author: Mr. Justice Craig

text:
    James Levy v. The City of Chicago.

      Filed at Ottawa

      May 15, 1885.

    1. SpeCIAH assessment for street improvement—-requisites of the ordinance as descriptive of the character and locality of the work to be done. H an ordinance for the improvement of a street by special assessment does not contain a description of the nature, character and locality of the proposed improvement, the court will have no authority to confirm the assessment. Without a definite description of the nature and character of the improveraeni no intelligent estimate of its cost can be made.
    2. An ordinance of the city of Chicago ordered and required a certain part of a street to be “filled” and graded to within eleven inches of the grade of the pavement, and paved, describing the paving minutely. The proof showed that the word “filling, ” as used in the ordinance, had a settled and well known meaning in that city among engineers and street contractors, and meant to raise the surface of the street by using clay, earth, sand, or other suitable material free from animal or vegetable substances, etc.: Held, that with such proof the ordinance was not void for uncertainty and indefiniteness, in respect to the character of the work proposed to be done. 1

      Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Messrs. Moses & Newman, for the appellant.
    Mr. G. M. Haynes, and Mr. F. S. Winston, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This is an appeal from a judgment of the county court of Cook county, confirming a special assessment which had been made by the city of Chicago, for the improvement of Ogden avenue. The first section of the ordinance under which the assessment was made, is as follows:

“Section 1. That Ogden avenue, from the south line of West Madison street to the north line of West Yan Burén street, be and the same is hereby ordered curbed with curbstones, (excepting where curbstones are already set between said points,) said curbstones to be equal to the best quality of Athens stone, not less than four feet long, three feet deep, and five inches in thickness, with top edge full and square, each stone to have a straight base the whole length, and to be firmly bedded upon flat stones, each stone to be bush-hammered on the top surface, and twelve inches down from the top; and that said avenue be curbed, etc., (describing'it fully); that said avenue, from the south line of West Madison street to the north curb line of West Twelfth street, (excepting a space sixteen feet wide in the middle of said street between said points, and excepting the intersection of Ash-land avenue, West Adams street, and West Jackson street,) be and the same is hereby ordered filled and graded to within eleven inches of the grade of the pavement, and paved, ”— (minutely describing the paving.)

The objection interposed by appellant to the confirmation of th'e assessment was, that the ordinance upon which the assessment was based is void for indefiniteness, in not describing the filling of said street, what materials were to be used in filling said street, and that there was no such description as would warrant the commissioners to estimate the cost thereof.

Section 134, chapter 24, of the Revised Statutes of 1874, page 234, requires the city council, when an improvement is to be made by special assessment, to pass an ordinance specifying the nature, character, locality and description of such improvement. Under this statute it is plain if the ordinance, which may be regarded as the foundation for the assessment, does not contain a description of the nature, character and locality of the improvement, the court would have no authority to confirm the assessment. Indeed, no intelligent estimate of the cost of the improvement could be made by the commissioners to be appointed for that purpose under section 135 of the statute, unless the ordinance prescribes definitely the ■nature and character of the improvement,—hence the necessity for such a description in the ordinance. The county court, however, held that the ordinance as framed was sufficiently definite, and the decision is conceded to be correct as to all features of the ordinance except as to “filling the street. ” This language, it is said, is not sufficiently definite to enable the commissioners to make an estimate of the costs of “filling, ” and upon this ground it is claimed that the ordinance is void. If the word “filling, ” as used in the ordinance, had a settled and well known meaning in Chicago among civil engineers and street contractors, when used in connection with the improvement of the streets, we are inclined to hold that the ordinance was sufficient. If the term “filling, ” had a settled and well known meaning in Chicago when used in connection with the improvement of the streets, there would seem to be no uncertainty in the ordinance.

