author: Mr. Justice Scott

text:
    Samuel H. Larminie v. Mark Carley.

      Filed at Ottawa May 15, 1885.

    1. Appeal—reviewing facts—generally. Where a judgment in favor of a plaintiff in an action of assumpsit is affirmed by the Appellate Court, and there is evidence in the record tending to establish the plaintiff’s theory of the case, no assignment of error can be permitted which calls in question the finding of the facts by the trial and Appellate courts.
    2. On the trial of a case by the court without a jury, the court decided to admit in evidence any letters, telegrams or communications from the defendant to his agent, provided they were shown to the plaintiff or the contents in any way communicated to him by the agent; but as to what letters or telegrams were shown the plaintiff, or their contents made known to him, the evidence was conflicting: Held, that the finding of the trial court as to what communications had been shown or made known to the plaintiff, was review! able only by the Appellate’ Court, and that it would be presumed the trial court observed the rule of evidence it adopted.
    3. Same—reviewing facts—on question of excessive damages. Whether the amount of damages recovered by a plaintiff in an ordinary action ex contractu is excessive or not, is a question of fact, which this court can not consider on appeal from the judgment of the Appellate Court, affirming the judgment of the trial court.
    4. Evidence—relevancy—in the particular case—as to communications between parties prior to the transaction in controversy. In a suit against a commission man, to recover back margins put up from time to time on a purchase for future delivery, on the ground that the defendant closed out the deal' contrary to the contract, there being no complaint that plaintiff had failed to advance the requisite margins prior to the day the deal was closed out, it was held, that proof of telegrams from the defendant to his agent prior
    .to that day, and communicated to the plaintiff, was irrelevant, and that there ivas no error in refusing to admit the same.
    5. Where a plaintiff’s right of action depends upon the fact whether, on a particular day, he had failed to make a further advance to one who had made a purchase for him on the board of trade, on notice on that day, there being no claim of any default prior to such time, evidence consisting of communications from the defendant to his agent, by letters and telegrams, long prior thereto, is immaterial, and properly rejected. ,
    6. Same—as to proof of conceded facts. There is no error in refusing to admit evidence to prove any fact which is not disputed, but is conceded on the trial; nor is there any error in refusing to admit evidence which does hot tend to prove the fact sought to be established by it.
    7. Agency —forfeiture of the agent's commissions and lien. An agent employed to make a contract in his own name, for the purchase of grain, to be delivered at a future day, for his principal, and to whom his principal has advanced the required margins to protect him from loss, and who, after receiving all the margins required, close's out the deal and thereby sells at á ■loss, in violation of his contract, will lose his lien on the margins in his hands, and his commissions; and the principal may, under the common counts in assumpsit, recover of him all the margins so advanced by him to the agent.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Francis A, Riddle, and Mr. W. C. Goudy, for the ap“pellant.
    Messrs. King & Packard, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

Although this case has been elaborately argued by counsel, it would seem it ought not to require any very extended discussion, as the controlling facts occurred in a single day, and are comprised in a brief compass. The action was commenced by Mark Carley, against Samuel H. Larminie and Edward A; Bigelow. Afterwards, it was discontinued as to the latter-named defendant. The declaration contains only the common counts, to which the general issue was pleaded. The suit was brought to recover certain sums of money placed by plaintiff in the hands of defendant, as margins on deals in corn and lard, made on the board of trade in Chicago. It was stipulated, to be considered and used in evidence, that the declaration contains the whole cause of action claimed by plaintiff against defendant; that all the orders, contracts, purchases and sales made or attempted to be made in connection with the cause of action, or out of which or on account of which the alleged cause of action is claimed to have arisen, or which shall be offered or introduced in evidence, were bona fide, and for actual delivery of the articles therein mentioned, and that neither party shall call the same in question as having any element of gambling contracts in them. On the trial in the Superior Court, plaintiff recovered a judgment against defendant. That judgment was affirmed in the Appellate Court for the First District, and defendant brings the case to this court on his further appeal.

This court is asked to reverse the judgment of the Appellate Court on two different grounds : First, because the trial court improperly excluded certain documentary and other evidence offered by defendant, on the trial of the case; and second, because, assuming as true all that the evidence produced on the trial tends to prove in favor of plaintiff, it appears the damages awarded by the Superior Court are excessive. As respects the. latter point, it may be said, as to the amount which the evidence shows a plaintiff is entitled to recover in a particular case, that is regarded, under all the recent decisions of this court, as a question of fact, and as to which the finding of the Appellaté Court is conclusive on this court. But as to the rule to be adopted for ascertaining the measure of damages, that is a question of law, and so far as the question made may have any application to the facts of the present case, it will be considered further on.

The objections taken to the rulings of the court in the exclusion of testimony offered by defendant, can be more understanding^ considered after a brief reference to the principal and controlling facts Of the case. In the fall of 1881 plaintiff procured defendant to buy for him a large quantity of corn, for delivery in May of the next succeeding year, and also a quantity of lard, for delivery, perhaps, in March, 1882. It was, no doubt, tacitly, if not expressly, understood the purchases of these commodities were to be made on the board of trade, and as plaintiff resided in Champaign, and defendant in Chicago, the negotiations between the parties were conducted through Mr. Newell, who was defendant’s local agent at Champaign. Some dealings seem to have been had between the parties prior to the transactions out of which the present litigation arose, but as to them no controversy exists now, and never did. As to the quantity of corn and lard purchased by defendant for plaintiff, and as to the prices to be paid for them, and when the same were to be delivered, there never has been any disagreement between the parties, nor as to the commissions defendant should receive for his services in transacting the business. There is some controversy as to the precise amount of margins plaintiff was to keep on deposit with defendant, but none as to the fact plaintiff should keep a sufficient amount on deposit with defendant to afford him indemnity against loss for carrying the corn and lard for plaintiff. That was done, and up to the 14th or 15th day of February, 1882, it is not claimed plaintiff had not so far complied with his contract in that respect that no complaint had been made, and no right of sale (which it is conceded defendant would have had in case of failure to keep margins good,) had been insisted upon, or even claimed. If there had been any failures on the part of plaintiff, previous to that date, to keep margins on deposit, they had been waived by accepting subsequent payments of margins, and continuing to carry the corn and lard, so that up to the loth day of February, 1882, it can not be said there was really any breach of his contract, whatever it was, as to margins to be kept on deposit with defendant. Narrowing the controversy, then, as must be done, to what occurred on the 15th day of February,. 1882, and the events connected directly therewith, the case is relieved of all seeming difficulty. On that day defendant sold plaintiff’s corn and lard, and the principal contention is as to defendant’s right, under his contract with plaintiff, to make such sales. It seems the markets had become unsettled on the board of trade, and defendant’s position is, he caused his resident agent, Newell,, to give plaintiff notice that unless he put up further margins by. one o’clock P. M. on the 15th day of February, he would sell his corn and lard on the market, under his contract with plaintiff, or according to the usual custom in such cases. Plaintiff denies he had any notice whatever that his deals were to be closed out, and asserts that when he was asked to do so on that day, he put up all the margins demanded. There is evidence that on the morning of the 15th of February, Newell notified plaintiff of .the unsettled condition of the markets, ánd that hé was calling for margins. In reply, plaintiff told Newell his margins were not “exhausted,” and further stated he had been figuring, and that Newell looked over, and said to him: “For the time being, your margins are sufficient. If there is a change in the market—if it is lower—I will call on you. ” Plaintiff then left Newell’s office and went to his home. In the afternoon of the same day, perhaps about two o’clock, Newell went to plaintiff’s house, and told him “the market was panicky—the bottom was about falling out,” and that if he wanted to save his margins, he must put up more money. Plaintiff then gave Newell his check for $2000, and took his receipt for it for so much money paid to defendant, as margins, to secure his deals. Thereupon Newell, it is said,'telegraphed defendant that plaintiff “had margined handsomely.” Later in the same day, perhaps about dark, Newell again went to plaintiff, and told him he had just received a telegram from defendant that his deals' had been closed out. There is a conflict in the evidence as to some of the facts occurring on the day the deals were closed, but as there is evidence tending to establish plaintiff’s theory of the case, it will be understood the trial ■and Appellate courts found the facts that way, and no assignment of error can be permitted that will call in question the correctness of that finding'. Upon the facts as they must have been found by the lower courts, as the evidence tends to establish them, it is clear plaintiff had no notice his deals were to be closed out on that day, or at any other time; that he was not in default as'to margins, for, in the language of-'defendant’s agent, he had “margined handsomely, ” and that defendant had no right, either under his contract with plaintiff, or under any custom proven to have existed on the board of trade, or elsewdiere, in regard to such matters, to close out his deals. Keeping these facts in mind, the reason for rejecting most, if not all, of the testimony offered by defendant, .of which complaint is made, is apparent. Most of the evidence rejected consisted of communications, by letters and telegrams, that had passed between defendant and his agent, .Newell, and w'hich related to matters long passed, and concerning which no controversy ever existed. The decision of the trial court might be sustained on the single ground the evidence offered was immaterial on the issue to be tried. It related to no matter in dispute between the parties, and could not, therefore, illustrate any phase of the case. What possible effect could it have on the issue joined, to prove what communications had passed between the parties concerning margins, prior to the 15th day' of February? No complaint is now or ever was made that prior to that date plaintiff had been in default in regard to putting up margins on the deals closed out on that day. Whether plaintiff was in default as to margins on the day the deals were closed, was the only question then before the court, and what communications may have taken place in relation to other deals at any former time, were wholly irrelevant. The evidence tendered would obscure, rather than enlighten, the issue to be tried, had it been admitted.

