text:
    J. K. Jones v. McLaughlin-Patrick Construction Co.
    1. Statute of Frauds — Original and Collateral Promises — The Test. —Where the question is whether the promise was original or collateral the test is whether the cr'edit was given to the person sought to .be charged, or to some one else, whom the person sought to be charged guaranteed should pay the debt.
    Appeal from a Justice of the Peace, — Appeal from the Circuit Court of Ford County; the Hon. John H. Moffett, Judge, presiding. Heard * in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Schneider & Schneider and S. L. Ludlow, attorneys for appellant.
    Paddock & Cooper and M. L. McQuiston, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

The city council of Gibson passed an ordinance requiring a cement sidewalk of certain specified dimensions to be constructed along Sangamon avenue in that city by the owners of lots abutting the sidewalk, in thirty days. The ordinance provided that in case of default on the part of a lot owner to construct a sidewalk the same should be'constructed by the city under the direction of the superintendent of streets and the cost thereof be collected from the lot owner. One Harnit refused to construct a sidewalk of the specifications required by the ordinance. It then becoming the duty of the superintendent of streets to construct the walk, he began removing the old walk preparatory to the work. The McLaughlin-Patrick Construction Company was engaged in constructing the required walk elsewhere along the avenue under contracts with abutting lot owners. A question arose as to who would pay the construction company in case of its constructing the walk in front of the Harnit property, whereupon Clarence K. Patrick, representing the company, applied to appellant, then acting as mayor of the city, who directed Patrick to go on and do the work. There is a conflict between the parties as to what was said by appellant upon the question of payment for the work. Patrick contends that appellant told him that he would be personally responsible for the payment and would pay for the work regardless of the contingency of the city paying for it. Appellant contends that he merely told Patrick to construct the walk and present the bill to the city council, and if they refused to pay it, to sue the city, and that in the event of a failure to recover, he would pay it. The walk was constructed in accordance wdth the directions of appellant, but without sanction or approval of the city council. When appellee sought payment for the work from appellant, he denied his personal liability. This suit followed, resulting in a judgment against him. '

The case hinges entirely upon what occurred when appellant directed Patrick to (sonstract the walk. If the version of Patrick, that appellant personally promised to pay for the work, is true, the judgment should stand. If the contention of appellant that he only promised to pay for it in the event of an unsuccessful suit against the city is true, then the judgment should be reversed. In the conflict of testimony upon that point, it was the peculiar province of the jury to discover the truth. We are not disposed to say that they reached an incorrect conclusion.

If the testimony of Patrick is true, the promise of appellant does not come within the statute of frauds. It was made before any work was done by appellee and was the sole inducement for the work. The promise was an original and not a collateral one. Where the question is whether the promise was original or collateral, the test is whether the credit was given to the person sought to be charged, or to some one else whom the person sought to be charged guaranteed should pay the debt. Williams v. Corbet, 28 Ill. 262; Hughes v. Atkins, 41 Ill. 213; Geary v. O’Neil, 73 Ill. 593.

Because of the contention made upon the trial that the undertaking of appellant was to pay the debt of another, and consequently within the statute of frauds, appellee introduced proof to show that neither Harnit nor the city ■was liable for the construction of the walk. In the view taken by us of the promise of appellant, such proof was unnecessary; but its introduction was permissible in view of the interposition of the statute of frauds as a defense.

It is contended that the work was not completed according to contract. An open area leading to the basement of the abutting building was left. But appellant knew that it was left, and that it was so left to afford access to the basement. He made no objection.

We think the judgment is authorized by the law and the facts, and the same will be affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Harker

license: Public Domain

text:
    Monarch Coal and Mining Co. v. Jane Hand.
    1. Foreclosure — Junior Mortgagees — Order of Conveyances. — Under the rules of equity pleading, a subsequent purchaser or junior mortgagee who is made a defendant to a bill to foreclose the senior mortgage, may, by answer, ask for and obtain an order in the decree directing that the mortgaged premises be offered for sale in the inverse order of the conveyances.
    3. Real Estate — Rights of Purchasers Talcing Conveyances Subject to Mortgages. — A purchaser having consented to take a conveyance of real estate subject to a mortgage upon it, will be considered as consenting that his part of the land shall remain, pro rata, liable for the mortgage debt.
    Bill of Foreclosure. — Appeal from the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Grier & Stewart and J. H. Hanley, attorneys for appellant.

      Chiperfield & Chiperfield, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellee filed a bill to foreclose a mortgage on 116 acres of land, executed by Jonathan A. Emans and wife, on the 13th of December, 1894, to secure the payment of a promis- , sory note for $3,500, payable to appellee. Emans and wife . and appellant were made defendants. The two former were defaulted, but appellant answered and filed a cross-bill setting up a deed executed by Emans to it on J uly 1, 1898, whereby he conveyed to appellant a small part of the land in fee and the coal underlying the balance, and asked that in the decree foreclosing the mortgage, the portion of the premises still remaining in Emans be first offered for sale subject to the right of appellant in the premises, and that the entire premises only be offered for sale and sold in the event that the interest still remaining in Emans should not sell for a sum sufficient to satisfy the mortgage debt. The court sustained a demurrer to the cross-bill and after hearing the cause on the original bill and amended answer, rendered a decree of foreclosure, finding there was due appellee on her mortgage $3,244; that the conveyance from Emans to appellant was expressly subject to the mortgage; that appellant was mining coal from the premises, thereby committing waste; and that the land was scant security for the mortgage debt. The court refused to direct the land to be offered for sale in the order requested by appellant and enjoined it from mining any more coal from it after the expiration of forty days unless the mortgage debt should be paid.

The leading question involved is whether the court erred in refusing to apply the doctrine of marshaling assets and decreeing that the mortgaged premises be first offered for sale subject to appellant’s right to mine the coal as granted by the conveyance of July 1,1898. There was no error in sustaining a demurrer to the cross-bill. Under the rules of equity pleading, a subsequent purchaser or junior mortgagee, who is made a defendant in a bill to foreclose the senior mortgage, may, by answer, ask and obtain an order in the decree directing that the mortgaged premises be offered for sale in the inverse order of the conveyances. Really, that was what was done in this case, for the amended answer asked for such order.

To the equitable doctrine of marshaling assets between different mortgagees, judgment creditors and purchasers, the courts of this State are firmly committed. But we do not think this is a proper case for the application of that doctrine. The conveyance to appellant expressly provides that it is made “subject to a mortgage to Jane Hand in the principal sum of $3,500.” A purchaser having consented to take a conveyance of real estate subject to a mortgage upon it, must be considered as consenting that his part of the land shall remain, pro rata, liable for the .mortgage debt. Briscoe et al. v. Power, 47 Ill. 447; Boone et al. v. Clark et al., 189 Ill. 466. We quote from the opinion of Justice Lawrence in Briscoe et al. v. Power, supra:

“We held in the case of Iglehart v. Crane & Wesson, 42 Ill. 261, that where a mortgagor sells the mortgaged premises in parcels, at successive periods, the different parcels • should be subjected to the payment of the mortgage in the inverse order of their alienation. That rule rests upon the reason that where the mortgagor sells a part of the mortgaged premises, without reference to the incumbrance purporting to convey the fee simple, and retaining a part himself, it is equitable, as between the mortgagor and his grantee, that the part still held by the mortgagor should be first subjected to the payment of the debt, and this equity having attached to the land, a subsequent purchaser from the mortgagor, with notice, takes it subject to the same equity. But it is evident that this reasoning has no application to a case like the present, where the first purchaser expressly takes subject to the mortgage. In such cases, the purchaser has no equity, as against the mortgagor, that the portion still held by the latter shall be first applied to the payment of the incumbrance, and having no equity against him, of course has none against his grantee. The first purchaser, by taking expressly subject to the mortgage, consents that the land conveyed to him shall remain subject to its pro rata share of the debt.”

It was not error to enjoin appellant from further mining coal from the premises after forty days unless the mortgage debt should be paid. The evidence tended to show that the land was scant security for appellee’s debt, and the court so found, although there was a conflict in the testimony upon that point. Large quantities of , coal had already been taken from the land and a continuation of the work would depreciate appellee’s security, of course.

We see no error in the decree rendered and the same will therefore be affirmed.


text:
    The People ex rel., etc., v. Anna Benson.
    1. Appeals — From the Probate Court in Citations to Compel the Surrender of Assets. — The Circuit Court has jurisdiction of an appeal from the Probate Court of the county in a citation against the widow of a deceased person, whose estate is in progress of administration, to compel her to surrender property claimed as assets of the estate.

      2. Gifts— What Amounts to a Sufficient Delivery of. — Where a donor at the time of declaring a gift, divests himself of the means of possession and dominion over it, and invests the donee with such means, he is to be considered as surrendering possession of it; so where an unequivocal declaration of a gift is accompanied by a delivery of the only means by which possession of the article given can be obtained, the delivery is sufficient.
    Administration of Estates. — Appeal from the Circuit Court of Morgan Comity; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Julian P. Lippinoott, attorney for appellant; John A. Bellatti, of counsel.
    Smith & Hairgrove, and H. G. Whitlock, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellant, as executor of the estate of William Benson, deceased, presented to the Morgan County Court a petition for a citation against appellee, the widow of deceased, to compel her to surrender to him two promissory notes, one for §1,000, and the other for $1,500, executed by one James Y. King to Benson in his lifetime, and which appellee claimed had been given to her by Benson.

