumption or use, within the said last mentioned portions of the said city of Chicago; nor, during the period aforesaid, interfere with or molest, in any way whatever, the business of the party of the first part of manufacturing and selling illuminating gas, and its incidents, in the said last mentioned parts of said city of Chicago.”
“Fow'th—For and in consideration of the purchase and payment so made as aforesaid, by the said party of the third part, and of the covenants and agreements of the said parties of the second and third parts herein contained, the said party of the first part hereby covenants and agrees to and with the ■said parties of the second and third parts, severally, that the said party of the first part will not, during a hire period of one hundred years from the date hereof, either directly or indirectly, in its own name or in the name of any other party or parties, lay, or cause to be laid, any gas mains or gas pipes, of any kind, in the said West Division of the city of Chicago, nr in such part or parts of said city as now lie, or may hereafter lie, west of the north and south branches of the Chicago .river; nor furnish nor sell illuminating gas to any persons, for consumption or use, within the said last mentioned portions of said city of Chicago, nor, during the period aforesaid, interfere with nor molest, in any way whatever, the business •of the said parties of the second and third parts, or either of them, of manufacturing and selling illuminating gas, and its incidents, in the said last mentioned part or division of •said city.”

This contract appears to have been observed by both parries until May or June, 1886, when appellant obtained permission from the city council to construct a tunnel under the •south branch of the Chicago river, in which to lay gas mains to be connected with mains and service pipes in the streets of the West Division. The bill charges, that appellant threatens to lay its mains and service pipes in the West Division for the purpose of supplying gas there in violation of its contract. 'The object of the bill is to enforce the fourth clause of the contract as above quoted and prevent its violation.

Under its charter appellant had the right to make and sell gas to be used for lighting all the divisions of the city of Chicago and all of the streets and buildings therein. It had as much power and authority to lay pipes in the streets of the West Division as in those of the North and South Divisions. By the contract, it agreed to lay no mains or pipes in the West Division nor to furnish or sell any gas to persons living there for a period of one hundred years. It thereby bound. itself to avoid the performance of a duty which it owed to the public.

The manufacture and distribution of illuminating gas by means of pipes or conduits placed, under legislative authority, in the streets of a town or city, is a business of a public character ; it is the exercise of a franchise belonging to the State ; the services, rendered and to be rendered for such grant, are •of a public nature. Where the right to make and sell gas to the city and its inhabitants, under the conditions here named, is conferred upon a company, it is so conferred as well for the ■benefit of the public as of the company.

In New Orleans Gas Go. v. Louisiana Light Co. 115 U. S. 650, the Supreme Court of the United States say:

“The manufacture of gas, and its distribution for public •and private use, by means of pipes laid, under legislative authority, in the streets and ways of a city, is not an ordinary business in which every one may engage, but is a - franchise belonging to the government, to be granted, for the accomplishment of public objects, to whomsoever, and upon what terms, it pleases. It is a business of a public nature, and meets a public necessity, for which the State may make provision. It is one which, so far from affecting the public injuriously, has become one of the most important agencies of civilization, for the promotion of the public convenience and the public safety.”

In Louisville Gas Co. v. Citizens' Gas Co. 115 U. S. 683, the same court say:

“Such a business is not like that of an ordinary corporation engaged in the manufacture of articles that may be quite as indispensable to some persons as are gas lights. The former articles may be supplied by individual effort, and with "their supply the government has no such concern that it can •grant an exclusive right to engage in their manufacture and sale. But as the distribution of gas in thickly populated districts is, for the reasons stated in the other ease, a matter of which the public may assume control, services rendered in supplying it for public and private use, constitute, in our opinion, such public services as, under the constitution of Kentucky, authorized the legislature to grant to the defendant, the exclusive privileges in question.”

To the same effect are Shepard v. Milwaukee Gas Light Co. 6 Wis. 539; City of St. Louis v. St. Louis Gas Light Co. 70 Mo. 69; 2 Morawetz on Private Corp. sec. 1129; 2 Dillon on Corp. (3d ed.) sec. 691.

It is to be noted, that the appellant company was organized under a private charter granted before the adoption of the present constitution of the State, and that the power and authority therein conferred are not made subject, by the terms, of the charter, to the consent of the city council.

Inasmuch, therefore, as by the terms of its charter the appellant owed a duty to the public, it could not avoid the performance of that duty by a contract with another corporation.