Adolf M. Hirsch, a civil engineer, who has made the improvement of streets a specialty since 1856, says that the term “filling,” among civil engineers, means to raise the surface of a roadway to be improved, to a certain height, by using earth, clay, sand, or other suitable materials free from animal and vegetable substances or other offensive materials. James B. Smith, a paving contractor for seventeen years, says: “The term ‘filling’ has a well settled meaning among civil engineers and contractors in that line of business. It means to be filled with clay, sand, clean earth, or any solid, imperishable material. When properly confined and settled in a street, .there is no difference in the durability of these substances in a street improvement. As to whether the cost of the material, or the hauling of it, is the largest item of expense, depends entirely upon the circumstances where the filling is to be done. As to the present improvement on Ogden avenue, the cost of hauling is the largest item. Ordinarily the only expense of securing filling is the hauling. ” Adam Amberg, a contractor since 1870, says: “There is a well defined meaning to the term ‘filling,’ as used in reference to street improvements, among contractors and engineers. The specifications I have seen, call for sand, earth, clay or gravel, ever since I have been a contractor.”

This testimony shows that the word “filling,” as used in the ordinance, had a well known meaning in Chicago, and it will be presumed that the framers of the ordinance, in the use of the word, intended that it should be expounded and received in the sense it was generally understood in that locality. If, then, the word, as used in the ordinance, had a well known meaning in Chicago, where the improvement was to be made, the ordinance can not be regarded as indefinite or uncertain. We are of opinion that the objection was devoid of merit, and the judgment of the county court was correct.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Thomas L. James v. S. Parkman Dexter et al.

      Filed at Ottawa

      May 15, 1885.

    1. Biiiii of exceptions—its requisites, as purporting to contain all the evidence, to authorize a reversal. The Appellate Court can not say whether the finding of the trial court upon issues of fact upon an interpleader in an attachment case was correct or not, where the bill of exceptions does not purport, on its face, to contain all the evidence, and may for that reason affirm the judgment, the presumption in such case being that there was sufficient evidence to sustain the finding of the trial court.
    2. Same—necessity of showing that a motion for a new trial was made— and exception taken. Where the bill of exceptions in a case fails to show that any motion was made for a new trial, and that an exception was taken to the action of the court in overruling the motion, no reversal of the judgment can be had. It is not sufficient that the transcript of the record as made up by the clerk shows that such motion was made and overruled, and an exception taken. These facts must appear in the bill of exceptions, to justify the Appellate Court in reversing.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Charles L. Easton, for the appellant.
    Messrs. Moses & Newman, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

It appears from the record in this case, that on the 24th day of September, 1883, the firm of F. Mayer & Co., residing in and doing business in the city of New York, in accordance with the laws of New York, made a deed of assignment of their effects to Simon Danzig, also a resident of that State, for the benefit of their creditors, with a provision for paying certain of them in full. Among their unpreferred creditors were the plaintiffs in this suit, S. P. Dexter & Co., merchants, doing business at the time in the city of New York. On the 10th day of November, 1883, S. P. Dexter & Co. commenced a suit in attachment, in the Superior Court of Cook county, against the firm of F. Mayer & Co., to recover a large sum of money for goods sold and delivered to them, and garnisheed a number of parties residing in Chicago, as debtors to the attachment defendants. It seems that afterwards such proceedings were had, in the proper court in New York, that Simon Danzig, the original assignee, was removed for what was thought to be a proper cause, and Thomas L. James was appointed his successor. Prior to his removal Simon Danzig had interpleaded, and claimed the funds attached as belonging to him, as assignee of F. Mayer & Co., under the assignment that had previously been made to him. Afterwards, on the 12th day of January, 1884, James was substituted in the place of Danzig'as interpleading assignee, and filed his amended petition, in which he set up, in addition to the making of the assignment, the proceedings that were instituted by plaintiffs in the courts of New York in reference to the removal of Danzig as assignee. The issues made on the petition of the interpleading claimant were, by agreement of parties, submitted to the court for trial without the intervention of a jury, and the court, after hearing the evidence submitted, found the issues against the interpleader, and refused to direct that the funds attached should be paid to him, and rendered final judgment that plaintiffs in the attachment recover from the garnishees the moneys due from them to the attachment debtors. That decision, or the denial to grant the order asked for by the interpleader, was affirmed, on his appeal, in the Appellate Court for the First District, and he now brings the case to this court on his further appeal.

