text:
    James Downey et al. v. Scott Arnold.
    1. Presumptions — Of Ownership from Possession. — Where a person in possession of a piano executed a chattel mortgage upon it, in the absence of evidence to the contrary it will be presumed from the circumstance that he was the owner of it before the mortgage was given.
    2. Construction of Statutes — Chattel Mortgage Act of 1889. — The act of June 5, 1899, entitled “ An act to regulate the foreclosure of chattel mortgages on household goods, wearing apparel and mechanics’ tools ” (Laws 1889, p. 208), requiring the joinder of husband and wife in mortgages on household goods, is made for the benefit of each, and of the domestic relation, and does not operate to transfer the title from one to the other so as to .subject the property to execution against the one who does not own it.
    3. Possession — Of Chattels Sufficient to Hold, Them Against' a Stranger. — The possession of chattels is always sufficient to hold them against another who is not shown to have an interest in them.
    Replevin. —Appeal from the County Court of McLean County; the Hon. Roland A. Russell, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    James L. Loar, attorney for appellants.
    Chas. M. Peirce, attorney for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This was a suit in replevin for a piano, by appellee against appellants, and upon a trial by jury the issues were found in favor of appellee, and the damages assessed at $10, and a motion by appellants for a new trial having been overruled by the court, judgment was rendered upon the verdict, to reverse which appellants bring their appeal to this court, and to effect such reversal they argue that the verdict is contrary to the law and the evidence of- the case, the court admitted improper evidence, misdirected the jury and .refused proper instructions.

The facts are that the piano was in the possession of Louis Arnold, a son of appellee, who was residing with his wife as a tenant upon his father’s farm, where the piano was kept in the house. The son, being indebted to the father for $1,890, gave his note and a chattel mortgage upon the piano to secure the same, and afterward, the note not having been paid, the piano was sold under the mortgage, and appellee purchased it at the sale, and left it at his son’s house where it previously had been. There being no evidence in the record concerning the real owner of the piano, except the chattel mortgage executed by Louis Arnold, it will be presumed from that fact that he was the owner of it before the mortgage was given. Appellant McCormick Harvester Machine Company obtained a judgment against Smail and Mrs. M. L. Arnold, the wife.of Louis Arnold, upon which an execution issued, and was placed in the hands of the appellant Downey, a constable, who seized the piano as the property of Mrs. M. L. Arnold, whereupon appellee, to recover the property, brought this suit. Appellants contend that the piano was household property and for such reason the mortgage was void without the wife joining therein, and that the chattel mortgage sale was void because appellee had no right to purchase at his own sale. There is no evidence tending to show that the debt represented by the judgment and execution was contracted by the wife of Louis Arnold for the expense of the family or education of the children, so as to be chargeable upon the property of . the husband, and even if this was true, the property of the husband would not be liable to be seized upon an execution to which he was not a party. If it should be conceded that both the mortgage, and the sale under the mortgage, were void as contended, still the son would have the right to give the piano to his father, if the son owned it, independently of both the mortgage and the sale thereunder, unless such gift was to defraud the son’s creditors. If both mortgage and sale were invalid as such, no reason is perceived why the actual possession of the property should not be transferred from son to father-by that means. Appellee testified that he took possession of the property, and left it at the house. This is ■ not disputed, and if the son and his creditors have made no objection to the transfer of the property in this manner, surely it is no concern of others who have no interest in or rights to the property. The evidence does not show Mrs. Arnold ever had any title to the property, whether the same constituted household goods or not, nor any interest subject to execution. The chattel mortgage act, requiring the joinder of husband and wife in a mortgage on household goods, is made for the benefit of each, and of the domestic relation, but does not operate to transfer the title from one to the other, so as to subject such property to execution against the one who does not own it.

The evidence fails to show that Mrs. Arnold had any title to the piano, and therefore the bare possession by appellee, even if merely constructive, if with the consent of the owner, when the property was taken by appellants, was sufficient to enable him to maintain this suit, and the question that has been argued, whether a valid title was conferred upon appellee, does not arise. Possession of chattels, "is always sufficient to hold them against another who is not shown to have an interest in the property. This rule is so familiar and elementary as to need no authority in support of it.

Ho other verdict than the one that was returned would have been proper in the case, and this being true, all other errors argued by appellants are harmless, and their consideration superseded. .

The judgment of the County Court will be affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Burroughs

license: Public Domain

text:
    City of Danville v. Abram Bolton, for the use of, etc.
    1. Appellate Court Practice — Question of Excessive Damages To Be liaised in the Trial Court. — If an appellant does not claim in his notice for a new trial in the court below that the damages awarded are excessive he will not be heard to raise the question in the Appellate Court.
    2. Same — The Question of Excessive Damages Must be Assigned for Error. — When the question of excessive damages is not assigned for error, an appellant is not in a position to urge in the Appellate Court that the judgment should be reversed-for any error in that respect.
    8. Damages — Where $%25 is Not Excessive. — Where the street in front of the plaintiff’s lot was cut down by the city and the evidence showed that it was damaged from nothing to $400, the question of the amount of such damages being one of fact for the jury, it was their province to reconcile the evidence and determine the amount of such damages; a verdict for $225 will not be disturbed on the ground of its being excessive.
    Trespass on the Case, for damage to city lots by cutting down the grade of a street. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this ■ court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    J. H. Lewman, attorney for appellant.
    G. W. Salmans and Fred Draper, attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

Appellee, as owner of lot 10 in George W. Abdill’s first addition to the city of Danville, Illinois, sued said city (the appellant) in the Circuit Court of Vermilion County, in an action on the case to recover damages alleged to have been occasioned to him by reason of the city having cut down the surface of McKinley avenue, upon which said lot fronted. The case was tried by jury and resulted in a verdict and judgment in favor of appellee for $225 damages: The city moved for a new trial, alleging as grounds therefor, that the verdict was contrary to the law and evidence, and against the law and evidence; that the court admitted improper evidence on behalf of the plaintiff (appellee), and refused to admit proper testimony offered by defendant (appellant); but it was overruled and the city preserved an exception. The city prosecutes this appeal to obtain a reversal of the judgment and has assigned and argues for error that the damages awarded are excessive, and that the court admitted improper evidence; and without assigning as error, argues that the court gave improper instructions at the instance of appellee.

Inasmuch as the city did not claim in its motion for a new trial in the court below that the damages awarded are excessive, nor in said motion or in the errors assigned, that the court gave improper instructions, it is .not in a position to urge in this court that the judgment should be- reversed, for any error in that respect. Ditch et al. v. Sennett et al., 116 Ill. 288. But even if it was, the evidence shows that in the opinion of witnesses shown to be conversant with the lot and the extent to which the surface of the street was cut down in front of appellee’s lot, the damages occasioned thereby to the lot, were from nothing to $100, and it being a question of fact as to the amount of such damages, it was their peculiar province to reconcile and determine that fact, and their verdict of $225 being within the extremes, will not be disturbed on the ground of being excessive.

There was some conflict in the evidence as to how much the street was cut down in front of appellee’s lot after he purchased it in 1898, and before suit brought, and how much of it was cut down prior to 1898, and before appellee purchased it. Appellee himself and other witnesses in his behalf, testified that it was cut down from two and one-half to four and one-half feet since 1898, and the court, where the witnesses knew how much the street had been cut down altogether but did not know how much had been done before and how much after appellee purchased it, over the objection of counsel for appellant, permitted them to give their opinion as to how much the lot was damaged, assuming that the street was cut down from two and one-half to four and one-half feet after appellant purchased it. And that ruling of the court is now claimed to be erroneous.

But we are of opinion that the court properly admitted the testimony for the reason that there was testimony tending to show that the street had been cut down that much after appellee purchased the lot, and he was entitled to have the jury hear the opinion of witnesses as to the damages done it by cutting the street down that much after appellee purchased it. And if the jury, from all the evidence, should be of opinion that, the street had been cut down after appellee purchased it, to the extent claimed by. appellee and his witnesses, then they would have' that testimony to guide them in arriving at the amount appellee should be allowed therefor.