The County Court, upon a hearing to determine the ownership of the notes, held them to be the property of the estate and ordered her to turn them over to the executor. An appeal was prosecuted to the Circuit Court, where a motion was made to dismiss the appeal, upon the ground that the Circuit Court had not jurisdiction to entertain an appeal in this kind of a case. The Circuit Court overruled the motion, and upon a hearing on the merits, held the notes to be the property of appellee and dismissed the petition.

It is contended that section 8 of the Appellate Court act gives to the Appellate Court exclusive jurisdiction of appeals from the County Court in this kind of a case, and that for that reason the Circuit Court should have sus- • tained appellant’s motion to dismiss the appeal. This proceeding is not a suit at law or in chancery within the meaning of section 8 of the Appellate Court act. It is expressly authorized by section 81 of the administration act. Section 124 of that act provides, that “Appeals shall be allowed from all judgments, orders, or decrees of the County Court, in all matters arising under this act, to the Circuit Court.” The appeal, therefore, was properly taken to the Circuit Court. Randolph, Adm’r, v. The People, for the use, etc., 130 Ill. 533; Dawson v. Eustice, Adm’r, 148 Ill. 346.

The evidence clearly shows that Benson intended to give the notes to his wife and that he believed that'he had done so. On different occasions shortly before his death, he stated to his son, to a nephew and to the maker of the notes, that he intended them in lieu of life insurance for his wife and had given them to her for that purpose. The notes were, at the time, locked up in a safe in a shop where he had done business before stricken with his last illness. This case hinges entirely upon the question of whether there was sufficient delivery to make the gift effectual.

Appellee did not have manual possession of the notes until after the death of her husband. He gave to her the key to the safe in which the notes were kept and stated that he gave her the contents of the safe. After his death, she took manual possession of the contents. The notes were the only contents of value in the safe. While delivery of possession of the article is essential to the validity of the gift, the delivery need not always be a manual delivery. The delivery may be symbolic, as the delivery of a key to a chest or a trunk. The term is not to be taken in such a narrow sense as to require that the thing given shall go, literally, into the hands of the donee and be carried away. An unequivocal declaration of gift accompanied by a delivery of the only means by which possession of the article given can be obtained, is sufficient. Grover v. Grover, 24 Pick. 261; Coleman v. Parker, 114 Mass. 30; Hageman v. Hageman, 90 Ill. App. 251.

Where the donor, at the time of declaring a gift, divests himself of the means of possession and dominion and invests the donee with such means, he should certainly be considered as surrendering possession. . And so when Benson delivered the key to the safe to his wife and declared that the contents contained therein belonged to her, he parted with possession of the contents and ceased to have dominion over them. From then on, appellee only, had power of manual possession. We think there was sufficient delivery to make the gift effectual. Order affirmed.


author: Mr. Justice Harker

text:
    W. T. Westbrook et al. v. John P. Middlecoff et al.
    1. Municipal Corporations — Limitations upon Corporate Action. —While courts should maintain with vigor the limitations which the statute has placed upon corporate action whenever it is a question of restraining a city council in advance, from passing beyond the bounds of statutory requirement, they should, on the other hand, enforce against the city, contracts of which it has received the benefits, if the subject-matter of the contract falls within the chartered powers of the city.
    2. Same— When the Statute Regulates the Manner of the Exercise of Corporate Action — Estoppel.—Where the statute authorizes a municipal corporation to exercise a certain power but specifically regulates the mode in which it is to be exercised, an attempt on the part of municipal officers to override the regulations of the statute and exercise it in another manner will be restrained; but when the officers have so acted, and the municipality has received the benefits of a contract thus irregularly entered into, it will be estopped from setting up the irregular exercise of the power when called upon to pay for what it has received.
    Bill for an Injunction. — Appeal from the Circuit Court of Ford County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at May term, 1901.
    Affirmed.
    Mr. Justice Burroughs, dissenting.
    Opinion filed December 10, 1901.
    Kerr & Lindley and Morris & Hooper, attorneys for appellants.
    R. L. Schneider, city attorney, Gere & Phillbrick, and C. E. Beach, attorneys for appellees; Joseph J. Thompson and John E. Pollock, of counsel.
   Mr. Justice Harker

delivered the opinion of the court.

This was a bill in equity filed in the Circuit Court by appellants, taxpayers in the city of Paxton, to enjoin the payment out of city funds, of $920.86, to John P. Middlecoff, in pursuance of a resolution of the city council directing the city clerk to issue a city warrant in favor of Middlecoff for that sum. A temporary injunction, as prayed for in the bill, was granted, but upon a hearing of the cause the injunction was dissolved and the bill dismissed at the cost of appellants.

It appears from the pleadings and proofs presented upon the hearing that on the 3d of July, 1899, the city council passed its annual appropriation ordinance and at the same time passed a resolution reciting the need of a city building, suitable for a council chamber, fire department quarters, police court room arid a calaboose, and providing for a committee of three aldermen, who, with the mayor, should make estimates as to dimensions, requirements and cost of such building. Middlecoff was at that time mayor.

On August 7,1899, the committee appointed reported that the cost of the building would be about $4,000, and that there were funds in the city treasury, which had been paid in on account of liquor license, which could be used for that purpose. The committee also reported favorably on plans submitted by an architect from Bloomington. The report was adopted, the committee was by resolution of the city council instructed to advertise for bids for the erection of the building on the plans adopted, and there was appropriated $4,500 out of the contingent fund then in the hands of the city treasurer for construction.

On September 4, 1899, the committee reported various bids and were, by resolution of the council, directed to accept the bid of 1ST. P. ¡Neilson. The committee did as directed, a contract was made, and the building was constructed at a cost of $5,421.55. The city treasurer paid out on orders of the building committee all the contingent fund on hand, amounting to $4,500.59, leaving a balance of $920.86 to complete the building. Middlecoff suggested to the city council that he would advance the money to pay the indebtedness and be repaid out of the annual appropriation for the next year, which he accordingly did, and the work went on. The building was completed and accepted April 1, 1900, and has been occupied by the city ever since.

On April 2, 1900, the cit} council, after approving a report of the building committee showing the complete cost of the building, etc., passed a resolution, reciting an indebtedness to Middlecoff of $920.69, by reason of the advancement mentioned, and directing the city clerk, after the adoption of the appropriations and levy ordinances of 1900, to issue a warrant in favor of Middlecoff for that sum.

To enjoin the issuance of such order and the payment of that sum this bill was presented July 2d of that year, and the temporary injunction allowed. On the same day the council passed its annual appropriation ordinance and provided for the payment of Middlecoff out of the taxes of that year.

There is no evidence, or charge, even, that there was any fraud or extravagant expenditure of money. From aught that appears in the record the building is fully worth its cost of construction, $5,421.55. Appellants’ sole claim of right to an injunction is that the annual appropriation ordinance of 1899 did not provide for the funds to pay for the building. That the city council realized the needs of a city building is evidenced by its resolution of July 3, 1899, and it was within its statutory power to enter into a contract for its construction.

The council was invested with the power to contract through a committee, just as Avas done. That is not disputed, but it is contended that no appropriation for the erection of the building by the annual appropriation ordinance of 1899 having been made, and no appropriation having been sanctioned by a majority of the legal voters of the city, either by petition or by vote at an election, the council was prohibited by the statute from entering into any contract creating any liability, or paying out any of the funds of the city for or on account of the construction of the building, and that the resolution directing the clerk to issue a Avarrant in favor of Middlecoff for the sum already paid out by him is void.

While courts should maintain with vigor the limitations which the statute has placed upon corporate action, whenever it is a question of restraining a city council in advance from passing beyond the bounds of statutory requirement, they should, on the other hand, enforce against the city, contracts of which it has received the benefit, if the subject-matter of the contract falls within the charter powers of the city.

Where the statute authorizes a municipal corporation to exercise a certain power, but specifically regulates the mode in which it may be exercised, an attempt on the part of the municipal officers to override the regulations and exercise it in another manner will be restrained; but when the officers have so acted, and the municipality has received the benefits of a contract thus irregularly entered into, it is estopped from setting up the irregular exercise of the power when called upon to pay for what it has received. East St. Louis v. East St. Louis Gas Light Co., 98 Ill. 415; Badger et al. v. Inlet Drainage Co., 141 Ill. 540; Bradley v. Ballard, 55 Ill. 413; First National Bank v. Keith, 183 Ill. 475; Village of Harvey v. Wilson, 78 Ill. App. 544; Dillon’s Municipal Corporations, Sec. 444, etc.

The proposition is thus tersely stated by Justice Scholfield in Badger et al. v. Inlet Drainage Co.:

“ The doing of the thing in a proper way is a legitimate charge upon the revenues of the municipality; and so when it is done and is accepted and enjoyed by the municipality, the municipality gets what it had authority to get in a different way, and it should therefore pay for it what it would have paid, had it got it in the right way.”