But there is another view that may be taken, that leads to the same conclusion. It will be remembered the case was tried before the court, without the intervention of a jury. The court decided, in regard to all this class of testimony.: “Any letters, telegrams or other communications between defendant and Ellis J. Newell, were competent and proper evidence to be introduced on the part of defendant, provided that any such letter, telegram or other communication was shown to, or the contents in any way communicated to, the plaintiff. ” It is not made a matter of objection that this ruling was not as broad as the law would warrant, but the complaint is, the court repeatedly violated the rule announced, in its subsequent rulings. If the court departed from the rule it had declared, it must have been in. excluding letters or telegrams that had been shown to, or the contents communicated to, plaintiff. How could it be known to this court whether a letter or telegram that had been shown to, or the contents disclosed to, plaintiff, was rejected when offered in evidence? Obviously, what letters or telegrams had been shown to plaintiff, or the contents communicated to him, could only be known from the evidence, and as tottiem the evidence was quite as conflicting as to any other point in the case. It was the privilege of the trial court to determine, from the evidence, conflicting as it was, what communications had been shown to, or the contents made known to, plaintiff, and its decisions as to such controverted facts are only reviewable in the Appellate Court. It can not, therefore, be known to this court that the trial court rejected any communication, whether by letter or telegram, that may have passed between defendant and Newell, that the proof showed had been exhibited to plaintiff, or the contents disclosed to him. To ascertain that fact would require this court to determine controverted questions of fact, which is not allowable. The court decided it would admit any letter, telegram or other communication between defendant and his agent, Newell, that had been shown to, or the contents communicated to, plaintiff, and the presumption will be indulged it observed the rule of evidence adopted, and admitted everything it believed, from the evidence, had been so proven.

It is said the correspondence between defendant and Newell, if admitted, would go far to confirm Newell’s testimony that he had made the calls for margins, as directed, as was his duty to do. How the testimony offered could have any such effect, is not readily understood. As before remarked, there wras no controversy as to what Newell did, as agent for defendant, in making calls for margins prior to the 15th day of February, and it would seem to be absurd to contend that letters or telegrams sent by defendant weeks or months before, could, in the remotest degree, tend to prove that Newell on that day performed a duty devolved on him by his relations with defendant. The presumption the agent did his duty to his principal is just as strong without such testimony as with it.

Coming now to consider testimony offered relating more nearly to events that transpired on the 15th day of February, no error is perceived in the rulings of the court in the rejection of testimony. It is proven that on the léth and 15th days of February, defendant sent from Chicago, to Newell, one letter and a number of telegrams,—perhaps three, in all, —directing Newell to call on plaintiff for further margins. These papers, it is said, were offered, in connection with New-ell’s evidence, to prove that Newell made calls on plaintiff for margins, on the 14th and 15th days of February, by direction of defendant, and that plaintiff neglected to margin as required, and therefore his deals were lawfully closed for want of reasonable margins. If the letter and the telegrams were offered with a view to show Newell had authority from defendant to make calls for margins, that was wholly unnecessary, as it .was a conceded fact Newell had such authority; but if done to show Newell actually made such calls, then it is sufficient to say the evidence tended to prove no such thing,—so that in either view the evidence was unimportant. But aside from this view, it is clear that every one of these papers that was at all material to the matter in issue between the parties was in fact admitted in evidence. The letter was read in evidence, and the telegram of the morning of the 15th was lost, but Newell was permitted to state his version of its contents, and that was all that defendant could, reasonably insist upon. Had the other telegrams of near that date been given in evidence, they would have proved nothing material to the 'defence -not contained in the letter, and telegram actually read in evidence, and it would have been useless'to incumber the record with so many repetitions of the same thing. These telegrams are preserved in the transcript of the record, and it is seen they only contain statements as to the unsettled condition of the market, and. that Newell was required to call for margins. All that was in the letter and telegram in evidence, and nothing more was required.

Objections taken to the rulings of the court in the rejection of other testimony have so little in their support it is not deemed necessary to remark upon all of them, and todo so would extend this opinion to a most unreasonable length. It is sufficient to say they have all been considered, and it is found none of them are tenable.

- Although the court was not asked, by any written proposition to be held as law, to state what rule would be adopted to ascertain the measure of damages, it is quite evident the court determined plaintiff was entitled to recover the whole amount of margins deposited with defendant, and that, it is said, was error of law. The question made on this branch of the case is not new in this court. In Jones v. Marks, 40 Ill. 313, it w7as held that where a party making the purchases, of grain or other commodities, disobeyed instructions in making sales, he thereby lost all lien upon the money deposited with him as a. pledge against loss, and as the dejmsitor was thereby released from the contract, he became entitled to withdraw the money from the hands of the depositary, and could maintain an action for its recovery. Since then the principle of that case has been recognized and followed so often it may now be regarded as the settled law, in; this State, at least, whatever it may be elsewhere. (Oldershaw v. Knowles, 101 Ill. 107; Denton v. Jackson, 106 id. 433.) These cases are, of course,' conclusive óf the same point in the case now before the court.

It was also held in Jones v. Marks, supra, the money in the hands of the depositary, in such cases, might be recovered back by the depositor, under the common counts, in an action of assumpsit, and that it was not necessary to declare on the special contract which had been violated, as nothing remained to be done under it. That is precisely the case here. The money was recovered under the common counts, in an action of assumpsit, and that is permissible under the previous decisions, of this court.

There is no pretence the deals were replaced by defendant, either with or without the direction of plaintiff, and for.that reason the rulings on this branch of the case, whether strictly correct or not, do not affect the merits of the case one way or the other. As. the case was presented in the trial court, that was an immaterial issue. Had defendant replaced the deals when it was discovered they had been irregularly closed out, or had defendant offered to do so without unreasonable delay, and without additional expense to plaintiff, and the offer had been refused, then some of the questions made might have become important, otherwise not.

There is no error in the record that in any shbstantial degree affects the merits of the case, and the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Thomas Martin et al. v. Joseph Foulke et al.

      Filed at Ottawa May 15, 1885.

    1. Exceptions and bilis op exceptions—necessity of talcing and preserving exceptions. The rule in this State is inflexible that in order to take advantage of any improper ruling of the court, pending the trial of a cause, which does not delate to the pleadings or appear on the face of the judgment itself, the bill of exceptions must show an exception was taken to the same. It is not sufficient that the clerk recites in the record that exception was taken. Joinder in error and submitting the cause are not a waiver of defect in this respect.
    2. Where a cause is tried by the court without a jury, and no exception is taken to the finding of the court or to the rendering of judgment, and preserved in a bill of exceptions, and no motion is made for a new trial, the finding and judgment can not be assigned for error.
    Appeal from the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.
    Mr. Thomas H. Hutchins, for the appellants.
    Messrs. Garnsey & Knox, for the appellees.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment rendered by the circuit court of Will county, in an action of ejectment, wherein the appellees were plaintiffs and the appellants defendants. The declaration consists of but one count, in the usual form, alleging that the plaintiffs claim the premises in fee, but specifies no particular interest in any of them. By consent of parties the cause was tried by the court without a jury, resulting in a finding and judgment for plaintiffs. The judgment followed the declaration in finding that the premises belonged to appellees in fee.

The errors assigned are as follows: First, the court erred in rendering judgment for the plaintiffs, and against the defendants ; second, that the judgment does not specify the particular estate of each plaintiff in the premises, according to the proof, and is therefore void; third, that the proof does not show title in the plaintiffs, or either of them, and therefore the judgment is void; fourth, that the proof does not warrant such a judgment in favor of the plaintiffs.

In the view we take of this case it is unnecessary to inquire whether any of the above errors are well assigned or not, for an examination of the record shows that no .exception was taken to the findings of the court or to the rendering of the judgment, and that not even a motion for a new trial was made. It is true there is a recital inserted by the clerk in the record, immediately following the judgment, to the effect that such an exception was taken, but we can not regard that statement as a part of the record. ' If such an exception was taken, it could only have been made a part of the record by embodying it in the bill of exceptions, and we fail to find it there. The rule is inflexible that in order to take advantage of any improper ruling of the court, pending the trial of a cause, which does not relate to the pleadings or appear on the face of the judgment itself, must, in order to take advantage of it in an appellate tribunal, be preserved by a proper bill of exceptions. That was not done in thiszcase, and hence the appellants will be deemed to have .waived the error complained of. To this view of the matter it is answered, that appellees, by joining in error, went to trial on the merits, and thereby waived the defect in the bill of exceptions,—and in support of this claim Brockway v. Rowley, 66 Ill. 102, is cited. We do not deem it necessary to stop to consider the case just cited, for, conceding it to be an authority in point, which we do not, we could not consistently follow it. The position of appellants, as we understand it, is this: that if the court, .upon the trial of a cause, makes an improper ruling against a party, to which no exception is taken, he may, nevertheless, on appeal, assign for error the improper ruling; and if the opposite party joins in error, the only inquiry then will be, whether, as matter of fact, the error occurred, and if it did, the complaining party may avail himself of it precisely in the same way, and to the same extent, as if the proper exception had been taken. Whatever may be the rule in this respect elsewhere, it certainly can not be the law here. The Reports of this State abound with instances of erroneous rulings by trial courts which this court has uniformly refused to consider on the ground no exceptions were taken to them, in all of which, except, perhaps, in a case now and then omitted through inadvertence, there was a joinder in error. Miere v. Brush, 3 Scam. 21; Armstrong v. Mock, 17 Ill. 166; Gridley v. Capen, 72 id. 11; Hill v. Harding, 93 id. 77. This practice is of too long standing, and the rule too firmly established, to admit of change now.