The court, over the objections of counsel for appellant, also permitted appellee to show that in cutting down the street, an encroachment was made of some two or more feet upon appellee’s lot, and that ruling of the court is urged as being erroneous upon the ground that .the cutting down of the street and the encroachment, if any, was done by one Palmer, for the city, and he and not the city is liable to appellant for the encroachment.

But while the evidence does show that Palmer did the. actual work of cutting down the street and the encroach-, ment, if any, yet it also shows that he did it under the immediate directions and control of the officers of the city, and that they directed how much cutting down should be done, and where; so for that reason the court properly admitted this testimony also..

We have read and carefully considered all the evidence m this record, and the rulings of the court upon it, as also the given instructions of which counsel for appellant complain, and are satisfied that the damages awarded are not excessive, and that the court committed no prejudicial errors against appellant in any of his rulings upon the evidence or instructions; therefore the judgment ought to be, and will be affirmed.


text:
    A. M. Hewitt v. D. G. Hornbuckle.
    1. Evidence — When Incompetent in-Proceedings by Distress for Rent. — In a proceeding by distress against a tenant for a breach of a lease in which he had covenanted not to remove any of the grain grown on the land, or to sell the same or any part of it, until the rent was fully paid, it is error to permit him to testify, over the objection of the landlord, that “thereason he hauled off the corn at night was that he was hungry and needed money, and it was the only way he could get money to buy anything to eat,” as such evidence is calculated to unduly arouse the sympathies of the jury in favor of the tenant.

      2. Same — As to the Lessor's Failure to Repair Fences and Cut Weeds. —In a proceeding against a tenant for a failure to comply with the provisions of a lease requiring him to keep “ all fences in good repair and to build such new ones as might be needed, the lessor furnishing the rails, posts and such other material in the timber, and to keep the land freed from weeds,” to permit the tenant, over the objection of the lessor, to show that he (the lessor) never rebuilt or repaired the fences or cut the weeds on the demised premises as the tenant should have done according to the provisions of the lease, is improper and prejudicial to the landlord.
    3. Instructions — In Proceedings by Distress for Rent. — In a proceeding by distress for rent, it is error to instruct the jury that if they believe from the evidence that the plaintiff, after leasing the premises to the defendant and before the expiration of the term, without the consent of the defendant, leased a part of the premises to another party, and without the consent of the defendant deprived him of the possession of that part so leased to such other party, then in law the defendant was released from the payment of all rent accruing under the lease, notwithstanding he continued to occupy a portion of the demised premises after that time, where the evidence shows that the defendant requested such leasing and surrendered that part of the premises before it was let to such other party.
    4. Same — As to Estoppel by Surrender — Distress for Rent. — In a proceeding by distress against a tenant for a failure to keep the covenants of a lease under seal, an instruction that if the jury should believe from the evidence that during the term of the lease in question the defendant voluntarily surrendered to the plaintiff the possession of any portion of the premises described in said lease, and that the plaintiff consented to such surrender, either by express words or by acts of control over such portion of said premises, then and in that event the plaintiff would be estopped from recovering any rent of the premises 'so surrendered, and would be estopped from claiming any damages for a breach of any of the terms of said lease pertaining to the portion of said demised premises so surrendered, is proper, and should be given.

      5. Same — As to a Surrender Where the Lease Is Under Seal.- — In a proceeding against a tenant by "distress, an instruction that ’under the law the terms of the lease could not be changed or varied except by a written instrument under seal and' signed by the parties, and even though the jury might believe' from the evidence that a verbal agreement was made between the lessor and the lessee by which the lessor was to take the remainder of the land, except that put in com by the lessee, and changing the terms of the lease, such verbal agreement is not binding in law and should not be considered by the jury in arriving at their verdict in the case, is properly refused, where the evidence tends to show that there had been a surrender of a portion of the demised premises.
    Distress for Bent. — Appeal from the Circuit Court of Christian County: the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    J. C. & W. B. McBride, attorneys for appellant.
    Drennan & Anderson, attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion Of the court.

On February 17, 1899, appellant instituted in the Circuit Court of Christian County, distress for rent proceedings against appellee, and in his landlord’s warrant claimed that he leased to appellee a farm of 188 acres, situated in said county, for the crop year of 1898; and the warrant charged that appellee failed to pay appellant $50 of the cash part of the rent of the farm, and failed to cultivate a part of the farm, to wit, fifty acres, to cut the weeds, to repair the fences, and to properly cultivate the crops he planted thereon as in the lease he had expressly agreed to; and that by reason thereof, appellant was damaged in the sum of $250 above the $50 cash rent, making in all $300 which appellee owed appellant under the terms of the lease; that without the consent of appellee, appellant sold and removed, or permitted to be sold and removed, and was about to sell and remove, or permit to be sold and removed from the farm, such portion of the crops grown thereon for said year, as would endanger appellant’s lien upon same for said rent and damages.

The warrant was levied upon a lot of corn and oats, and the same was indorsed on it, and it was returned to the ■ Circuit Court.

To the warrant, appellee pleaded a general denial, upon which issue was joined and the proceeding was tried by jury and a verdict rendered for appellee. Appellant moved for a new trial, which was overruled and judgment entered upon the verdict. He excepted, and brings the proceeding to this court by appeal, and to reverse the judgment, alleges and argues for error, that the court admitted improper evidence, gave improper instructions at the instance of appellee, refused a proper instruction requested by appellant and improperly changed another instruction from what it was when requested by appellant, and gave it as changed, and that the verdict is against the evidence.

The bill of exceptions shows that appellee rented from appellant by a written lease, the 188 acres of land, as claimed in the warrant, and therein agreed to pay as rent $5 an acre for the grass or pasture land, and one-half of the grain and other products raised upon the land, to be delivered at Clarksdale or fed on the premises as appellant should direct; appellee also agreed to keep all fences upon the farm in good repair, and build such new fences as may be needed, appellant furnishing the rails, posts and such other material in the timber. And it was further expressly agreed between them that appellee should farm the land in a good husband-manlike manner, raise the greatest amount of grain upon it that the soil and season would permit, keep the land free from weeds, brush and burs, and keep all necessary ditches and drains plowed and cleaned out during the continuation of the lease.

And appellee covenanted not to remove any of the grain grown on the land or to sell the same or any part thereof until the rent was fully paid, and that in case any grain should be removed or attempted to be removed, or if appellee should sell or attempt to sell said grain or produce, or any part thereof, before the rent is full paid, then the rent shall immediately become due and payable, and appellant shall have the right to enter, take possession, remove the same and sell it, and if it shall not be sufficiently matured for harvesting or gathering, to cultivate, protect and preserve it until it shall be fit, and then gather, harvest and sell it or any part of it, at private or public sale, and apply the proceeds thereof to the payment of the expenses and costs of carrying out the provisions of the lease and the payment of said rent. And that if appellee shall fail to cultivate the land as set forth in the lease, or shall fail to keep any of the covenants, all damages growing out of such failure shall be added to and become a part of the rent and recoverable as such.

That for the crop year of 1898, appellee sowed about twenty-five acres of the land in oats, and planted about fifty acres of it in corn, and used about ten acres of it to pasture his stock, and in the spring of that year he informed appellant that he would not plant any more of it in corn, that it was too late and wet to put any more of it in oats, and requested him to rent it to some one else; but appellant insisted upon appellee cultivating the farm, as he had, by the lease, agreed to, and appellant promised to furnish appellee help to aid him to do so. Appellee, however, would not plant more than the fifty acres in corn, declined to let appellant furnish help to aid him, and insisted upon appellant letting some one else put the balance of the land in corn; and on May 29, 1898, appellant rented fifty acres of it to one Hogarth, who planted that,much of it in corn, and the remainder of the farm, being about fifty acres, was not used or cultivated by any one.

Appellee did not cultivate the part of the farm which he used very well; neither did he repair the fences, cut the weeds, or keep the burs off the land, as he had, by the lease, agreed to; and, without paying appellant any part of the rent, partially thrashed the oats be raised and partially shucked the corn he grew, and began selling and hanling them off, and, by the help of others, bad succeeded in getting the larger part of them away, and was, on the night of February 25, 1899, himself hauling some away, when he was stopped by the levy of landlord’s warrant in this case.