If a city which has received the benefits of a contract, not ultra vires, is estopped from interposing a defense based upon the manner in which the contract was made, individual taxpayers can not, by injunction, restrain the city from paying for or restoring the benefits. Appellants, citizens and taxpayers of the city, stood by and saw the erection of this public building. They knew the cost of its construction would have to be paid out of the funds of the city. True, they have made affidavits to the effect that they had no actual knowledge of any of the resolutions or steps taken by the city council relative to the construction of the building and the appropriation of money for it until after it was erected; but the resolutions and proceedings were published in two local papers and a record of them was kept in the office of the city clerk, open to their inspection had they desired to see it. Had they exercised but a small fraction of the concern to inform themselves as to what steps the council was taking in the direction of contracting for a city building that they have since exercised in an effort to defeat payment to a man public-spirited enough to advance money for the completion of the building, they might have restrained the council from erecting it until after making a regular appropriation therefor. This is a suit in equity. In a court of equity the doctrine of estoppel finds its widest field, and when we take into consideration all the facts and circumstances of this case, the honest expenditure of the money, the benefits from it received by the city, and the attitude of these appellants, there is, to our minds, presented an appropriate case for an application of the doctrine. Decree affirmed.

Mr. Justice Burroughs dissents.


author: Mr. Presiding Justice Barker

text:
    Himrod Coal Co. v. S. M. Clark, Adm’r, etc.
    1. Pleadings — Defects in, Cured by Verdict. — When a defendant pleads to the declaration and goes to trial on the merits he is in no position to raise the objection in the Appellate Court that the cause of action is not sufficiently stated.
    2. Master and Servant. — Duty of the Master to Furnish the Servant a Reasonably Safe Place to do His Work. — It is the duty of the master to furnish his servant with a reasonably safe place in which to perform his work.
    3. Same — Right of the Servant to Presume that the Master has Performed His Duty. —In the absence of notice that a place or appliance is dangerous, a servant may properly act upon the presumption that the master has used reasonable care in putting the appliance with which and the place in which he is to work in a reasonably safe condition.
    4. Same — Risks Not Assumed by the Servant.■ — A servant does not assume the risk of accident and injury due to the failure of the master to exercise reasonable care in furnishing him with a reasonably safe place to do his work.
    Trespass on tile Case. — Death from negligent act. Appeal from the Circuit Court of Vermilion County; the Hon. Henry Van Seller, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    D. D. Evans and G. M. McDowell, attorneys for appellant.
    Geo. G. Mabin and S. M. Clark, attorneys for appellee.
   Mr. Presiding Justice Barker

delivered the opinion of the court.

Appellee, as administrator, recovered judgment for $3,500 against appellant for damages occasioned by the death of Christ Schroath. Schroath was a machine runner in appellant’s mine and was killed by rook falling upon him from the roof of the mine.

The negligence charged in the declaration was failure of appellant to keep the place where the accident occurred in a reasonably safe condition, as could ha\Te been done by the use of props or cross-pieces under" the roof. It is contended that the declaration does not state a cause of action in that it is framed upon the theory that it Was a duty of appellant to prop the roof of the mine, whereas no such duty rested upon it, either at common law or by statute. We do not so understand the declaration. It sets up negligence at common law — alleging that appellant negligently failed to keep its entry at the place where the accident occurred in a reasonably safe condition. It alleges a failure to place props or cross-pieces, true; but that is averred as a reason why the place was rendered unsafe. The averment could have been stated more clearly and with greater certainty, but appellant having pleaded to the declaration and gone to trial on the merits, is in no position to raise that objection now.

The evidence shows that it was the duty of Schroath to operate his machine by compressed air in loosening and undercutting coal, and to move it from point to point in the mine as it was needed. He had nothing to do with propping the roof. At the time he was killed the machine was temporarily in charge of another miner, while he was on or near a set of trucks preparing to move the machine to another room in the mine. While he was so occupied the roof gave way and precipitated a mass of rock upon him wThich caused his death. The rock which fell was what the witnesses term a pot rock ” and is a dangerous thing in the roof of a mine. There was testimony to the effect that appellant’s foreman had notice of the dangerous condition of the roof within a few feet of this “ pot rock ” two days before. If so notified it was appellant’s duty to prop it or take other steps to make it safe. The law is well settled that it is the duty of the master to furnish his servant with a reasonably safe place to perform his work. C. & A. R. R. Co. v. Scanlan, 170 Ill. 106; Leonard v. Kinnore, 174 Ill. 532.

We see no room for the contention that Schroath was not in the exercise of proper care for his own safety. He Avas simply loading his tools on the truck and preparing to move his machine to another point in the mine, as it Avas his duty to do. There is nothing in the record to show that he Avas acting in an unusual or improper manner. There were other employes charged with the duty of looking after the roof and keeping the same in reasonably safe condition, and he had the right to presume that they had discharged their duty. In the absence of notice that a place or appliance is dangerous a servant may properly act upon the presumption that the master has used reasonable care in placing the appliance with which he is to work and the place in which he is to work in a reasonably safe condition. Hines Lumber Co. v. Ligas, 172 Ill. 315; C. & E. I. R. R. Co. v. Knapp, 176 Ill. 127; City of LaSalle v. Kostha, 190 Ill. 130.

What we have said sufficiently indicates our opinion that the accident and death of Schroath was not an assumed risk of his employment. A servant does not assume risk of accident and injuries due to a failure of the master to exercise reasonable care in furnishing the servant with a reasonably safe place to Avork.

Ho erroneous instruction was given in behalf of appellee. Appellant has no just ground of complaint because of the refusal of the court to give certain instructions asked by it. The jury were abundantly instructed for appellant and as fully as the law and facts warranted. There Avas no error in ruling upon the admissibility of testimony sufficient to justify a reversal. Judgment affirmed.


author: Mr. Justice Wright

text:
    D. Sinclair Co. v. Andrew E. Waddill.
    1. Practice — Opening Statement — Discretion of the Court. — The time at which the opening statement to the jury is to be made is within the sound discretion of the trial court, and its ruling in this respect can not be available as error in the Appellate Court unless such discretion has been abused to the prejudice of the party complaining.

      2. Employer and Employe — Eights of the Employes — Construction of Scaffolds, etc. — An employe has the right to assume that his employer will use reasonable care in the construction of scaffolds and like structures, to have them of sufficient strength to bear all the materials they are designed to bear, and that he will not overload them so as to cause them to break and fall, while employes are at work upon them.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    F. J. Canty and J. A. Bloomingston, attorneys for appellant.
    James W. & Edward C. Craig, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This was a suit by appellee against appellant for negligently causing injuries to the former while he was in the service of appellant. The trial by jury ended in a verdict and judgment against appellant for $1,000, and it is sought by this appeal to reverse the same in consequence of alleged errors of the trial court, because it improperly ruled, as it is urged, upon the admission of evidence, misdirected the jury and gave improper instructions, the damages are excessive, and also that the court refused to permit the counsel for appellant to make the opening statement to the jury at the close of the evidence for the appellee. It is also argued that the verdict is against the evidence of the case. We are not of the opinion any prejudicial error occurred in the ruling of the court upon the evidence, nor. in its instructions to the jury, either given or refused. Upon the whole, we find the jury were fairly and well instructed upon all the material issues of the case. In respect to the opening statement to the jury, appellant was afforded an opportunity to make the same, according to the usual practice, following the statement of appellee, and it having declined to avail itself of such privilege, there is no reasonable ground upon which it can now complain. The time at which the opening statement to the jury should be made is within the sound discretion of the trial court, and its ruling in that respect can not be available as error in this court, unless such discretion has been abused to the prejudice of the party complaining, and this is not apparent in this case. So far as we can see from the record, appellant refused to make such statement, without any sufficient reason, at the time the trial court required it to be done. Litigants have no right captiously to disregard the directions of the trial judge respecting the proper decorum of the trial, and then say they have been deprived of the usual privileges incident to a trial by jury. Were we to consider such matters as serious error, the trial court would thereby be subordinated to the whims and caprices of the parties, and its authority brought into disrespect. Such a practice ought not to be encouraged.

It is insisted the verdict is not supported by the evidence. The additional counts of the declaration, upon which the trial alone was had, and upon which the. verdict of the jury is based, are to the effect that appellant was the builder of concrete bridges upon a railroad, and appellee was employed by it in such work, and while so employed it was his duty as a carpenter to assist in the construction of a house for the storing of cement along the grade of the railroad, under the orders and directions of the defendant, and while so employed appellee was directed to go upon the top of the structure and there complete the roof thereon, and while there the appellant negligently caused cement to be placed within such structure of sufficient quantity and weight to cause it to break and fall down, and thereby injure appellee, whereby his arm was broken and other injuries incurred.

We are of the opinion the evidence clearly proves the substance of the additional counts of the declaration. The appellee was directed by appellant’s foreman to do the work in which he was engaged at the time he was injured, and it was clearly its duty to refrain from any act, while appellee was on the roof of the house, that would cause the fall thereof. Appellant was charged with the duty of providing appellee a safe place to work, and to use reasonable care to avoid injuring him. while so engaged. It is plain from all the evidence in the case, that the structure was insufficient to bear the weight of the bags of cement that were placed in it while appellee was upon the roof, and this by the exercise of common care and foresight the master would know. It is no excuse to argue, as has been done, that appellee assisted, or made the structure himself, and should have known its weakness. It was made under the direction of appellant’s foreman, and according to his instructions. Appellee was not a party to, nor assisting in the work of placing the bags of cement in the house, the weight of which caused the building to break and fall while he was upon the aoof. Others had been directed by the foreman to do this work, while appellee was directed to go upon the roof for another purpose, and the latter was not a fellow-servant of the others in the particular business then in hand. Appellee had the right to assume that the master would use reasonable care to construct a building of sufficient strength to bear all the cement he designed it to hold, and that he would not overload it, so as to cause the building to break and fall, while appellee was yet working upon it. The building did not have adequate strength to uphold the weight the foreman directed to be placed upon it. In these respects the master was negligent and at fault. The negligence or fault of the master is not one of the hazards the servant assumes, and the argument to the contrary has no reason or authority in support of it. We are not impressed that the jury were misled or prejudiced in any way by the remarks of counsel of which complaint is made, nor are the damages excessive.

