author: Per Curiam :

text:
    Charles K. Harland v. Henry B. Eastman.

      Filed at Ottawa May 15 and November 13, 1886.

    1. Ejectment—proof of title—by possession, etc. Proof of possession of land, under claim of ownership, is prima facie evidence of a fee simple title in the occupant so claiming to be owner.
    2. In an action of ejectment, the plaintiff proved that A, as far back as 1855, was in possession of the premises, claiming as owner, and so continued tip to his death, in 1873, and that his widow lived upon the same several years after his death, and showed deeds to himself from all the heirs of A: Held, that, in the absence of any countervailing evidence, this was sufficient to show title in the plaintiff.
    3. Same—demand for possession—whether necessary. A notice to quit, or demand for possession, which is the same thing in the meaning of the Ejectment act, is never required by that act when there is a want of privity between the parties to the suit with respect to the premises sought to be recovered. In other words, when the parties claim under independent hostile titles, demand of possession is not required.
    4. Where ihe plaintiff in ejectment claims title by deeds from the heirs of a person having possession up to his death, claiming to own the premises, and the defendant seeks to show an outstanding paramount title in a third person derived through a sale of the premises for taxes, no demand of possession or-notice to quit need be shown by the plaintiff.
    5. Tax title—excess in judgment, as affecting title—and what may be included in the judgment. If the judgment against a lot for taxes is for a greater sum than the law authorizes, the sale thereunder and the deed will be void.
    .6. Where the judgment includes interest compounded on penalties for forfeited taxes, and there is no personal appearance of the owner resisting, the judgment will be void, and no title will pass on a sale under it.
    7. Costs accruing anterior to the judgment for taxes, enter into and form a part of it, but not those accruing afterwards. They can not be anticipated.
    8. Where property is once forfeited for non-payment of taxes, it is proper to include, as a part of the amount due, all the costs incurred up to the time of such forfeiture; but this amount is to be added, in the next year, to the amount of the taxes for the current year. The forfeiture for each year should be for a single item, including current and back taxes, and single costs upon the whole, and not costs for each year’s taxes.

      Appeal from the Superior Court of Cook county; the Hon. -Joseph E. Gary, Judge, presiding.
    Mr. Allan C. Story, for the appellant:
    Plaintiff claimed under the possessory title of Adams, who died in 1S73. About three years before his death he abandoned the premises, leaving his wife in possession, claiming as owner adversely to him. In 1861, Adams was shown to have been in possession of and claiming to own this property. Proof of this possession and claim would make a prima facie case, .had his possession never been disturbed, abandoned or transferred. But some years before 1873 he voluntarily abandoned and transferred that possession to his wife, and lived with his children. His wife being then in exclusive possession under claim of ownership, her claim was as strong as that of her husband, and, being more recent, is paramount to it,—that is to say, it overcomes plaintiff’s proof of mere possession.
    Plaintiff failed to prove any right of possession, even if he had title. If there was no conveyance from Adams to his wife, and his wife occupied the premises after his death as dowress, her possession was lawful, and so was that of any other person entering and holding under her; and upon the deatffmf the dowress, there must be a demand of possession of any tenant who entered under her, before a recovery can be had. See Statute of Ejectment, sec. 4. ■
    The deed of Adaline B. Pate, in view of the proof that she bad been married, and the absence of proof that she had been divorced or that her husband had died-,—the deed being executed by her alone,—should not have been admitted. Rev. Stat. 1874, chap. 68, sec. 9; chap. 30 secs. 9-11, 17-20, and 35; chap. 31, sec. 2; chap. 41, sec. 1; Sess. Laws 1869, p. 369; Morrison v. Brown, 83 Ill. 564; Cole v. Van Rieper, 20 id. 137; Bressler v. Kent, 61 id. 427; Stiles v. Probst, 69 id. 385; Bennison v. Aiken, 102 id. 288; Parnett v. Kumph, id. 427; Lang v. Hitchcock, 99 id. 552; Rose v. Sanderson, 38 id. 247; Shortall v. Hinckley, 31 id. 219; Higgins v. Crosby, 40 id. 260; Noble v. McFarland, 51 id. 226; Morrison v. Horman 47 id. 477; Kibbie v. Williams, 58 id. 30; Castner v. Walrod, 83 id. 171; Potter’s Dwarris, 189, et seq.; Bute v. Kneale, 110 Ill. 652.
    The court erred in excluding the tax deed to Mrs. Bluhrn. We cite the following authorities, each of which has some hearing on the validity of the tax title: Garrick v. Chamberlin, 97 Ill. 620 ; Douw v. Rice, 11 Wend. 180 ; Taylor v. People, 2 Gilm. 351; Finch v. Link, 46 Ill. 169 ; Lyons v. People, 68 id. 271; Chandler v. Speer, 22 Yt. 398 ; Allen v. People, 82 Ill. 612; Gage v. Busse, 94 id. 591; Parmley v. Walker, 102 id. 591; Town of Woosung v. People, id. 653; Strawn v. Strawn, 50 id. 256; People v. Brislin, 80 id. 423; Lehmer v. People, 80 id. 601; Prout v. People, 83 id. 154; Andrews v. People, id. 529; People v. Smith, 94 id. 229; Gage v. Parker, 103 id. 528; Neff v. Smyth, Ill id. 101; Railway Co. v. People, 83 id. 467; Gage v. Bailey, 102 id. 11; Carnes v. People, 73 id. 274; Cemetery Co. v. People, 92 id. 619; Wade on Law of Notice, secs. 709, 718, et seq.

    Messrs. Wilson & Moore, for the appellee:
    Proof of prior possession under claim of ownership is sufficient to maintain a recovery in ejectment. Keith v. Keith, 104 Ill. 397; DeWitt v. Bradbury, 94 id. 446; Barger v. Hobbs, 67 id. 592.
    It is claimed that a demand of possession was essential to a recovery. There is no proof as to how defendant came into possession of the property. He set up no claim or color of title, or that he had entered into possession under any party having any claim or color of title. No demand of possession was therefore necessary before bringing suit. Prentice v. Wilson, 14 Ill. 91; Dean v. Comstock, 32 id. 173.

      Under chapter 68, section 9, of the Revised Statutes of 1874, Mrs. Pate could convey her title the same as if she were sole and unmarried. Hogan v. Hogan, 89 Ill. 427.
    The court properly excluded the evidence of a tax title, for the reasons, first, the affidavit fails to show that the person in whose name the property was taxed was notified of the sale; second, the notice was given by the original purchaser long after he had parted with all interest in the certificate of sale; and third, the notice served did not state in whose name the property was taxed.
    Mr. Justice Mulkey delivered the opinion of the Court :
    On the third day of January, 1882, Henry B. Eastman commenced an action of ejectment, in the Superior Court of Cook county, against Charles K. Harland, to recover lot 45, block 47, school section addition to Chicago. The defendant filed the plea of “not guilty,” and also a special plea, verified by affidavit, alleging that no demand for possession of the premises was made by plaintiff “at or before the beginning of the suit.” There was a trial upon the merits, resulting in a judgment for the plaintiff, which, on appeal, was reversed by this court at its September term, 1883. (See Harland v. Eastman, 107 Ill. 535.) The cause, on being remanded, was tried again, resulting in a second judgment for plaintiff, to reverse which the present appeal is brought.
    The judgment below is assailed on a number of grounds. It is contended, in the first place, that the evidence relied on by plaintiff to show title in himself is insufficient. We think otherwise. The evidence clearly shows he was in possession of the lot, claiming it as owner, as far back as 1855, and so continued until the time of his death, in 1873; that his widow, Mary B. Adams, who died in 1881, lived on the premises several years after his death. The proof of these facts, in the absence of anything to the contrary, was sufficient to show title in Adams’ heirs, from whom plaintiff deduces title through a succession of regular conveyances. The doctrine is well recognized, that proof of possession of land, under claim of ownership, is prima facie evidence of a fee simple title in the occupant so claiming to be owner. Barger v. Hobbs, 67 Ill. 592; DeWitt v. Bradbury, 94 id. 446; Keith v. Keith, 104 id. 397.
    It is objected, however, that under the special plea the plaintiff was bound to prove a demand for possession before suit brought. This position is not tenable. Under the facts disclosed by the record, no such demand was necessary. A notice to quit, or demand for possession, (which, in law, so far as this action is concerned, means the same thing,) is never required where there is a want of privity between the parties to the suit with respect to the premises sought to be recovered,—in other words, where the parties, respectively, claim under independent, hostile titles, the law of notice to quit, or demand of possession, has no application. Gregg v. VanPheel, 68 U. S. 274; Herreil v. Sizeland, 81 Ill. 457; Prentice v. Wilson, 14 id. 93; Dean v. Comstock, 32 id. 173; Adams on Ejectment, (4th Am. ed.) 140, et seq. Here, the plaintiff, as we have just seen, claims through conveyances from the heirs of Abraham BL Adams, while the defendant seeks to show an outstanding paramount title in Mary E. C. Bluhm, derived through a sale of the premises for taxes. There was also a feeble attempt to show an outstanding title in the heirs at law of Mary B. Adams, but the evidence offered for that purpose is so manifestly insufficient that it does not admit of serious discussion.
    With respect to the tax title of Mrs. Bluhm, two objections are urged against it: First, that the tax judgment relied on is for a greater amount than was due on the lot; and second, that the affidavit relied on to show a compliance with the provisions of the 216th section of the Revenue act, is insufficient. If either of these objections is well founded, it follows, as a matter of course, the tax deed is invalid.