Over the objection of appellant, the court permitted appellee to testify that the reason he hauled corn off at night, was that he was hungry and needed money, and it was the only way he could get money and buy something to eat, and it is urged that this testimony was improperly admitted and was prejudicial to appellant.

This testimony, in our opinion, was not competent under any issue involved herein, and being well calculated to unduly arouse the sympathy of the jury in favor of appellee, should not have been admitted.

At the instance of appellee, the court, over the objections of appellant, gave the jury the following instructions:

“ 1. The court further instructs the jury, that the principle upon which a tenant is required to pay rent is the beneficial enjoyment of the leased premises. And if the jury believe from the evidence that the plaintiff, after leasing the premises to the defendant, before the expiration of said lease, without the consent of the defendant, leased a part of said premises to Richard Hogarth, and thereby, without the consent of the defendant, deprived the defendant of the possession of that part of said leased premises, so leased to said Hogarth, then, in law, the defendant was thereby released from the payment of all rent accruing under said lease, notwithstanding the fact that the defendant continued to'occupy a portion of said leased premises after that time.

“ 2. The court further instructs the jury, that if the jury should believe from the evidence that during the term of the lease in question the defendant voluntarily surrendered to the plaintiff the possession of any portion of the premises described in said lease, and that the plaintiff consented to such surrender, either by express words or by acts of control over such portion of said premises, then, and in that event, the plaintiff would be estopped from recovering any rent of the premises so surrendered, and would be estopped from claiming any damages for a breach of any of the terms of said lease pertaining to the portion of said demised premises so surrendered.”

And refused to give the following instruction offered by appellant:

“The court instructs the jury, that the lease or contract offered in evidence is under seal, and that under the law the terms of such lease could not be changed or varied excepe by a written instrument under seal and signed by the parties; and even though you may believe from the evidenct that a verbal agreement was made between Hewitt and Hornbuckle, by which Hewitt was to take the remainder of the land, except that put in corn by Hornbuckle, and changing the terms of such contract, such verbal understanding or agreement is not binding in law, and should not be considered by the jury in arriving at their verdict in this case.”

And changed the following instruction offered by appellant by adding thereto the words in parenthesis:

“ The court instructs the jury, that even though you may believe from the evidence that Hewitt did not rebuild the fence or cut the weeds required by the lease, if any to be rebuilt and cut by Hornbuckle, this'would not release Horn-buckle from the performance of these matters (if required of him) under his contract, and he would be liable for the damages sustained, even though Hewitt did not rebuild the fence or cut the weeds.”

And over the objection of appellant, permitted appellee to show that appellant never rebuilt or repaired the fences or cut the weeds on the demised farm, which appellee should have done according to his covenants in the lease.

The testimony was improper and prejudicial to appellant, and ought not to have been admitted because it was not necessary for appellant to rebuild or repair the fences or cut the weeds in order to recover damages from appellee for his failure to do so in accordance with his covenants in the lease; and besides, the court failed to correct whatever prejudice this objectionable testimony might have worked upon the minds of the jury against appellant, by refusing to give the instruction as it was requested; and by the change, improperly left it to the jury to determine whether the contract (lease) required appellee to rebuild the fences and cut the weeds, when it was the province of the court, and not the jury, to construe the contract (lease) between the parties.

The first of appellee’s instructions should not have been given, for by it the court told the jury that if they believed from the evidence that the plaintiff, before the expiration of the lease, and without the consent of appellee, leased a part of the demised farm to Hogarth and deprived defendant of same, then in law, he was thereby released from payment of all rent accruing under the lease, notwithstanding he continued to occupy a portion of the demised premises after that time, when the evidence showed that appellee requested such leasing, and surrendered that part of the demised farm which appellant rented to Hogarth; and appellee could not voluntarily surrender a part of the farm to appellant and retain the other, and then refuse to pay rent upon the part he retained.

Appellee’s second given instruction was proper under the evidence and is not open to the objection which counsel for appellant urges against it. And appellant’s refused instruction was properly refused, because the evidence tended to show that there had been a surrender of a portion of the farm, and it should not have been given for that reason.

The verdict is against the evidence, and was most likely influenced by the improper evidence admitted and the erroneous iulings of the court on the instructions above indicated, and therefore we will reverse the judgment and remand the case for a new trial, not inconsistent with the views herein expressed. Reversed and remanded.

CASES IN THE APPELLATE COURTS OF ILLINOIS. Fourth District — August Term, 1901.


author: Mr. Justice Worthington

text:
    Gustav Serber v. Thomas McLaughlin.
    1. Contracts — Performance—Elementary Law. — When a contract is entered into to do a thing which is possible in itself, that the promisor will be liable for ap breach of it, notwithstanding it is beyond his power to perform it, is elementary law; for it is his own fault to run the risk of undertaking to perform an impossibility, when he might have provided against it by his contract.
    2: Same — Conflicts Arising from the Employment'of Union and Nonunion Labor. — Conflicts arising from the employment of union and nonunion labor are matters of such general knowledge that contractors must be held to have notice of them and assume the risk of any delays, or suspension of their contracts, that may occur through their men refusing to work.
    8. Same— When There Can Be No Recovery for Part Performance.— When a contractor fails to perform his contract, the contract being entire, and his failure without legal excuse, he can not recover upon a quantum meruit.

    4. Same— When No Recovery on a Quantum Meruit is Authorized.— Where parties make an express contract, no contract will be implied; the action must be upon the express contract, and the recovery under its terms; no recovery on the quantum meruit is authorized or can be sustained.
    Assumpsit, on quantum meruit. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1901.
    Reversed, with a finding of facts.
    Opinion filed October 21, 1901.

      Statement. — This suit was commenced before a justice by appellee, where he recovered judgment for $100, from which an appeal was taken by defendant to the City Court of East St. Louis. When tried in that court, the jury returned a verdict in favor of plaintiff for $130. Upon the hearing of a motion for a new trial, plaintiff remitted $30, whereupon judgment was rendered against defendant for $100, from which judgment he appeals.
    The action is in the nature of a quantum meruit to recover for work and labor done, and material furnished, upon an oral contract entered into by appellee and appellant, October, 1899, to do the lathing and plastering and furnish material complete, for $480, on appellant’s hous.e. Appellee sublet the lathing to one Alcott. Some material was furnished and some labor done, when the men employed by Alcott who belonged to a labor organization, quit work and refused to proceed because appellant had a non-union carpenter working in the building, whom he would not discharge. Appellee claims that in consequence of such refusal to discharge the non-union carpenter, he was prevented by appellant from completing his contract, and that in consequence thereof, he is entitled in law to recover upon a quantwn meruit. On November 28, 1899, appellant served notice on appellee to resume work and speedily complete his contract or it would be forfeited and he would be held for damages, etc., in consequence of such failure.
    Kurt Von Reppert, attorney for appellant.
    Wm. P. Launtz, attorney for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

Counsel for appellee in their brief present the reason for appellee’s not fulfilling his contract, substantially as follows :

“ The main facts are an agreement by defendant to pay plaintiff $480 for furnishing material and labor, and plastering certain premises. This was a verbal agreement, made in October, 1899. McLaughlin got ready to do the job, saw the wholesale and retail men, purchased some one bundred and thirty-five bushels of lime, the hair, and com■pleted his contract Avith the lumbermen for the lath; also had his horses and scaffolding, hauled some eight loads on the premises, lime slacked and run off, and some seven or eight hundred yards of lath put on by his subcontractor, Alcott, all of which consumed about three weeks’ time. Thus the work was progressing when the walking delegate of the carpenters’ and plasterers’ unions discovered that Serber was Avorking a non-union carpenter, and notified McLaughlin’s men to quit work, which they were compelled to do. * * * McLaughlin immediately informed Serber that his men had been called off and urged him to withdraw from the building the non-union carpenter so that his Avork might be proceeded with. Serber said: ‘JSTo, they would have a point on him.’ McLaughlin and Alcott went to Serber and urged Serber to remove the obstruction that they might proceed with the work. But the stubbornness of Serber could not be o Acercóme. We have here a spectacle of Serber preventing, by his physical act, the doing of the very thing the party prevented is exceedingly anxious to do.”