Finding no reversible error the judgment of the Circuit Court will be affirmed.


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    City of Carthage v. Robert Carlton.
    1. Intoxicating Liquors — Power of Cities to Except Physicians.— Cities incorporated under the laws of this State have the power to except a physician from the penalty of an ordinance prohibiting the sale of intoxicating liquors, who uses it in good faith in his practice as a medicine.- The legislature has delegated to cities and villages the right to license, regulate and prohibit the sale of intoxicating liquors, and although physicians are not expressly named as exempt, the right to exempt them in the legitimate practice of their profession is included within the general power conferred.
    3. Statutes — Discrimination Which Will Bender an Ordinance or Statute Void. — A discrimination which will render an ordinance or statute void must be between persons coming within the same class.
    Debt, for a penalty. Appeal from the Circuit Court of Hancock County; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed December 10, 1901.
    Alva A. Kelley, city attorney, David E. Mack and Berry, McCrory & Kelley, attorneys for appellant.
    Truman Plantz and William H. Hartzell, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

This is an action for debt brought by the appellant against the appellee to recover a penalty for an alleged violation of section 1 of an ordinance of said city, entitled “ An act to regulate, suppress and prohibit the selling, bartering, exchanging or giving away of vinous, malt, fermented, spirituous and intoxicating liquors within the city, and for other purposes therein named.” Section 1 is as follows:

“ Section 1. Be it ordained by the city council of the ' city of Carthage, that it shall be unlawful for any person or "persons to sell, barter, exchange or give away within said city, in a less quantity than five gallons, any brandy, whisky, rum, gin, wine, ale, beer, cider or other vinous, malt, fermented, spirituous or intoxicating liquor, or any beverage or drink in which any of the aforesaid liquor is mixed or contained; and any person or persons so offending shall, upon conviction thereof, be fined in the sum of ten dollars for each and every offense.”

Appellee claims that this section of the ordinance is made invalid by section 10 of the same ordinance. This was the question before the Circuit Court, where the section was, by that court, held to be invalid, and a verdict against the city returned under a peremptory instruction.

Section 10 is as follows:

“ Section 10. Bone of the provisions of this ordinance shall apply to any person duly licensed by the authorities of said city to dispose of said liquors, when disposing of the same in conformity with the conditions, regulations and requirements of the ordinances of the city in that behalf; nor shall any prosecution be had, under this ordinance, against any practicing physician who shall,in good faith, sell or dispose of, to his patients, any of said liquors for medical purposes; provided, he shall place a label upon the bottle or vessel containing the liquor, giving the date, also the name of the patient, and directions for its use, and shall sign the same. And the fine above provided shall not be applicable to any person who shall sell or dispose of cider for the use and consumption of any person at his private residence or in his family for culinary purposes, nor to any person who shall, in good faith, give away of said liquors, at his place of residence, by what is commonly known as treating a friend. The regulations in this section contained for permission to physicians to sell or dispose of said liquors for medical purposes, is declared to apply as well where any of said liquors are prescribed without any other ingredient, mixture or substance added; also where the liquor is prescribed with some ingredients, mixtures or substance to be added. A failure to observe any or either of the requirements aforesaid, shall be held to be an evasion of this ordinance, and subject the offender to the fines and penalties aforesaid.”

There are no questions of fact involved and but one question of law, viz.: Is section 1 of the ordinance valid?

It is contended that section 1 of the ordinance, when considered in connection with section 10, is invalid, because it makes unjust discrimination in that it imposes a penalty upon one person for doing an act from which pt exempts others.

Paragraph 46 of section 1, article 5, chapter 24 of the Revised Statutes, expressly gives to cities and villages the power to regulate by ordinance the sale of intoxicating liquors within corporate boundaries. There can be no doubt of the validity of section 1 of the ordinance in question when considered alone. But it is claimed that it is rendered invalid by the provisions contained in section 10, which exempts from prosecution and fine practicing physicians who shall, in good faith, sell or dispose of intoxicating liquors to their patients for medical purposes, and persons who shall sell or dispose of cider for the use and consumption of any person at his private residence or in his family for culinary purposes.

It is contended, first, that the legislature has conferred no power on a city to except physicians from the operation of an ordinance prohibiting the sale of intoxicating liquor; second, that the exception made in section 10 creates an unjust discrimination.

If the first contention were true, it would seem more logical to hold that the exception is void, and that physicians are amenable to the general inhibition contained in the ordinance, than to hold that the exception renders the entire ordinance void. It is well settled that a section of an ordinance containing an invalid provision does not necessarily render the entire ordinance void. But, as we view it, a city has the power to except a physician who, in good faith, uses in his practice intoxicating liquors as a medicine. The legislature has delegated to cities and villages the right to license, regulate and prohibit the sale of intoxicating liquors, and although physicians are not expressly named as exempt, the right to exempt them while in the legitimate practice of their profession is included within the general power conferred.

Does the exception contained in section 10 create an unjust discrimination? A discrimination that will render an ordinance or a statute void must be a discrimination between persons coming within the same class. It must be observed that the exception does not permit a physician to traffic in intoxicating liquors in the sense that a merchant or saloon keeper sells his goods. It only allows him to sell and use it as a medicine when the needs of a patient require it.

Within the sense and meaning of section 10, he does not belong to the same class with appellee or any other person who engages in the general traffic of liquor. He belongs' to a class educated, trained and licensed to alleviate pain, restore health, and to exercise his judgment in the use of drugs and stimulants upon patients. The ordinance does not allow him to sell ad libitum. He is restricted to its sale in good faith. Good faith requires him to sell and use it in his practice only as a medicine to a patient that he is treating. No doubt he would be amenable to the provisions of section 1 if he sold it other than as a medicine to a patient, and in good faith.

We do not regard the case chiefly relied on by counsel for appellee, (Wright v. The People, etc., 101 Ill. 126,) as being in point. Wright was indicted and convicted for selling intoxicating liquor without a license. He was a regular druggist and set up that he sold the liquor in good faith for medicinal purposes and therefore did not come within the provisions of the dram-shop act. The Supreme Court held that it was no defense. There was no question of discriminating by ordinance involved.

It is also argued that section 10 renders section 1 void because a discrimination in favor of persons selling cider is made. It is plain that no discrimination between persons is made by the regulation concerning cider. One man has the same right to engage in the manufacture and sale of cider that another has, and under the ordinance there is nothing prohibiting any one from selling it for culinary purposes. In that regard all the citizens of Carthage stand upon the same footing. Conceding that cider at a certain stage is intoxicating, then the most that can be said of this exception is that it is a discrimination between liquors. It will hardly be contended that a city may not discriminate between different kinds of liquor.

We are of the opinion that the Circuit Court erred in holding the ordinance void and injdirecting a verdict against • the city. The judgment will therefore be reversed and the cause remanded.


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    C. Lane v. Charles F. Beitz and Mary L. Beitz.
    1. Equity — Acquiring Jurisdiction for One Purpose Retains It for All. — When a court of equity acquires jurisdiction of a suit for the purpose of determining whether or not a conveyance is, in fact, a mortgage, it will retain its jurisdiction for the purpose of adjusting all differences between the parties growing out of the transaction.
    Bill for Belief. — Appeal from the Circuit Court of Moultrie County; the Hon. Wm. G. Cochran, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded, with directions.
    Opinion filed December 10, 1901.
    R. M. Peadro, attorney for appellant.
    E. J. Miller, attorney for appellees.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

This is a bill in chancery filed by appellees for the purpose of having a deed made to appellant, conveying certain town lots in Sullivan, Ill., declared a mortgage, for an accounting, and for leave to .redeem. The allegations of the bill were controverted by answer, proofs were taken, and a decree was rendered, finding the conveyance in question to be a mortgage. The decree further found that the title to the property had become vested in a grantee of appellant, who was an innocent purchaser for value, and that appellant was indebted to appellees, by reason of the transaction, in the sum of $321.84. The court rendered judgment against appellant for that sum, and awarded execution therefor in favor of appellees.

At the time of taking the deed, appellant executed a contract back to appellee Charles E. Beitz, in which was embodied a lease of the property for one year, and an agreement to reconvey at any time within one year, on compliance with certain terms therein mentioned, and the payment of $730, with interest at seven per cent. Beitz was unable to pay the $730 within the year, and afterward appellant, claiming to be the owner of the property free from any title or claim of Beitz, sold and conveyed it, receiving therefor $500 in cash and thirty acres of land. Notwithstanding the contract as to leasing, reconveying, etc., all the facts and circumstances lead us to the conclusion that the transaction was in the nature of a mortgage, and that appellant could have been compelled to reconvey, had the legal title been in him at the time of the hearing. Coates v. Woodworth, 13 Ill. 654; Ennor v. Thompson, 46 Ill. 214; Keithley v. Wood, 151 Ill. 566. The last cited case is much like the one at bar.