The only error complained of being such as we can not consider, the judgment must be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Rosehill Cemetery Company v. Mary Hopkinson, Exr’x.

      Filed at Ottawa May 15, 1885.

    1. Cemetery companies—corporate powers—to make by-laws, rules •and regulations—uniformity of application required. Where the charter incorporating a cemetery company provides for a board of managers, who are authorized to lay off the grounds into lots, sell the same, make by-laws, and such rules and regulations for the government of lot owners and visitors as they may deem necessary, they may make such rules and regulations; but they must be reasonable, equa^ in their operation, and uniform in their application to all owners of lots in the cemetery. The managers will have no right to make a rule which will confer a right upon one owner in regard to the improvement of his lot, and deny the same right to another lot owner.
    2. Such a company being a quasi public corporation, and possessed of the right to condemn property, and invested with other important powers, is bound to exercise its rights and privileges fairly and impartially; and if, through its officers, it attempts to act arbitrarily, or to transcend its powers to the injury of a lot owner, such action may be reviewed and controlled by the courts.
    3. Same—erecting a uault upon a cemetery lot—rights of the owner— of rules in restriction thereof. If the board of managers of a public cemetery company incorporated by law, have authority, under their charter, to prevent a lot owner from erecting a vault upon his lot, that power can only be exercised by the adoption of a general rule on the subject applicable to every one.
    4. A rule adopted by the board of managers of an incorporated cemetery company, that “no vault shall be built entirely or partially above ground without permission of the company,” taken in connection with another that no vault shall be constructed in the cemetery until- the designs and specifications of the same, with a diagram of location, shall have been submitted and approved by the board, can not be regarded as prohibiting the erection of a vault; and in the absence of a rule prohibiting such erection as to all persons, the board of managers have no power to establish a rule governing a particular case.
    5. In this case the company had no rule prohibiting the erection of vaults within the cemetery, but was acting under a rule requiring designs, specifications and a diagram to be submitted. This was fully complied with by the owner, who proposed to erect a vault upon his lot, and no objection was made as to the design and specifications, and the question of granting leave to erect the vault was left to the decision of the landscape gardener, who decided to-grant the permission, and the owner then made a contract for the building of the vault, and the contractor proceeded with the work until prevented by the officers and agents of the company. It also appeared that many vaults-had been allowed to be built in the cemetery: Held, that the court properly granted a decree, at the instance of the lot owner, enjoining the company from interfering with the work or preventing the erection of the vault.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. Bentley & Bentley, for the appellant:
    The right of complainant to build a vault upon her lots'in the cemetery of the defendant company, the company objecting thereto, depends primarily upon her title to the lots. Every deed of conveyance, whether for a pew, or vault, or house, is a contract between the parties, to be interpreted according- to its actual, or fairly to be presumed, intent. Richards v. Protestant Dutch Church, 32 Barb. 45.
    A deed of conveyance of a cemetery lot, though absolute-in terms, conveys no right, per se, to build a vault upon it. The title to cemetery lots is analogous to that of pew-holders in a house of worship, which is subject to the right-of the corporation owning the house to make such rules and regulations governing the pew-holders, generally, as it may see fit. Buffalo Cemetery v. City of Buffalo, 46 N. Y. 503; Voorhees v. Presbyterian Church, 8 Barb. 135; Cooper v. First Presbyterian Church, 32 id. 222; Richards v. Protestant Dutch Church, 32 id. 45; Kincaid’s case, 66 Pa. St. 411; Gay v. Baker, 17 Mass. 435; Daniel v. Wood, 1 Pick. 102; Solder v. Trinity Church, 109 Mass. 1; Mt. Moriah Cemetery v. Commonwealth, 81 Pa. St. 235.
    Where there is no reasonable presumption of authority, and no actual authority given to an agent, the corporation should not be prejudiced by his unauthorized acts. Castar v. Titusville Gas Co. 63 Pa. St. 38; Bank of United States v.
      Dun, 6 Pet. 51; Bank of Metropolis v. Jones, 8 id. 12; Stewart v. Huntington, 11 S. & R. 267.
    The affairs of a corporate body can be transacted only at a corporate meeting. Schumm v. Seymour, 24 N. J. Eq. 153; Cammemeyer v. Lutheran Church, 2 Sandf. Ch. 254; Dennison v. Austin, 15 Wis. 334.
    If the agreement is made outside of the meeting, it is not good. Railroad Co. v. Reeve, 15 Md. 240.
    Mr. J. Blackburn Jones, and Mr. Robert H. McMurdy, for the appellee:
    The cemetery company, being a quasi public corporation, must exercise its powers fairly, reasonably and impartially. Village of Glencoe v. People, 78 Ill. 389; Zanone v. Mound City, 103 id. 566; Chicago v. Rumpff, 45 id. 97; Trustees v. Walsh, 57 id. 366; Railroad Co. v. People ex rel. 67 id. 14; Richards v. Protestant Dutch Church, 32 Barb. 44; Vincent v. Railroad Co. 49 Ill. 33; Happy v. Morton, 33 id. 40; Tapping on Mandamus, (Am. ed.) 66; Green v. Green, 34 Ill. 320.
    The doctrine of all the foregoing cases is, that where a discretion is abused, and works injustice, it is admissible that it shall be controlled by mandamus.

    The deed for these lots conveyed the title, subject only to reasonable rules and regulations of the company. Commonwealth v. Mt. Moriah Cemetery, 10 Phil. 385.
    The presumption is, that acts which an officer of a corporation usually and customarily performs in behalf of his company, are authorized by the directors. Elwell v. Dodge, 33 Barb. 339; Beers v. Phoenix Glass Co. 14 id. 368; Flickner v. Bank of United States, 8 Wheat. 338; Smith v. Hull Glass Co. 9 Eng. L. & Eq. 446; Bissell v. Railroad Co. 22 N. Y. 259; Story on Agency, (7th ed.) sec. 52; Green’s Brice’s Ultra Vires, 506, note a; Commercial v. Union, 19 Horr. 318; Flagely v. Hubbard, 22 Cal. 35; Potter on Corp. see. 131, page 183.

      It is also presumed that directors, are acting lawfully in what they do. Knox v. Aspinwall, 21 How. 539; Zabriskie v. Clearland, 33 id. 381; De Voss v. Richmond, 18 Gratt. 338.
    Corporations are bound by the acts of their agents within the scope of the agents’ authority. Angeli & Ames on Corp. see. 297; Bissell v. Railroad Co. 22 N. Y. 300; State v. Commercial, 8 S. & M. 233.
    Directors of a corporation are themselves its agents. Potter on Corp. sec. 131; Field on Corp. sec. 173; Angelí & Ames on Corp. sec. 299.
    The owner of a lot in a church close has merely a usufructuary interest. The church or society, by a mere majority vote, may change the burial ground from one place to another, or may discontinue it altogether; but the owner of a lot who acquired by deed from a private corporation», holds the fee simple, subject only to the rules of the company. Commonwealth v. Mt. Moriah Cemetery, 10 Phil. 387; Richards v. Protestant Dutch Church, 32 Barb. 44; Matter of Reformed Church, 7 How. 478.
   Mr. Justice Craig

delivered the opinion of the Court:

Mary Hoplcinson, executrix of the estate of her deceased husband, Charles Hopkinson, was proceeding to erect a vault on lots 135 and 136, in section “D, ” in Rosehill cemetery, which had been purchased by her husband on the 5th day of September, 1863, when she was prevented by the officers and agents of Rosehill Cemetery Company. Being unable to proceed with the work, she filed her bill of complaint in the Superior Court of Cook county, in which she prayed for an injunction restraining the Rosehill Cemetery Company and its agents and officers from interfering with or hindering complainant and her employes in the erection of the vault upon her said lots, and from injuring or interfering with it after it shall have been erected. The defendant put in an answer to the bill, and upon the hearing, on the pleadings and the evidence, the court rendered a decree as prayed for in the bill, which was affirmed in the Appellate Court.

The appellant was incorporated under an act entitled “An act to incorporate the Bosehill Cemetery Company, ” approved February 11, 1859. Afterwards, and on February 13, 1863, the legislature amended the act, and under the original and amended acts the company has, since its incorporation, transacted business in Cook county. Under the power contained in the act the company purchased land, laid out the cemetery, and sold lots for burial purposes. The act of incorporation provides for a board of managers, who are authorized to lay off the grounds into lots, sell the same, make by-laws, and make such rules and regulations for the government of the lot-holders and visitors to the cemetery as they may deem necessary. Among the rules adopted by the company was the following: “No vault or tomb shall be constructed in the cemetery until the designs of the same accompanying the specifications, and a diagram of location, shall have been submitted to the board of managers, and approved by them. ”

The deed conveying the property to Hopkinson contained the following provision: “Subject, however, to the provisions and restrictions of an act of the General Assembly of the State of Illinois, entitled ‘An act to incorporate the Bosehill Cemetery Company, approved February 11, 1859,’ (and all amendments that may hereafter be made thereto.) And also subject to the conditions and limitations, and with the privileges and restrictions, specified in the rules and regulations hereto annexed, and which are made a part of the conveyance, or which the said company may hereafter make in accordance with said act, or with any amendment which may hereafter be made thereto. ”

One of the rules annexed to the deed was as follows: “The proprietor of each lot shall have the right to erect any proper stone or monument or sepulchral structures thereon, except that no vault shall be built entirely or partially above ground without permission of the company, and no monument and no portion of vaults above ground shall be of other material than cut stone, granite or marble, without the consent of the company. ”

So far as the plan of the vault is concerned, that does hot appear to be objectionable. This is apparent from the answer to the bill, which, upon that point, is as follows: “Defendant states that its board of managers did not object to the plans and specifications of said vault, but to the location of the same; that the lot upon which it is sought to place said vault is almost directly opposite, and within sight of, the gate of said cemetery, and would obstruct the view from said entrance, and disfigure the grounds of said cemetery.”