It is not claimed that it was a part of the contract that appellant, Serber, should not employ non-union labor. Whatever may be thought of his persistency in refusing to discharge the non-union laborer who Avas in his employ, he had a legal right to so refuse, and such refusal was not in law an act that can be held to have prevented appellee from performing his contract. If he desired to guard himself against such a contingency, he should have so provided in his contract.

It is said in Walker v. Tucker, 70 Ill. 527, in treating of the obligations of a contract, it was incumbent on appellants to know, and the presumption is they did know when they made this covenant, the difficulties to be encountered in performing it. It is elementary law that when the contract is to do a thing which is possible itself, the promisor Avill be liable for a breach thereof, notwithstanding it was beyond his power to perform it; for it was his own fault to run the risk of undertaking to perform an impossibility, Avhen he might have provided against it by his contract. Citing Chitty on Conts. (11th Am. Ed.), 1074.

The conflicts arising from the co-employment of union and non-union labor are matters of such general knowledge that appellee must have known of them. He contracted to do a part of the work upon a building in process of erection at a fixed price. He assumed the risk of any delays, or suspension of his contract that might occur through his men refusing to work. Having failed to perform his contract without any legal excuse for such failure, he can not recover upon a quantum meruit for a part performance.

It is said in Illingsworth v. Slossen, 19 Ill. App. 612:

“ The plaintiff having clearly proven that he failed to perform the contract, we are at a loss to understand how he could obtain remuneration for what he did in trying to perform it. It does not appear that he was prevented from accomplishing what he undertook by any act of defendant, but it does appear that he could not accomplish what defendant agreed to pay him for performing. The contract is entire. What was to be done by one party and what was to be paid by the other is certain and fixed. In such case there can be no apportionment, and no recovery for any part of the consideration until that for which it is agreed to be paid has been performed. 2 Parsons on Contracts, 520-522; Rockwell v. Newton, 44 Conn. 333.

Where the parties have made an express contract, no contract will be implied, and the action must be upon the express contract, and the recovery under its terms; and no recovery on the quantum meruit is authorized or can be sustained. Walker v. Brown et al., 28 Ill. 378; Ford v. McVay, 55 Ill. 119; Sickles v. Pattison, 14 Wend. (N. Y.) 257.”

Holding, as we do, that the refusal of appellant to discharge a laborer under his employ upon the demand of appellee was not in law a prevention of appellee from performing his contract, and that no sufficient cause is shown for its non-performance, we think the instruction to find for the defendant, asked by -appellant at the close of plaintiff’s evidence, and again at the close of all the evidence, should have been given. Judgment reversed.

Finding of Facts. — In October, 1899, appellee contracted to furnish material and to lath and plaster a house for ■ appellant in process of erection, for $480, and commenced to execute' his contract. That during its execution, his men employed in the work refused to continue at work upon the order of a “ walking delegate,” because appellant had in his employ on the building a non-union carpenter. That appellee requested his discharge and appellant refused to discharge him. That appellee failed for this reason to complete his contract, and that appellant served written notice upon him, on the 28th of November, 1899, to complete his contract, which he did not do, and the work was finished by appellant. We find that appellee was not prevented by appellant from completing his contract.


author: Opinion per Curiam.

text:
    The People, etc., ex rel., etc., v. School Directors, etc.
    1. Appellate Court Jurisdiction— Where a Franchise is Involved. —Any judgment which can properly be rendered in a case where this court is called upon to determine whether an alleged franchise does in fact and in law exist, and where the litigation has no other aim or purpose, a franchise is involved.
    2. Franchise — Defined.—The privilege or right to be a body politic and corporate, is a franchise.
    Quo Warranto. — Error to the Circuit Court of Jefferson County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the August term, 1901.
    Dismissed.
    Opinion filed October 21, 1901.
    Laird & Laird, attorneys for plaintiff in error.
    William H. Green, attorney for defendants in error.
   Opinion per Curiam.

This was an information in the nature of a quo warranto, in the Circuit Court of Jefferson County, by the plaintiff m error against defendants in error, requiring defendants in error to show cause by what warrant they claim to be a body politic and corporate.

At the threshold of investigation of this case lies the question as to our jurisdiction; for if we have not jurisdiction of the subject-matter, we are under no duty to investigate, and have no power to determine any of the issues raised, no more those that pertain to the rules of procedure in our court than those that pertain to the merits of the case.

The .privilege or right to be a body politic and corporate is a franchise. Any judgment that could be properly rendered in this case must determine whether the franchise claimed does in fact and in law exist, for the litigation has no other aim, and so a franchise is necessarily involved. The following cases are conclusive : Smith v. The People, etc., ex rel. etc., 55 Ill. App.508; People, ex rel., etc., v. O’Hara et al., 128 Ill. 20; People, etc., ex rel., etc., v. Cooper et al., 139 Ill. 461; School Trustees v. School Directors, 190 Ill. 390. The statute provides that “Appeals and writs of error shall lie from the final orders, judgments or decrees of the Circuit * * * Court directly to the Supreme Court, in all cases involving a franchise.” This case involves a franchise; we therefore have no jurisdiction. The cause is dismissed, with leave, to plaintiff in error to withdraw papers.


author: Mr. Presiding Justice Creighton

text:
    Consolidated Coal Co. of St. Louis v. Edward Lundak.
    1. Master and Servant — Exemption from Liability by Contract. — A master can not, by contract with a servant, in consideration of the employment, exempt himself from liability to the servant for injuries sustained through his negligence.
    2. Mines and Mining— Rishs of the Employment — When Not Assumed by the Employe — Rules of the Proprietor — Notice.—The mere making of a rule by the proprietor of a coal mine providing that “every person accepting employment in the mine does so with full notice that the danger, from falling roof and coal is one of the usual risks of his service, and he will govern himself accordingly,” and posting the same in the mine with a notice that “ all employes must read and understand the rule, which is required by law and made to secure their safety, and which every employe by remaining in the service of the company agrees to abide by and obey as a contract between him and the company,” will not constitute a contract between the company and its employes to assume the danger of falls from the roof of the mine as one of the usual and ordinary risks and hazards of his employment.
    3. Instructions — Actions for Personal Injuries — Approved Form. —In an action against a coal mining company for personal injuries received in the mine, an instruction for the plaintiff “ that it was the duty of the defendant to have used ordinary care and prudence in furnishing to the plaintiff at the time of the accident complained of, a reasonably safe place in which to work, and to have used reasanable precaution to keep such place in a reasonably safe condition, and if the jury believe from the evidence that the defendant neglected to perform its duty in this respect, and that the plaintiff while in the exercise of due care and caution for his own safety was injured as a result of such negligence, then the jury should find the defendant guilty,” is properly given.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Madison County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Charles W. Thomas, attorney for appellant.
    Burton & Wheeler, attorneys for appellee; Heustadt & Hadley, of counsel.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of Madison County, by appellee against appellant, to recover for a personal injury. Trial by jury. Verdict and judgment in favor of appellee for $3,000.

The declaration consists of six counts. The court took the third count from the jury. The first, second, fourth and fifth counts, set up and charge in various forms, in substance, that appellant was operating a coal mine; that appellee was employed therein as driver, hauling coal cars to and from the bottom of the shaft, and to and from points in the mine where coal was being mined; that it was the duty of appellant to exercise due care to provide a reasonably safe place .in which appellee might perform his duties as such driver; that appellant negligently failed to properly prop and secure the roof of the entry or roadway along which appellee was required to drive, and that by reason thereof, while appellee was in the discharge of his duty as such employe and in the exercise of due care and caution for his own safety, a portion of the roof fell upon him and seriously injured him. The sixth count as amended sets up and charges that appellant was operating a coal mine, and that appellee was employed as a driver therein for the purpose of driving mules hitched to empty and loaded ears, to and from various parts of the mine, the said cars running along and over various tracks and rails, which said tracks were laid from the bottom of the shaft through the various entries, rooms and places where the coal was mined, and loaded into the said cars; that appellee’s duties were those of a driver; that appellant undertook and assumed the duty of properly laying the said tracks and rails, and to exercise due care in that respect, and to so lay said track and rails that appellee could perform his duties as a driver with reasonable safety; that appellant employed certain men to lay and construct the said tracks and rails in said mine, and delegated to them the authority and duty to properly and carefully lay said rails and tracks; but appellant failed and neglected its duty'in that behalf, and the men to whom said authority and duty were delegated, negligently and improperly laid said tracks and rails, so that the rails of said track were not properly joined, over which the plaintiff was required to drive mules with cars, as aforesaid, by means of which, appellee, while in the exercise of due care for his own safety, while attempting to drive a mule and haul cars loaded with coal over and along said track, was injured by the improper and negligent construetion of said track.