In Peoria and Rock Island Railroad Co. v. Coal Valley Mining Co. 68 Ill. 489, it was held: That the duties which railroad corporations owe to the public, and which are the considerations upon which their privileges are conferred, can not be avoided by neglect, refusal, or by agreement with other persons or corporations. Therefore, any contract to prevent the-faithful discharge of any such duties will be against public-policy, and void.

In Hays v. Ottawa, Oswego and Fox River Valley Railroad Co. 61 Ill. 422, this court says: “But a sale and transfer of the powers of one company to another, without the authority of the legislature, are against public policy, and the courts, will do. nothing which will promote the transfer, as it is .in-utter disregard of the duties and obligations of the company.”'

In Thomas v. Railway Co. 101 U. S. 83, it is said: “That where a corporation, like a railroad company, has granted to it by charter a franchise intended, in large measure, to be-exercised for the public good, the due performance of those-functions being the consideration of the public grant, any contract which disables the corporation from performing those functions, which undertakes, without the consent of the State, to transfer to others the rights and powers conferred by the charter, and to relieve the grantees of the burden which it imposes, is a violation of the contract with the State, and is void, as against public policy.”

In City of St. Louis v. St. Louis Gas Light Co. supra, the charter of the gas company gave it the “exclusive” right to manufacture and sell gas in the city of St. Louis. The company made a contract, by which it surrendered and abandoned its “exclusive” right to have gas works, lay pipes or furnish gas in a particular district of the city north of a certain line. It simply parted with the right, given it under its charter, to exclude all other companies from that district, but did not bind itself not to do a gas business there in common with other companies, if it saw fit to do so. The Supreme Court of Missouri there say:

“This right to exclude competition was not a right vested in the company for the benefit of the public, because, in its very nature, it was injurious to the public, but it was a right vested in the company for its own benefit, which it might, therefore, surrender, with the consent of its stockholders. The right to make and vend gas to the city and its inhabitants was a right conferred upon the company, for the benefit both of the company and the public, and not for the sole benefit of others, but the right to exclude competition was solely for the benefit of the company. If, in the provision of the contract above quoted, the company surrendered and abandoned a right to make and vend gas in that portion of the city described therein, then the position taken by counsel, that it abandoned a public duty, is maintainable. We do not think that said provision is susceptible of that construction, but, on the contrary, it is expressly declared that both of said companies, or any other company or individual, shall be permitted to exist and do business in the aforesaid district or portion of said city without hindrance. We think it clear,, that the St. Louis Gas Light Company did nothing more than surrender its right to exclude all competition in that part of the city lying north of Washington avenue, reserving to itself the right to meet any demand which might lawfully be made-upon it by the public. There is no abandonment or surrender, on the part of the St. Louis Gas Light Company, of its-right, or surrender or abandonment of its duty, to make and vend gas north of the south line of Washington avenue.”

The appellant herein, the Chicago Gas Light and Coke-Company, had the exclusive privilege under its charter of supplying the city of Chicago with gas for ten years from February 12, 1849, to February 12, 1859. So far as its privilege was exclusive, such privilege was for its own benefit and not for the benefit of the public. If, therefore, at any time before February 12,1859, appellant had made an agreement with the appellee or any other company foregoing its exclusive right to make and sell gas in the West Division, such an agreement would have been valid as parting only with a privilege conferred for the benefit of the company. But the appellant binds itself, by the contract now under consideration, to surrender and abandon altogether for one-hundred years all the right conferred upon it by its charter to manufacture and vend gas in the West Division. By so doing “it abandoned a public duty,” and a court of equity will not aid either party in the enforcement of such a contract. 2 Morawetz on Private Corp. sec. 656; West Virginia Transportation Co. v. Ohio River Pipe Line Co. 22 W. Va. 617; State v. Hartford and New Haven Railroad Co. 29 Conn. 538; Hartford and New Haven Railroad Co. v. New York and New Haven Railroad Co. 3 Rob. 411; St. Louis, Jacksonville and Chicago Railroad Co. v. Mathers, 71 Ill. 592.

There may be cases where a corporation may abandon a public work for reasonable cause, but this is a very different, thing from disabling itself by contract from the performance of a duty to the public. Nor is the question here as to the extent to which duties imposed upon a corporation will be enforced by mandamus; the question is whether, a court of equity will enforce the specific performance of such a disabling contract as is above indicated. In Marsh v. Fairbury Co. 64 Ill. 414, a bill in chancery was filed by Marsh for the specific performance of a contract which a railroad company had made with him “to locate passenger and freight depots of said road in Marsh’s addition to Fairhury and at no other point in said town, ” and we there held that equity would not enforce the contract, because its enforcement was regarded as against public policy. This court said in that ease: “The specific execution of a contract in equity is a matter not of absolute right in the party, but of sound discretion in the court • and in deciding whether specific performance should be enforced against a railway company, the comí must have regard to the interests of the public.”