From this statement in the answer, and from the evidence introduced on the hearing, the question arises whether the managers of the cemetery have the right or power to prevent the complainant from the erection of any vault upon her property which was purchased for burial purposes. There is no doubt but the managers of the incorporation may, under the powers conferred by the charter, make reasonable and salutary rules for the management of the cemetery, and for the government of all lot-holders; but such rules must be reasonable, equal in their operation, and uniform in their application to all lot owners in the cemetery. A rule which would confer a right upon one lot owner in regard to the improvement of his property, and deny the same right to another lot owner, the managers of the cemetery have no power to make or enforce. The Rosehill Cemetery Company is a quasi public corporation, with power, under the law of eminent domain, to condemn property for its use. Being possessed of this and other powers of an important character, the trustees are bound to exercise their rights and privileges fairly and impartially; and if they undertake to act arbitrarily, or transcend their powers to the injury of a lot owner, their action may be reviewed and controlled. In City of Chicago v. Turner, 45 Ill. 90, it was held that corporate franchises, whether municipal or private, are conferred in trust for the benefit of the entire corporators, and, like all other trusts, must be exercised with prudence and discretion. In the same case it was also held that by-laws of a corporation, must be reasonable, and such as are vexatious, unequal or offensive, are void. Upon an examination of the evidence introduced on the trial, it will be found that vaults have been erected by lot owners in the cemetery from the time it was organized down to the present date, with the knowledge and sanction of the managers, and, so far as appears, this is the first instance in which they have denied a lot owner the right, xis the right of a lot owner to erect a vault has been uniformly ¡allowed by the managers of the corporation, they have no power, in this instance, to arbitrarily deny the same right to the complainant. In the improvement and enjoyment of her property she is entitled to the same rights and privileges ¡accorded to all others. If the board have authority, under "the charter, to prevent a lot owner from erecting a vault upon his lot, that power can only be exercised by the adoption of •a general rule on the subject which will be applicable to every ■one. That has not been done. The deed passed the title in fee simple to the complainant, for burial purposes, on certain conditions annexed to the instrument, one of which "was that “no vault shall be built entirely or partially above ground without permission of the company. ” The permission alluded to in this condition, under the rules adopted, will not be granted until designs, specifications and a diagram of location shall have been submitted and approved by the board of managers. This can not be regarded as a rule prohibiting the erection •of a vault, nor do we find any rule adopted by the managers which prohibits a lot owner from erecting a vault on his property. A regulation requiring plans and specifications to be submitted to the board of managers for approval, is entirely a different thing from a rule prohibiting the erection of a vault. As said before, in the absence of a general rule prohibiting the erection of vaults by all, the board of managers had no power tó establish a rule which would govern this particular case.

The rule under which the board of- managers were acting, requiring designs, specifications and a diagram, was fully complied with by the complainant. She called at the office of the company for the purpose of presenting her plans. The secretary referred her to Van H. Higgins as the proper officer. He was treasurer, and owner of a majority of the stock of the company. After several interviews, a time was agreed upon to go to the cemetery. Higgins and one or tw'o of the members of the board, and the landscape gardener, (Cleveland,) met the complainant at the cemetery, and, as proven by a number of witnesses, the matter as to the erection of a vault by complainant was submitted to Cleveland, with the understanding that his decision should be final and conclusive. An examination was made, and Cleveland decided that the erection of a vault on the premises as proposed was unobjectionable, when Van H. Higgins informed complainant, as shown by several witnesses, that that ended the matter, and immediately thereafter she went on and made a contract, for the erection of the vault, and the contractors proceeded with the work.

As has been heretofore stated, no objection has ever been, made to the plans on which the vault was proposed to be-erected, but it is pretended, in the answer, that the lots upon which the vault is proposed to be built are nearly opposite .to the main entrance, and if erected there, many fine views will be obstructed. This objection, as shown by the preponderance of evidence, is devoid of merit. Anderson, Bauslin, Cooper, Cleveland, Liversy, complainant, and her daughter, all testify that the place where it is proposed to erect the-vault is more than two hundred feet north of the main entrance, and back such a distance, if erected as proposed, that it could not be seen from the main entrance when leaves are on the trees.

After a careful consideration of the whole record, we are satisfied that the decree of the Superior Court was correct. The decision of the Appellate Court will be affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    The City of Galesburg v. Charlotte Searles et al.

      Filed at Ottawa May 15, 1885.

    1. Special taxation for local improvements—whether the matter of benefits to be considered. The power of special taxation of contiguous property for the making of local improvements by a city, does not depend upon the fact of an equivalent benefit to the property taxed. The power is given unqualifiedly, with no restriction as to the benefiting of contiguous property.
    2. Same—special taxation as distinguished from special assessment. An ordinance was passed for the construction of a sewer in a street, the cost thereof to be paid, one-half by general tax, and one-half by special taxation, to be levied on the property contiguous to the improvement in proportion to the benefits accruing to the respective parcels of land or lots along the line of the sewer by the making thereof, to be levied and collected as provided by article 9 of the act of the legislature entitled “An act to provide for the incorporation of cities and villages,” approved April 10, 1872, and a committee was appointed, who reported the estimated cost of the proposed improvement: Held, that this was a case of proceeding by special taxation, and not by special assessment.
    3. Same — committee to ascertain the cost of improvement—at what stage of the proceeding to be appointed. It is no valid objection to a proceeding to construct a sewer, one-half of- the cost thereof to be paid by general tax and the other half by special taxation of contiguous property, that the committee to estimate the cost of the improvement may have been appointed after the passage of the ordinance and before its approval by the mayor. It is sufficient if the ordinance is signed before the petition is filed in the county court to have the tax levied for half the estimated cost upon contiguous property.

      Appeal from the County Court of Knox county; the Hon. Dennis Clabk, Judge, presiding.
    Mr. Fletcher Carney, and Mr. G. W. Thompson, for the appellant.
    Messrs. Willoughby & Daugherty, for the appellees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

On May 5, 1884, the city council of Galesburg passed an ordinance providing for the construction of a sewer in one of its streets, the cost thereof to be paid, one-half by general tax, and one-half by special taxation, to be levied on the property contiguous to the improvement, in proportion to the benefits accruing to the respective parcels of land or lots along the line of the improvement by the making thereof, and to be levied and collected as provided by article 9 of an act of the General-Assembly of the State of Illinois, entitled “An act to provide for the incorporation of cities and villages, ” approved April 10, 1872. The street committee were appointed a committee to estimate the cost of the improvement. The committee subsequently made their report, giving the amount of the total cost of the work, and thereupon the city council, by resolution, ordered the city attorney to file a petition in the county court to levy such tax, pursuant to law. The city attorney then filed the petition in this case, in the county court, praying for the appointment of three commissioners to levy the special tax for one-half of the cost of the improvement, on property contiguous thereto, as provided by law, and in conformity with the ordinance. The court, upon hearing the-petition, ordered that the prayer thereof be granted, and appointed commissioners to visit the locality, and to levy one-half the cost of the improvement upon contiguous property, in proportion to the benefits accruing to the property from the making of the improvement. The commissioners made the assessment, assessing one-half of the estimated cost of the improvement on the contiguous property, and returned the assessment roll into court. Objections on the part of several of the property -owners, to the petition and the report of the commissioners, were filed. On the argument of the objections, the court dismissed the petition without hearing any evidence, and denied "the motion of the petitioner for a default and confirmation ■of the assessment as to the non-objecting parties, and the petitioner excepted, and appealed to this court.

The first objection which is urged to the sufficiency of the petition is, that it should have shown that before the city ■council passed the ordinance directing that one-half the cost ■of the proposed improvement should be borne by contiguous "property, there should have been an examination, and determination of the probable benefits to such property, of the work. The constitutional provision in regard to the right to make local improvements by city and village authorities, is: “The General Assembly may vest the corporate authorities ■of cities,.towns and villages with power to make local improvements by special assessment, or by special taxation of •contiguous property, or otherwise. ” (Art. 9, sec. 9.) The statute provisions are: “The corporate authorities of cities ■and villages are hereby vested with power to make local improvements by special assessment, or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they shall by ordinance prescribe. ” “When any such city or village shall, by ordinance, provide for the making of any local improvement, it shall, by the same ordinance, prescribe whether the same shall be made by special assessment ■or by special taxation of contiguous property, or general taxation, or both. ” (Rev. Stat. 1874, secs. 116, 117.) Here is ample power given for the making of local improvements. "The one in question might have been made wholly by special taxation.

The notion seems to be advanced by counsel that special ■taxation implies the idea of special benefit, and that there can be no special taxation of property unless, and according as, it may be specially benefited. There is no countenance-for this. The power of special taxation is given unqualifiedly, with no restriction whatever as to the benefiting contiguous-property. The supposition that contiguous property wouldi be benefited by a local improvement, may have operated with those who granted the power of special taxation of such property, in the granting of the power, but they left the exercise of the power without condition in this respect. Instead, then, as they might, of imposing the whole cost of this improvement upon contiguous property, the city council imposed upon it but one-half of the cost, and there was no requirement that, beforehand, or at any other time, there should have been any express determination that the property would be benefited to that extent, or at all. Having determined to raise only one-half the cost of the improvement by special taxation of contiguous property, it was open to the city council to adopt which one of the various modes of special taxation of the property they saw3 fit,—whether according to frontage^ of the property, value, benefits received, or otherwise. They resorted to the one of benefits received from the improvement, which would seem to be a most just and equitable mode.