The principal error assigned in the Appellate Court is, that the Superior Court erred in “finding the issues involved, ” in favor of plaintiffs, and against the interpleader. Other errors were assigned, but they all arise or spring from this' alleged erroneous finding.

There is one reason why the merits of the case could not be considered in the Appellate Court, nor can it be done in this court. It is, that the bill of exceptions contains no statement or certificate by the judge before whom the cause was tried that it contains all the evidence that was introduced by both parties. It is seen all the allegations of the petition of the intervening claimant “were put at issue, and severally denied” by plaintiffs, and whether the finding as to them was correct or not can not be considered on appeal, unless where the bill of exceptions purports to contain all the evidence introduced at the trial. In Nimmo v. Kuykendall, 85 Ill. 476, this court said: “We can not say the court decided wrong, for the bill of exceptions does not purport to contain all the evidence, and we must presume there was sufficient evidence to warrant the court in the finding. ” Numerous other cases in this court declare the same doctrine, so that the practice in that respect is now well settled. It may be it was for this reason the Appellate pourt affirmed the judgment of the trial court as to its finding upon the issues involved. If so, its decision was fully justified by the previous decisions of this court.

But there is another reason, equally conclusive, why the Appellate Court could not review the judgment of the trial court. It does not appear from the bill of exceptions any motion for a new trial was made in the Superior Court, or that any exceptions were taken to the finding and judgment of the court. It is true it does appear from the transcription of the record, as made up by the clerk, a motion was made for a new trial, and that exceptions were taken to the decision of the court overruling the motion. But that is not sufficient. It must appear, as has been held by this court in numerous decisions, that the fact a motion for a new trial was made and overruled, and exceptions taken,—or, where the trial is by the court without a jury, that exceptions were taken to the finding and decisions of the court,—are contained and are preserved in a bill of exceptions, otherwise the ease will not be reviewed in the Appellate Court. Dickhut v. Durrell, 11 Ill. 72; Parsons v. Evans, 17 id. 238; Manufacturing Co. v. Horton, 74 id. 310; Law v. Fletcher, 84 id. 45; Snell v. Church, 58 id. 291. Many other cases holding the doctrine are referred to in the cases cited. In Parsons v. Evans, supra, the trial was before the court, as in this ease, without a jury, and this court said: “The bill of exceptions embodies the evidence, but fails to show that any exception was taken to the decision of the court, or that a motion was made for a new trial, overruled, and the decision of the court excepted to.” And it was further said, “the statute gives the right, in such cases, to assign error only where the decision assigned for error was excepted to, ”—and for that reason the court refused to consider the errors assigned. In passing upon this precise question in Manufacturing Co. v. Horton, supra, it was said by this court: “If it should be said that the order allowing the appeal states that exceptions were taken, the answer is, that the exceptions do not appear in the bill of exceptions. ” That is the precise case here. The order allowing the appeal does state the motion made for a new trial wras overruled, and exceptions taken by the interpleading claimant, but it does not appear in the bill of exceptions any such motion was made, or that any exceptions were taken to the finding and decision of the court,—so that, in any view that can be taken of the case presented by the record, the questions discussed by counsel W'ere not properly before the Appellate Court for decision, and no error is perceived in its judgment.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    The City of Chicago v. Michael Sheehan.

      Filed at Ottawa

      May 15, 1885.