To this declaration appellant filed a large number of pleas, but, as we understand them, they all together amount to no more than the general issue, except the third plea, which is, in substance:

“ 3. That prior to the time of the supposed injury it was agreed, between the plaintiff and defendant, that the plaintiff would assume the danger of falls from the roof of defendant’s mine as one of the usual and ordinary risks and hazards of his employment; and at the time of the said supposed injury the agreement was in full force; concluding with the verification.”

The testimony tends to show that on the day before the injury occurred the attention of appellant’s timberman, whose duty it was to look after the timbering of the roadways, was called to a dangerous place in the roof at the point "where appellee was subsequently injured, but he did not prop it or do anything to secure it. That a miner, in the absence of the timberman, did put a “ cross-bar ” and props under the dangerous place to support it, and in doing so placed the props within one foot of the track — too close for safety; that the timberman did not return to the place after the miner had propped it, but on the following day went to St. Louis, and no timberman was on duty that day. The testimony also tends to show that the track had been permanently laid to within about fourteen feet of the face of the coal, and that on the day of the injury the men working at the face had taken loose rails, as was their custom to do under such circumstances, and turned them on their sides, and therewith made a temporary extension of the track so they could bring the cars up near the face of the coal for convenience in loading; that there were no ties under the rails of the temporary extension, and as the cars passed over them they sank down so that where they joined up to the permanent track they were one inch and a half below the rails of the permanent track, thus making a bad joint; that from this junction backward toward, the face of the coal it was down grade; that. as appellee was making his third trip over this part of the track, the wheels of the loaded car struck the solid rails, at the junction, the mule stalled or refused to pull,. and the car began to run backward; appellee thereupon took hold of the car and tried to help the mule hold it, but the car had such a “ start ” that they could not stop it, and in the effort the props were knocked or fell out, and from two to six tons of the roof fell upon appellee and seriously and permanently injured him. The inference is strong that the falling was the result of the condition of the track at that place, and of the too close proximity of the props to the track. There is no evidence tending to show, in fact it is not claimed that appellee was negligent, or in any respect blamable.

Appellant put in evidence a copy of its rules which had been and were posted on the “ pit top ” and the engine house. The rules and the accompanying notice, which was also put in evidence with the rules, are as follows :

“ All employes must read and understand and obey these rules, which are required by law and made to secure their safety, and which every employe by remaining in the service of the company agrees to abide by and obey as a contract between him and the company.

Rules of the Consolidated Coal Company of St. Louis.

I. Every person employed in or about this mine must understand he is engaged in a dangerous business, and that constant care must be taken to avoid injury.

4. Every person accepting employment in this mine does so with full notice that the danger from falling roof and coal is one of the usual risks of his service, and he will govern himself accordingly.

5. When the mine manager, or one acting as such, directs any employe to go into or work in any part of the mine he does not assume that the place to which the employe is ordered is not dangerous. Every place in this mine is more or less dangerous, and the duty of ascertaining the danger, and of avoiding it, is upon the employe, and he agrees to assume that duty as part of his contract or service.

6. Ro one working in this mine is authorized to incur any risk by relying upon the timberman. This company does not, by employing timbermen, agree to secure the roof of the mine, except as provided in rule 11.

II. The timbermen shall have no duty except to re-timber places in the mine which have once been properly timbered and sécured, and in no case shall he assume the duty of securing the roof, except as herein provided, unless expressly directed to do so by the mine manager.”

Appellant’s counsel contends that the.adoption and posting of these rules, and the continuation of appellee in its service, amounts to an agreement between appellee and appellant, that appellee .would assume the danger of falls from the roof of appellant’s mine as one of the usual and ordinary risks and hazards of his employment, and that this evidence establishes appellant’s third plea and bars appellee’s right of action.

We do not agree with counsel that the mere posting of the notice and rules, and the continuation of appellee in appellant’s service, constituted a contract, as pleaded, but if we assume that it did, such contract would be void.

“ A master can not, by contract with a servant, in consideration of the employment, exempt himself from liability to the servant for injuries sustained through the master’s negligence. Such a contract is void as against public policy?’ American and English Encyclopedia of Law, Vol. 14, page 910; Railway Company v. Spangler, 44 Ohio State Reports, 471; Roesner v. Hermann, 10 Bissell’s Reports, 486.

The question as to whether the injury to appellee resulted from one of the usual and ordinary risks and hazards of his employment was directly submitted to the jury in a special interrogatory; the jury answered that it was not, and we are of opinion that the evidence warrants this answer.

Complaint is made of the second instruction given on behalf of appellee. It is as follows:

“The court instructs the jury that it was the duty of the defendant in this case to have used ordinary care and prudence in furnishing to the plaintiff, Lundak, at the time of the accident complained of, a reasonably safe place in which to work, and to have used reasonable precaution to keep such place in a reasonably safe condition; and if the jury believe from the evidence that the defendant neglected to perform its duty in this respect, and that the plaintiff, Lundak, while in the exercise of due care and caution for his own safety, was injured as a result of such negligence, then the jury should find the defendant guilty.”

It is not claimed that this instruction does not properly and correctly state a true rule of law, but it is contended that there is no evidence in the record to support it. The evidence clearly tends to show that the roof of the driveway at the place where appellee was injured, was in a dangerous condition, and that appellee, through its timberman, saw it on the day before the injury and knew it was dangerous, and had ample time to make it safe, but did not do so; that on the day of the injury he was in St. Louis, and that there was no one at the mine to take his place. The evidence clearly shows that the roadway in which appellee was required to perform his duties at the place where he was injured, was not reasonably safe, and that appellant had not exercised reasonable diligence to make it reasonably safe.

We find no substantial error in this record. The judgment of the Circuit Court is affirmed.


text:
    Allie Miller, Adm’x, etc., v. Robert L. Rendleman.
    1. Trials — By the Court Without a Jury — Force and Effect of the Finding. — Where a jury is waived and the trial is by the court, and oral testimony is heard and there are some contested issues of fact and some conflicting evidence, the finding of the court as to the facts has the same force and effect as the verdict of a jury, and will not be disturbed by the Appellate Court, unless the finding is so manifestly against the weight of the evidence as to indicate partiality, prejudice, passion or mistake.
    Assumpsit, on a certificate of deposit. Error to the Circuit Court of Union County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    W. A. Schwartz and W. W. Barr, attorneys for plaintiff in error.
    Hileman & Sessions and James Lingle, attorneys for defendant in error.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was a suit in assumpsit, in the Circuit Court of Union County, commenced originally by appellee against Louis T. Linnell and Andrew J. Miller, partners, doing a banking business under the firm name and style of Bank of Cobden,” to recover on two certificates of deposit issued by said bank to appellee. Service was had on Miller alone, who appeared, pleaded to the action, joined in an agreement waiving a jury, and entered upon the trial of the case by the court. After the evidence was heard and before the case was decided, Miller died. His death was suggested, and Allie Miller, the administratrix of his estate, was substituted as defendant, and thereafter the court found the issues for the plaintiff, (appellee,) and assessed his damages at the sum of $1,160.33, and rendered judgment thereon.' Appellant duly excepted to the finding of the court, and interposed a motion for new trial, which the court overruled and rendered judgment on the finding. To the overruling of the motion for new trial and the rendering of judgment, appellant also duly excepted.

There were no “propositions of -law” submitted to the court by either side, and the only grounds for new trial specified in the motion are, “that the judgment and holdings of the court are contrary to the law and the evidence.” Omitting some slight complaint as to the relevancy of certain testimony, which we deem not of sufficient importance to require special discussion, the only question before us is, does the relevant and competent evidence in this record warrant the finding and judgment of the trial court.