On this subject of special taxation for local improvements, this court, in White v. The People ex rel. 94 Ill. 604, said r “This proceeding is in the taxation of contiguous property; and in the adoption of that mode there is no requirement of benefits received, and no respect thereto further than may be-had by the city council in determining upon which particular-one of the several modes of special taxation of contiguous, property open to them, shall be resorted to, ” etc. See Enos et al. v. City of Springfield, 113 Ill. 65.

Another objection made is, that the committee appointed to make the estimate of the cost of the proposed improvement were appointed, and made their report, between the time of the passage of the ordinance and its approval by the mayor*. The mayor had signed the ordinance before the petition was filed. The ordinance having been approved, the report of the •committee, with the ordinance, was sufficient to sustain the petition. A question similar to this was raised in Gurnee v. City of Chicago, 40 Ill. 167. That was under a special •charter, and under the old constitution, yet under provisions of a charter almost identical with those under the present general Incorporation act. There the commissioners were appointed and swor" to make the special assessment, on the 28th of September, while the ordinance was passed on the 25th but not presented to the mayor for approval until the 30th. It was there said- if the authority to take the oath had been alone contained in the ordinance, then it would have been premature and unauthorized, but that the oath was required by the statute, and it did not require the oath to be taken after the approval of the ordinance, and that the taking of the oath was a literal compliance with the law,—all which may be repeated pertinently with reference to the present objection. It is the statute, and not the ordinance, which requires the appointment of commissioners who shall make an estimate of the cost of the improvement contemplated by the ordinance, and it is not required to be done after the approval of the ordinance.

A further objection made is, that this is a special assessment, and the required steps in a special assessment proceeding have not been taken. Clearly this is a ease of proceeding by special taxation, and not by special assessment.

Of the various objections filed in the county court, the foregoing appear to be all which are here insisted upon. We find them to be insufficient, and that the county court erred in dismissing the petition.

The judgment will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Chief Justice Scholfield Per Curiam :

text:
    The City of Chicago v. Michael Keefe, Admr.

      Filed at Ottawa May 15, 1885

      Rehearing denied September Term, 1885.

    1. Cities and villages—injury from defective sidewalks—duty and liability in respect thereto. On principles of common law, an action lies-against a municipal corporation, for damages resulting from its negligence in keeping public streets and sidewalks in repair, where the duty to make the repairs is fully declared, and adequate means are furnished the city to perform the duty.
    2. A city incorporated under the general Incorporation law owes the duty of keeping its streets, sidewalks, etc., in repair, and is clothed with adequate-powers and means for that purpose.
    3. Same—as to the character of use of a street or sidewalk allowable, in view of the liability of the municipality. The statute does not impose-the duty upon incorporated cities to keep their streets and sidewalks in proper-repair for travelers only, but for all persons lawfully using the same, without regard to the motives and objects of those passing over them. Persons using-them for recreation or amusement not unlawful, or from mere idle curiosity, are as much within the protection of the law as those in the pursuit of their legitimate and necessary business.
    4. So a city incorporated under the general law is liable in damages to-the next of kin of a child, who, while rolling a hoop along a sidewalk out of repair, is injured in consequence of the defective state of the sidewalk, and who dies from such injury, when such child, at the time of the accident, was not guilty of negligence in failing to use the care for its safety required of one of its age, and when the city had notice of the unsafe condition of the-walk before that time, or might have known its condition by ordinary care- and diligence. And it makes no difference that such child was rolling a hoop-at the time of the injury, when there is no ordinance prohibiting or regulating: the rolling of hoops upon the sidewalks.
    5. Same—of imputing negligence to a minor in the use of a sidewalk. In determining whether a boy, a little over ten years of age, was or was not-guilty of negligence in rolling a hoop over a defective sidewalk, where he is-injured, all the circumstances in evidence, including his age, should be considered. If he exercised such care for his safety, as, under the circumstances, might be expected from one of his age and intelligence, it will be sufficient,
    6. Same—negligence as a question of fact. Whether a child ten and a. half years' old, who is injured while rolling a hoop along a sidewalk in consequence of its unsafe condition, was guilty of negligence on its part or not, is a question, of fact, to be determined by the jury from all the evidence in the case, and not one of law, to be determined by the court. The law neither infers negligence, nor its absence, from the fact of the child rolling a hoop..
    7. Action for death of a minor—from negligence, etc.—by whom if may be maintained. Where a minor loses his life through the negligence, default or wrongful act of another, the statute giving an action to his personal representative does not limit the right of recovery to his father, or for his. benefit, merely because he may have been entitled to his services and earnings. The jury should not, by instruction, be confined in their assessment of damages to the pecuniary loss of the father and mother of the deceased, excluding that of his surviving brothers and sisters.
    8. Same—measure of damages. The question of the compensation to be-awarded to the next of kin of a deceased person, under the statute, (chap. 70, sec. 2,) for their pecuniary loss from his death, is not in its nature capable of exact determination. Therefore the jury should calculate the damages in reference to a reasonable expectation of benefit, as of right, or as of grace or favor, from the continuance of the life.
    9. Instbuction—on court’s own motion—whether imperative. While-a court may very properly give an instruction on its own motion, in a case, yet its failure to do so can not be urged as error. By failing to ask for a, particular instruction, or one on a particular branch of the case, the party complaining must be regarded as waiving any right to the same.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. W. H. Barnum, Judge, presiding.
    This was an action on the case, by Michael Keefe, administrator of the estate of Michael Keefe, deceased, against the. city of Chicago, for injuries causing the death of the intestate, resulting from the negligence of the city in failing to-keep one of its sidewalks in repair.
    The intestate, a lad of ten and a half years of age, while-rolling his hoop along a sidewalk of Butterfield street, stepped on the end of a loose board, which flew up and struck his knee, and thereby caused him to fall down with some violence. In falling, his eye came in contact with the end of the stick with which he had been propelling his hoop. The-force of the fall caused the stick to penetrate the eye, and. destroy it, and break off some of the adjacent bone. He died from the effects of the injury, two months afterwards. The sidewalk where this fall occurred was badly out of repair,— stringers were gone, and boards were loose and rotten,—and it had been in this condition for some time. The plaintiff is the father of the deceased, and .the suit is brought, under the statute, for the benefit of the next of kin, who are the father, mother, four brothers and four sisters. Verdict was returned by the jury, for the plaintiff, assessing the damages at $2500. Motion for new trial was overruled, and judgment rendered upon the verdict. On appeal to the Appellate Court for the First District the judgment was affirmed, and that judgment is brought before this court for review, by the present appeal.
    Mr. Clarence A. Knight, for the appellant:
    The sidewalks are not made as a play-ground for children, but for the passage of pedestrians. All persons are bound to use their eyes, and ordinary care, and failing to do so no recovery can be had for any injury received. Kewanee v. DePew, 80 Ill. 119.
    The liability of the city must be considered with reference to the use of the sidewalk for ordinary travel, which does not mean it shall be reasonably safe for a boy to roll a hoop. Chicago v. Bixby, 84 Ill. 83; Gavin v. Chicago, 97 id. 66; Stinson v. Gardner, 42 Me. 248; Blodgett v. Boston, 8 Allen; 237; Donoho v. Vulcan Iron Works, 7 Mo. App. 447.
    The correct rule is, that the boy was bound to exercise such care as might be expected from a person of his age and discretion. Bloomington v. Perdue, 99 Ill. 329.
    It was the duty of the court to give an instruction to guide the j ary in the assessment of damages. 3 Sutherland on Damages, 731; Peters v. Railroad Co. 46 Iowa, 399; Tipton v. Triplett, 1 Metc. 570.
    The father of the deceased being entitled exclusively to his earnings during his minority, the proper measure of damages would be the value of the child’s services from the time of the injury till he would have arrived at his majority, taken in connection with his prospects in life, less support and maintenance. Kerr v. Forgue, 54 Ill. 484; Early v. Railroad Co. 4 Biss. 434; Railway Co. v. Freeman, 36 Ark. 41; Pennsylvania Co. v. Lilly, 73 Ind. 252; 2 Thompson on Negligence, 1292.
    Mr. A. W. Green, and Mr. M. W. Robinson, for the appellee:
    The city council has the power to prevent and regulate the rolling of hoops on the sidewalks. (Rev. Stat. 1874, chap. 24, art. 5, sec. 1, clause 92.) In the absence of the exercise of such power, the boy was not prevented from going along the sideivalk rolling a hoop; and if, while so going, and using such care as, from his age and intelligence, was required of him, he was injured because of the unsafe condition of the sidewalk, the city is liable. McGarry v. Loomis, 63 N. Y. 104; Railway Co. v. Fielding, 48 Pa. St. 320 ; Kerr v. Forgue, 54 Ill. 482; Railroad Co. v. Gladmore, 15 Wall. 401; Robinson v. Cone, 22 Vt. 213; Chicago v. Major, 18 Ill. 349.
    The instruction as to the measure of damages was properly refused. Damages are not to be given merely in reference to the loss of a> legal right, but they are to be calculated in reference to a reasonable expectation of pecuniary benefit from the continuance of the life. Franklin v. Railroad Co. 3 Hurl. & Nor. 211; Dalton v. Railroad Co. 93 E. C. L. 296; Railroad Co. v. Shannon, 43 Ill. 347; Railroad Co. v. Becker, 84 id. 483.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

Appellant asked the court to instruct the jury as follows:

“The jury are instructed that the sidewalks of the city are not made for the purpose of a play-ground for children, nor as a mere place for the recreation of children, and that the condition of the sidewalk is only to be considered with reference to its use for the ordinary travel along the same.
“The jury are instructed that -if they believe, from the evidence in this case, that the deceased, Michael Keefe, was, at the time in question, playing upon the sidewalk, by rolling a hoop along the same, then you are instructed that if you believe, from the evidence, that he would not have fallen or have been injured if he had gone along the sidewalk in the ordinary mode, then you must find for the city, as the sidewalks are not made for the purpose of a plaj'-ground for children. ”

But the court refused to give the instructions, and this ruling presents the first and principal .question discussed in the arguments before us.