As the court could not decree a reconveyance of the property for the reason that appellant’s grantee was an innocent purchaser, he found, on recommendation of the master, in chancery, that it was worth $1,396.43, that appellant was entitled to credits to amount of $1,074.59, and rendered judgment against him for $321.84. To the contention that, the proceedings being in a court of chancery it was error to render a common law judgment, it is only necessary to say that the court acquired jurisdiction for the purpose of determining whether the conveyance of appellees to appellant was a mortgage, and having so acquired jurisdiction, the court could retain it for the purpose of adjusting all differences between the parties growing out of the transaction.

Cross-errors have been assigned, and under them it is claimed that the amount of the judgment is inadequate. We are not disposed to interfere with the court’s findings, except as to one item. In the credits allowed to appellant was one of $50, allowed him as commission for selling the lots. Appellant did not sell the property as an agent, but as his own property. He assumed to hold the title and to have the right to convey it free from any claim of appellees. He was, therefore, not entitled to an agent’s commission. The decree will be affirmed in every respect except as to this, and the cause will be remanded, with directions to enter judgment against appellant for $371.84, instead of for $321.84.

Reversed and remanded, with directions.


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    Kellyville Coal Co. v. Wm. Witt.
    1. Impeachment — Of Witnesses — Statements Made Out of Court.— Misquoted statements drawn up in the interest of a coal company and signed by its employes simply for the purpose of adjusting a claim against an insurance company in which the coal company was insured against loss by reason of personal injury suits, are not competent, and should have no force by way of impeachment of the signers when witnesses in actions for personal injuries growing out of the same transaction.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Vermilion County: the Hon. Ferdinand W. Bookwalter, Judge, presiding. Heard in his court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    D. D. Evans and G. M. McDowell, attorneys for appellant.
    G. W. Salmans and Fred Draper, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

This is an appeal from a judgment of $500 rendered in favor of- appellee in a suit brought against appellant to recover for injuries sustained by appellee while working in appellant’s coal mine.

Appellee, in connection with one Fred Bernice, was engaged in driving an entry in appellant’s mine. When about thirty feet from the working face, a part of the roof fell and broke his leg. The roof fell because of insufficient propping with timbers. Appellee and Bernice testified that they knew the necessity for timbers to do the propping with, and gave frequent orders for timbers in the usual and customary way, but that appellant failed to supply them. Their testimony clearly shows a failure on the part of appellant to supply the necessary timbers and to keep the roof in a reasonably safe condition, and that such failure was the proximate cause of appellee’s injury. Their testimony is in conflict with written statements made by both of them a few weeks after the accident. The written statements show no cause of action and for that reason it is insisted the verdict and judgment should have been for appellant.

Appellee and Bernice testified that the statements were drawn up by one of the attorneys for appellant and signed by them under the representation that the purpose was simply for adjusting a claim against the insurance company which had insured against such injuries, and that the written statements misquote what was said to the party who drew up the statements. If that is true, the statements would not be binding upon appellee and should have no force in the way of impeachment against them as witnesses. Whether true, was a question for the jury, of course, and we are not willing to say that the jury were wrong on that disputed point.

We see nothing in the record to justify us in reversing the judgment. Judgment affirmed.


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    Elmer E. Vaniman et al., Adm’r, etc., v. Alva L. Gardner et al.
    1. Equitable Mortgages — Agreements Pledging Property as See,urity. — While, as a general rule, any written contract entered into for the purpose of pledging property or some interest therein as security for a debt, which is informal or insufficient as a common law or statutory mortgage, but which shows that it was the intention of the parties that it should operate as a charge upon the property, will constitute, an equitable mortgage, and be enforced as such in a court of equity, yet a mere promise to pay out of the proceeds of the sale of the property is not sufficient to operate as an equitable mortgage upon the property itself. The intention must be to create a lien upon the property, as distinguished from an agreement to apply the proceeds of a sale of it to the payment of a debt.
    Bill of Foreclosure. — Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Statement, — On April 11, 1895, Anthony Eoberts and his wife entered into the following written agreement with their son, Moss Eoberts:
    “ Agreement between Anthony Eoberts and Sarah J., his wife, of first part, and Moss Eoberts, their son, second part. Witnesseth, that said Anthony Eoberts is the owner of the M. W. J of the M. W. section 24, township Mo. 12, range Mo. 6, west of the 3rd P. M., in Macoupin county, Illinois, on which all of said parties reside and occupy as a homestead; and, whereas, it is desirable that a new house shall be erected on said -tract of land for the comfort and use of all said parties so long as they shall live upon said tract of land. It is therefore agreed by the said parties that said Moss Eoberts shall erect on said premises a house which shall be convenient and suitable for the use of said parties, including the family of Moss Eoberts. That Moss Eoberts shall have the right to pull down the old house now on said premises and use the material thereon fit to be used in building the new house, and said new house shall be built and completed within the next ninety days after the date of this agreement.
    And in consideration of the said building, the said parties of the first part, agree that in case they shall sell the said tract of land, then there shall be due and payable to said Moss Eoberts out of the money arising from such sale . the sum of $500, together with interest thereon, from the time of the completion of said house until paid, at the rate of six per cent per annum, and in case of the death of the said Anthony Eoberts leaving no will by virtue of which said Moss Eoberts shall become devisee and owner of said tract of land, then, and in that case, there shall be paid to said Moss Eoberts, out of the estate of said Anthony Eoberts, the said sum of $500, together with six per cent interest thereon from the completion of said house until paid.
    (Signed) Anthony Eoberts, (seal.)
    Sarah J. Egberts, (seal.)
    Moss Eoberts.” (seal.)

      The instrument was filed for record and recorded in the recorder’s office of Macoupin county, July 12, 1895.
    The house was built by Moss Eoberts with money obtained from a bank at Yirden, Illinois, on notes executed by him and George Yaniman as security. The written agreement was delivered to Yaniman and afterward indorsed as follows:
    “I assign the benefit of the within contract to Geo. Yaniman as security to him for signing notes.
    (Signed) Moss Egberts.”
    In 1898 Anthony Eoberts and wife conveyed the land to Martha J. Eoberts, wife of Moss Eoberts, who, on August 18, 1900, executed note and mortgage on the land to Alva L. Gardner, to secure an indebtedness of §500, due ten days after date. Gardner filed a bill to foreclose. Appellants, the administrators of George Yaniman, who were made defendants, together with others, answered and filed a cross-bill, in which they set up that there was a lien in favor of the deceased, by virtue of the above quoted agreement, and its assignment, and a payment by them, as administrators of Geo. Yaniman, of the notes on which he was surety for Moss Eoberts. The court sustained a demurrer to the cross-bill, holding that appellants had no lien on the land, and rendered a foreclosure decree in favor of Gardner.
    Rinaker & Rinaker, attorneys for appellants.
    Knotts & Terry, attorneys for appellees.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

It is contended by appellant, first, that under the written agreement of April 11, 1895, an equitable lien or mortgage was given Moss Eoberts upon the land in question, whereby equity will enforce the payment of the $500 specified in the agreement, as a first lien upon the land; second, that appellants are subrogated to all rights of Moss Eoberts under the agreement by virtue of his assignment thereof to George Yaniman.

While, as a general rule, any written contract entered into for the purpose of pledging property or some interest therein as security 'for a debt, which is informal or insufficient as a common law or statutory mortgage, but which shows that it was the intention of the parties that it should operate as a charge upon the property, will constitute an equitable mortgage and may be enforced as such in a court of equity, yet a mere promise to pay out of the proceeds of the sale of the property is not sufficient to create an equitable mortgage upon the property itself.

“ The intention must be to create a lien upon the property, as distinguished from an agreement to apply the proceeds of a sale of it to the payment of a debt.” Jones on Liens, Sec. 32; Gibson v. Decius, 82 Ill. 304; Hamilton v. Downer, 46 Ill. App. 541.

We are unable to see in the written contract involved in this case an intention on the part of Anthony Roberts to create a lien or charge upon the land. It did not obligate him to sell the land and clearly contemplated that he might or might not sell it, as he saw fit. It only provided two events in which there should be due his son the $500; one in case he should sell the land and the other in case he should die leaving no will under which his son should become owner of the land. In the former case the son was to be paid out of the proceeds of sale, and in the latter he should be paid out of the estate of Anthony Roberts. As we view it, the import of the contract was more to fix events for the maturity of an obligation than to pledge the land for its payment.

It is evident that there was no intention that Moss Roberts should have a lien on the land for the money in the event of his father dying intestate, because the language of the contract is, that in that event, he should be paid out of his father’s estate. Again, the provision that in the event of sale by Anthony Roberts, the money should be paid Moss Roberts out of the proceeds of the sale, fully recognizes the right of the former to sell, and that right carried with it the power to invest his purchaser with the title free from any lien arising out of the contract. If the contract created no equitable lien in favor of Moss Roberts, none, of course, can be held to exist in favor of his assignee.