The declaration consists of a special count against Louis T. Linnell and Andrew J. Miller as partners, doing a banking business under the firm name and style of Bank of Cob-den, on two certificates of deposit issued to appellee for money deposited by him in the Bank of Oobden, and of the common counts. To this declaration Miller pleaded nonassumpsit; a plea verified by affidavit denying the execution of the certificates of deposit declared on, and a plea of set-off, as follows:

“ And for a further plea in this behalf the said defendant, A. J. Miller, impleaded, etc., says that the plaintiff ought not to have his aforesaid action against him, the said defendant, because he says that the plaintiff was before and at the time of the commencement of this suit, and still is, indebted to the said firm of Linnell & Miller, doing business as bankers under the firm name of the “Bank of Gob-den,” and is still inclebted to them in the sum of fifteen hundred dollars, for money before that time received by the plaintiff, for the use of the said Linnell & Miller, partners, doing business under the firm name of the “ Bank of Cobden,” which said sum of money so due from the plaintiff to said defendants, Linnell & Miller, partners, doing business under the firm name of “ Bank of Cobden,” as aforesaid, exceeds the damage sustained by the plaintiff, by reason of the non-performance by said defendants of the several supposed promises in the said declaration mentioned, and out of which said sum of money the defendant is ready and hereby offers to set off and allow to the plaintiff the full amount of said damages. And this the defendant is ready to verify, whereof he prays judgment, etc.”

Appellee put in evidence, articles of copartnership made and entered into on the 10th day of September, 1898, by and between said Louis T. Linnell and Andrew J. Miller. So much of this contract as we deem in any way pertinent to the issues in this case are the first, third, fifth, sixth, seventh, eighth, eleventh and the seventeenth paragraphs, which are:

“ First. The business to be carried on by and between the above named persons as copartners shall'be that of a general banking and fire insurance business.”

“ Third. The firm name and style of copartnership shall be Bank of Cobden, and in such firm name or in the name of Linnell & Miller shall the business of the copartnership be done, conducted and carried on.”

“ Fifth. The business done by said copartnership shall be that which is ordinarily and usually done by banks, not banks of issue, and shall be under the control of both members of the firm, who shall keep all proper books of account, which shall show fully and completely all transactions and business done by said bank or copartnership.

“ Sixth. Said Louis T. Linnell shall be president and said Andrew J. Miller shall be vice-president. '

“ Seventh. The president shall discharge all duties which usually pertain to that position, but in no case shall he, by virtue of his position, have any authority in excess of that possessed by the other member of the firm. The president’s salary shall be the same as the cashier in proportion to the time actually given to the service of the bank. He shall consult and advise with the vice-president before making loans of over one hundred dollars.

“ Eighth. The cashier, shall perform all the duties generally done and performed by cashiers of banks doing a like business. He shall annually furnish the members of the firm a full and complete statement of the financial condition of the bank. His salary shall be six hundred dollars per annum.”

Eleventh. The debts, overdrafts, or other dues from either partner to the bank or copartnership, shall not exceed three thousand dollars, provided, the bank or copartnership may loan to either partner upon the written consent of the other partner, such sums and Upon such conditions and terms as are provided for general loans in section 12 hereof.”

Seventeenth. The shares and interests of the above named copartnership and of its business, all of which is shown by the books of the firm, are equal, each owning a one-half interest, and they shall share equally in the profits and losses.”

The business of the copartnership entered into by this contract, commenced September 19, 1898, with E. A. Strong as cashier, who continued in that capacity until the firm ceased doing business.- He testified as follows :

I was cashier of the Bank of Cobden, February 22,1899, and as such cashier I issued certificate marked ‘ Exhibit A,’ and signed the firm name of Linnell & Miller to it. Rendleman gave me $1,000 in cash and I issued a certificate. The transaction was at the Bank of Cobden. The $1,000 went into the general fund. I was cashier of said bank March 1, 1899, and as such issued the certificate for $100 to Mr. Rendleman. For that certificate Mr. Rendleman paid me $100 in cash, which went into the funds of the bank. The Bank of Cobden, at the time I issued each of the cer. tificates, was composed of L. T. Linnell and- A. J. Miller.”

Cross-examination:

“ I do not remember of any one being present when the certificates were issued, except Mr. Rendleman. Linnell or Miller was not present. Miller never knew of the transaction. He did business about one block north of the bank. He did not give the bank any attention. Rendleman said he did not make the potato deal as he expected, and put the money back in the bank. I heard the articles of copartnership read awhile ago.”

Appellee testified in his own behalf :

“ Í am the plaintiff in this suit. The Bank of Cobden was ' closed at- the time I brought this suit and has been closed ever since. I started to the Bank of Cobden to present this certificate for payment, and the door was closed just before I got there. The bank was closed March '2, 1899, and has not been opened since, so I could not present the certificate for payment. After the bank was closed and before the suit was brought, I saw a notice posted on the door of the bank, signed by A. J. Miller, that the bank was closed. No part of the certificate for $1,000 or the one for $100 has been paid.”

Cross-examination:

“ I never presented the certificates to Mr. Karraker, Mr. Linnell nor Mr. Miller. Never saw Mr. Miller about the bank, and Mr. Linnell was sick. Miller told me in his own store that all new business under the partnership would be paid. He said that he would pay them, that he would see they were paid dollar for dollar. He had reference to his own business. That was the business — the partnership business of the bank. Don’t remember that 1 told him anything about how the money came to be put in the bank. Mr. Miller was not present when I put the money in the bank. I don’t know that he knew anything about it. I presented these certificates to Mr. Miller in his store. ’He said he would pay every dollar of the new Bank of Cobden. I saw him afterwards. He did not pay or offer to pay these certificates.”

Appellee put in evidence the two certificates of deposit proven and identified by the cashier, Strong, and himself. One of them is as follows:

“ Certificate of Deposit.

COBDEN EXCHANGE BANK — L. T. LINNELL, BANKER.

Cobden, III., Feb. 22, 1899.

$1,000.00.

Robert Rendleman has deposited - in this bank one thousand dollars, payable to the order of himself on the return of this certificate, properly indorsed, with interest for even months at four per cent per annum if left six months.

Linnell & Miller,

No. 4784. . Strong.”

The other is identical with this, except that it bears date March 1, 1899, and is for $100.

This makes for appellee a complete and strong prima facie case and puts the burden upon appellant to break it down or overthrow it.

Under whatever plea considered, and from every view point suggested, appellant’s entire defense is based upon the contentions that $900 of the identical money for which the certificate of February 22, 1899, was issued, was money which the cashier of the bank had previously, wrongfully paid to appellee, out of partnership funds, in discharge of Linnell’s individual indebtedness, and that therefore appellee did not acquire title to said money, and that his deposit of it in the “ Bank of Cobden ” was but the return of it to the partnership fund where it belonged, and that the cashier had, previous to the making of the deposits for which the two certificates were issued, wrongfully paid $1,020 out of the partnership funds to appellee, in discharge of Linnell’s individual indebtedness, and that therefore appellee received and holds such money to and for the use of the firm of Linnell & Miller, and thereby became and is indebted to said firm to that amount. Appellant does not claim credit for both the $900 and the $1,020, but if the former contention shall prevail and the latter not, that then appellee’s demand should be abated to the extent of $900. If, however, the latter contention or both shall prevail, then, that the sum of $1,020 should be set off and deducted from the amount of appellee’s demand.

The evidence in this case shows that for a number of years prior to the formation of the copartnership between Linnell and Miller, they had both resided in the village of Cobden. Linnell had been and was conducting a bank, known as the “ Cobden Exchange Bank,” and Miller had been and was conducting a mercantile business, and Strong had been and was acting as cashier of the Cobden Exchange Bank. When the copartnership was entered into, Strong was retained by Linnell and Miller as cashier of the bank under the new name of “ Bank of Cobden,” and there was published to the public, in a local newspaper, the following notice:

“ Bank of Oobden.