Other provisions of the contract in the case at bar besides the third and fourth clauses above quoted show that appellant and appellee had already entered upon the discharge of their duties to the public, when the contract of April 21, 1862, was made between them. Appellee had laid mains and pipes east of the river and appellant had laid such mains and pipes west of the river. The contract provides for an exchange of these properties, and the proofs show that §40,000 were paid by appellee to appellant for the excess in value of the latter’s interests on the West Side over the value of appellee’s interests east of the river.

Moreover, the agreement of April 21, 1862, shows on its face, that, at that date, appellant had a contract with the city for lighting the street lamps, etc., on the West Side as well as in the other divisions of the city, and appellant thereby sold and assigned so much of such contract as applied to the West Side to the appellee, both parties covenanting each with the ■other “to use such reasonable and proper influence as they respectively may have with the authorities of the city of Chicago, to procure a division of said contract; and a new and independent contract between said city and the said party of the second part for furnishing gas in the ■'West Division.”

In view of the provisions thus referred to, it is not necessary to discuss the question whether appellant’s charter was permissive or compulsory, or whether it was or was not bound hy the mere acceptance of its charter to enter upon the business of making and supplying gas. Inasmuch as it did actually enter upon such business in the West Division and commence supplying gas in that section to the city and the inhabitants there, a court of equity will not enforce the. performance of a contract, hy which it agreed to abandon the ¡ discharge of its duties to the public and not to resume the ¡¡■discharge of those duties for one hundred years.

The contract between these corporations tends to create and perpetuate a monopoly in the furnishing of gas to the •city, and is, therefore, against public policy. They were organized under special charters at a time when the granting of such charters was not forbidden hy the constitution of this State. Appellant, under its charter, had a monopoly of the business of supplying gas up to February 12, 1859. Four years before the latter date, to-wit: on February 12, 1855, the legislature granted to appellee its charter and therein clearly recognized appellant’s monopoly, and indorsed its continuance for the balance of the ten years, but distinctly provided that, at the expiration of the ten years, appellee should have the same right to make and sell gas anywhere in the city as appellant had theretofore exclusively enjoyed, subject only to the consent of the common council.

We think it was clearly the intent of the legislature to put an end after February 12, 1859, to the monopoly which appellant had had prior to that time, and to give the gas business to two competing companies. The contract in question sought to continue the monopoly in spite of legislative action. It invested the appellee with the exclusive right to furnish gas in the West Division and the appellant with such exclusive right in the North and South Divisions.

The ordinary rule, that contracts in partial restraint of trade are not invalid, does not apply to corporations like appellant and appellee, because they were engaged in a public business and in furnishing that which was a matter of public concern to all the inhabitants of the city. In West Virginia Transportation Co. v. Ohio River Pipe Line Co. supra, it was said: “If there be any sort of business, which from its peculiar character can be restrained to no extent whatever without prejudice to the public interest, then the courts would be compelled to hold void any contract imposing any restraint however partial on this peculiar business, provided of course it be shown clearly that the peculiar business thus attempted to be restrained is of such a character that any restraint upon it however partial must be regarded by the court as prejudicial to the public interest.”

In the West Virginia case it was held that “whenever the legislature by statute law has authorized any person or corporation to condemn the lands of others in order to carry on its business, the courts will regard this as a legislative declaration that this character of business is such as that the public has so great and direct an interest in, that the courts must hold it as contrary to public policy to permit any restriction of it by private contract.” If clothing a corporation with the power of eminent domain, ■ that is, with the right to take an individual’s property by paying him for it, so stamps the business of such corporation with a public character that that business may not be restricted by contract, we see no reason why the same public character should not attach to a corporation which is vested with the right and power to tear up and use the streets of a great city. The fee of such streets is vested in the city for the benefit of the public. Any business, which requires their use, requires the use of property which belongs to the public. Western Union Telegraph Co. v. American Union Telegraph Co. 65 Ga. 160.

It is claimed that the restraint imposed on each of these companies by the contract is only partial, because confined to a particular division of the city. In Craft v. McConoughy, 79 Ill. 346, we held that, eyen if the restraint imposed by the contract was but partial, yet if it was unreasonably oppressive and injurious to the public, it would not be sanctioned in a court of equity. It was there said: “Whatever is injurious to the interest of the public is void on the ground of public policy.”