      Subsequently, on November 13, 1886, upon a rehearing of the cause, the following additional opinion was filed:
   Per Curiam :

We have held, that if any part of the tax for which the judgment is rendered is illegal, the judgment is void, and no title will pass at a sale under it. Riverside Co. v. Howell, 113 Ill. 256; McLaughlin v. Thompson, 55 id. 249.

It is plain, by reference to the record, that the amount of this judgment is, in part, composed of interest compounded on penalties for forfeited taxes. We do not deem it necessary to reproduce the figures, here, to demonstrate this; but the fact is obvious. Indeed, it is impossible to reach the exact sum of the judgment in any other way. But counsel contend, that by adding costs, in a mode pointed out by him, a greater sum than the amount of the judgment can be shovm to be due. The diffipulty with this position is, that the statute does not authorize the taxation of costs in that mode. Costs accruing anterior to the judgment, enter into and form a part of it; but it can not, when judgment is rendered, be anticipated that costs will subsequently accrue, because the delinquent tax-payer may redeem at any time after judgment, and before any additional costs are made.

When property is once forfeited, it is proper to include, as a part of the amount due, all the costs incurred up to that time; but this amount is to be added, in the next year, to the amount of the taxes for the current year. The language of the statute is, “the amount so charged shall be placed on the tax books, collected and paid over in like manner as other taxes.” (2 Starr & Curtis, page 2105, sec. 281.) And so, when the forfeited taxes for the year 1875 are added to the current taxes for the year 1876, or the forfeited taxes for the year 1876 are added to the current taxes for the year 1877, the forfeiture for each of those years is of a single item, including current and back taxes, and single costs upon the whole; and separate charges for costs for current and for back taxes are not chargeable in each succeeding year. It is not admissible to charge, for instance, on the taxes due in 1875, separate bills for costs in 1876 and in 1877, for in those years the taxes of 1875 are included with the current taxes for those years, respectively, and no additional costs are incurred thereby. And, also, it is not admissible to enlarge 'the amount of the back taxes for 1872, by now adding interest or costs which were not included in the judgment rendered. These observations, when applied to the calculations made by counsel for appellant, will show that they are wrong, and that the judgment for taxes can not be sustained in that way.

But it is again contended by counsel for appellant, that we have, in People v. Smith, 94 111. 226, sanctioned the compounding of interest in ease of forfeited taxes, and this, it is further contended, is followed and approved in Neff v. Smyth, 111 Ill. 100. There was no question of compounding interest in People v. Smith. One year’s interest on the tax due in 1877, and printer’s fees, were added, and then, to the taxes due in 1878, one year’s interest and printer’s fees were also added. The interest, in each ease, was simply on the taxes due for the current year. In Neff v. Smyth, the question was simply whether it vitiated the judgment to put the back taxes and the current taxes in a single item, as the amount of taxes due, and for wdiich judgment was rendered,—and it was held that it did not. In neither of these cases is People v. Gale, 93 Ill. 127, assumed to be overruled. In that case, the People contended that one year’s interest should be computed upon the amount which the property owner would be required by law to pay to redeem the property from the taxes,—in other words, in ascertaining the amount for which judgment should be rendered, ten per cent interest should be computed not only on the amount of the tax due, but also upon the penalties which had accumulated each year. On the other hand, it was insisted that the interest should be limited to and computed only on the tax,—and we held that contention to be correct, and, among other things, then said: “We can not believe that interest was intended to be computed upon the penalties, or else different words would have been era-, ployed to convey the meaning. ” The facts that the back taxes, etc., are to be added to the current taxes, and may be included in a single item, do not render it necessary to compute interest upon the penalties, for the clerk has the amount of the current taxes, as well as the separate amounts of back' or forfeited taxes, penalties, etc., before him when he makes up the tax books, and he can as readily compute interest upon the separate item or items upon which it is chargeable, before addition, as uj>on the aggregate amount after addition.

This ease is not affected by the amendment to section 224 of the Revenue law, adopted May 31, 1879, however that amendment may affect judgments, sales and tax deeds subsequent to its passage.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    The Washburn & Moen Manufacturing Company v. The Chicago Galvanized Wire Fence Company.

      Filed at Ottawa March 27, 1886.

    1. Practice in the Supreme Court—of a reversal and remandment, or a modification entered in this court. Where a modification of a decree is deemed necessary by this court, on appeal or error, it is a matter of discretion ■whether it shall he made directly in this court by an order to be entered upon its records, or the cause shall be remanded, with specific directions, to the court below, to make the modification. But in either case it is proper that the decree below be first reversed.
    2. Practice—in case of reversal and remandment—of the further proceedings tobe had in the trial court. Where a decree is reversed and directed to be modified, the effect of such reversal is not necessarily to open the whole case for rehearing. Its effect in that respect will depend entirely upon the modification of the decree made or directed to be made.
    3. A direction in an order of reversal that one part of a decree he modified, is, by necessary inference, an approval of that part omitted from the direction, and is equivalent to an order of affirmance of the same.
    4. The statute does not require that specific directions, shall be stated in an order reversing a decree and remanding a cause,' but under our practice it is sufficient if a modification of the decree be specifically directed in the written opinion of this court; and it is the duty of the court below to examine such opinion, and conform its action to it.
    5. Where a decree is reversed, and the cause remanded, with directions to the trial court to proceed in conformity- with' the opinion thus filed, and it appears from the opinion that the grounds of reversal are of a character to he obviated by subsequent amendment of the pleadings, or by the introduction of additional evidence, or both, it is the duty of the trial court, to allow such amendments and further evidence, the same as though the cause was before the court for the first time, and then new questions of law and fact may arise.
    6. But where the cause is remanded with direction to make a specific modification of the decree, not requiring any change in the pleadings or the introduction of additional evidence, but only with the view to have the decree conform to the case made by the record, nothing remains to be done but to make such modification and then execute the decree. ■
    7. Where a case is remanded to a lower court with specific directions to modify the decree therein, such court is not authorized to include anything in the modified decree which is not either actually expressed in the language of the opinion directing the modification, or necessarily implied from that language.
    8. A decree required an account to be taken of barbed wire manufactured and sold under an agreement or license named in the bill. Pending an appeal, a new agreement or license was made providing for the payment of different royalties. The decree was reversed, and cause remanded with directions to modify the same in a certain respect. When the cause went back to the trial court, that court refused to allow the filing of a supplemental answer setting up the new license: Held, no error, as the rights of the parties under the new license were not in any manner affected by the decree.
    9.. Same—order construed as a partial reversal. A clause in an opinion of this court, thus: “For the purpose of a modification of the decree in the manner above indicated, the decree will'be reversed and the cause remanded,” under a familiar rule of construction means that the decree was reversed and the cause remanded only for the purpose of such modification, and excludes all inference of any other purpose.
    10. Chancery—further evidence after case heard. If a party in a suit in chancery has other evidence upon a point in the case before or at the time announced for the rendition of a decree, he should apply for leave to introduce it; and in such case the court might hear it, even after the oral announcement of the decree. If such evidence is not discovered until after the decree, a bill of review may be filed, showing the exercise of proper diligence to have discovered it before. If the party allows the case to come to this court and be heard without first obtaining such evidence, he will have no right to introduce the same after a partial reversal, and remandment of the cause with specific directions as to what the decree shall be.
    11. Former adjudication—in the Supreme Court—upon what questions conclusive. Where a question either of law or fact has been decided by this court in a case properly brought before it, the same question can not be again raised in that case, except upon petition for rehearing.