Counsel for appellant cite and rely upon Stinson v. Gardner, 42 Maine, 248, and Blodgett v. Boston, 8 Allen, 237, in support of the instructions. ' These decisions-are based upon the principle announced in Blodgett v. Boston, that the liability of towns and cities for injuries to persons or property occasioned by defects in highways, is intended to be commensurate only with the duty imposed on them,—that is, to keep them in repair, “so that they may be safe and convenient for travelers at all seasons of the year.” In the view of the New England courts there is no implied liability for injuries resulting from defective streets or sidewalks,—the liability is wholly statutory. And as observed by Dillon, in his work on Municipal Corporations, section 786, “an important consequence is, that every case of this character must be within the statute.” (See, also, notes on page 749, first edition.) On the contrary, we hold, on principles of common law, that an action for damages resulting from negligence will lie against a municipal corporation if the duty to make repairs is fully declared, and adequate means are put within the power of the corporation to perform the duty. Browning v. City of Springfield, 17 Ill. 143; Scammon v. City of Chicago, 25 id. 424; Clayhurgh v. City of Chicago, id. 535; City of Bloomington v. Bay, 42 id. 503.

It is not attempted to be controverted in this case, that the city of Chicago owes the duty to keep its streets, sidewalks, etc., in repair, and that this is the fact will be seen by reference to the various provisions of the general law in relation to the incorporation of cities, villages, etc., under which the city of Chicago is incorporated, applicable to this subject. (Rev. Stat. 1874, chap. 24.) Nor is it denied that the city had adequate means within its power for that purpose. There is no limitation in the statute that the streets shall be kept in repair “for travelers. ” They are to be kept in repair as streets, and, by necessary implication, for all the purposes to which streets may be lawfully devoted. We assume as self-evident that, with us, streets are open to the use of the entire public, as highways, without regard to what may be the lawful motives and objects of those traversing them,—that those using them for recreation, for pleasure, or through mere idle curiosity, so that they do not impinge upon the rights of others to use them, are equally within the protection of the law while using them, and hence equally entitled to have them in a reasonably safe condition with those who are passing along them as travelers, or in the pursuit of their daily avocations. (See Donoho v. Vulcan Iron Works et al. 7 Mo. App. 447, and same case in 75 Mo. 402.) In crowded cities, their use for pleasure, and sometimes even for the promotion of health, may be regarded as a public necessity. On like principle, why may they not be used by children in play and amusement, so long as the rights of others being on or passing along the street shall not be prejudiced thereby? We can perceive no reason. Such use is certainly the universal custom, and the lawfulness of rolling hoops along streets, when not prohibited by ordinance, is impliedly conceded by the 92d subdivision of section 1, article 5, chapter 24, of the Revised Statutes, which empowers the common council to prohibit or regulate it by ordinance.. The right to regulate necessarily assumes the lawfulness of that which is to be reg ulated,—without regulation until it shall he prescribed, and in conformity with the regulation after it shall he prescribed. Since, then, there is not here shown to have been any ordinance either prohibiting or regulating the rolling of hoops, it is to be assumed that this child was, at the time he was injured, lawfully passing along the sidewalk,—that the fact that he was rolling a hoop, while pertinent on the question of whether he was guilty of eontributive negligence, did not, per se, deprive him of any right in respect of passage along the sidewalk which he would otherwise have had, and that the duty of the city towards him was precisely the same that it was towards a child of the same age and mental capacity, exercising the same degree of care, passing along the sidewalk without a hoop. Indeed, the rule seems to be, that although a party may be doing an unlawful act at the time he is injured through the negligence of another, this will not prevent a recovery, unless the act is of such a character as would naturally tend to produce the injury. (Sutton v. Town of Wauwabasa, 29 Wis. 22; Wharton on Negligence, (2d ed.) see. 995.) Whether this child was guilty of eontributive negligence, was a question of fact, to be determined by the jury from all the evidence in the case, and not a question of law, to be determined by the court from the circumstance that he was rolling a hoop. The law neither infers negligence, nor its absence, because he was rolling a hoop, since, as a matter of fact, he may have rolled a hoop along the sidewalk and yet have observed the highest degree of care in passing along,— i. e., it is not impossible that he may have done so, just as, at another time, he may have been passing along the sidewalk in a grossly negligent manner without a hoop, and on a business errand. The question of law is, simply, what is the degree of care he should have observed to entitle his administrator to recover. Whether, his conduct all considered, he observed that degree of care, was the question of fact.

These instructions, as framed, were argumentative of fact and law, rather than declarative of a simple rule of law, as instructions to the jury should be; and, in our opinion, their tendency was to mislead the jury, and'they were therefore properly refused.

Objection is urged that the instruction given at the instance of appellee limits the degree of care to have been observed by the intestate to such as, “from his age and intelligence, under the circumstances in evidence, was required.” The phraseology employed is not free of objection, hut we do not think the instruction calculated to mislead. Counsel say it should have been limited to “such care as might be expected from a person of his age and discretion.” Substantially, there seems no important difference. The circumstances in evidence are always to he taken into consideration in such cases; and if the intestate exercised such care as, under the circumstances, might be expected from one of his age and intelligence, it was sufficient. What was said does not materially vary, in sense, from this.

Appellant asked, but the court refused to give, the following instruction:

“The jury are instructed, as a matter of law in this case, that the father and mother of Michael Keefe were entitled to his earnings until he arrived at the age of twenty-one years, and that until he arrived at the age of twenty-one years the brothers and sisters of Michael Keefe were not entitled to any pecuniary aid from him, and should therefore only consider the pecuniary loss, if any, that you may believe, from the evidence, (if you should find the city guilty,) the father and mother of Michael Keefe may have sustained.”

And this, also, is urged as error. We think the instruction was properly refused. The statute does not so limit the right of recovery. The jury may give, in such cases, “such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased,” etc. (Rev. Stat. 1874, chap. 70, sec. 2.) The question is, in its nature, incapable of exact determination, (Chicago and Alton Railroad Co. v. Shannon, 43 Ill. 347,) and the jury should therefore calculate the damages in reference to a reasonable expectation of benefit, as of right, or otherwise, from the continuance of the life. (Franklin v. S. E. Railroad Co. 3 Hurl. & Nor. 211; Dalton v. S. E. Railroad Co. 93 E. C. L. 296.) Parents, and even brothers and sisters, might reasonably expect, in many ways, to derive pecuniary benefit from the continued life of the intestate, as of grace and favor, if not of right, at any age of life, and our statute imposes the duty of support, in the event of their becoming paupers, of the parent by the child, and of one brother or sister by another brother or sister. Rev. Stat. 1874, chap. 107, sec. 2.

No objection was taken to the sufficiency of the declaration, by demurrer or motion in arrest, and no question arose on the trial on the admission or exclusion of evidence. No error is claimed in any instruction given at the instance of appellee, on the question of damages, nor is it claimed that any error was committed in refusing to give any instruction asked by appellant on that subject, other than the one to which we have already referred. But the point is made that the circuit court erred in not definitely instructing the jury on that question, of its own motion. That the court might very properly have done so, or, indeed, that it was most advisable that it should have done so, we may concede, yet we can not hold that the omission was error. Appellant’s counsel had the matter entirely in his own hands, and consistently with our practice, it was his duty to raise the question he now wishes to discuss, by requiring some ruling thereon during the trial. He might certainly consent to let the jury retire without instructions on the subject of damages, or on any other subject; and when, here, he permitted them to retire instructed only as they were, we think he must be deemed to have waived any rights that he might otherwise have had to be further heard in that regard. He presented no instructions to the court, in writing, on the subject of damages, generally, nor does he appear to have made any request of the court to instruct them upon that subject, generally. His objection can not be now urged. The question of the amount of damages, as we have repeatedly held, is not before us, in cases like the present.

The judgment is affirmed.

Judgment affirmed.

Subsequently, upon an application for a rehearing, the following additional opinion was filéd:

Per Curiam :

A petition for rehearing has been presented in this case, and the argument in support of it has received careful consideration. We remain of the opinion heretofore announced. In what we have said we had reference only to the state of facts before the court. A sidewalk is for the passage of persons, only, and we have not had in contemplation any use of it otherwise. Whether it be passed over for business or for pleasure, or merely to gratify idle curiosity, we think the use is lawful. A child may lawfully be upon the sidewalk for pleasure, only,—that is to say, for play,—and the city owes the same duty to have the sidewalk in a reasonably safe state of repair, in respect of it, that it does in respect of those who are on the sidewalk passing to or returning from their places of business or abode. It may be true that the child will be less careful in its mode of using the sidewalk while playing, than the business man will be while traveling to or from his place of business or abode; but this belongs to the domain of fact, and not to that of law. It may be so in most cases,—it is not inevitably so in all cases. It is for the jury, not the court, to say what, in a given case, was the conduct of the parties.