;. Neither appellant nor appellee had any power to make the ; contract now under discussion. By the amendment of Feb- , ruary 7, 1865, appellee was authorized “to borrow money and ; to mortgage or lease any of its property or franchises.” But 1 in April, 1862, neither the charter of appellant nor that of appellee conferred any authority to sell, transfer, assign or make over to any other company any of the powers or franchises therein granted. By this contract appellant virtually assigns, surrenders and transfers all its right under its charter to make and sell gas in the West Division to the appellee, and the appellee so disposes of all its rights in the South and North Divisions to appellant. The authority to assign and transfer the privilege of making and selling gas is not incident to nor necessarily implied from the power of making and selling gas..

“The powers of corporations organized under legislative statutes are such and such only as those statutes confer. Conceding the rule applicable to all statutes that what is fairly implied is as much granted as what is expressed, it remains that the charter of a corporation is the measure of its powers and that the enumeration of these powers implies the exclusion of all others.” (Thomas v. Railroad Co. 101 U. S. 71.) “Corporations have such powers and such only as the act creating them confers, and are confined to the exercise of those expressly granted and such incidental powers as are necessary to carry into effect those specifically conferred. ” (Franklin Bank v. Commercial Bank, 36 Ohio St. 355; Balsley v. St. Louis, Alton and Terre Haute Railroad Co. 119 Ill. 68.) Hence the contract here sought to be enforced was ultra vires of both appellant and appellee.

For the reasons here stated the judgment of the Appellate Court is reversed.

Judgment reversed.


author: Mr. Justice Scholfield

text:
    David Samples v. The People of the State of Illinois.

      Filed at Springfield September 27, 1887.

      Evidence—declarations and statements—as between co-conspwators. The declarations or statements of one party shown to have been connected with another to do an unlawful act, to be admissible in evidence against such other party must not only have been made during the pendency of the criminal enterprise, but also in furtherance of its objects. A mere narrative to a stranger, even when related during the pendency of the criminal enterprise, but of a past event or occurrence, is as objectionable as if related after such enterprise has terminated. It is no part of the res gestee, and is inadmissible as against his associate, who is alone upon trial.
    Whit of Ebbob to the.Circuit Court of Logan county; the Hon. Geobge W. Hebdman, Judge, presiding.
    Messrs. Blinn & Hoblett, for the plaintiff in error:
    The trial court had no right to prohibit a full cross-examination of the prosecuting witness, Emma Cole. Tracy v. People, 97 Ill. 103; Sutton v. People, 119 id. 250.
    Before the declarations of an alleged co-conspirator, made in the absence of a defendant, can be received in evidence, it must be shown, first, that there was a conspiracy to do an unlawful act; second, that the declarations were made while «orne act was being done in furtherance of such conspiracy, :as explanatory of the act, so as to become res gesta. Greenleaf on Evidence, sec. 94; 2 Best on Evidence, sec. 508, p. 860 ; Abbott’s Trial Evidence, sec. 9, p. 190; 2 Wharton on Evidence, sec. 1206; Insurance Co. v. Gleason, 78 N. Y. 515; Clawson v. State; 14 Ohio St. 234; Patton v. State, 6 id. 470 ; 2 Starkie on Evidence, 406; Roscoe on Crim. Ev. 617; 2 Russell on Crimes, 697.
    Mr. Geobge Hunt, Attorney General, for the People:
    The facts sought on cross-examination were immaterial, and not confined to matters shown in the direct examinatioh.
    There was no error in allowing Mary Ann Hammerton to testify to what Uriah Samples told her the defendant had said.
    The evidence showed a concerted action,—in legal terms, a conspiracy to produce an abortion;' and the statements made by Uriah were made during the continuance of this unlawful conspiracy. He purchased drugs for Miss Cole both before and after this conversation. All the cases cited by plaintiff in error agree that statements made by any one of the conspirators during the pendency of the criminal enterprise are admissible.
    The law upon this point wras correctly given to the jury, and it was their province to determine the facts, and it must be presumed that they did determine the facts in accordance with the law as given them by the court. Railroad Co. v. Collins, 56 Ill. 212; Patton v. State, 6 Ohio St. 470; Clawson v. State, 14 id. 238; Wharton on Evidence, sec. 1206.
    Mr. Robebt Humphbey, State’s Attorney, also for the People:
    A cross-examination of a witness about an immaterial matter, in order to. disgrace him, for the purpose of discrediting his evidence, is not allowable. Wharton on Crim. Ev. sec. 472;
      Railroad Co. v. Williams, 77 Ill. 354; Hayward v. People, 96 id. 492.
    This was the evident-aim of the attempted cross-examination of Miss Cole, as it was not about the res gesta, and did not tend to contradict anything the witness had testified to in chief.
    The declarations of Uriah Samples admitted in evidence, came within the rule as to declarations of co-conspirators. Gardner v. People, 3 Scam. 90; Railroad Co. v. Collins, 56 Ill. 212; 1 Greenleaf on Evidence, (9th ed.) sec. 108, note.
   Mr. Justice Scholfield