      (9

    12. Where a case has been heard in the trial court, reviewed in this court, and remanded to the trial court with directions as to the decree it shall enter, on a subsequent appeal to this court errors can not be assigned for any cause that existed prior to the former decision in this court.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    This case was before this court at its September term, 1883, and the decree below ivas reversed and the cause remanded. Deference may be had to the printed report for a full statement of the case. After the cause was remanded, the Superior Court, at its May term, A. D. 1884, modified its former decree. An appeal was taken from the decree, as modified, to the Appellate Court for the First District, and that court affirmed the decree of the Superior Court. The present appeal is from that affirmance.
    The facts necessary to an understanding of the questions discussed sufficiently appear in the opinion.
    Mr. W. C. Goudy, for the appellant:
    When a chancery cause is remanded, on reversal, for further proceedings, amendments of the pleadings may be allowed and further evidence heard. Chickering v. Failes, 29 Ill. 301.
    When remanded with specific directions to dismiss the suit, or do some other act, the court below has no power to do anything but carry out the specific direction. Boggs v. Willard, 70 Ill. 315.
    Such directions are not given except the evidence is clear and satisfactory as to the proper judgment. Winchester v. Grosvenor, 48 Ill. 516.
    As to the effect of a reversal and remanding of the cause, with or without directions, in general, see Edwards v. Evans, 61 Ill. 492; Wadhams v. Gay, 83 id. 250; Mohler v. Wiltberger, 74 id. 163; Blatchford v. Newberry, 100 id. 485 ; Mitchell v. Bannon, 10 Bradw. 340.
    The court erred in refusing leave to file the supplemental answer, and to hear evidence as to the number of tons manufactured and sold yearly by Haish prior to the time the decree was entered, May 15,1884, or as to the matters which occurred since the former trial.
    Mr. Geo. S. House, and Mr. Geo. C. Fry, for the appellee:
    A decree can not be modified in this court without first reversing it, or at least the erroneous part. Hunter v. Hatch, 45 Ill. 178; 109 id. 71; Rev. Stat. see. 81, chap. 110.
    Duty and power of the court below on reversal and remanding with directions : Wadhams v. Gay, 83 Ill. 250; Ogden
      v. Bowen, 4 Scam. 301; Chickering v. Failes, 29 Ill. 294; Hough v. Harvey, 84 id. 308; Henry v. Davis, 13 W. Va. 230; Cothran v. Knox, 17 S. C. 207; Chotean, v. Allen, 74 Mo. 59 ; Webb’s Heirs v. Galloway, 1 Litt. 79 ; Keller v. Lewis, 56 Coll. 466; Soule v. Dawes, 14 id. 249; Gale v. Butler, 35 Vt. 449; Miner v. Medbury, 7 Wis. 100; Watson v. Avery, 3 Bush, 651.
    The lower court is hound by the decision on a general reversal, where no specific directions are given. Hollowbush v. McConnell, 12 Ill. 203; Boggs v. Willard, 70 id. 315; Wadhams v. Gay, 83 id. 250.
    A judgment entered in the lower court in pursuance of directions on reversal, is but the judgment of the Supreme Court. Corning v. Troy Iron Works, 15 How. 451; Chotean v. Allen, 74 Mo. 59; Jewett v. Dringer, 31 N. J. Eq. 586; Cothran v. Knox, 17 S. C. 207.
    The only questions that can be raised on the record, on this appeal, are those which have arisen since the mandate of this court was issued. All else is res judicata. Hollowbush v. McConnell, 12 Ill. 203; Reid v. West, 70 id. 479; Kingsbury v. Buckner, id. 515; Clayes v. White, 83 id. 540; Hough v. Harvey, 84 id. 310; Diversy v. Johnson, 93 id. 547; Smith v. Brittenham, 94 id. 624; Walker v. Doane, 108 id. 246; Newberry v. Blatchford, 106 id. 594; Cook v. Morton, 61 id. 285; Ogden v. Larrabee, 70 id. 512.
    If new evidence is discovered after the hearing and before the entry of the decree, a petition for rehearing is proper. Daniell’s Ch. Pr. 1477; 2 Maddock’s Ch. *454; Yates v. Monroe, 13 Ill. 212.
    Behearing is not allowed if evidence is merely cumulative, (Gregg v. Gear, 3 Gilm. 2, Boyden v. Reed, 55 Ill. 458, Hall v. Fullerton, 69 id. 448,) or if proper diligence was not used to produce it on hearing. Humphreys v. Allen, 100 Ill. 511.
    After decree entered, and before appeal, a bill of review will lie for newly discovered evidence not cumulative, there being no negligence. Mitford’s Eq. PI. *85, note; Boyden v.
      Reed, 55 Ill. 458; Walker v. Douglas, 89 id. 425; Livingston v. Hubbs, 3 Johns. Ch. 124; Dixon v. Graham, 16 Iowa, 310; McGregor v. Gardner, id. 538; Kinsell v. Fieldman, 28 id. 499.
    Upon discovery of new evidence after decree and appeal, relief might have been obtained by petition to the Supreme Court. Hall v. Fullerton, 69 Ill. 448; Hough v. Harvey, 84 id. 308; Smith v. Brittenham, 94 id. 624; Kingsbury v. Buckner, 70 id. 514; Railroad Co. v. Simpson, 73 N. C. 316; Lyon v. Merritt, 6 Paige, 473.
    Courts will not hear additional evidence when the cause has been decided on appeal or error. Coen v. Funk, 26 Ind. 293; Rice v. Casey, 4 Ga. 570; Blight v. McIlvoy, 4 T. B. Mon. 146; Lewis v. Morton, 6 id. 138; Ryerson v. Eldred, 18 Mich. 492.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The first, and, in our opinion, the controlling, question, arising upon this record is, whether, when the case was here at a former term, (109 111. 71,) it was remanded for a rehearing, or only to modify the decree of the Superior Court in conformity with specific directions then given.

In cases where a modification of the decree below is deemed necessary, it is discretionary- whether this court shall, by an order to be entered on its own records, make the modification, or -whether it shall remand the cause to the lower court, with specific directions to that court to make the modification. (Rev. Stat. 1874, see. 81, chap. 110.) In either case it is proper that the order of this court be, first, that the decree below be reversed. (Hunter v. Hatch, 45 Ill. 178.) But whether the effect of such order of reversal shall be to open up the case for rehearing, will depend entirely upon the modification of the decree made or directed to be made, for, the only purpose of the order of reversal being that the modification shall be made, the substantial rights of the parties to the record, so far as concerns any question now before us, are precisely as if, from the moment of the entry of the judgment in this court, the decree actually read as it would read after making the record entries in the different courts, essential to the modification. And since the direction that one part of a decree be modified, is, by necessary inference, an approval of that part omitted from that direction, the substantial rights of the parties to the decree are not perceptibly different from what they would be were it expressly ordered, in the formal entry upon the record, that such omitted part of the decree is affirmed. No statute requires that the specific modification directed shall be embodied in the formal order of court entered of record by the clerk of this court, 'and it is conformably with our practice, and sufficient, if the modification be specifically directed in the written opinion of the court filed in the case. And so it is held that it is the duty of the lower court to examine the opinion, and conform its action to it. Wadhams v. Gay, 83 Ill. 253; Boggs v. Willard et al. 70 id. 315; Hough v. Harvey et al. 84 id. 308.

The specific directions here given are all in the written opinion of the court, and the meaning intended to be conveyed by the language employed for that purpose will be better comprehended by restating the questions under consideration to which that language was applied.

The tenth condition in the license issued" by appellant to appellee has this clause: “And the royalty to he paid under this license shall not be greater than that charged to any other party licensed after the first day of January, A. D. 1881, under said several letters patent” named in the license; and that in case a license should be given to any party at a less royalty, “then and thereafter the royalty to be paid under this license shall be the same as such reduced royalty.” The bill was filed for the purpose of obtaining the specific performance of this condition, alleging a certain settlement made subsequent to the first day of January, A. D. 1881, by appellant, with Jacob Haish, under the terms of which Haish was licensed to manufacture barbed fence wire to the extent of 4000 tons annually, free of royalty, under appellant’s patents, and the bill prayed allowance to appellee of the benefit of all reduction of royalty made to Haish. The allegation was put in issue by answer. Evidence was heard, and the court decreed as prayed in the bill.

The opinion, after giving a history of the settlement with Haish, proceeds thus: “The main controversy in this case is upon a question of fact as to what was the real character of this transaction” (that between appellant and Haish,) “of the 26th of July, 1881. The contention of appellant is, that the real arrangement with Jacob Haish was a mere settlement of a troublesome litigation upon a basis of an allowance to Haish of the right to manufacture 4000 tons of barbed fence wire per annum free of royalty, with an abatement of twenty-five cents per hundred pounds upon the royalty exacted from other licensees, upon his annual manufacture above 4000 tons, up to 8000, the arrangement being concealed under a pretended purchase of Haish’s patents, payment for which was to be made, practically, in a rebate of the royalties nominally exacted from Haish under the license issued to him. ” A preliminary question with regard to the admissibility of parol 'evidence exhibiting the various negotiations between' the parties, leading up to the settlement, is then discussed, and such evidence held admissible, and then this question is discussed, and the conclusion thereon is stated in these words: “The court below found that the purchase of Haish’s patents, and the Stevens machine patent, was a secondary matter, and was used to give the appearance of a consideration to what was in reality a license, free of royalty, for the manufacture of 4000 tons, yearly, of barbed wire, and of 4000 more tons at a less rate, by twenty-five cents per hundred pounds, than to the other licensees, and so a reduction to that extent, of which appellee had a right to avail itself under its license. Without further remark upon the evidence, we state as our conclusion, upon its examination, that we do not find reason sufficient for disturbing the decree on the ground of the finding of the court not being warranted by the testimony.” Another point is then considered and decided which is not pertinent now, after which the opinion comes to an objection urged by appellant’s counsel, that the decree reduces appellee’s royalty to a less amount than that of Haish, and after stating the ground of this objection, it proceeds: “Hence it is said, that on the theory of the court below, and upon the principle of the equality of royalties, appellee should be exempt from royalty as to two-fifths of its tonnage, and subject to a payment of fifty cents on the hundred pounds royalty on the second two-fifths of its tonnage, and a royalty of- seventy-five cents per hundred pounds on the last one-fifth, but that instead of doing so, the decree gives to appellee the whole amount of its tonnage free from any royalty. There is force in this view, and we think that if Haish manufactured up to the full limit of his tonnage, it would have to be acceded to. He certainly-then would have some royalty to pay, and the reduction of appellee’s royalty to an equality with that of Haish would not exempt appellee from payment of any royalty at all. There can not be the claim that each licensee was entitled to an equal amount of tonnage. There was to be a limitation as to tonnage, and the several amounts to be allowed to each licensee were to be determined by the licenser; but Haish was not bound to manufacture more than 4000 tons yearly, and to the extent of 4000 tons yearly he had a free license,—whether he would manufacture in excess of that was optional with him. The proof shows that up to the time of the hearing in the Superior Court, his yearly manufacture did not exeeed 4000 tons, so that upon what he manufactured he paid no royalty, upon the theory of the decree, and so far the decree was right in exempting appellee from the payment of royalty; but if in the future, subsequent to the hearing, Haish should manufacture in excess of 4000 tons yearly, he would have to pay royalty, under the provisions of his license, which, if he manufactured to the limit of his license, would be fifty cents per hundred pounds on the second two-fifths of his manufacture, and seventy-five cents per hundred pounds on the last one-fifth. As respects, then, any future manufacture by Haish which might be in excess of 4000 tons yearly, we are inclined to think appellee should be required to pay the same proportionate royalty as Haish would have to pay, so that there should be the same ratio of royalty to tonnage manufactured in the case of appellee as in that of Haish, and that in the respect of any such future manufacture the decree should, be modified accordingly. ” The opinion then discusses whether Blwood was a necessary party, holding that he was not, after which it concludes thus: “For the purpose of .a modification of the decree in the manner above indicated, the decree will be reversed, and the cause remanded for further proceedings in accordance with this opinion. Each party will pay its own costs in this court.—Decree modified.