The evidence shows that the $500 note to Gardner represented a Iona fide debt, and there is nothing in the record to warrant a suspicion, even, that the giving of the mortgage to him had any other than an honest purpose to secure the debt. Decree affirmed.


author: Mr. Presiding Justice Burroughs

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    J. W. Trimble v. Andie Terril.
    1. Appellate Court Practice — Errors Assigned but Not Argued Are Abandoned. — Errors assigned but not urged in the brief and argument of the appellant are waived, and will not be considered by the court.
    2. Same — Instructions Should Be Numbered in the Abstract. — Instructions given in the abstract of the record should always be correctly numbered.
    Assumpsit, for commissions. Appeal from the Circuit Court of Schuyler County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    D. L. Mourning, attorney for appellant.
    B. O. Willard, attorney for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

Appellee sued appellant in the Circuit Court of Schuyler County in an action of assumpsit to recover commissions for procuring a purchaser for appellant’s farm, to whom it was sold for $16,000.

The case was tried by jury and resulted in a verdict and judgment in favor of appellee for $380. Appellant brings the case to this court by appeal and, while assigning thirteen errors on the record, his counsel, in his printed brief and argument filed in this court, urges only the following three:

(1) That the court admitted improper evidence.

(2) Improperly modified appellant’s tenth instruction; and,

(3) Improperly refused appellant’s thirteenth instruction.

We will consider only the three urged, because those not urged in the brief and argument of appellant, are waived, and for that reason need not be considered. Town of Grafton v. Mooney, 89 Ill. App. 623; Strodtmann v. County of Menard, 158 Ill. 155, and Dorn v. Ross, 177 Ill. 225.

It appears by the evidence that appellee is a real estate agent and he testifies that appellant employed him to find a purchaser for a farm which appellant desired to sell, and promised to pay him commissions therefor; that he did find a purchaser who bought appellant’s farm and paid him §16,000 therefor. Appellant denied that he employed appellee to find a purchaser for his farm, but admits to having conversations and correspondence with him concerning the selling of the farm and to having given appellee a written statement of the rents it produced, and claims that he, appellant, found the purchaser to whom the farm was sold, without the aid or assistance of appellee; but a careful reading of the evidence and a due consideration of it convinces us that the jury were justified therefrom in finding in favor of appellee.

Counsel for appellant contends that the court, over his objection, improperly permitted the witnesses Jackson and Cole, to give their opinions as to the value of appellee’s services in question. The bill of exceptions, however, shows that those witnesses were only allowed to state what was customarily paid for similar services at the time and place in question, which was proper under the issue tried.

In his printed brief and argument filed in this court in this case, counsel for appellant states on page 16 that he “ thinks defendant’s tenth instruction should have been given without modification, and that it was error in the court to give same as modified; ” and on page 17 that “defendant’s thirteenth instruction, which the court refused, should have been given.” The abstract of the record, while giving appellant’s instructions both given and refused, does not give any numbers to them, and we are unable for that reason to ascertain to which instructions his counsel refers as tenth and thirteenth; but we have examined them all, and find the rulings of the court upon them, free from prejudicial error.

Finding no such error in this record as is urged by appellant the judgment of the Circuit Court will be affirmed.


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    D. M. Osborne & Co. v. C. McCarthy and Nellie McCarthy.
    1. Guaranty — Construction of Contracts of. — The contract of one who guarantees the payment by another of money to some third party, is an undertaking which is to be construed strictly, and such guarantor is liable to the extent only, and in the manner and under the circumstances pointed out in his obligation, and no further.
    Assumpsit, on a contract of guaranty. Appeal from the Circuit Court of Moultrie County; the Hon. William G. Cochrane, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Raymond D. Meeker, attorney for appellant.
    John E. Jennings and Frank Spitler, attorneys for appellees.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

One Mike McCarthy entered into a written contract with appellant, a corporation, for the purchase of farm machinery and other like merchandise to be sold at Dalton City, Illinois, during the season of 1898. The contract provided for the sale of the merchandise at prices named in annexed lists and payment by McCarthy with express charged or exchange. Appellee and Nellie McCarthy executed on the back of the contract the following guaranty :

“ In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, I hereby guarantee the fulfillment of the within contract on the part of M. McCarthy.
(Signed) C. McCarthy,
Nellie McCarthy.”

McCarthy, in the course of his dealings with appellant, became indebted to it in the sum of $329.06 and failed to pay. This suit was brought upon the guaranty. Appellee D. McCarthy only, was served, the summons being returned nonest inventus as to Nellie McCarthy. Appellee filed plea of the general issue to the amended declaration, and upon the issue raised thereby, a trial was had by the court without a jury, resulting in a finding and judgment against appellant. We think the judgment is right.

It is contended that the amended declaration does not state a cause of action against appellee. Having pleaded to the declaration and gone "to trial on the merits, appellee is in no position to urge the objections he does to it in this court.

He further contends that the contract sued upon does not constitute a cause of action. We can not take that view. It is a plain guaranty for the faithful performance of a contract of purchase on the part of appellee’s principal.

It is insisted that appellee can be held liable as guarantor only for such merchandise sold to Mike McCarthy by appellant as was included within the lists attached to the contract, and had the prices annexed. The contract provided that appellant should sell and Mike McCarthy should buy and pay for the merchandise listed and at the prices annexed.

In support of the contention appellee calls to his aid the well settled rule of law that a contract of guaranty must be strictly construed. Ryan v. Trustees, etc., 14 Ill. 20; Stull et al. v. Hance, 62 Ill. 52; Shreffler v. Nadelhoffer, 133 Ill. 536; Tolman Co. v. Rice, 164 Ill. 255. An inspection of the contract with the lists attached shows that prices were annexed to but few of the articles of merchandise listed.

They were:

“10-foot self dump rakes, 24 teeth.......$18 00
Manila twine, per Id................... 06£
Columbia Disc Harrow, 14 discs, 16 in... 24 00
Rival Disc Harrow, 14 discs, 16 in....... 20 00
Columbia Peg Tooth Harrow 105 teeth.. 13 50 Orbit Oil in barrels, per gallon.......... 18”

It nowhere appears from proof in the record that any part of the $329.06 which Mike McCarthy owed appellant was for any merchandise above enumerated, and the court was right in finding for appellee. Judgment affirmed.


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    Casper Stock et al. v. Mary C. Seegar.
    1. Evidence — Statements of a Daughter Claiming Bank Stock as a Gift from her Deceased Father Made to Witnesses hut Not in His Presence. — In an action of trover by a daughter of a deceased father to recover the value of twenty shares of bank stock, it is error to admit, over the objection of the defendant, proof of statements made by her at different times to witnesses, in the absence of her father, to the effect that he had given the stock to her and that she had taken the certificate and put it away.
    Trover, for the value of twenty shares of bank stock. Appeal from the. Circuit Court of Cass County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed December 10, 1901.
    Charles A. Barnes and J. J. Cooke, attorneys for appellants.
    Mills & McClure, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellee brought suit in replevin against appellants to recover a certificate for twenty shares of stock in the First Rational Bank of Beardstown, Illinois. The certificate had come into possession of appellants as executors of the will of appellee’s father, and was claimed by her as a gift from her father. Appellants refused to surrender the certificate when the replevin writ was served upon them, and the action was changed to trover. A trial by jury was had' upon the issue of whether the title to the bank stock was in appellee or her father’s estate, resulting in a verdict and judgment in favor of appellee for §3,920, the value of the stock.

The evidence shows that appellee’s father, a man over ninety years of age, who had been making his home with appellee for a number of years, desired to make a gift of the bank stock in question to her, reserving to himself its income during bis life. With that intention he, on June 1, 1900, five months before his death, indorsed upon the back of the certificate an assignment of the stock to appellee and a direction to the cashier of the bank to make the necessary transfer on the bank books. There was no question whatever as to the intention of the deceased to make the gift; but the frictional question upon the trial was whether the gift was made complete by a delivery of the certificate. The certificate was kept in a tin box of the deceased along with other papers belonging to- him. Appellee had access to the box and carried the key to it. She collected the dividends on the stock and had them passed to her father’s credit on his account with the bank. The question of delivery was a close and serious one for the jury. The court, over the objection of appellants, admitted proof of statements of appellee made at different times to two different witnesses, and in the absence of her father, to the effect that he had given her the bank stock and that she had taken the certificate and put it away. The admission of such testimony was clearly erroneous.

The court also permitted appellee to show the great care and attention, required by her father in his declining years, and the menial service performed by her for him in his feebleness. In view of the fact that no issue of that kind was involved in the pleadings, and that the intention of the deceased to make the gift was not disputed, but was recognized throughout the trial, the development of those facts before the jury was erroneous and prejudicial. ISTo doubt the admission of that testimony, together with the statements of appellee above mentioned and erroneously admitted, largely influenced the verdict, and for that reason, the judgment must be reversed.

As the case will be remanded for another trial we refrain from expressing our views as to the merits. We will say, however, that we recognize as correct, on principle, the proposition that the owner of bank stock may make it the subject of a gift inter vivos, and reserve to himself for life the income arising therefrom, and that no implication arises from such reservation that the gift is not to take effect in ¡presentí.

For error in the admission of testimony, the judgment will be reversed and the cause remanded.