delivered the opinion of the Court:

David Samples and Uriah Samples were jointly indicted by the grand jury of Logan county, for the statutory offence of attempting to produce an abortion upon the person of Lucy E. Cole. Uriah Samples was not arrested, but David Samples was tried under the indictment, in the circuit court of Logan county, and found guilty, and sentenced to the penitentiary for the term of one year.

Upon the trial, Lucy E. Cole testified that she was pregnant by David Samples; that he promised her that he would procure his brother, Uriah Samples, to bring her ergot, with which to produce an abortion; that Uriah Samples did deliver to her ergot, directing her how to take it; that she took the ergot as directed, but that it produced no result as desired; that David afterwards inquired of her whether she had taken the ergot, and what result it had produced, and when she informed him that she had taken it, but that it had produced no abortion, David replied that he would get her some more; that David did not get her any more ergot, but that Uriah did,—that he brought her two ounces of ergot about two weeks after he brought the first ergot to her, and Uriah then said that David told him to get that ergot and he would pay for it; that she afterwards saw David, and he asked her if it did her any good, and she told him no. The first time that Uriah delivered the ergot to the witness was about the middle of March, and the last time was the last of March.

The People introduced Mary Ann Hammerton, whom the court permitted, over the defendant’s objection, to testify that . she had a conversation with Uriah Samples, at her house, in the month of March, in regard to the condition of Lucy E. Cole, and that Uriah then told her that he (Uriah) had got the medicine for Emma, (meaning Lucy E. Cole,) and that David Samples told him-that if he (Uriah) would get the medicine, he (David) would pay for it.

David Samples testified in his own behalf, denying that he had ever promised Lucy E. Cole that he wrould get ergot or any medicine for her; denying that he ever got any medicine for her himself, and that he ever authorized or requested Uriah Samples to get any medicine for her.

There is no evidence, other than that of Lucy E. Cole and Mary Ann Hammerton, tending to prove that Uriah acted under the direction or procurement of David, and there being • a direct conflict between the testimony of Lucy E. and David, that of Mary Ann Hammerton is of material advantage to the People, as corroborative of the evidence of Lucy E., and the question therefore is, was it competent ?

It will have been observed that it is not pretended that Uriah was, at the time that he is alleged to have made the statement testified to by this witness, doing any act tending to produce an abortion, or to cause any one else to do so. He was not then purchasing medicine, directing medicine to be taken, or even carrying medicine for that purpose. His remarks were directed to a stranger, in nowise personally interested in the subject, and were simply and purely a narrative of something that he said had been done. “It is an established rule, ” says Phillips on Evidence, (vol. 1, Cowan, Hill & Edward’s notes, p. 205,) “that where several persons are proved to have combined together for an illegal purpose, any act done by one of the party in pursuance of the original concerted plan and with reference to the common object, is, in the contemplation of the law, the act of the whole party. It follows, therefore, that any writings or verbal -expressions, being acts in themselves, or accompanying and explaining other acts, and so being part of the res gesta, and which are brought home to one conspirator, are evidence against the other conspirators, provided it sufficiently appear that they were used in furtherance of the common design.” And the author, afterwards, at page 208 of the samo volume, adds: “But where words or

writings are not acts in themselves, nor part of the res gesta, but a mere relation or narrative of some part of the transaction, or as to the share which other persons have had in the execution of a common design, the evidence is not within the principle above mentioned, it altogether depends on the credit of the narrator, who is not before the court, and it can not therefore be received.” To the same effect is 2 Bussell on Crimes, (7th Am. ed.) 696; 1 Greenleaf on Evidence, (7th ed.) sec. Ill; Best on Evidence, (1st Am. from 6th London ed.) sec. 508; Patton v. State, 6 Ohio St. 470.