We concede that, if taken alone, the words, “we are iraclined to think appellant should be required to pay the same proportionate royalty as Haish, ” imply a mere inclination or predisposition to decide, and not an actual decision, and therefore that the question is still suspended and open to further discussion and consideration; but, taken in connection with succeeding language, it must be clear to every one that these words were intended hut as an expression of doubt and hesitancy in the process of reasoning by which the conclusion was reached that induced the decision then made. The language expressing what the court directs,—that the decree shall be modified in accordance with the inclination thus expressed,—is free from doubt, and is unqualified and absolute.

We can add nothing to make more perspicuous the language, “for the purpose of a modification of the decree in the manner above indicated, the decree will he reversed and the cause remanded, ” etc. We understand, and we do not know that it is at all controverted, that this, under a familiar rule of construction, clearly means that the decree was reversed and the cause remanded only for the purpose of such modification, and thus excludes all inference of any other purpose. Assuming that we are not in error in this, it ivas the duty of the Superior Court, in the performance of which it had no discretion, to modify its decree as thus directed; and it is, in our opinion, a matter of form rather than of substancé, so far as any question here is concerned, that the order of this court, as the law then was, had to be transmitted to the Superior Court through the Appellate Court, necessitating a reversal of the former judgment of affirmance of the last named court. Notwithstanding this circumlocution, the order of this court operated directly upon the Superior Court.

The next question is: Did the Superior Court obey the order of this court ? After the mandate of this court was presented, that court entered a decree, the second clause of which is as follows :

“Second—That the said complainant shall be required to pay said defendant, upon barbed wire manufactured and sold by it under the license from said defendant to said complainant, referred to in the bill of complaint herein, on and after the 23d day of October, 1882, no greater proportion of royalty in any one year than the amount of royalty paid in the corresponding year by Jacob Haish to defendant, on barhed wire manufactured and sold by said Haish under the license from said defendant to said Haish, in the bill of complaint herein referred to, in excess of 4000 tons of annual manufacture allowed to be manufactured and sold by said Haish free of royalty, as found and adjudged in the decree heretofore entered ' herein, shall bear to the entire amount of barbed wire manufactured and sold by said Haish under the license of said Haish in the corresponding year, so that there shall be the same ratio of royalty to tonnage manufactured in case of complainant as in that of Haish. ”

This, it will be observed, embodies the idea of modification expressed in the opinion, in almost, if not entirely, the same language.

It is objected that it is. not specific enough; that it was not intended to use language in the opinion with the precision required in a decree; that nothing more was there intended than to lay down a general rule, leaving the court below to adopt such provisions as would be equitable between the parties. We concede that directions by appellate courts to trial courts, in particular cases, as expressed in written opinions, are, ordinarily, in general terms, giving the substance, in outline, simply, of what is required to be done, and leaving matters of detail to the trial courts; but we understand the rule to be, when a case is remanded to the lower court, with specific directions to modify the decree therein, that the lower court is not authorized to include anything in the modified decree which is not either actually expressed in the language of the opinion directing the modification, or necessarily implied from that language. The reason is obvious. The lower court is not acting of its own motion, but in obedience to the order of its superior. What that superior says it shall do, it must do; and that alone. Where the doing of one thing necessitates the doing of others, as necessary incidents, the order that they shall be done is implied in the order to do that to which they are incidents.

The question here is, does the decree direct that to be done which the opinion says shall be done, or does it direct that less or more, or something different, shall be done? It is impossible for us to hold that the same language means one thing in the opinion, and another and different thing in the decree; nor can we hold that it is error in a decree to not define a duty enjoined, with more precision of language than is employed in the opinion of the court directing that such duty shall be enjoined by the decree. The opinion does not leave it to the Superior Court to thereafter ascertain whether appellee was exempt from the payment of royalty up to the date of the hearing, nor to ascertain from what period the inquiry should co nmenee whethe'r Haish had manufactured, annually, more than 4000 tons of barbed wire, as is assumed in the objections to the modification of the decree. The language which we have quoted from the opinion, is, expressly, that the decree below finding that Haish had not, up to the date of the hearing, manufactured more than 4000 tons of barbed wire annually, under his license from appellant, and that therefore appellee was exempt from the payment of any royalty- from the date of the license of Haish to the date of the hearing, was sustained by the evidence, and ivas right; and that the decree should be modified, so that if, in the future, subsequent to the hearing, Haish should manufacture in excess of the 4000 tons, annually, and thus have to pay royalty on such excess, appellee should pay on its manufacture the same ratio of royalty to tonnage. To have fixed in the decree, therefore, any other date than that of the hearing from which to take the account of the future manufacture of Haish, would have been in direct violation of the direction in the opinion; and the same would be the result did the modified decree require, as counsel contend it should, that appellee should pay a royalty on its manufacture in the ratio of exemption and liability fixed in the contract with Haish, without regard to whether Haish should manufacture in excess of 4000 tons, so as to be obliged to pay royalty, or not. The language of the opinion, in this respect, is free from doubt. It directs that the decree shall require appellee to pay royalty as Haish, by manufacturing in excess of 4000 tons, annually, should become liable to pay royalty, and then to pay, in the same ratio of royalty to tonnage, on its manufacture that Haish would have to pay on his, and thus completely excludes the other theory.

When the ease was here before, all the objections now urged to the modified decree were proper subjects of discussion and eo'nsideration. So far as then deemed important, they were discussed and considered with such care and thoroughness as was thought necessary, and the opinion expressed the result. The opinion was then obnoxious to the same objections now urged against the modified decree, and the more important of them were urged by the counsel now representing appellant, in an exhaustive and able petition -for rehearing. The court, however, failing to appreciate the force of the objections as they were felt by counsel, adhered to the views expressed in the opinion. We are not now at liberty to review and overrule any former ruling in the case. It is well settled, and, as we understand, not denied by counsel for appellant, first, where a question, either of law or of fact, is decided by this court in a case properly before it for such decision, the same question can not be again raised in that case, except upon petition for rehearing; second, where a case has been heard in the trial court, reviewed in this court, and remanded to the trial court with directions as to the decree it shall enter, on a subsequent appeal to this court errors can not be assigned for any cause that existed prior to the former decision in this court. Ogden v. Larrabee, 70 Ill. 510; Reed v. West, id. 479; Kingsbury v. Buckner, id. 514; Newberry v. Blatchford, 106 id. 590; Hook v. Richeson, 115 id. 431.

After the case, upon being remanded, was redocketed in the Superior Court, appellant asked leave to file a supplemental answer, setting up that “on or about the 18th day of December, A. D. 1883, an agreement was entered into and made by the parties to this suit, in and by which a new license was issued by the defendant to the complainant, to cover all barbed wire manufactured or sold from and after the 1st day of May, 1883, and it was then and there agreed that royalties should ,be paid upon all such wire so manufactured and sold since 'the 1st day of May, 1883, under and according to the provisions of the new licence so granted as aforesaid; and an agreement in writing was then and there made between the parties, by which it was expressly agreed, that in ease the Supreme Court of Illinois, where this cause was then pending on appeal, should reverse the same, and remand the same to this court, and should find that the complainant was entitled to any of the relief prayed for in the original bill, this court should not decree the complainant any relief for royalties accrued under the complainant’s license, mentioned in the original bill of complaint, upon barbed wire manufactured and sold by complainant thereunder on or after May 1,1883, and that no relief should be given to the complainant after April 30, A. D. 1883.” The court refused to allow it to-be filed, and this ruling, also, counsel insists was erroneous. We perceive nothing objectionable in this respect. By reference to the second clause of the decree before herein quoted, it will be seen the account required to be taken is of barbed wire manufactured and sold under the license issued by appellant to appellee, “referred to in the bill of complaint herein; ” and the amounts paid on account of royalty, which the preceding clause of the decree directs shall be repaid by appellant to appellee, were paid under the same license. The rights of the parties, under the new "-license, are an entirely different thing, and not within the contemplation of the decree. In taking the account directed, the master in chancery is confined to transactions under the license described in the bill, and will, of course, reject evidence of any transaction under this new license.