    1. Negligence—contributory — negligence of third person—accident without negligence—capacity in which person injured was acting. In an action by the driver of a hose-cart, against a city, to recover for an injury received from a collision of his vehicle with a pile of Stone left in a street, an instruction was asked by the city directing the jury to find in its favor if the plaintiff, or the person riding with him, might, by ordinary care, have seen the obstruction and avoided the injury, which the court modified by striking out the name of such other person, and then gave it: Held, no error in the modification, as only the plaintiff’s case was involved.
    . 2. And in the same case, the. defendant asked the court to instruct the
    jury to find the defendant not guilty if the tipping over of the cart was the result of a mere accident, to which the court added the words, “and without negligence of the defendant-:” Held, no error in the modification, as without it the instruction was calculated to mislead.
    3. In such case, in passing upon the question whether the plaintiff was using due care at the time of the collision of his cart with a pile of stone left in the street, the jury may properly take into consideration the fact that the plaintiff was, at the time, in the discharge of his duties as a fireman.
    4. Measure of damages—for personal injury from negligence—allegations and proofs in that regard. In an action for damages for a personal injury caused by negligence, the jury, in assessing the plaintiff’s damages, may take into consideration any permanent injury the plaintiff may have sustained, without any allegation in the declaration of a permanent injury. It is enough if the declaration shows the injury was received, without describing it in all its seriousness.
    5. Instruction—construed, as to whether it assumes the existence of a fact. In an action by one against a city to recover for a personal injury, the court instructed the jury “that if they shall .believe, from the evidence, that on, * * * in the night time, the plaintiff was driving a hose-cart along S. street, and using ordinary care and prudence on his part, and if the jury shall further believe, from the evidence, that said hose-cart collided with a pile of stones then standing in said S. street while the plaintiff was exercising such care, and that by reason of said pile of stones said street was in an unsafe condition for ordinary travel, and that the plaintiff was injured thereby, and has sustained damages, and if you further believe, from the evidence, that such injury arose and was caused through and by the negligence of the defendant in not exercising reasonable care and supervision in keeping said street in a reasonably safe condition for ordinary travel, you will find the defendant guilty’:” Held, the instruction did not assume the pile of stones made the street in an unsafe condition for ordinary travel, but left it to the jury to find what the fact was in that respect.
    6. Same—whether evidence on which to base an instruction. In a suit by one against a city to recover for an injury caused by leaving a pile of stone in a public street, the facts and circumstances were detailed to the jury on the trial, and this was held sufficient to authorize a clause in the plaintiff’s instructions submitting the question of fact whether the plaintiff at the time of the injury was “using ordinary care and prudence on his part.”
    ■ Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Clarence A. Knight, and Mr. George Mills Rogers, for the appellant.
    Messrs. Monroe & Leddy, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action on the case, brought by Michael Sheehan, against the city of Chicago, to recover for an injury sustained by the plaintiff through the alleged negligence of the defendant. The plaintiff recovered in the Superior Court of Chicago a judgment for $2500, which was affirmed by the Appellate Court for the First District, and an appeal taken by the defendant to this court.

The injury occurred under the following circumstances: On September 16, 1882, the plaintiff was in the employ of the fire department of the city of Chicago, as driver of a hose-cart. The engine with which he was connected was situated on Lake street, between Clinton and Jefferson streets, in said city. About nine o’clock on the night of said day his company received a call to a fire on Canal street, between Van Burén and Harrison streets, to which they immediately responded. Plaintiff was driving the hose-cart. Captain Murphy, who had charge of the company, was with plaintiff on the driver’s seat, and three other men were also riding on the hose-cart. Plaintiff drove down South Canal street and across Yan Burén street, and very near the location of the fire, and at this point he pulled his team to the left, and toward the east side of the street, to avoid a fire engine and hook and ladder truck, which had previously arrived and taken possession of the right or west side of the street, and while in the act of so pulling to the left or east side of the street, the hose-cart -plaintiff was driving came in contact with a large pile of stones in the street, and plaintiff and his companions were thrown from the hose-cart, and plaintiff severely injured.

The two instructions which were given for the plaintiff, it is argued, were erroneous. To the first it is objected, that it assumes the pile of stone made the street in an unsafe condition for ordinary travel. We do not view the instruction as liable to this objection, but that it leaves it with the jury to find what the fact was in that respect. It is further objected there was no evidence on which to base the requirement of the instruction that plaintiff should have been “using ordinary care and prudence on his part.” The facts and circumstances were all detailed before the jury, and it was for the jury to find from them whether the plaintiff was in the exercise of ordinary care and prudence. The instruction, with the propriety of which we alone have to do, is unobjectionable in that particular.

Objection is made to the second instruction, that it allows the jury, in assessing damages, to take into consideration any permanent injury the plaintiff may have sustained, and that this was erroneous, because there was no allegation in the declaration of the receipt of a permanent injury. There is no force in this objection. It is enough that the declaration showed the injury received, without describing it in all its seriousness, and the recovery could be to the whole extent of the injury.