The distinction which the counsel for the People omit to observe is, that the declaration, to be admissible, must not only be made during the pendency of the criminal enterprise, but also in furtherance of its objects. A mere narrative to a stranger, related during the pendency of the criminal enterprise, but of a past event or occurrence, is just as objectionable as if related after the criminal enterprise has terminated. It is no part of the res gesta, and is a mere statement of what somebody else said or did, having no support from concomitant circumstances, and resting solely on the veracity of the narrator.

We think it was error to admit the evidence, and for that error the judgment is reversed and the cause remanded.

Judgment reversed.


author: Mr. Chief Justice Sheldon

text:
    The Trustees of Schools v. The People ex rel. William M. Duffy et al.

      Filed at Springfield September 27, 1887.

    1. School law—formation of new district out of several others. A petition for the formation of a new school district out of three or more school districts, and the affidavits in support thereof, showing that the territory taken from two of the districts will not leave either of them with less than twenty families, nor with taxable property of an assessed value less than $50,000, and as to the third district, that the whole of it will be taken, leaving no part thereof, will be sufficient; and if refused, the granting of such petition will be enforced by mandamus.

    2. Mandamus—petition not aided by affidavits. Upon demurrer to a petition for a mandamus, the petitioner’s right to the relief sought will depend upon the allegations of the petition, and not upon the fact whether the affidavits filed in support thereof are sufficient to sustain the petition.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Tazewell county; the Hon. T. M. Shaw, Judge, presiding.
    Mr. C. E. Crafts, for the appellants;

      Mandamus is never awarded unless the right of the relator is clear and undeniable, and the party sought to be coerced is bound to act. People v. Glann, 70 Ill. 232; High on Extraordinary Remedies, p. 32, sec. 32, and p. 34, sec. 36.
    ' The writ will not be granted where there is any substantial defect m the proof of the relator’s right, (High on Extraordinary Remedies, pp. 35, 36, see. 39,) or in the allegation of the facts thereof. People v. Glann, 70 Ill. 232.
    The proofs fail to show there will be left in the parts of the districts not taken, not less than twenty families, and taxable property of not less than $50,000.
    The averment in the petition of relators in reference to the filing of the affidavit showing the number of legal voters residing in the territory not taken, being merely a conclusion of the pleader, fails to show the existence of the condition, which is necessary. People v. Glann, 70 Ill. 232.
    Mr. B. S. Prettyman, for the appellees:
    Where a petition, with proper averments, uncontroverted, is presented, “the trustees shall grant the petition, and shall organize said territory into a school district.” They have no discretion, and the court will compel them to grant the prayer by mandamus. Starr & Curtis, p. 2214, sec. 34; Trustees of Schools v. People, 76 Ill. 621.
    Appellants, by their demurrer, admit the truth of the averments of the petition for mandamus, and in their brief they say the material facts necessary to bring themselves within the provisions of the law are therein alleged by appellees. These averments are well pleaded in the record, are consistent and true, and sufficient in law, and there was no error in overruling the demurrer.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was a petition for a writ of mandamus, to compel the formation of a new school district, under section 1 of the act of June, 1883, (Starr & Curtis, p. 2214, see. 34,) which provides: “That when the people in any territory, lying in three or more school districts and in three or more townships, which territory has not less than four hundred inhabitants, shall petition the trustees of the township or townships in which the districts affected he, to organize said territory into a school district, the trustees shall grant the petition, provided the petition shall be signed by not less than two-thirds of the legal voters residing in said territory: Provided, also, that the petition or petitions for such new district shall be presented to the trustees, and notice of them given to the directors of the districts affected,. etc.: * * * Provided, further, that in the formation of a new district under this act, territory shall not be taken from any existing district so as to leave it with less than twenty families residing within that part of the district not taken, nor with taxable property of an assessed value of less than fifty thousand dollars, ($50,000,) as ascertained by the last assessment for State and county taxes previous to the presentation of the petitions for the new school district.” The petition sets forth that their prayer for the formation of the school district was granted by two of the boards of trustees of the townships lying in two of the school districts, and was refused by the defendants, the trustees of the townships lying in the other school district. The writ is asked for as against the latter, to compel them to grant the prayer of the petition, and unite and concur with the other boards of trustees in such respect. The court below overruled a demurrer to the petition, and ordered a peremptory writ of mandamus to issue, and the defendants appealed.