It appears that the original hearing of the case was commenced at the June term of the Superior Court, A. D. 1882, but that it was adjourned over, and the final hearing was had, and the original decree was rendered, on the 23d day of October, A. D. 1882. Counsel for appellant contend that the only proof before the court, on that hearing, as to the number of tons of barbed wire manufactured by Haish after July 26, 1881, appears in the deposition of Haish taken May 26,1SS2, which was as to the number of tons manufactured prior to the 1st day of April, A. D. 1882,—four months before the expiration of the first year of his license; and counsel, therefore, after the case was remanded, and before the modified decree was entered, moved to place the case upon the trial calendar of the court, so that he might introduce evidence to prove that Haish, in fact, manufactured more than 4000 tons of barbed wire in the first year of his license, and that between the 26th day of July, A. D. 1882,—the first day of the second year of his license,—and'the 1st day of Majr, 1883,—the date from which it was alleged, in the supplemental answer offered "to be filed, that appellee was acting under a new license from appellant,—Haish manufactured more than 3700 tons, and sold more than 3180 tons, and that during the remaining three months of the second license year he manufactured about 1100 tons, and sold about 1150 tons. The motion was supported by an affidavit stating that appellant would be able to prove these allegations in regard to Haish’s manufacture, and also by certain stipulations of the parties in regard to the re-trial of the case. The court refused to place the case upon the trial calendar, and thereafter modified the decree, as before stated. In the view we have taken of the duty of the Superior Court, under the former opinion, this ruling was right.

The stipulations may .be dismissed with the single remark, that the action they contemplated was upon the hypothesis that this court should remand the case for re-trial.

It will be observed that the evidence expected to be introduced, in the event of the case being placed upon the trial calendar, was not for the purpose of taking an account pursuant to the decree, but solely for the purpose of inducing the Superior Court to change that part of its former decree which found that Haish had not manufactured above 4000 tons of barbed-wire per annum after the 26th of July, 1881, and up to the date of the decree; and so the question is thus presented, whether the Superior Court ought to have gone into an inquiry to impeach that part of the decree, or, perhaps, rather to have proceeded just as if no decree, in that respect, had ever been entered.

At the risk of being unnecessarily tedious in consequence of repetitions, we here transcribe so much of the finding of the court, recited in the decree, as is pertinent to the question,—the decree bearing date, it W'ill be remembered, October 23,1883. It found and recited that “Jacob Haish has, since said 26th day of July, A. D. 1881, manufactured and sold barbed fence wire, under his said license from said complainant, but that the amount of barbed fence wire manufactured and sold by said Haish has not exceeded the amount of 4000 tons per annum, and that the said Jacob Haish has, from and since said 26th day of July, A. D. 1881, in fact paid no royalty to the said defendant upon the barbed fence wire manufactured and sold by him, under his said license, up to the date of the hearing hereof.” And further, that “complainant is also entitled to recover from said defendant all moneys paid to defendant by complainant, as royalty, under complainant’s said license, upon barbed fence wire manufactured and sold by complainant since said 26th day of July, A. D. 1881,”—and the decree then proceeded in conformity with that finding. If appellant had other evidence before or at the time that it was announced that this decree would be rendered, as its counsel claims it now has, to prove that Haish had, in fact, manufactured more than 4000 tons per annum between the 26th day of July, A. D. 1881, and the date of the decree, he should have then applied to the court for leave to introduce that evidence. It would have been competent for the court to have heard it, even after the oral announcement of the decree intended to be rendered, but before the actual entry of the decree. (Hughs et al. v. Washington et al. 65 Ill. 245.) If the evidence was not discovered until after the decree was entered, a bill of review might have been filed on that ground before that case was brought before this court; but it would have been necessary to have then shown that the party could not, by the exercise of reasonable diligence, have discovered it before. (Humphreys v. Allen, 100 Ill. 511; Boyden v. Reed, 55 id. 458.) But without making any effort to introduce additional evidence upon the subject, appellant sought his remedy by appeal; and when the case came before us, as has been before shown, we found that the evidence sustained this finding in the decree, and thereupon then said: “The proof shows that up to the time of the hearing in the Superior Court, his (Haish’s) yearly manufacture did not exceed 4000 tons, so that upon what he manufactured he paid no royalty, upon the theory of the decree, and so far the decree was right in exempting appellee from the payment of royalty, ”—and the case was, as before shown, reversed and remanded for the purpose of modifying the decree in another respect. If it had been intended to keep the question open, it should have been so said in the opinion. If there shall be difficulty in taking the account under the modified decree,— which we do not anticipate,—that difficulty will result from the direction in the opinion of this court in regard to the modification to be made.

We concede, that where a decree is reversed, and the cause is remanded with directions to the trial court to proceed in conformity with the opinion then filed, and it appears from the opinion that the grounds of reversal are of a character to be obviated by subsequent amendments of the pleadings, or the introduction of additional evidence, or both, it is the duty of the trial court to permit the cause to be redocketed, and then to allow amendments to be made and evidence to be introduced, on the hearing, just as if the cause was then before the court for the first time; and under such a state of facts, upon the second hearing, new questions of law or fact may arise as to which no opinion was or could have been expressed in the written opinion of this court, pursuant to which the former decree was reversed, and the cause remanded. But where, as here, the cause is remanded with direction to make a specific modification of the decree, not requiring any change in the pleadings or the introduction of additional evidence, but only with the view to have the decree conform to the case made by the record, nothing remains to be done but to make that modification, and then execute the decree. Wadhams v. Gay, and Hough v. Harvey, supra.

We do not feel disposed to make any order of reversal on account of the cross-error assigned in regard to the approval of the master’s report. The case seems to have been appealed before that question was reached.

The decree is affirmed.

Dccree affirmed.

When this case was considered, and the decision agreed upon, immediately after the oral argument by counsel, the record was assigned to the late Justice Dickey to prepare the opinion, but no opinion having been prepared in his lifetime, the record was re-ássigned at the November term, 1885.


author: Per Curiam:

text:
    Edward G. Bowzer v. Mary E. Stoughton, Admx.

      Filed at Ottawa November 13, 1886.

    1. Partnership—remedy as between partners—whether at law or in equity. Where the affairs of a partnership firm have not been settled and a balance struck between its members, no action at lawr can be maintained by one member of the firm against another. The remedy in such case is in equity, to obtain a settlement of the accounts of the firm.
    2. Same—unsettled claim of one partner against the estate of a deceased partner. It is a good defence to a claim filed against an estate of a deceased person, that its items grew out of a partnership between the claimant and the intestate, which is still unsettled.

      3. Evidence—as tending to prove a partnership—stubs in cheek book. Where the items of an account filed against an estate are claimed to arise out of a partnership between the claimant and the intestate, the stubs on the check book, in connection with the checks showing that the claimant had received money on them, are properly admissible, in connection with other evidence, as tending to prove that the claimant’s demands are unsettled partnership matters.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Bogers, Judge, presiding.
    Mr. C. C. Bonney, for the plaintiff in error.
    Messrs. Swett, Gbosscup & Swett, for the defendant in error.
   Per Curiam:

This was a claim presented to the probate

court of Cook county, by Edward G. Bowzer, against the estate of C. H. Crowell, deceased. The claim, as originally presented, was as follows:

“Chas. Ií. Crowell, in account with Edward Geo. Bowzer:
May 21, 1879, bal. due on account stated - - $1230.06
Cr. by cash at sundry times - - - -' 44.00
Balance ------- $1186.06
“Interest to be added.”

Under an order of the probate court, granting leave, an amended claim was filed January 25, 1883, as follows:

“The plaintiff claims that at the times below named, he advanced to Charles II. Crowell, deceased, the sums of money below stated: August 14, 1878, $150; August 30, 1878, $150; September 19,1878, $176.25; October 14,1878, $150; October 14, 1878, $50; November 29, 1878, $750,—total, $1426.25. And that on the 21st day of May, 1879, there remained due to him from said Crowell the sum of $1230.06, since which date he has received the sum of $44. And he also claims interest on said advances.”-

Upon the evidence introduced in support of the demand, in the probate court, an order was entered rejecting the claim. The claimant appealed to the circuit court, where, on a trial before a jury, he "was again defeated, and judgment rendered against him for costs. To reverse this judgment, he appealed to the Appellate Court, where the judgment of the circuit court was affirmed.

On the trial in the circuit court, the plaintiff introduced evidence tending to establish that he had advanced to Crowell, in his lifetime, the various sums of money contained in the account. Ini defence of the claim made by the plaintiff, the defendant introduced evidence tending to show that the transactions specified in the plaintiff’s account, arose out of a partnership existing between the plaintiff and the deceased, which was then unsettled between the partners. The rule is established, that where the affairs of a firm have not been settled, and a balance struck between the members of the firm, no action at law can be maintained by one member of the firm against another. The remedy in such case is in equity, to obtain a settlement of the accounts of the firm. Here, the jury, under the evidence introduced upon the issue involved, found, in favor of the defendant, that the items of plaintiff’s account grew out of a partnership between him and the deceased, which was still unsettled. This finding was approved by the judgment of the Appellate Court, and must be treated as conclusive here.

On the trial, the defendant introduced in evidence certain checks payable to currency, and the stubs on the check book corresponded to the checks. This evidence was objected to as immaterial and irrelevant, but it was admitted by the court. We perceive no valid objection to the evidence. The stubs, in connection with checks, from which the checks had been taken, tended to prove that the money had gone into the hands of the plaintiff, to be used- on account of the firm of G. H. Crowell & Co. It was proper, in connection with the other evidence in the case, tending to prove that plaintiff’s claims were unsettled partnership matters.

The plaintiff put in evidence a paper executed hy Crowell, as follows:

“Chicago, May 21, 1879.
Edward Gr. Bowzer, Esq., Chicago, 111.
“Dear Sir—For value received, and in partial settlement of the amount due you from me, I hereby assign and make over to you only, the following accounts now due on the books of the late firm of C. H. Crowell & Co.: [Here follow five accounts,]—total, $421.13. And agree to use due diligence in collecting the same, and to pay over to you only, in full, the proceeds of said accounts. I also agree to be responsible to you only, for all or any of said accounts which may prove uncollectible. This agreement is given and received with the full understanding and agreement that neither this paper nor any of the accounts shall be assigned, made over or transferred by you to any other party or parties whatsoever. In case any such transfer or assignment is made by you, then this assignment by me to you, as above, shall not stand, but is null and void.
Yours truly,
c_ H_ Crowell.”