Complaint is made of the modifying of three instructions asked by the defendant. One was, as asked, to find for the city if the plaintiff, or captain Murphy, might, by the exercise of ordinary care, have seen the obstruction, and avoided coming in contact with it. The court struck out the words “or captain Murphy, ” and gave the instruction as thus modified. We perceive no error in this. It was only the plaintiff’s care and caution,—what he .did or-omitted to do,—which was involved.

Another instruction asked, was to find the defendant not guilty if the tipping over of the hose-cart was the result of a mere accident; to which the court added the words, “and without negligence of the defendant, ” and then gave the instruction. We can not say this was error. Without the addition, the instruction was liable to mislead the jury.

The further instruction was, to find for the city if the jury believed, from the evidence, that had plaintiff exercised ordinary care he might have passed to one side of such stones, and thus avoided the fall. The court modified the instruction by inserting after the words “ordinary care,” the words “in view of his duties as a fireman,” and as thus modified gave the instruction. We find no substantial error in this modification. The question was one of due care under all the circumstances of the case. The circumstance that plaintiff was a fireman, and exercising at the time the duties of a fireman, might, not improperly, be considered.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Alpheus C. Badger v. Sarah Gallaher et al.

      Filed at Springfield

      May 14, 1885.

    Contract for services of an attorney—when performed, wider a provision to remove an incumbrance upon property. The owner of certain lots gave to an attorney a contract, wherein it was recited there was claimed to be an incumbrance upon the property, and that it was agreed the attorney should undertake, to the best of his ability, by suit or otherwise, at his own expense, to remove the incumbrance and release the lots from the pretended lien or claim of the same, in consideration of which the maker of the contract was to give the attorney full charge and management of the proceedings, and as compensation for his services and expenses pay him $4000 in cash or transfer to him one-half of the lots, at the option of the maker, “when, and not until, the undertaking of the said B. (the attorney) in the premises” should be fully performed: Held, that the attorney was not entitled to any compensation unless he should first remove the incumbrance from the lots, or some part thereof, and that he could not recover merely because he had succeeded in reducing the amount claimed against the property. His undertaking was to remove the incumbrance, and until that was done he was not entitled to anything for his services.
    Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. W. T. Burgess, for the appellant:
    The court below denied the relief on the broad ground that Badger was not entitled to any relief, as he had failed to remove the whole of the incumbrance, so that for his services and expenses, if only one dollar of the original incumbrance had been left, he was not entitled to anything, but loses the whole of them outright. The contract should not receive so unreasonable a construction, if capable of receiving any other. The court should look at the intent of the parties from the entire contract.

      If there is any dbuht as to the meaning of the contract, it should be construed most strongly against the maker. Walker v. Kimball, 22 Ill. 539; Massie v. Belford, 68 id. 290; Richardson v. People, 85 id. 495.
    The recital does not control the operative part of the instrument, but is only used in aid of it. Walker v. Tucker, 70 Ill. 527; Trower v. Elder, 77 id. 452; Bell v. Bruen, 1 How. 169.
    Badger’s agreement was not to make a machine, but to manage a law suit; nor did he undertake to pay the incumbrance.
    Mr. James E. Munroe, for the appellees:
    Where the language of a contract is unequivocal, there is no room for construction, and the courts will enforce the same according to its legal effect, even though it fails to express the real intentions of the parties. Benjamin v. McConnell, 4 Gilm. 536; Canterberry v. Miller, 76 Ill. 355; Walker v. Tucker, 70 id. 527.
    Due effect must be given to all of the words employed by the parties in expressing their agreement, and such effect must be given to it, if possible, that no clause, sentence or word shall be superfluous, void or insignificant. McCarty v. Howell, 24 Ill. 341; Bowman v. Long, 89 id. 19.
    The recitals contained in an agreement are a part of it, and may restrain or limit the generality of the operative part; and if the operative part be doubtful or ambiguous, the recitals may be used as a test to discover the meaning of the parties, and fix the true meaning of the words. Bell v. Bruen, 1 How. 169; Walker v. Tucker, 70 Ill. 527.
    A party seeking specific performance must show that he has performed his part of the contract. O'Kane v. Kiser, 25 Ind. 168; Brown v. Cannon, 5 Gilm. 174; Walker v. Douglas, 70 Ill. 445; Benedict v. Lynch, 1 Johns. Ch. 369.
    On contracts for services for a stated time, for a consideration, no recovery can be had unless the services have been rendered for the full time agreed upon. Eldredge v. Rowe, 2 Gilm. 91 ; Badgely v. Heald, 4 id. 66; Hansell v. Errickson, 28 Ill. 257.
    Appellant’s contract is an entire contract, and substantial performance of it by appellant is a condition precedent to a recovery on his part, at law and in equity, and neither law nor equity will give relief by apportionment of compensation upon the principle of a quantum meruit. Walsh v. Shumway, 65 Ill. 471; Pike v. Butler, 4 Comst. 360.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the First District, affirming á decree of the Superior Court of Coolc county, dismissing a bill, in the nature of a bill for specific performance, brought by appellant, against appellees.