It appears to be conceded that the petition for the writ, and the petitions set forth as presented to the several boards of trustees, contain all the requisite facts, under the statute, for the formation of the new school district asked for; but, as the relators aver, in their petition, that with the petitions filed by them with the several boards of trustees, they filed a certificate -of the county clerk and an affidavit of facts, and attach copies of the same as exhibits to this petition, it is said such exhibits ure made a part of this petition, and it is objected that the material facts averred in the petition are not sustained by the said proofs filed with the petition. We do not think that this -objection is tenable. Upon demurrer to a petition, we think the question which is to be considered is, whether the allegations of the petition entitle to the relief asked, and not whether proof of_ the facts alleged is made by the affidavit which may he filed in support of the petition. As here, the affidavit filed does not state that the signers of the petition are legal voters of the territory asked to be formed into the new school district; "hut the petition represents them to he two-thirds of the legal ■voters residing in the territory, which we regard as sufficient.

The only further defect of proof pointed out is, that it does not show that territory will not he taken from any of the existing school districts so as to leave either of them with less than twenty families, nor with taxable property of an assessed value less than $50,000. The affidavit does state this with regard to two of the school districts, and as to the remaining •one says that the whole of it will he taken, so that there will he no part of it left, of which to predicate the statement. The petition itself does expressly aver that there will not be left of either of the three existing school districts a part with less than twenty families, or taxable property less than $50,000. We regard the petition, of itself, as sufficient, and the demurrer as properly overruled. That the writ of mandamus will lie against the trustees of schools, in such case, was decided in Trustees of Schools v. The People, 76 Ill. 621.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Shope

text:
    Elizabeth Epling et al. v. George W. Hutton et al.

      Filed at Springfield September 27, 1887.

    1. Ebbob will not always bevebse—of instructions relating to matters not in issue. When the contestants of a will, by bill in chancery, on the trial abandon all the issues except as to the mental capacity of the testator, and limit all their instructions to that issue, they will not be heard to complain of errors affecting only the issues abandoned on the trial.
    2. So in such case, there being no evidence as to other grounds than that relating to the testamentary capacity of the testator, errors in instructions relating to the question of undue influence can work no injury, and will afford no ground for the reversal of the decree dismissing the bill.

      Appeal from the Circuit Court of Sangamon county; the-Hon. James A. Creighton, Judge, presiding.
    Messrs. Patton & Hamilton, Messrs. Palmers & Shutt, and' Mr. T. J. Nuckolls, for the appellants. /
    Mr. George W. Murray, and Messrs. McCartney & Casey,. for the appellees.
   Mr. Justice Shope

delivered the opinion of the Court:

This was a bill filed by appellants, claiming to be the heirs-at-law of Seth Mason, deceased, against appellees, devisees- and legatees under the will of said decedent, to set said will aside. The grounds relied upon for the relief prayed in the-bill were, first, that said Mason, at the time of making said, pretended will, was not of sound and disposing mind; second,, that appellee Hutton dictated the will, and said Mason did' not in fact execute the same; and third, that the instrument, purporting to be the will- of said Seth Mason was not signed by him, or by any one in his presence, or by his direction, or attested by two or more witnesses. An answer was filed, and an issue, “whether the writing produced be the will of the testator, Seth Mason, or not,” was submitted to a jury. Verdict, upon the issue, finding that it was the last will and testament of said Seth Mason, deceased, and decree entered dismissing; the bill accordingly, and for costs.

On the trial, the court, with the assent of all the parties,, stated to the jury the issue to be tried, thus:

“The issue is, is the instrument produced, the will of Seth Mason ? This is the analysis:

“First—The proponent must establish, first, that the will is-in writing; second, that it was signed by the testator, or in his presence, by some one under his direction; third, that it-was attested according to the requirements of the statute; fourth, that the testator was of sound mind and memory at the time of signing and acknowledging the will.
“Second—Contestants may deny any one or all of the above facts, and they may show, first, fraud; second, compulsion; third, any improper conduct or influence sufficient to invalidate the will.”

The complainants bring the case to this court, and assign for error the ruling of the court in giving instructions, only.

We do not propose encumbering the reports with an examination of the nineteen instructions given, out of the twenty-seven asked by appellees. Many of these are open to the criticism of being mere abstract propositions of law, while others are inaccurate in applying the law to the facts of the case; but without pausing to discuss them in detail, it may be said, that whatever the result might have been upon a different state of facts, or where the correctness of the decree rendered by the court could be seriously questioned under the ■evidence, there is no such error in the instructions given as will authorize a reversal upon the facts shown in this record.