—And it is insisted, in the argument, that he is entitled, in any event, to recover the amount named in the paper. It will be remembered that the action is not predicated on the writing, but it was merely offered in evidence for the purpose of proving the claim which had been filed in the probate court, amounting, in the aggregate, to $1426.25. What weight was to be given to this paper, w7as a question for the jury, in connection jvith all other evidence introduced by the parties, and whether they placed much or little reliance on it, in arriving at a verdict, is a matter that pertained to them alone, and can not be reviewed here, although they may have erred in judgment.

Complaint is made in regard to the instructions given for the defendant. The objections urged are mainly of a techuical character, and it will serve no useful purpose to go over them here. We have carefully examined the instructions, and we do not understand that they contain incorrect propositions of law, or that they were calculated to mislead the jury. Indeed, the law involved in the case, when the instructions given for both plaintiff and defendant are all considered, was quite as favorable to the plaintiff as the evidence would warrant, and in this regard he has no just ground of complaint.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    The Chicago and Alton Railroad Company v. Elsie Bragonier, Admx.

      Filed at Springfield May 14, 1886.

    1. Negligence—master and servant—corresponding duties as to proper condition of machinery used. It is primarily the duty of a railway company to provide good, safe and proper machinery, so far as reasonable skill and diligence can construct it; but when that duty has once been performed, it is a duty devolving upon the servants operating it, to observe that it is in repair and good working order, and report to the company when it is not in such condition. There are many cogent reasons why both the company and the employes shall be held to a strict performance of their respective duties to each other and the public in this respect.
    2. Same—duty of hrakemen on railway trains to see that the brakes are in proper working condition. The law imposing a high degree .of care upon all employes of railway companies engaged in the running of their trains, to insure the safety of those in the service, makes it the duty of a brakeman on a railway train to see that the brakes on the cars are always in proper order for working, and report all defects therein to the company; and if he suffers a personal injury in consequence of the neglect to perform that duty, no recovery can be had against his employer. ”
    3. The fact that a railway company may have employed car inspectors, at certain local stations, to inspect cars, will not relieve brakeinen using the same, from their duty of inspecting that part of the machinery they are expected to handle, and reporting defects to the company. Their duty in this respect remains as imperative as if they were the sole inspectors. It is not in the power of the company to relieve its brakemen of this duty.
    4. So an instruction which holds that a servant in the employ of a railroad company may be relieved from the observance of that care the law exacts of him, is pernicious in the extreme.
    5. And when neither the law nor any rule of a railway company makes it the duty of a brakeman on a freight train to inspect the cars, and, generall}", as to their construction, strength of wheels or axles or timbers used in their manufacture, it is not proper to introduce the question of such duty into the case by an instruction, in a suit for an injury to the brakeman.
    6. Same—neglect of duly by one servant, as justifying such neglect on the part of another. In an action against a railway company to recover for the death of a brakeman, caused by an injury received in attempting to couple a freight car, in consequence of a defect in the brake, the court instructed the jury, that if they believed, from the evidence, “that the printed rule of the company requiring train men to examine their trains, was habitually disregarded by the company itself,—that is, if the officers of the company having charge of the freight trains habitually caused such trains to be made up, and sent out * * * after being made up, without affording brakemen an opportunity to examine the train,—such fact, if proven, would cause the rule to lose its authority over the brakemen,—in other words, the rule must be obeyed by the master as well as by the servant, or it ceases to be operative as to both:” Held, that the instruction did not have any proper application to the case, the rule being intended only for conductors and train men.
    7. Where a rule of a railway company imposes no higher duty upon a brakeman, in regard to the inspection of that part of the machinery of cars he is required to use, than the law requires of him, an omission of duty by other employes of the company will not relieve him from the duties and obligation the law imposes.
    8. So in an action against a railway company to recover for a personal injury to a brakeman, the question of whose negligence is involved, growing out of his neglect of duty, evidence that a good many other brakemen omitted to observe the same duty, is inadmissible, it furnishing no excuse for a like omission on the part of the brakeman receiving the injury.
    9. Evidence—as to usual duties of brakemen, as relating to question of negligence. In an action involving the question of a brakeman’s negligence in his failure to examine the brakes on a freight car, either party has the right to prove what were the customary and usual duties of brakemen as to the inspection of the brakes, and it is error to refuse such evidence.
    10. Instructions—should relate to matters in issue. In an'action against a railway company to recover for an injury to a brakeman, the ground of liability alleged was, that the ratchet wheel or the dog on a freight car, or both of them, were out of repair, and no other defect was alleged or shown. The court instructed the jury that there was an undertaking by the companj-, with its brakemen, to exercise reasonable care to furnish safe and suitable cars to work with: Held, that while this was good law, it had nothing to do with the case, and was calculated to mislead. It should have directed the attention of the jury to the defects stated in the declaration.
    11. So, too, in the same case, the court instructed the jury, that if the brakeman had no notice, or by the exercise of reasonable care could have had no notice, “of that dangerous and defective condition of the car,” etc.: Held, that the instruction was erroneous in calling the attention of the jury to the “dangerous and defective condition of the car,” there being no complaint as to the car itself, its construction or repair. Attention should have been called only to the ratchet wheel and dog, the condition of which, it was alleged, made the brake inefficient.
    12. Same—assuming facts not proven. An instruction which assumes there is evidence of a fact, when there is none even tending to show such fact, is calculated to mislead, and is erroneous.
    • Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.
    Messrs. Williams & Capen, and Messrs. Pepee & Phillips, for the appellant;
    . A person who undertakes a dangerous employment, undertakes to exercise such care and caution for his own safety as a reasonably prudent man should exercise in that employment. Clark v. Railroad Co. 92 Ill. 43; Pennsylvania Co. v. Lynch, 90 id. 333; Railroad Co. v. Black, 88 id. 112; Richardson v. Cooper, id. 270.
    It is the right and duty of a railroad corporation to make reasonable rules and regulations for conducting its business, both as to its employes and others doing business with it, and its employes are bound by such reasonable rules and regulations ; and what is a reasonable rule, is a matter of law, for the court. Woolsey y. Railroad Co. 33 Ohio St. 227; Railroad Co. v. Whittemore, 43 Ill. 420.

      If a person c.omes to an injury by his own carelessness, he can not recover. Packing Co. v. Egan, 86 Ill. 253; Railroad Co. v. Rush, 84 id. 570.
    It is the duty of a brakeman to know that the brakes on his train are in order. Railroad Co. v. Bragonier, 11 Bradw. 516; Railroad Co. v. Jewell, 46 Ill. 99; Railroad Co. v. Eddy, 72 id. 138; Railroad Co. v. Jackson, 55 id. 492; Wonder v. Railroad Co. 32 Md. 411; Railroad Co. v. Barber, 5 Ohio St. 541; Davis v. Railroad Co. 20 Mich. 105; Wood on Master and Servant, secs. 333, 363.
    Deceased ‘came to his death by his own carelessness, or by failing to observe a regulation of the company. If a servant is injured in consequence of his own breach of duty, he can not recover.
    An employe can not recover damages of his employer for an injury received by the carelessness of a co-employe in the same line of employment. Railroad Co. v. Murphy, 53 Ill. 336; Valtez v. Railway Co. 85 id. 500; Railroad Co. v. Rush, 84 id. 570; Railroad Co. v. Keen, 72 id. 512.
    If the master furnishes reasonable facilities for keeping his machinery in repair, and a sufficient number of competent persons to attend to it, and is free from personal neglect, he is not chargeable with the consequence of this negligence. Smith v. Potter, 46 Mich. 258; Railroad Co. v. Love, 10 Ind. 554; Railroad Go. v. Webb, 12 Ohio St. 475; McGatrick v. Mason, 4 id. 566; Railroad Co. v. Barber, 5 id. 541; Patterson v. Wallace, 1 McQueen, 748.
    If the injured servant, by a faithful performance of his duties, would have had the same means of knowledge as his master, he can not recover. Pennsylvania Co. v. Hankey, 93 Ill. 580; Frazier v. Railroad Co. 38 Pa. St. 104; Wright v. Railroad Co. 25 N. Y. 562; Buzzell v. Manufacturing Co. 48 Me. 113; Railroad Co. v. Barber, 5 Ohio St. 541; Railroad Co. v. Smithson, 45 Mich. 212.