Our attention is called to an expression used in City of Chicago v. Starr, Admr. 42 Ill. 177, wherein it is said: “For it is to be borne in mind that it is not the duty of the city of Chicago to make its streets a safe play-ground for children. That is not the purpose for which streets are designed. ” This expression does not occur in the statement of a legal principle, nor in the argument of a legal proposition, but it occurs in an argument upon a question of fact, purely,—namely, whether, in that case, the intestate was guilty of that degree of contributivo negligence which precluded a recovery. At that time this court reviewed on questions of fact as well as of law, and often these questions were so intermingled in the discussion, that it requires some effort and care to distinguish between them. It was, in the case referred to, assumed as a matter of fact that children, in playing, will be more careless than persons who are simply passing along, and the only legal proposition is one that is implied in the argument, and that is, that the measure of duty of the city in regard to its streets is limited by the necessities of the ordinary modes of traveling or passing along the streets. If they were not kept up to this requirement, and children in playing did not subject them to greater burdens, or essentially different uses, certainly it was not contemplated that the fact of the children being at play should bar a recovery for injuries resulting from the condition of the streets. That this was the view is quite evident from Kerr v. Forgue, 54 Ill. 484, where a recovery was had for an injury occurring to a child through negligence, although the child, at the time of the injury, was engaged in an act of play, in which case Chicago v. Starr is referred to and distinguished. The decisions of the lower court have, under the statutes now in force, relieved us of all questions of controverted fact, and in instructing a jury, trial courts are only authorized to instruct on questions of law. It is not proper to instruct on the facts, nor, in the form of instructions,' to argue the facts.

The rehearing is denied.

Rehearing denied.


text:
    John W. Connett v. The City of Chicago.

      Filed at Ottawa May 15, 1885.

      1. City attorney—Ms power in respect to an appeal. A city attorney elected by the people, whose duty it is to look after and protect the interests of the city in all legal controversies? will have power, on behalf of the city, to pray for an appeal from a judgment against the city, and prepare the necessary steps for taking the same. All his acts within the scope of his authority will be binding on the city.
    2. Same—duty in respect to suits, and presumption in respect thereto. After having taken the necessary steps for an appeal from a judgment against the city, it is the duty of the city attornej'.to report the condition of the case to the city council, together with his views in respect to the propriety of taking the appeal; and in the absence of proof to the contrary, it will be presumed he has discharged his duty in such respect.
    3. Same—validity of agreement to submit to arbitration, made by him, when not disaffirmed, or is ratified by city. Where a city attorney, after praying for an appeal from a judgment against the city, agreed with counsel for the plaintiff to submit the question of the liability of the city to the arbitrament and decision of an arbitrator, if the city council, after the lapse of several months, made no objection to the agreement to arbitrate, and afterward availed of the decision of the referee by bringing suit to have his decision carried into effect, it was held, that the other party could not avoid the effect of the award on the ground of want of authority on the part of the city attorney to bind the city by his agreement.
    4. Ratification—of acts of agent. Where a contract entered into on behalf of a named principal, is one which the principal himself might lawfully make, it may be ratified by the principal, and thus given effect. Such ratification may be shown by circumstances, or it may be inferred by acquiescence after notice.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Messrs. Stiles & Lewis, for the appellant;
    The city attorney had no authority to make the agreement sought to he enforced. The general authority of a city- attorney in a suit is no more than that of an attorney in any suit. People v. Mayor, 11 Abb. Pr. 66.
    The power of an attorney after judgment extends only to the issuing of execution and receiving the debt. Kellogg v. Gilbert, 10 Johns. 220; Jackson v. Bartlett, 8 id. 361.
    It has been held in this State that a solicitor’s connection with a case terminates with the final decree, and that notice to the solicitor of a motion to modify the decree, is not, for that reason, notice to the party. Swift v. Allen, 55 Ill. 303. Other cases imply a similar doctrine. Quinn v. Lloyd, 5 Abb. Pr. 281; Richardson v. Talbot, 2 Bibb. 382; Herbert v. Montgomery, 5 Dana, 11; Weeks on Attorneys, sec. 250.
    After judgment a new attorney may appear, and take any step that is necessary to enforce the judgment, without a substitution. Thorp v. Fowler, 5 Cow. 446; Tiffing v. Johnson, 2 Bos. & Pul. 357; Marr v. Smith, 4 B. & A. 466 ; Egan v. Rooney, 38 How. Pr. 121.
    The old attorney has no authority, by virtue of his original retainer, to prosecute an appeal or writ of error. Covill v. Phy, 24 Ill. 37; Batchelder v. Ellis, 7 T. R. 337; Ex parte Holbrook, 5 Cow. 35.
    An appeal is a new action brought by the party appealing, and, like a writ of error, may be prosecuted by a new attorney. To take a case up by appeal or writ of error, a new retainer is necessary. Govill v. Phy, 24 Ill. 37; Batchelder v. Ellis, 7 T. R. 337; McLaren v. Chainer, 5 Paige, 530; Butt v. Allen, 19 How. Pr. 450; McDonald v. McConkey, 54 Cal. 143.
    No city officer can bind a city by a submission, without special authority. Power must be exercised by ordinance or resolution. City of Shawneetown v. Baker, 85 Ill. 563; Dillon on Mun. Corp. sec. 478.
    Generally, an agent can not bind his principal by an agreement to arbitrate, without special authority. Railroad Co. v. Ganger, 55 Ill. 503; Trout v. Emmons, 29 id. 433; Ingraham v. Whitman, 75 id. 24; Morse on Arbitration, 10, 11.

      There is no inclination in Illinois to enlarge the implied powers of an attorney in a suit at law. He has no power, simply by virtue of his general retainer, to compromise the suit, (Nolan v. Jackson, 16 Ill. 272, Wadhams v. Gay, 73 id. 416,) or to waive his client’s rights, (Wadhams v. Gay, 73 Ill. 416,) or to consent to judgment against his client, (People v. Lamborn, 1 Scam. 123, Wadhams v. Gay, 73 id. 416,) or to bind his client by any agreement outside-of the conduct of the cause. Brooks v. Kearns, 86 Ill. 547.
    Mr. Clabence A. Knight, for the appellee;
    The authority conferred upon an attorney includes all the necessary and usual means of executing with effect. Story on Agency, sec. 58; Foster v. Wiley, 27 Mich. 244; Clark v. Ramsdell, 9 Wis. 128; Railroad Co. v. Koerne, 3 Bradw. 250.
    The effect of a retainer to prosecute or defend a suit, is to confer on the attorney all the powers exercised by the forms and usages of the court in which the suit is pending. Inhabitants v. Inhabitants, 16 Mass. 74; Adams v. Robinson, 1 Pick. 462; Holke v. Parker, 7 Cranch, 436; Buckland v. Conway, 16 Mass. 396; Abbe v. Rood, 6 McLean, 106.
    An agreement to refer a cause or to arbitrate, comes within the scope of the Attorney General’s contract. Scarborough v. Reynolds, 12 Ala. 252; Weeks on Attorneys, 403; Winslow v. Anderson, 4 Mass. 377; Stokely v. Robinson, 34 Pa. 315; Coleman v. Grubb, 23 id. 393; 55 N. H. 559 ; White v. Davidson, 8 Md. 169; Hanson v. Hoitt, 14 N. H. 56; 33 id. 479.
    A corporation will be bound, like any other client, by the submission of its counsel entered into, in a cause; and it is not necessary that there should be any document executed, with the corporate seal, in order to confer authority upon the counsel. Morse on Arbitration, 19; Bussell on Arbitration, 26.
    Counsel employed to bring or defend a cause, have power to submit it to arbitration. Morse on Arbitration, 15.

      An attorney should take measures to have a judgment reviewed, if the client is in such a condition that he can not be consulted. Weeks on Attorneys, 421.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The wife of John W. Connett, the appellant, received an accidental injury, in the city of Chicago, on the 6th of September, 1869, occasioned by a defective sidewalk. On the 17th of-Jnne, 1874, Connett commenced an action of assumpsit against the city, to recover expenses incurred by him for the nursing, attendance and treatment of her while disabled from said injury. On March 2, 1876, the form of the action was changed, at the instance of plaintiff, from assumpsit to an action on the case, whereupon a new declaration was filed in the cause, charging the city, in the usual form, with negligence in permitting the sidewalk in question to bé and remain out of repair, etc., whereby the injury was occasioned, etc. To this declaration the city filed three pleas: First, the general issue; second, that the cause of action did not accrue within five years next before the change of the form of action from assumpsit to case; and third, that the cause of action did not accrue within five years next before the commencement of the suit. A demurrer was sustained to the second plea, and issues joined on the other two. The cause was tried on these issues March 20, 1876, resulting in a finding and judgment in favor of the plaintiff for $1500. From this judgment the city prayed an appeal. Before the appeal was perfected, to-wit, on the 22d of April, 1876, Egbert Jamieson, city attorney, acting on behalf of the city, and Messrs. Tnley, Stiles & Lewis, the attorneys of record of Connett, acting on his behalf, entered into the following agreement:

“There is submitted to his Honor, Judge W. K. McAllister, the following questions only: Was defendant’s second plea a good plea in bar, and does the evidence sustain the third plea in bar of plaintiff’s action. It is agreed that if the decision should be in favor of the defendant, the plaintiff shall release said judgment; if in favor of plaintiff, then the appeal prayed by the city should be withdrawn. ”

In pursuance of the above submission, in the month of June following, Judge McAllister rendered his decision upon the questions submitted, both of which were determined by him in favor of the city. Connett having declined to release the judgment, the city, on the 11th day of January, 1878, filed the present .bill to enjoin the collection of said judgment, and to compel Connett to enter satisfaction thereof on the record. Upon the hearing, the circuit court of Cook county entered a decree in conformity with the prayer of the bill, which, on Connett’s appeal, was affirmed by the Appellate Court for the First District, whence the cause is brought to this court.