It appears that Samuel J. Walker, being the owner in fee of lots 29 and 30, block 13, Walker’s dock addition to Chicago, on the 29th day of December, 1871, conveyed the same to John Rogers, as trustee, to secure a promissory note of that date, for the sum of $25,000, executed by the said Walker, and payable to his own order at the Second National Bank of Chicago, eighteen months after date, with interest at the rate of eight per cent per annum, the conveyance being properly recorded on the 5 th of January following. The note and trust deed were transferred by Walker to the International Bank of Chicago, to secure other notes given by Walker for advances and loans made to him by that bank. On the 1st of September, 1873, Walker and wife conveyed the lots in question, with full covenants of warranty, to William G. Gallaher, the conveyance being recorded on the 24th of October, 1873. In 1878, without consideration, Gallaher quitclaimed the premises to Francis A. Riddle, who thereafter held the same in trust for Gallaher. The International bank transferred the principal notes given to it by Walker for loans and advances, and with them the $25,000 note and trust deed, together with other collaterals given to secure them, to Rosenfeld & Rosenberg. In the spring of 1878, Walker having become a bankrupt, Robert E. Jenkins was appointed his assignee, appellant being a creditor of his to the amount of $300,000. On the 23d of May, 1879, Rosenfeld & Rosenberg filed a bill in the circuit court of Cook county, against Walker and others, to foreclose the trust deed executed to Rogers, trustee, as heretofore stated.

While matters were in this condition, appellant, supposing Riddle to be the real owner of said lots, subject to the apparent incumbrance of Rosenfeld & Rosenberg, for the consideration therein mentioned, made with him the following written agreement, to enforce which the present bill was filed:

“Whereas, Francis A. Riddle is the owner of lots 29 and 30, in block 13, of Walker’s dock addition, in section 30, north of the river, in township 39 north, range 14, east of the third principal meridian, in the city of Chicago, Illinois, upon which there is an incumbrance now held by Rosenfeld & Rosenberg, by assignment from the International Bank of Chicago. And whereas, Alpheus C. Badger has undertaken to remove said incumbrance—
“Now, therefore, it is agreed between said parties as follows : That the said Badger shall undertake, to the best of his ability, by suit or otherwise, but without expense of any kind to said Riddle, to remove said incumbrance, and to release said lots from the pretended lien or claim of the same, and in consideration of such undertaking the said Riddle hereby agrees to give the said Badger full charge and management of such proceedings as he, the said Badger, may think necessary to carry on, including any suit or suits which may be now or hereafter commenced against said lots for the foreclosure of said incumbrance; and as compensation for the services and expenses of him, the said Badger, in and about the premises, the said Biddle agrees to pay the said Badger either the sum of $4000 in cash, or transfer to him one-half of the said lots by special warranty, and according to the option of said Biddle, when, and not until, the undertaking of the said Badger in the premises above mentioned shall have been duly performed, but any transfer of any interest in said lots to said Badger to be made subject to all taxes and assessments; and it is understood that said transfer shall only be of one-half of said lots which may remain after-said incumbrance shall be released, removed or satisfied,— it being specially understood that said Biddle has the option of paying the sum of $4000, or conveying half of the said lots, as above stated, and such conveyance, or the payment of said' $4000, shall be in full satisfaction of said Badger’s services and expenses hereunder. Feanois A. Eiddlb.
“Chicago, III., November 6, 1879.”