      Brakemen and car repairers are fellow-servants, so far as ascertaining patent defects on the top of the brake-rods is concerned; and if the railroad company has a sufficient number of competent car repairers, and both they and the brakemen fail to discover a patent defect that could only be discovered by an examination of the top of the train, a brakeman can not recover on account of an injury arising from such defect. Railroad Co. v. Jewell, 46 Ill. 99; Railway Co. v. Eddy, 72 id. 138; Railroad Co. v. Webb, 12 Ohio St. 475.
    Mr. William E. Hughes, for the appellee:
    It is the duty of the master to furnish reasonably safe cars, to continuously inspect them, and repair them when necessary to the safety of the men working with them. Railroad Co. v. Jackson, 55 Ill. 492; Railroad Co. v. Ingraham, 77 id. 309.
    The master is bound to exercise reasonable care to prevent accidents to his workmen. He is bound to furnish them with suitable machinery, and see that it is properly kept in repair. Weemes v. Matthewson, 4 McQuine, 215; Pelthome v. England, (L. R.) 2 B. 46; Warner v. Railroad Co. 39 N. Y. 468; Northcourt v. Bacheldor, 111 Mass. 322.
    It is his duty to guard against defects that may arise from use. Chapman v. Railroad Go. 55 N. Y. 579; Railroad Co. v. Ingraham, 77 Ill. 309; Railroad Co. v. Flanigan, id. 365.
    Knowledge on the part of the servant, of the defect and danger, will not relieve the master. Snow v. Railroad Co. 8 Allen, 441; Reed v. Northfield, 13 Pick. 98; Smith v. Lowell, 6 Allen, 39.
    A master can not escape liability to a servant by printing and publishing rules which the master himself does not observe and obey. Wood on Master and Servant, sec. 401.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought by Elsie Bragonier, administratrix of the estate of William Bragonier, deceased, against the Chicago and Alton Bailroad Company, to recover damages resulting to the next of kin on account of the death of the intestate, which it is alleged was caused by the negligent conduct of defendant. There have been three trials of the cause in the circuit court, in each of which plaintiff succeeded in obtaining a judgment against defendant. The first and second judgments were reversed by the Appellate Court for the Second District, on the appeal of defendant, but the last one was affirmed, and defendant brings the cause to this court on its further appeal.

Of course there can be no controversy in this court as to the facts of the case. It will be understood the trial court and the Appellate Court have found every fact the evidence tends to establish, in favor of plaintiff, and the finding of such facts by the latter court, under the statute, is conclusive in this court.

. The intestate had been, and was at the time of receiving ■the injury which caused his death, a brakemau on defendant’s railroad, and was so employed at the time. On the morning of the Stli of August, 1879, the intestate was one of the number that were designated by the proper officers to go upon what is called a “wild” freight train, from Boodhonse to St. Louis. The usual number of men were assigned to the train, and they were directed to leave a few minutes after two o’clock on that morning, which they did. After leaving Boodhouse, going south, the first stopping place was the Chicago, Burlington and Quincy railroad crossing, about one-half of a mile from Whitehall. The train then went on to the yards at Whitehall, where it was intended some cars should be left. In doing that work the train was separated, and the car that injured the intestate was set back on the main line. At that point there was a slight clown grade, and to prevent this car from moving forward of its own weight, one of the brakemen “chucked” it. After the cars had been set off, the engineer moved back on the main line, that he might hitch to this particular car. It was the duty of the intestate to make the coupling, which he undertook to do. When the engine moved back to this car, the coupling link failed to enter the bumper, and so the coupling was not made. The striking of the engine, however, knocked the car back some distance, perhaps twenty or thirty feet. It seems the link did not enter the draw-head because it had not been adjusted to the proper height. Perceiving the difficulty, the intestate undertook to change the link into another pocket, so that the coupling could be made. While engaged in that work, the car that had been pushed back by the concussion moved forward again of its own weight; and struck him, inflicting the fatal injury. It is averred in one count of the declaration, the car that caused the injury was unfit for use, in that the brake ratchet was brokén and lost, in consequence of which the car could not be controlled; that intestate did not know of such defect, and that defendant knew, or by the exercise of a high degree of care might have known, of the existence of such defect in time to have had the same repaired. In another count it is averred, the ratchet wheel was so imperfectly fitted and constructed, the dog would not fall in place. The original and amended declaration contains quite a number of counts, in all of which some defect in the ratchet, or dog, or perhaps both of them, is averred, but no other defect in the car is stated. In most, if not all, of the counts, it is averred, by reason of the defect in the ratchet wheel the brake could not be set, and consequently the car was not subject to control.

At the trial, two questions arose in the case as made blithe declaration: First, was plaintiff himself guilty of negligence, or, what is the same thing, did he observe ordinary care for his personal safety; and second, was defendant guilty of negligence in regard to that-which caused the injury. It is conceded the facts are Within the province of the jury to find, and the law applicable to the facts is to be declared by the court. It is for this reason, if the court misdirects the jury as to the law applicable to the facts, it is error. Applying these obvious and well understood principles, there is manifest error in this record.

Before coming to consider some of the propositions of law which the court stated to the jury as fixing the liability of defendant for the death of plaintiff’s intestate, it will be necessary to recur to some of-the principal facts which the evidence tends to establish, and which must therefore be regarded as having been so found. The ear that was the cause of the accident did not belong to defendant. It was a “Blue Line ” car, and belonged to the West Wisconsin Railroad Company. It came on defendant’s road at Joliet, on the night of the 2d of August, and reached Bloomington at 3:25 o’clock the next morning. Left Bloomington at 8:40 o’clock the same day, and went to Jacksonville. It laid there until the afternoon of August the 7th, when it was taken to Roodhouse, and from there it was taken to Jerseyville on the 8th. It left Rood-house, after having remained there about nine hours, at 2:18 A. M., on the morning of the 8th, for. Jerseyville, and in less than an hour thereafter the intestate received the injury from which he died. It appears the company had car inspectors on its line of road over which the car passed, at Joliet, Dwight, Bloomington and Roodhouse, but not at any other stations. The duties .of car inspectors are not prescribed by any written rules, but the duties which they are expected to perform were sufficiently juoved both by plaintiff and defendant. While it is their duty to make reasonably thorough examinations of all cars that come to the stations where they are located, their examination in the first instance is most generally confined to the running and hauling gear of the cars, and unless their attention- is called to a defect in the car by the train men, they seldom go on top of a car to make examination. Of course, any defects that can be discovered must be reported. It is expected that all defects that can only be discovered by going on the top of the cars will be reported to them by the train men. Where the principal shops are located the most thorough examination of cars is made by car inspectors. It is not practicable to make a close examination of the ratchet wheel and dog on freight cars without going upon the top of the car.

Buie 58, given in evidence, is in relation to the duties of conductors and train men. A copy of it is placed in the hands of all employes that have anything to do with the running of trains. It provides: “Conductors and train men must be in attendance at the trains one hour before leaving time, and know personally that everything connected with their trains is in perfect order. ” Another rule makes it the duty of every employe to exercise the utmost caution to avoid injury to himself or his fellows, especially in the switching or other movements of cars or trains. While these rules enacted by the company exact a high degree of vigilance and watchful care of all train men, still they impose no higher duties than the law itself would impose upon them in the absence of all written or printed rules. Such written rules are important, as they make known definitely to all such employes their specific duties. It is the special duty of a brakeman to assist in the control and management of trains. The stopping of heavy freight trains is done largely by the use of the brakes. It is known to every brakeman that it is his duty to manage the brakes, and in that way to assist in stopping and otherwise control the running of these heavy freight trains. His duty in that respect can only be performed by means of efficient brakes. On freight trains brakes are, and can be, put on and let off only by train men employed for that purpose. While they have other duties to perform, managing of the brakes on freight trains is amongst the most important. As brakemen . are expected on such trains to constantly use the brakes, it becomes their reasonable duty to see that they are always in order for working, otherwise there would be no safety for the service. It is as much the duty of a brakeman to observe that the brakes -which he is expected to handle are in working order, as it is that of the engine driver to see that his engine is in order for use. All employes in these respects must be held to a high degree of care to insure any safety at all in railroad service. This is not declaring any new doctrine. It is simply the application of well settled principles, and nothing more. In Illinois Central Railroad Co. v. Jewell, 46 Ill. 99, it was held it was the duty of a brakeman to see that the brake was in a fit condition for use, and the company was not to suffer for the neglect of such duty. It was said, the condition of the brake was a matter under the special care of the brakeman, and it was his business at all times to see that it was in a fit condition for use, and report defects to "the company. The same reasonable rule was declared in Toledo, Wabash and Western Railroad Co. v. Eddy, 72 Ill. 138. The defect insisted upon in this latter case was in the ladder attached to the ear for the use of employes. It was said the evidence showed plaintiff had been in the constant use of the ladder, and it was therefore his duty to know that it was in repair, and if not, to have reported it to the proper person, for repair. It was for that reason held, that an instruction that stated it is an implied contract by the company with their servants that they will keep their road and apparatus in safe repair, and in such condition that all of their machinery in operating the road can be used with safety to their employes, was not accurate, under the evidence. The rule of law undoubtedly is, that it is primarily the duty of the company to provide good, safe and proper machinery, so far as reasonable skill and diligence can construct it; but when that duty has been once performed, it is a duty devolving on the servants operating it, to observe that it is in repair, or report it to the company. There is no reason why employes should be relieved from duties the law has heretofore imposed upon them, nor should their obligation to be watchful be relaxed. There are many cogent reasons why both the company and employes should be held to a strict performance of their respective duties and obligations to each other and to the public.

In view of these well understood principles, and in view of the evidence, some of the instructions asked by plaintiff ought not to have been given. Many of them were highly calculated to mislead the jury as to the law applicable to the facts. The seventeenth instruction of the series is radically wrong. It not only does not state the law accurately, but it was calculated to mislead the jury in their investigation of the case. It is as follows:

“That if the jury believe,'from the evidence, that the printed rules of the company requiring train men to examine their trains were habitually disregarded by the company itself,— that is, if the officers of the company having charge of the freight trains habitually caused such trains to be made up, and sent out on the company’s business after being made up, without affording brakemen an opportunity to examine the train,—such fact, if proven, would cause the rule to lose its authority over the brakemen,—in other words, the rule must be obeyed by the master as well as by the servant, or it ceases to be operative as to both.”