The decree in this case is assailed solely on the alleged ground that the action of the city attorney in entering a motion for an appeal from the judgment against the city, and also in entering into the agreement with Connett to submit the questions involved in the proposed appeal to the arbitrament and decision of Judge McAllister, was unauthorized, and consequently not binding upon the city. This being assumed, the conclusion is drawn, that, inasmuch as the city was not bound, Connett himself was not, and that he consequently had a right to enforce his judgment against the city. In support of this view of the case, counsel for appellant have formulated, in their brief, quite a number of general propositions, accompanied by numerous adjudicated cases supporting them, to the effect that the authority of an attorney employed to defend a suit, ends with its determination; that the power of the plaintiff’s attorney, “after judgment, extends only to the issuing of execution and receiving the debt; that a retainer of an attorney to prosecute or defend in a trial court does not authorize him to prosecute an appeal or writ of error in the same case; that an attorney, merely by virtue of his retainer, has no power to submit the cause to a common law arbitration;. and that, generally, an agent can not bind his principal by an agreement to arbitrate, without special authority. These several positions, considered as general propositions, are not at all questioned. We are of opinion, however, a city attorney, elected 'by the people, occupies a somewhat different position from one employed to prosecute or defend in a particular case. Subject to the general supervision which the city council has over him, it is his duty to look after and protect the interests of the city in all legal controversies and litigation, so far as he is able, unless directed by the city to the contrary, and his acts, within the general scope of his authority, will be deemed the acts of the municipality. It is his duty, from time to time, to report to the corporate authorities the condition of all suits of which he has charge, and other legal matters referred to him for investigation or adjustment, whether pending in court or out of court. The general principle that officers are presumed, in the absence of anything to the contrary, to do their duty, applies equally to a city attorney in the discharge of these duties. Such being the general scope of his powers and duties, we do not concur in the view that the city attorne)r had no power or authority, after judgment passed against the city, to enter a motion on its behalf for an appeal. On the contrary, we1 are of opinion that he not only had the power, but that it was highly proper for him to do so. After having thus prepared the way for an appeal, it was his duty to report the condition of the case to the city, together with a statement of his views with respect to the propriety of taking the appeal,—and it is presumed he performed his duty in this respect.

It is not necessary to inquire whether the city attorney, by virtue of his general powers, was authorized to enter into the agreement with appellant hy which the decision of the case was referred to Judge McAllister, for it may be conceded he was not. We also agree with counsel for appellant that said agreement, if valid at all, is valid as a contract, and that in determining its force and legal effect, the general rules and principles applicable to other contracts purporting to be made by an agent on behalf of a principal, are to be applied. It is, however, to be noted, the city is not complaining, here, that there was no authority in the city attorney to make the contract on its behalf, nor is there the slightest evidence in the record tending to show that such authority did not exist. But it is answered that the burden is upon appellee to show affirmatively the existence of such authority. Concede the circumstances disclosed by the record fail to show precedent authority, yet they are clearly sufficient to establish a subsequent ratification, which practically amounts to the same thing. • Oinnis ratihabitio retrotrahitnr et mandato priori eequiparatur. No doctrine of the law is better settled than that where the contract entered into on behalf of a named principal is one which the principal himself might lawfully make, it may be so ratified, and thus given effect. Nor is it necessary such ratification should be express. It may, like most other facts in pais, be proved by circumstances. (Abbott on Trial Evidence, 41-43; Bishop on Contracts, sec. 330.) So a ratification may be inferred from acquiescence after notice. (Gold Mining Co. v. National Bank, 6 Otto, 646; Benedict v. Maynard, 4 McL. 569; Abbe v. Rood, 6 id. 108.) So where an agent had, without authority, entered into an agreement to submit a controversy to arbitration, a suit by the principal on the agreement was held a sufficient ratification. (Smith v. Morse, 9 Wall. 82. See, also, Chitty on Contracts, 10th Am. ed. page 15, et seq.) In this case, it will be remembered, the contract was entered into in April, and the decision of Judge McAllister was not rendered until in June following, and it may well be presumed the city could, hardly, during all this time, have been ignorant of its existence, and that the case was then pending for decision before the court. Such being the case, if the agreement was not made by its authority, the city should have interposed, and not having done so, under the circumstances its silence will, at least as against appellee, be deemed a ratification.

What is here said of appellee’s duty to speak, applies with equal force to appellant. With eminent counsel to advise him, he deliberately entered into the contract, or, at least, his counsel did, on his behalf, (and he does not question their authority to do so,) after which he quietly stood by, speculating on the chances of a favorable decision from Judge McAllister, never intimating a doubt as to the authority of the city attorney to bind the city, until after the case was decided against him,—then, for the first time, when the existence of such authority could be of no possible advantage to him, by reason of the decision being against him, is the question in respect to it raised, for the sole purpose of defeating an agreement he would gladly have profited by. Such a defence as this, under the circumstances shown, does not commend itself to a court of equity. By his entering into the agreement, and his inexcusable delay in raising any question as to a want of authority in the city attorney to make it, the city lost its right of appeal, and it would be clearly inequitable to permit appellant to profit by such a course of conduct.

But waiving all this, we hold the filing of the present bill is of itself sufficient evidence of a ratification, on the part of the city, of the agreement in question, which is fatal to the defence of appellant, and the judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.


text:
    Frederick Aholtz et al. v. Isaac V. Goltra et al.

      Filed at Springfield June 12, 1885.

    1. Chancery jurisdiction—set-off against judgment at law. A court of equitj' will not assume jurisdiction to set off unliquidated damages claimed by the principal judgment debtor against a judgment, where no reason is shown why the remedy at law is not adequate and complete, and it is not made to appear that the judgment creditors are insolvent. The fact that one of them is a non-resident of the State and the other of the countjr, does not show that a legal demand may not be recovered of them, or one of them, at law.
    2. Same—when there is a remedy at law—generally—dismissal on demurrer. Where it appears that a complainant has a full and complete remedy at law, his bill may be dismissed on demurrer for want of equity. If any reason exists why the remedy at law is not available, it should be alleged.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Macon county; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. H. Pasco, for the appellants.
    Messrs. Bunn & Park, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case was brought by Frederick Aholtz and George Stare, against Isaac Y. Goltra, Edward 0. Smith and William W. Foster, in the circuit court of Macon county, and is for an injunction, and relief. It is alleged in the bill that defendants Goltra and Smith recovered a judgment at law in the circuit court, against complainants, on an appeal bond, in the sum of $300, with interest and costs; that they had caused an execution to be issued on such judgment, and that defendant Foster, who is sheriff of Macon county, is about to levy the same on the property of one or both of complainants. No complaint is made against the regularity or justness of the judgment. It was recovered in an action of debt on an appeal bond, wherein complainant Aholtz was principal, and his co-complainant, Stare, was surety for him. It is alleged that complainant Aholtz was the owner of certain town lots in Blue Mound, in Macon county, with a dwelling house situated thereon; that Goltra and Smith, by wrongful means, and by collusion with a then tenant of Aholtz, got. possession of the house and premises without his knowledge,, and by themselves and their tenants, since April, 1875, for a period of over eight years, forcibly kept the'possession from complainant Aholtz; that he had only recently regained possession of the premises, and that during the period defendants withheld the same from complainant they were reasonably worth the sum of $120 for each year, amounting, in the aggregate, to the sum of $1000. There is also an allegation in the bill the premises were damaged by the defendants, or their tenants, to the extent of $50, which, together with the-reasonable rent due, makes a total sum of $1050 due from defendants Goltra and Smith to complainant Aholtz. The-prayer of the bill is, that an account may be taken, by and under the direction of the court, first, of the amount due to defendants Goltra and Smith on the judgment in their favor; and second, for an account of the reasonable rental value of' the premises, and improvements thereon, during the time the defendants held the same and kept complainant Aholtz out of possession; that one claim be set off against the other; that the amount that may be so found to be due to defendants on such judgment, with the interest and costs, be first paid and satisfied, and that complainant Aholtz have a decree-against Goltra and Smith for the remainder, for whatever may be found due to him for the reasonable rent and damages to the premises, and in the meantime that an injunction issue-restraining the sheriff from levying the execution on the property of either complainant, and for general relief. To the bill stating these facts, and others, some of which may be stated further on, the court sustained a demurrer, and dismissed it for want of equity. That decree was affirmed in the Appellate Court for the Third District, and complainants bring the case to this court on their further appeal.

It very clearly appears complainants have a full, complete and adequate remedy at law, and their bill was therefore very properly dismissed, on demurrer, as was done, for want of equity. The bill contains no allegation whatever that would warrant a court of chancery to assume jurisdiction. It is nowhere alleged defendants Goltra and Smith, or either of them, are insolvent, and no reason is shown why complainant Aholtz may not proceed at law to recover whatever, if anything, may be due to him from either or both defendants. The only ground suggested in the bill is, that neither defendant resides in Macon county, so that process from the circuit court of that county could be legally served upon them. It is averred that Smith is a non-resident of the State, and that Goltra is a non-resident of Macon county, but that the latter named defendant resides in Sangamon county, in this State, which, of course, is the next adjoining county to Macon. No reason is shown why complainant Aholtz can not pursue his remedy at law against Goltra, and recover anything that may be due him, either from him or from Goltra and Smith. No ground whatever is suggested for equitable relief, and as it does not appear but what complainants had a full, complete and adequate remedy at law, they will be remitted to a common law court for the recovery of anything that may be due to either of them. The claims they insist upon, if valid, are legal claims, and no reason appears why equity should assume jurisdiction to adjust them.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.