The undersigned have entered into a' copartnership for the transaction of a general banking business to be carried on at Cobden, Illinois, under the firm name of Linnell & Miller; name of the bank to be ‘ Bank of Cob-den.’ The patronage of the public is solicited, which the proprietors hope, by fair treatment and close attention to business, to be abie to secure. Mr. E. A. Strong will be retained as cashier.

L. T. Linnell,

A. J. Miller.”

Prior to and at the time of the admission of Miller as a partner, and the changing of the name of the bank, Linnell had a line of customers doing business with the Cob-den Exchange Bank, some of them having deposits standing to their credit on the books of the bank, and some of them holding certificates of deposit, upon which the bank was paying interest. Appellee at that time held a certificate of deposit for $1,000, which had been running for some months. There was no interruption to the business of the bank at any time; the same cashier in charge as before, the same rooms were used as before, the same fixtures and furniture, the same books, the same stationery, the same checks and certificates of deposit, changed only by the stamping of the new name across the face, and such checks bearing the old name as were in the hands of customers were recognized by the bank under the new name without any change; the bank books were kept as before, with no completed footing up or finding of balances in the various accounts of the bank with its customers. All the assets of the bank as it was under the old name, remained and were used by the bank under its new name in its general banking business and dealings with the public, without discrimination; the liabilities of the bank under its old name and those under its new were paid out of the same general fund, and so far as the public knew, no kind of distinction was made as to such liabilities; customers were repeatedly told by Linnell and by the cashier that the bank was simply a continuation and was stronger than before, and one witness, Eolia Moore, testified that about three weeks after the change he asked Miller if there was any difference in the bank since he went in, and that Miller replied, “ Why, no; it is really the same thing; just a little change of name; that is all.” This witness further testified: “ I was a depositor there; had an open account; had money in the bank when Miller came in. I had a check book, drew checks as before, sent them to the bank; they were paid. I continued to make deposits as before.” Miller denies that he made such statement to Moore, but the trial court evidently believed Moore and was warranted in doing so. The conduct at that time of every part of the business and of every person connected with it, including Miller, corroborates the theory that the fact was just as Moore testified that Miller stated it to be. As to all the foregoing, if Miller made any objections or protest he gave no notice of it to appellee or the public. True, Miller says he did not know anything about these things. He owned a half interest in the whole thing, was vice-president of the bank, resided in the immediate vicinity and was an experienced business man. The trial court was warranted in taking such statement with some grains of allowance. On one occasion Miller inquired of the cashier how Linnell’s account stood, and on being informed that it was $5,000 overdrawn, he notified the cashier “not to pay or transfer any account, due-bill, check or certificate of deposit from the Oobden Exchange Bank to the Bank of Cobden without there is credit to the former bank;” but he neither gave appellee nor the public any notice of any kind, and the business continued to be transacted as before.

While the facts and conditions were as above stated, appellee, who held a certificate of deposit for $1,000, issued by the bank some months before the change of name, and when Linnell was sole proprietor, having an opportunity, as he thought, to use a large sum of money in connection with an anticipated deal for a lot of potatoes, went to the bank at 8:30 o’clock in the forenoon of February 22, 1899, and presented his certificate of deposit to the cashier, who took it up and paid him $1,020 in cash, that sum being the face of the certificate with accrued interest. This money was paid out of the general funds of the bank, as had been the usual and customary course of business in like cases during all the time since the name of the bank was changed.

We are of opinion, under all the facts established by the evidence in this case, that the presentation and surrender of his certificate of deposit, and the payment of the money to him by the cashier, vested title to it in appellee, and further, that he did not receive, and does not hold it to and for the use of the firm of Linnell & Miller.

At 4:30 o’clock in the afternoon of the same day on which this money was paid to appellee, he having failed to consummate his anticipated deal for the potatoes, and having $900 of the same money still in his possession, added $100 of other money to it and took it all to the bank and presented it to the cashier for deposit. The money was accepted and a certificate of deposit for $1,000, signed “ Linnell & Miller,” issued to him, it being the larger of the two certificates sued on.

If we are correct in our conclusion as to the title to the money, after it was received by appellee, in payment for his surrendered certificate, and if we are correct in holding that he did not receive and does not hold it to and for the use of the copartnership of Linnell & Miller, it follows that neither the fact that he subsequently deposited a portion of this same money in the copartnership bank, nor the fact that such bank subsequently became indebted to him upon the deposit of this and other money, can strengthen appellant’s position.

There are in this record some contested issues of fact and some conflicting evidence, but where a jury is waived and the trial is by court, and where oral testimony is heard, the finding of the court as to facts has the same force and effect as the verdict of a jury, and will not be disturbed by the Appellate Court, unless so manifestly against the weight of the evidence as to indicate partiality, prejudice, passion or mistake.

A number of propositions of law are suggested by the respective counsel, fro and con, and argued at some length; but as no propositions of law ” were submitted to the trial court for its holdings thereon, we do not feel called upon to discuss them.

We find no error in this record demanding a reversal of the case. The judgment of the Circuit Court is affirmed.


text:
    Illinois Central Railroad Co. v. Levi North.
    i. Master and Servant — Promises of Needed Repairs. — When a master, on being notified by his servant of defects that render the service in which such servant is engaged more hazardous, promises to make the needed repairs, the servant may continue in the employment a reasonable time to permit the performance of the promise, without being guilty of negligence, unless where the danger is so imminent that no prudent person would undertake to perform the service.
    2. Same — What is a Reasonable Time for Furnishing Repairs After Notice. — What is a reasonable time for furnishing promised repairs after notice, is a question of fact for the determination of a jury.
    3. Same— Servant’s Right to Rely upon Promises to Repair. — A servant has the right to rely, for a reasonable time, upon the promise of his master that defects in the machinery, appliances or other surroundings connected with his work will be repaired and the machinery made safe, and to expect that promises so made will be fulfilled.
    4. Instructions — In Actions for Personal Injuries — Modification.— In an action for personal injuries, it is error to instruct the jury that if they believe from the evidence that the defect in the appliances in question was known to the plaintiff, and the danger of the use of it in its defective condition was also known to him, and that his knowledge of such defects was equal to the knowledge of the foreman under whom he worked, their verdict should be for the defendant, without modifying it in substance, -by inserting, if a reasonably careful and prudent man would not have used the appliance in question under the same or similar circumstances.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Statement. — This is an action on the case, brought by appellee, to recover for alleged injuries sustained by him on November 21,1899, while in appellant’s employ as a section hand.
    Appellee and three other section men were engaged in raising a heavy switch track for the purpose of removing old ties and replacing them with new ones. To do the work these men had a Barrett track jack, and when injured, North, the appellee, was using a piece of gas pipe about three feet long, as a lever. He had inserted this pipe into the socket of the jack, and while lifting, with his shoulder under the lever, the pipe broke and slipped out of the socket, thereby causing appellee to fall forward, striking his side on the track jack, thereby fracturing a rib, for which injury this suit was brought, resulting in a verdict and judgment in. favor of appellee for $995; from which judgment this appeal is prosecuted.
    The evidence shows that there were iron pinch bars about four and one-half feet long, which could have been used in place of the gas pipe. It is also in evidence that when a Barrett track jack is furnished from the factory, a wooden lever is sent out with it. This wooden lever fits the socket snugly and is therefore not liable to slip out. Appellee knew that the gas pipe was defective, but he bases his case on the theory that when he pointed out the defects in the pipe, his foreman, Ed. Wilson, told him to use it, and promised to furnish him a wooden lever; that therefore he had a right to use it as he did, and did not assume the risk of injury which he otherwise would have assumed on account of his knowledge of its condition.
    Appellee claims, and there is evidence tending to support his claim, that the iron pinch bars were unsafe to be used. The socket was about three and one-half inches in diameter at its mouth, and about one inch at the bottom, and seven and one-half to eight inches deep, tapering in this way from mouth to bottom. The bars were beveled at the lower end, the bevels extending on both sides from four and one-half to five and one-half inches, and, being smaller than the socket, it is claimed that they were liable to" slip out, and were therefore dangerous. This is denied by witnesses for appellant, who testify that for heavy work in track lifting, they were better than wooden levers. Appellee, until -about a month before the accident, had been in the employ of appellant as foreman of a section gang, but after that time, worked as one of the gang under Ed. Wilson, its foreman. There is testimony tending to show that he and Bishop, . another member of the gang, two or three mornings before and on the morning of the accident, complained to the foreman that the gas pipe used in the jack was unsafe, and that he promised to have it replaced by a wooden lever, such as was provided for these Barrett jacks.
    Gustavus A. Koerner and Victor K. Koerner, attorneys for appellant; John G. Drennan, of counsel.
    Webb & Webb, attorneys for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