This instruction, on its face, is so obviously erroneous and vicious in the propositions it states, it would seem to be wholly unnecessary to remark upon it. It assumes there is evidence that the officers of the company having charge of freight trains habitually caused such trains to be made up, and sent out after being so made up, without affording brakemen an opportunity to examine them. This is not the fact. There is not a particle of evidence in this record that shows, or even tends to show, the officers “habitually caused” freight trains to be made up and sent out without affording brakemen an opportunity to examine them. But the conclusion stated does not follow from the alleged misconduct of the officers,— that is, the “rule must be obeyed by the master as well as by the servant, or it ceases to be operative as to both.” Exactly what is meant by this proposition is not readily understood. The rule was never intended to have any application to the management of the company. It relates exclusively to conductors and train men. If it means that negligent conduct on the part of officers whose duty it is to make up and send out freight trains would relieve the company from the obvious duty to cause its cars to be inspected, nothing could be more erroneous or hurtful to railroad service. As before stated, the rule imposes no higher duty upon brakemen than the law itself imposes in regard to the inspection of that part of the machinery of cars which they are required to use in performing their customary work, and it would be a most dangerous doctrine to hold that the omission of duty by other employes would relieve them from the duties and obligations the law exacts of them. The public exigency requires of all railroad employes a high degree of care in the running and management of trains, and the omission of duty by one servant can not excuse another from his obligation to observe care,—otherwise railroad service.would be most dangerous both to freight and passenger traffic.

In this connection it is proper to remark, the objection taken by defendant to the evidence permitted to go to the jury, that some, and, perhaps, a good many, brakemen omitted to observe rule 58, should have been sustained. That testimony was clearly inadmissible. It can not be that the omission by one servant to perform bis duty would afford the slightest excuse for the 'same negligent conduct in another employe. No matter how many other brakemen may have neglected to observe the rule, it was the duty of the intestate to conform to it as near as practicable, and any instruction that advised the jury he might be excused from the performanee of liis duty in that respect, was positively erroneous. It may also be further remarked in this same connection, that while plaintiff’s counsel disclaimed any purpose to prove what were the customary or usual duties of brakemen on defendant’s road, he was permitted to and did prove what was termed the “work” of brakemen. The word “work,” in the, sense used, could mean nothing else than “duty. ” As used, the words are convertible terms, and obviously mean the same thing. Either party had the right to prove what were the customary and usual duties of brakemen, as to the inspection of the brakes, but that privilege was denied, by the rulings of the court, to defendant. In this there was error.

The second instruction of the series given for plaintiff is Also objectionable, both as to the phraseology and as to the propositions of law it assumes to state. It is as follows:

“That where a railroad company undertakes the work of inspecting its cars, and is shown, by the evidence, to have intrusted that work to other servants than its brakemen, a brakeman employed by that railroad company, who goes upon one of the company’s trains to work, has a right to expect that the cars with which he is to work are safe and suitable ears wherewith to work, and that the company employing him has exercised a reasonable degree of care to ascertain and remedy any defects arising from want of repair, which would be discovered by a reasonably careful inspection, if such defects, for want of repair, will make the cars unsafe to the life and limbs of the brakeman while he is doing his work in a reasonably prudent manner, and using ordinary care for his own personal safety, and to ascertain any defects in the cars caused by want of repairs, if any. ”

This instruction assumes it is shown, from the evidence, defendant had intrusted the work of inspecting its cars, to “other servants than its brakemen. ” Whatever defendant may have done in that regard, was a question of fact for the jury, and not a fact to be stated by the court. It makes the impression on the mind, it is shown by the evidence in this case, defendant had intrusted the work of inspecting its cars to other servants than its brakemen, and in that respect it was erroneous and misleading. But a worse feature of this instruction is, it implies, by its terms, that when a railroad company employs local inspectors' of its cars at particular stations, it thereby relieves all brakemen from the duty to observe whether the brakes on the cars they may be using, are in repair and fit for present use. If this is not its meaning, it can have no possible application to the facts of the case. That this is its evident meaning, is clear from what follows, when it is said such brakeman “has a right to expect that the cars with which he is to work are safe and suitable wherewith to work, ” and that the inspection has been donue with such care that he may enter upon the work of braking without making any examination for himself. The principle sought to be stated could not be regarded as law in any event, unless it had been added when the company had intrusted the exclusive work of inspecting its cars to other servants than brakemen. That, however, is not this ease. The fact defendant. may have employed and did employ car inspectors at certain stations, did not relieve brakemen from the duty to observe the rule in regard to inspecting that part of the ma-° chinery they are expected to handle. The duty in that respect is as imperative as if they were the sole inspectors. It is simply laying the same duty upon other servants as an additional guaranty the work may be faithfully and certainly done. Aside from this view, these car inspectors are local, at stations wide apart, and it is therefore impracticable for them to inspect brakes and other machinery at every station, as the safety of the service requires shall be done. But it is apprehended it is not in the power of the company to relieve brakemen from the obligation to observe care in doing the work particularly allotted to them, by rule or otherwise. The law exacts of every employe the observance of reasonable care and diligence in the work assigned to him, and that duty he can not he relieved from, by his employer or otherwise. That would be to permit the employer to allow negligence in the servant, which the law will not tolerate under any circumstances. Any instruction that holds that a servant in the employ of a railroad company may be relieved from the observance of that care the law exacts of him, is pernicious in the extreme.

The third instruction assumes, in direct terms, “such inspection is taken by the master, ”—that is, the inspection of its cars, in this case,—and for that and other obvious reasons is faulty, and should not have been given.

In many of the instructions the jury were told it is an undertaking of a railroad company with its brakemen, to exercise reasonable care to furnish safe and suitable cars to work with. That is undoubtedly the law, but the doctrine stated has nothing whatever to do with the present case, and, under the evidence, was calculated to mislead the jury. It is not pretended the car that caused the death of the intestate was faulty in its original construction. The only ground of liability, as stated in the declaration, is, that the ratchet wheel and the dog,—one or both of them,—were out of order. No other defect is alleged to exist in the ear; nor does the proof show it was otherwise imperfect in its construction, or that it was in any way out of repair. The attention of the jury should have been directed to the defects stated in the declaration, and not, generally, to the condition of the ear, about which no controversy existed. This manner of instructing the jury was condemned by this court in Toledo, Wabash and Western Railroad Co. v. Eddy, supra.

The giving of the seventh of plaintiff’s instructions makes some further discussion necessary, and will warrant an allusion to some facts in the case not previously stated. By it the jury were told, in substance, if they believe, from the evidence, it was no part of the duty of brakemen to inspect freight ears, and to ascertain defects making the same unsafe, then it was the duty of defendant to provide some method of inspecting such cars, whereby such defects could, by the exercise of ordinary care, be ascertained and remedied, and the omission to do so would render the company liable for an injury to a brakeman using the same with ordinary care. If this charge simply means, the jury may find it is no part of the duty of a brakeman to inspect cars, generally, as to their construction, the strength of the wheels or axles or timbers used in constructing them, undoubtedly the jury might so find, for no one pretends it was any part of the duty of a brakeman to make any such general inspection of cars. But whether it was the duty of brakemen to make a general inspection of freight cars, is not now and was not a question on the trial, and it .was error to introduce it into this case, by instruction or by argument. Neither rule 58 nor the law requires any such duties of brakemen. What the rule and what the law do require of them is, that they shall observe whether the machinery they are to handle is in order, and reasonably fit for use: and if this instruction means, the jury might believe, from the evidence, brakemen were not bound to observe their duty in that respect, it was faulty, and should not have been given.

The concluding sentence of the instruction is also calculated to and no doubt did mislead the jury. It says : “If he (intestate) had no notice, or by the exercise of reasonable care could have had no notice, of that dangerous and defective condition of the car.” Here again a vice, common to many of the instructions given for plaintiff, is apparent. ' What reason was there for directing the attention of the jury to “that dangerous and defective condition of the car?” No complaint had been made as to the car itself. So far as this evidence discloses, it was well constructed, and in repair. Why was not the attention of the jury directed alone to the ratchet wheel and the dog, that rendered the brake inefficient ? No other ground of liability was stated in the declaration, or oven claimed by the proof. It is simply absurd to direct the jury to inquire whether the intestate could, by the exercise of ordinary care, have discovered the condition of the ratchet wheel and dog, if they were in the condition the witnesses say they were. The slightest examination would have disclosed their exact condition, and the law imposed upon him the duty to make examination with reasonable care. The brakeman employed on the train with the intestate discovered its condition as soon as he touched the brake. Had the intestate tried the brake at any time, he would have learned, as his fellow-brakeman did, it was out of repair. Surely, by the exercise of ordinary care he could have discovered its condition, and charging the jury to inquire whether he could have ascertained its condition by the use of ordinary care, is simply to afford them a. pretext to find the intestate did not know the condition of the brake, that they might find a verdict for plaintiff.

The great number of instructions given on behalf of both plaintiff and defendant, renders it impracticable to comment on all of them, without extending this opinion to a most unreasonable length. Enough has been said to indicate to the trial court the views entertained by this court as to the law applicable to the facts, and on another trial the instructions should be made to conform, as nearly as practicable, to the law, as stated in this opinion.

The judgments of the Appellate and circuit courts will be reversed, and the cause remanded to the circuit court.

Judgment reversed.

' Mulkey, 0. J., Shops and Magruder, JJ., do not concur in the opinion in this case.