Three instructions were asked by appellant, and given. They gave correctly every material principle applicable to the real, and, indeed, only, issue tried,—that is, as to the mental capacity of the testator. When the two series of instructions relating to this issue, in which there is no real conflict, are considered together, it can be said the law was given with substantial accuracy. It is true that upon the issue made by the pleadings, of undue influence, appellants asked no instructions, and those given for appellees went to the jury as a correct expo si-' tion of the law; but, if erroneous, they could have worked no injury, as there was no sufficient evidence upon or from which the jury could have found for appellants upon that issue. The most that can be said is, that the evidence shows that Hutton, if he had been so disposed, might have influenced the mind of the testator; that he did so, or attempted to do so, is not shown by proof of facts and circumstances, or by evidence sufficient to raise even a suspicion. This was so apparent, in the court below, to counsel for appellant, that while we are here treated to many pages of argument devoted to errors affecting that branch of the case alone, by their third instruction' the jury were told “that the question in this ease is, was the-mind and memory of Seth Mason, at the time he signed the paper offered as his will, sufficiently sound to enable him to-know and understand the business in which he was engaged,”' and the jury are then told wffiat considerations should govern-in determining the issue,—i. e., the soundness or unsoundness-of the testator’s mind and memory. No other instruction asked, by appellants related to any other issue. The effect of this instruction was, for the court, at the instance of contestants, to withdraw from the jury every other matter not relating to-the question of the capacity of the testator to devise his estate. Appellants can not now be heard to complain of errors affecting only issues which they abandoned on the trial.

Fourteen witnesses only were examined in respect of the-issue tried, all called by appellees, each of whom, with more- or less directness, gave it as his opinion that the testator, at. and about the time of making said will, was of sound mincli and memory. No witness gives any other opinion, except, that, during short intervals, resulting either from exhaustion during or immediately following paroxysms of pain, or from the effects of anodynes administered for the relief of suffering, he was, in the opinion of a few of the witnesses, incompetent to -transact business.

The disease with which the testator was afflicted, is said by the attending physicians to have been calcification of the arteries of' the foot and leg, resulting, as shown, in atrophy and death of the foot and lower leg, to, perhaps, the middle of the upper third, and, later, in trismus and death. The physician was first called about the first of February, and continued in attendance until the death of Mason, May 19, following. The pain from the afflicted part was paroxysmal, the recurrence being more frequent and severe in the earlier and later stages of the disease, and less frequent and milder during the middle portion of his illness. The treatment adopted appears to have-been largely palliative from the beginning, — morphia and atropia combined being given and relied upon to control the-pain, and, in addition, quinine was occasionally administered, as the symptoms indicated its necessity. This treatment was, continued during the entire illness. The quantity of the sedative necessarily given to control the pain, would at times, produce stupor, incapacitating the patient from performing-intelligently any important act; but this would pass away in an hour or two, leaving him in his normal condition, except,, perhaps, there was a gradual and general weakening of the. vital forces. The testimony shows that in the morning and fore part of the day he was usually free from pain, and the-effect of the drug administered in the evening and night having-passed away, he was in better condition than at any other time during the twenty-four hours. The three or four witnesses, who were present at the execution of the will concur that it was executed in the morning, that he was of sound mind and. memory, and each states the reason for his so believing.

The will was executed on the morning of the 10th of April,. 1885. At least two of these witnesses were notified to be-present as attesting witnesses. Shortly after their arrival, Hutton came with a will prepared, and went into the room where Mason was lying. The witnesses could hear Hutton’s voice in that room, as if reading. Presently he came to the-door, and said the will, as he had written it, was not satisfactory to his uncle, Mason, and asked them to remain until he-could write another, as it was desirable to have no erasures. They consented to do so, and in about an hour were called into Mason’s room, and the will was signed by him, in their-presence. He was raised up, the pen put in his hand, and, with some direction, signed his name. While attempting its. execution he had some difficulty in seeing, and directed those present to get another pair of spectacles, giving particular directions where they could be found. He acknowledged the¡ instrument then signed to he Ms will, and the witnesses, at Ms request, and in Ms presence and the presence of each other, attested it. Hutton was the nephew of the testator, had been Ms confidential adviser and manager when he was in health, and it can excite no remark that he should trust him, in whom he had always reposed confidence, in tMs extremity. The evidence satisfies our judgment that the testator was mentally capable of makmg a testamentary disposition of Ms estate, and that the case, on its merits, has been justly determmed.

The decree of the circuit court will therefore be affirmed.

Decree affirmed.