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    Henry F. Hibler v. Frederick M. Thomas.
    1. Husband and Wife — Duty of the Husband to Provide Necessaries. — The law requires the husband to provide his wife and family with that which is necessary for their suitable maintenance according to their station in life. Ordinarily he will be presumed to assent to the wife making such purchases as in the conduct of her domestic concerns are proper for her management, but this presumption ceases when the husband gives the merchant notice not to sell to her on his credit, and he can not, after such notice, be bound, unless he neglects to procure the supplies necessary to the condition and situation of his family.
    2. Same — Notice by the Husband Not to Sell to the Wife. — Where a husband notifies a merchant not to sell goods on credit to his wife and he is subsequently sued for goods sold to her after such notice, the burden is upon the husband, first, to establish his notice, and having done so, it shifts upon the merchant to show that the husband failed to furnish the necessary and suitable support to his wife and family.
    Assumpsit, for goods sold, etc. Appeal from the Circuit Court of Vermilion County: the Hon. Ferdinand Booicwalter, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed December 10, 1901.
    Lawrence & Lawrence, attorneys for appellant.
    Winter & Rearick, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

This is an appeal from a judgment of $66.14 rendered by the Circuit Court in favor of appellee and against appellant in a suit originally brought before a justice of the peace to recover for merchandise sold to appellant’s wife, to be used in appellant’s family as “ family expenses.”

The parties to the suit are brothers-in-law and the evidence shows that ill-will had existed between them for a considerable length of time prior to the buying of the goods.

They were sold after appellant had notified appellee not to sell any goods to his wife on credit, and after he had instructed his wife to purchase no more goods from appellee.

There is no dispute as to the amount of the goods sold or the price charged for them; but appellant contends, first, that not all the articles sold are embraced within the term “ family expenses; ” secdnd, -that appellant’s wife had no right to pledge her husband’s credit under the circumstances, and that appellee had no right to extend the credit after being notified by appellant not to do so.

Counsel do not point out what items of the account are not embraced within the terms, “ family expenses.” We have examined the list of items and do not discover any not suited to the social position and condition in life of Appellant’s family. We think all of the articles sold are properly included within the term.

The case hinges upon the other contention. The appellant having notified appellee not to sell his wife goods on his credit, the burden rested upon appellee to prove not only that the goods sold were embraced within the term “ family expenses,” but also to show that the appellant had neglected to furnish them. The law requires the husband to provide his wife and family with that which is necessary for their suitable maintenance according to their station in life. Ordinarily he will be presumed to assent to the wife making such purchases as in the conduct of the domestic concerns are proper for her management and supervision. This presumption ceases when he gives the merchant notice not to sell on his credit, and he can not, by sales made after such notice, be bound, unless he neglects to procure supplies necessary to the condition and situation of his family. Schouler’s Domestic Relations, Secs. 63-76; Rea v. Durkee, 25 Ill. 503; Bevier v. Galloway, 71 Ill. 517.

The burden of proof was upon appellant, first, to establish his notice not to sell, and having proven that, the burden shifted upon appellee to prove that appellant failed to furnish the necessary and suitable support to his wife and family.

It appears from the evidence that appellant made provision for his wife purchasing goods at the store of one Harrison, and there is no evidence whatever to show that he refused to furnish any necessaries that could not be found in Harrison’s stock of goods. Clearly, the verdict of the jury is wrong, under the evidence.

Judgment reversed and cause remanded.


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    Merchants Insurance Company v. J. Oberman.
    1. Insurance — Waiver of a Condition Prohibiting the Use of Gasoline for lighting. — A condition in a policy of fire insurance prohibiting the use of gasoline for lighting purposes may be waived by an agent of the company, and is held to have been so waived by an agent in this case.
    3. Agency — Presumptions as to its Continuance. — Where a person is acting as the agent of an insurance company, and as such, writes a policy for it, it will be presumed that his agency continues until notice of its termination is brought home to the insured.
    3. Same — Notice of the Termination of an Agency. — Where the agency of an insurance company has been established by competent proof the burden is upon the company to bring home to the holder of the policy written by such agent, notice of the termination of his agency.
    Assumpsit, on a policy of fire insurance. Appeal from the County Court of Greene County; the Hon. David F. King, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.

      Steere & Furber, attorneys for appellant.
    D. J. Sullivan, attorney for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

This suit was brought by appellee to recover upon a fire insurance policy issued by appellant on June 7, 1900, insuring appellee against loss or damage by fire to the amount of $1,000 on a general stock of merchandise at Roodhouse, Blinois. On the 30th of October, 1900, the stock was damaged by fire to the extent of $2,000. A trial by jury resulted in a verdict and judgment in favor of appellee for . $1,000. Two defenses were interposed at the trial: first, that the policy was canceled before the loss, and second, that the plaintiff used gasoline for lighting the store room where the insured goods were kept, contrary to the terms of the policy, whereby the same became void. The cancellation, as per terms of the policy, was denied. The use of gasoline was admitted, but it was contended that the provision prohibiting its use was waived.

While there was a conflict in the testimony, a clear preponderance shows that J. A. Oberman, the agent of appellee having charge of the goods, about the first of October, 1900, informed W. O. Roodhouse, the agent of appellant who had written the policy, that he desired to move the goods to another building and requested that permission to do so be indorsed upon the policy; that Rood-house was then informed that gasoline lights would be used in the new store room; that upon request of J. A. Oberman, Roodhouse then promised to procure from the safe of a Mr. Lorton, the policy in question, and another which Roodhouse had written for appellee in another company, and have permission indorsed thereon to have the goods moved to the new store room; that Roodhouse did so procure the policies, and a few days afterward, while in the new store room, informed J. A. Oberman that the policies had been “fixed up all right,” and that neither appellee, nor his agent, J. A. Oberman, had any notice that the policy was canceled until after the fire.

The other policy was one for $1,000 in the Manhattan Insurance Company. After obtaining them from Horton’s place, Eoodhouse did not return them to J. A. Oberman, but informed him that he had left them at the local bank. When called upon for them after the fire, he said that only one policy, the Manhattan, was in force, and that the one in suit had been canceled. On the back of the policy was the following indorsement: “Received Oct. 5th, 1900, The Merchants, Chicago — marked on register, cancel at date of issue.” The policy provided that it could be canceled by giving five days notice. We are led to the conclusion from the evidence that neither appellee nor his agent had any notice of the cancellation until after the fire.

Eoodhouse had full knowledge of the fact that gasoline was to be used in the new store room, at the time of taking the policy to have permission to remove indorsed. He was the agent of appellant and assumed to act for it. Appellant is in no position to argue in this court that Eoodhouse was not its agent at that time. It introduced no proof to the effect that his agency had terminated. His agency having been established, the burden was upon appellant to bring to appellee’s notice the termination of the agency, if it had in fact been terminated. Story on Agency, Sec. 470; Water-town Fire Ins. Co. v. Rust, 141 Ill. 85. Furthermore, Eoodhouse stated on the trial, “ Have been agent for the Merchants Insurance Company for about four or five years,” clearly indicating that he was still its agent. If Eoodhouse, as the agent of appellant,was authorized to receive the policy for the purpose of having indorsed thereon permission to remove the insured goods to another building (and from all the circumstances, it must be presumed that he was so authorized), then notice to him that gasoline lights would be used in the new store room to which the goods were to be removed, was notice to appellant. Atlantic Insurance Co. v. Wright, 22 Ill. 462; Commercial Ins. Co. v. Ives, 56 Ill. 402; Andes Ins. Co. v. Fish, 71 Ill. 620; Phenix Ins. Co. v. Hart, 149 Ill. 513. In our opinion, the condition was waived.

While some of the instructions are slightly subject to criticism, we see in none of them errors sufficient to justify a reversal. Substantial justice has been done and the judgment will be affirmed.


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    V. T. Malott, Receiver Terre Haute & Ind. R. R. Co. v. J. B. Hood.
    1. Negligence — Failure of Railroads to Maintain Handholds as Required by the Interstate Commerce Act. — A train operated by a railroad company engaged in the transportation of freight across an entire State, and fora considerable distance within another, is a through train, and is, with every car composing it, within the meaning of the Federal statute regulating interstate commerce, required to be furnished with handholds as required by such act, and the failure of the company to maintain such handholds is prima facie negligence.
    2. Master and Servant — Liability of the Master When an Injury is the Result of His Negligence Combined with Some Ulterior Cause.— The rule is well settled that where an injury to a servant is the result of the master’s negligence, combined with some ulterior cause, and the injury is one which may properly fall within the class of assumed risks, the master is liable where his negligence was the efficient cause of the injury. It is not necessary to a recovery that the master’s negligence should be the sole, proximate cause of the injury.
    Trespass on the Case, for personal injuries. Error to the Circuit Court of Coles County; the Hon. Frank K. Dunne, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    T. J. Golden, attorney for plaintiff in error; Neal & Wiley, of counsel.
    James W. and Edward C. Craig, attorneys for defendant in error.
   Mr. Presiding Justice Barker

delivered the opinion of the court.

The defendant in error, while in the employ of the plaintiff in error as a freight train brakeman, had his hand mashed in attempting to couple cars, and had it so injured that its amputation became necessary. In a suit for damages, he recovered a judgment of $3,500 against the plaintiff in error.