The statement of the case presents the basis upon which appellee’s claim rests, and also the defense to the claim by appellant. It was the duty of appellant to furnish reasonably safe appliances for the use of its servants. In this case it was a duty easy to perform. It is not denied that these Barrett jacks came from the factory with wooden levers designed to be used with them. If appellee and Bishop tell the truth, it was such a lever that they asked for, and their foreman promised to furnish. Appellee testifies as abstracted :

“ We made complaint to the foreman about that lever, and requested a competent lever. This was too small in diameter; too much lost motion in it. We called attention to its condition otherwise; we told him we should have a wooden lever; we told him as a reason that this had too much motion and it was bending and splitting. He said ‘Damn it, use that; that is the only one we’ve got.’ He said he had sent for wooden levers and when we got them we would use them. A wooden lever is about two and a half feet long and fits the socket; have used them in railroad work for the company. The foreman said he would get them as soon as he could.”

Bishop, a fellow-workman with appellee, corroborates his testimony. While there is a conflict in the evidence upon these matters testified to by appellee and Bishop, the jurors heard them and evidently believed them. It is not for this court, then, to say that they testified falsely, and the case must be decided upon the assumption that their evidence is substantially true. If true, appellant, the master, was notified by appellee, the servant, that the lever furnished was unsafe, and was told to use it until another lever, which had been sent for, could be procured.

The rule in such cases is that when the master, on being notified by the servant of defects that render the service in which he is engaged more hazardous, promises to make the needed repairs, the servant may continue a reasonable time to permit the performance of the promise without being guilty of negligence, unless where the danger is so imminent that no prudent person would undertake to perform the service. Missouri Furnace Co. v. Abend, 107 Ill. 51; Anderson Press Brick Co. v. Sobkowiak, 148 Ill. 573.

What was a reasonable time for furnishing a safer lever was a question of fact for the jury to determine, as was also the question as to whether the danger in using the gas pipe was so imminent that a prudent person would not have used it. The finding of a jury upon these issues was against appellant, and there is evidence to sustain the finding. Counsel for appellant insist that the rule of non-assumption of additional risk, arising from a promise to repair or replace, has no application to a case like this. They insist that it applies only to cases where, from the nature of the work to be done, or the intricacy of the machinery, it can be said that the foreman is better able to judge as to whether the defective tool or dangerous machinery can be used with reasonable safety until repairs can be made. Marsh v. Chickering, 101 N. Y. 396, and Corcoran v. Milwaukee Gas Co., 81 Wis. 191, give some support to this doctrine. In the New York case, Ruger, J., dissents. But these cases are not entirely on all fours with the case at bar In each of them the negligence charged was in furnishing an unsafe ladder. The use of a lifting jack operated by leverage is, in some degree, the use of a machine. We are aware of no Illinois decisions that sustain the doctrine of appellant. McArthur v. Trout, 88 Ill. App. 607, is not in point. In these times, when hundreds of thousands are employed in mills and factories and railroads, with no choice of the machinery or tools .they are to use, the duty of the employer to furnish reasonably safe appliances should not be relaxed. The rule laid down in Illinois Steel Co. v. Mann, 170 Ill. 200, is a just and humane rule. It is there said :

“He, the servant, has a right to rely for a reasonable time upon the promise of the master that such defect in the machinery, appliances or other surroundings connected with his work, will be repaired, and the machinery made safe, and the right to expect that such promise, so made, will be fulfilled.”

Counsel for appellant urge that the court erred in modifying an instruction asked by them. The modification is shown in the italicized words in the following instruction :

“ The court instructs the jury that if - they believe from the evidence that the defect in the gas pipe was known to the plaintiff, and the dangers of its use in its defective condition was also known to the plaintiff, and that the knowledge of the plaintiff on the points above, mentioned was equal or superior to the knowledge of the foreman on the same subjects, and you believe from, the evidence that a reasonably careful and prudent man would not have used said gas pipe, under the same or similar circumstances, then you are instructed that the plaintiff can not recover, and they must find for the defendant, and in that case it makes no difference whether a promise to furnish a wooden lever was made or not.”

There was no error in thus modifying the instruction. In the view we take of the case, it would have been error to have given the instruction without this modification. Judgment affirmed.


author: Mr. Justice Bigelow

text:
    David R. Steffy v. Cochran Brothers.
    1. Verdicts— On Conflicting Evidence. — A verdict of a jury arrived at on conflicting evidence should not be set aside by a trial court, except for the misconduct of the jurors, or some of them; the wrong ruling by the court in admitting or rejecting evidence, giving to the jury improper instructions, or refusing to give proper ones; or unless the court can see that the jury have acted from prejudice, caprice or passion, and that it will probably cause injustice to be done to the party against whom it is rendered, if allowed to stand; or for some equally good reason.
    Assumpsit. — Appeal from the Circuit Court of Lawrence County; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Gee & Barnes, attorneys for appellant.
    Tot-iill & Kingsbury, attorneys for appellees.
   Mr. Justice Bigelow

delivered the opinion of the court.

This suit was brought by appellees against appellant, before a justice of the peace of Lawrence county, and was appealed to the Circuit Court of that county, where,on a trial before the court and a jury, appellees recovered a judgment against appellant for $55.49, and the case is here on the appeal of the defendant below.

Appellees reside at Bird’s, in Lawrence county, and in November and December, 1898, shipped poultry, game, etc., to appellant, who was in the commission business in Chicago, to be sold on account of appellees, and the proceeds, less appellant’s commission, to be remitted to appellees, at Bird’s.

The total amount in value of the stuff shipped by appellees was about $1,400.

The contention of appellant is, that from time to time, after receiving the shipments and selling the property, he paid appellees the full amount due them. This appellees deny, and the difference between the parties has resulted in this suit.

A further contention of appellant is, that at the time the property was shipped and sold, his wife was a copartner with him in the commission business, and hence the action was improperly brought against himself alone.

. These are the only questions raised by appellant in the assignment of errors, as there were no rulings of the court excepted to, save the order of the court denying appellant’s motion for a new trial, because the verdict of the jury was unsupported by the evidence.

Each of appellant’s contentions, as the case was tried, brings for review in this court a question of fact. A verdict of a jury arrived at on conflicting evidence, as this verdict was, should not be set aside by a trial court except for the misconduct of the jurors, or some of them; wrong ruling by the court in admitting or rejecting evidence, giving to the jury improper instructions, or refusing to give proper ones; or unless the court can see that the jury have acted from prejudice, caprice or passion, and probably will have caused injustice to be done to the party against whom the verdict is rendered, if it shall be allowed to stand; or for some other equally good reason.

For no less reason than ought to move a trial court to set aside a verdict found on conflicting evidence, ought an Appellate Court to set aside a judgment rendered on such a verdict. This is elementary law; and while appellee’s counsel have cited many authorities to sustain it, we think none are needed, since the rule commends itself to every right-thinking person, as without such a rule there would be no place for a jury in a trial court.

If the abstract furnished by appellant contained the sub-, stance of the entire evidence on both sides of the case, the contentions of counsel' for appellant might have a foundation on which to rest; but for some reason the counsel seem to have omitted much of the evidence in the record that did not make for their side of the case, and so have compelled counsel for appellees to furnish an additional abstract.

On reading both abstracts we are far from being satisfied that the jury were wrong in finding that appellees’ claim had not been paid, or that appellant’s wife should have been made a party defendant to the suit, and much of the evidence to sustain the finding on these questions was furnished by appellant, if the testimony of witnesses in regard to his admissions is to be believed, and we can discover nothing to discredit it.

As we find no error in the record, the judgment is aifirmed, and the motion of appellee’s counsel to tax the cost of the additional abstract to appellant is sustained. Aifirmed.