Two charges of negligence were made and relied upon as grounds of liability: one was the use of cars in interstate commerce not provided with grab-irons or handholds in the ends and sides as required by the fourth section of the interstate commerce act; the other was that the place provided by the plaintiff in error for the defendant in error was not a reasonably safe one for coupling cars, in that the side track where he attempted to make the coupling was slanting and dangerous.

The first contention urged upon our consideration is that the proof did not bring the case within the operation of section four of the interstate commerce act, which makes it “ unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab-irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.” The train on which Hood was working was a freight train running between East St. Louis, Illinois, and Indianapolis, Indiana. The car which he testified caused the injury, and that did not have the handholds, was put in the train at East St. Louis, destined for Indianapolis. There was no evidence showing that it contained freight consigned from one State to another, nor do we think, as is contended by the plaintiff in error, that the duty rested upon the defendant in error to specifically make such proofs. The train of which the car in question was a part was engaged in interstate commerce, carrying stock and merchandise from one State to another; and the car itself, was attached where the train was made up, at East St. Louis, and billed through to Indianapolis. The construction which the plaintiff in error seeks for the provision quoted is to© narrow. If adopted, it would in many instances defeat the wholesome pui'pose for which it was enacted. The plaintiff in error was engaged in interstate traffic, operating a railroad across one entire State and for a considerable distance through another. As the train in question was a through train and was at the time engaged in transporting freight from one Qnd of the road to the other, every through car was, within the meaning of the Federal statute, a car used in interstate commerce.

In opposition to the testimony of Hood that the car did not have handholds, was the testimony of two car inspectors to the effect that they inspected the entire train on its arrival at Terre Haute, a few hours after the accident, and that every car was equipped with those appliances. In the conflict, it was the peculiar province of the jury to say where the truth was. We are not prepared to say that they erred in finding as they did on that question.

There is no room for the contention that the defendant in error did not exercise proper care for his own safety at the time he was injured. It was in the night time, in the latter part of December. Ho other person was immediately present. From his testimony, it appears that while stooping over to make the coupling, one foot, by reason of the uneven condition of the ground, slipped, and as there was no grab-iron for him to hold to, he was pitched forward and had his hand mashed. He was using his lamp and appears to have been giving the ordinary attention required for such service.

We can not agree with counsel that the injury was an assumed risk incident to the employment and service in which Hood was engaged. We give full recognition to the well established rule of law by which, railroad employes assume all hazards ordinarily incident to that kind of service, and readily acquiesce in the application of the rule to dangerous conditions arising from the formation of ice about switch tracks. As applied to the charge of negligence relating to the slanting and dangerous condition of the side track, where Hood attempted to make the coupling, there is some room for the contention made by counsel for the plaintiff in error; but as we look on it, the absence of the handholds from the car was the efficient cause'of the injury. Ho doubt, the slippery condition of the ground contributed to it. The rule is well settled, however, that where the injury to the servant is the result of the master’s negligence, combined with some ulterior cause, and one which may properly fall within the class of assumed risks, the master is liable if his negligence was the efficient cause of the injury. It is not necessary to a recovery that the master’s negligence be the sole, proximate cause of the injury. Village of Carterville v. Cook, 129 Ill. 152; Pullman Palace Car Co. v. Laack, 143 Ill. 242; 2 Thompson on Negligence, 1085; Cooley on Torts, 684.

It is provided by the eighth section of the act of Congress which makes it mandatory on all railroads engaged in interstate commerce to provide cars with handholds, that any employe of such common carrier who may be injured by any locomotive, car or train in use contrary to the provisions of this act, shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such common carrier after the unlawful use of such locomotive, car or train had been brought to his knowledge.” In view of that provision, it mattered not whether Hood was ignorant of or had knowledge of the absence of the required appliances before he was injured.

Complaint is made of the fourth and seventh instructions given for the plaintiff. The greatest objection that can be urged to them is that they are vague and uncertain. The seventh one is the more objectionable of the two. It reads:

“ 7. The court instructs the jury that an employe on a railroad does not assume all the risks incident to his employment, but only such risks as are ordinary, and remain so ordinary, usual and incident to his employment, after defendant has used ordinary care to remove them.”

It is difficult to understand what is meant by the last clause. It could not possibly aid the jury. But as neither of these instructions relate to the charge of negligence about failing to supply cars with handholds, and as the defendant assumed no risk which covered such failure, and as we think that was the efficient cause of the injury, no harm resulted to the plaintiff in error by giving them. Judgment affirmed.


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    Daniel Watson v. C. Fagner.
    1. Banker and Depositor — Loaning Funds on Deposit. — When a banker loans the funds of his depositor by authority, be becomes his agent, and as such is only liable for a failure to exercise good faith and reasonable diligence; but when he loans such funds without being authorized to do so, he becomes an agent from his own wrong and is absolutely responsible for the money.
    Assumpsit, for money lost by loaning it to insolvent parties. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed December 10, 1901.
    H. M. Steely, attorney for appellant.
    Penwell & Lindley and C. M. Briggs, attorneys for appellee.
   Mr. Presiding Justice Barker

delivered the opinion of the court.

This was an action of assumpsit brought by appellee to recover for money lost to him through the insolvency of parties to whom the money had been loaned by appellant as the alleged agent of appellee. Appellant was a banker at Rossville, Blinois. Appellee -was a depositor in his bank. It was charged that appellant solicited a deposit of' the money and promised to loan the same to safe and responsible borrowers, and to use due care and diligence in collecting the same; that he, on August 23, 1896, loaned the money to Dwiggins Brothers; that he carelessly and negligently loaned the money to them; and that he did mot use due care and diligence to collect it, whereby it became lost to him. Dwiggins Brothers were merchants, doing business at Rossville, and the money — $3,000—was loaned to them by appellant upon a promissory note for that sum, payable to appellee in one year with interest at the rate of six per cent per annum. They were subsequently adjudged bankrupt and the note was probated agains.t their estate. The pro rata, dividend received by appellant from the trustees in bankruptcy on the note was $903.73, which appellant tendered and deposited with his formal plea of tender.

A trial by jury resulted in a verdict and judgment in favor of appellee and against appellant for $3,928.67.

The errors assigned and relied upon for a reversal of the judgment are improper rulings upon evidence, improper instructions to the jury, the refusal of proper instructions, and that the verdict is against the law and the evidence.

The case was a close one on the disputed questions of fact. There was a sharp conflict between appellee and appellant as to the alleged promise of appellant to loan appellee’s money to solvent and responsible parties, and afterward to collect it. Appellee testified that the loan of the $3,000 to the Dwiggins Brothers was made without his knowledge, and that when he afterward learned of the fact and saw their promissory note among his papers, appellant assured him that they were solvent and promised that he would collect the note. Appellant testified that he never promised to take charge of and loan appellee’s money at all; that the Dwiggins Brothers loan was made upon appellee’s special instruction after appellee had learned that they wanted the money and had satisfied himself that they were solvent. He also denied that he ever promised to collect the note. There was other testimony of a corroborative character, but the case hinged largely upon the testimony of the two parties litigant. In view of the sharp conflict between them, accuracy of instructions was important.

If appellant agreed to loan appellee’s money to solvent and responsible parties, the duty rested upon him as agent to act honestly and use reasonable care and diligence in transacting the business. If he acted in good faith, he is only responsible for a loss due to his failure to exercise reasonable diligence and caution. The third instruction given for appellee is too broad. It is as follows : “Third. The court instructs the jury as a matter of law, that where one is agent to loan money, and loans the money of his principal to his own debtor without disclosing the fact to his principal, and the money so loaned is not securely invested, that the act is not binding upon the principal, and the principal would have a right to repudiate the act and hold the agent responsible for the money thus intrusted to be loaned.”

Under that instruction, an agent would be liable for money lost to his principal, no matter how insignificant the debt of the debtor to the agent and regardless of whether he exercised good faith and caution under it in making the 1 oan. The mere fact of existing indebtedness of the borrower to him made him responsible for an absolutely secure loan. Such an instruction would give a jury to understand that if the borrower owed the agent anything at the time, it gave the principal the right to repudiate the loan and look to the agent for a return of the money.

Yv'e can not say that the vice of this instruction was cured by others in which the jury were told that an agent is not responsible if he acts in good faith and exercised “ reasonable care and prudence in making investments” for his principal. The jury may have followed this one and not the other. Complaint is made of several other of appellee’s instructions, in that they assume the existence of a matter in dispute — the agency of appellant. We see no force in the objection. It is not disputed that appellant let out the money to Dwiggins Brothers. If he was authorized to do so, he was appellee’s duly appointed agent, and was only liable for failure to exercise good faith and reasonable diligence. If he was not authorized to so do, he became agent from his own wrong and became absolutely responsible for the money. YVe see nothing seriously wrong with any other of appellee’s instructions.

YYithout discussing in detail the various objections to the rulingsof the court on the admissibility of testimony, we only desire to say that no substantial error appears on that score. It was proper to show the relation that had for several years prior to the loan to Dwiggins Brothers existed between the ' parties as banker and depositor and to what extent appellant had assumed the management of appellee’s business. Any evidence tending to show the financial condition of D wiggins Brothers prior to the date of the loan and showing the result of the bankruptcy proceedings was proper.

We do not care to express our views as to the merits of the controversy, because the cause will be submitted to another jury. For the error of the court in giving the instruction above quoted, the judgment will be reversed and the cause remanded.