In pursuance of this agreement, appellant took charge of the defence of the suit of Bosenfeld & Bosenberg to foreclose the trust deed, which had already been commenced, as above stated, and also filed therein a cross-bill. The case was brought to a hearing in April, 1881, when a decree was rendered in favor of complainants for $4469.68, and in default of payment within twenty days from date of decree, the master was ordered to sell the premises, or so much thereof as might be necessary to discharge the same, together with costs and expenses of sale. That decree was finally affirmed in this court. On the 27.th of November, 1882, the premises were sold under the decree, by the master, to Bosenfeld & Bosenberg, for $5132.38, being the amount of decree, interest, costs, and expenses of sale, and the purchasers received from the master the usual certificate of purchase.

Upon Biddle’s payment of the decree to Bosenfeld & Bosenberg, he was, by a provision contained in it, subrogated to their rights .respecting the collaterals given by Walker to secure the principal notes representing the loans made by the International bank to him; but just what these securities are, and whether they are of any value or not, is not sufficiently disclosed by the present bill to make them a ground for equitable relief, and hence no further notice will be taken of them. Even conceding appellant is equitably entitled to some compensation for his services and expenses in the foreclosure proceedings, or on account of substantial benefits accruing to appellees therefrom,—a matter about w'hich it is unnecessary to express any opinion,—it is sufficient to say such relief does not come within the scope and theory of the bill, and even if it did, the allegations and proofs in that respect are so fatally defective as to leave it wholly uncertain whether the appellees were benefited by his services or not.

This phase of the case, barely foreshadowed in a general way, we presume was only intended as a mere make-weight to the main grounds upon which appellant relies for relief,— namely, his rights growing out of and dependent upon the contract- of November 6, 1878, above set forth. If his construction of that contract is correct, the decree in this case is erroneous, and the Appellate Court erred in not reversing, otherwise it was properly affirmed.

The contention of appellant is, that the contract in question, when relieved of all unnecessary verbiage, and expressed in plain, unequivocal English, means simply this: Badger undertakes, to the best of his ability and at his own expense, by such legal proceedings as he may be advised are necessary, including the suit pending, to remove the stated incumbrance on the land in question, and when he shall have done all that he can, then, for his services and expenses in that behalf, he is to have $4000 cash or one-half of the land, subject to the taxes and assessments, and the incumbrance, if any of it is left on the land, Biddle to make a special warranty deed, subject to taxes, assessments, and anything left of the incumbrance, and to have the option which he will do,— or, more shortly stated, Badger was, at his own expense, to take charge of and conduct the litigation “to the best of his ability, ” and when concluded, Biddle was to pay him, without regard to its success, $4000, or make him a special warranty deed, subject to taxes and assessments, and also to incumbrances, if any, for one-half of the property. We do not think this is a fair or reasonable construction of the contract, nor can it, in our judgment, be maintained without rejecting altogether not only its recitals, but also some of the provisions in the body of the instrument. Thus, in the event Biddle elects to convey instead of paying the $4000, it is expressly provided “that said transfer shall only be of onelialf of said lots xohich may remain after said incumbrance shall be released, removed or satisfied, ” while appellant’s construction would require him to convey one-half of the property even if the whole of the incumbrance was still existing. It is manifest, from the language just cited, that the parties did not contemplate a conveyance of the lots, or any part of them, or interest therein, that was subject to the incumbrance which Badger had undertaken to remove. But they did contemplate and provide for the contingency of removing the incumbrances from a part of the premises, only, in which event it was intended the part from which they were so removed should be equally divided between them, subject to the right of Biddle to keep the whole of the part thus relieved from the incumbrance, by paying to appellant $4000, should he elect to do so.

Considering all the provisions of the instrument, we think it reasonably certain appellant’s compensation was not intended, in any event, to exceed $4000, and it is equally clear, in our judgment, that if no part of the lots was relieved from the incumbrance,—or, in other words, if the incumbrance absorbed the whole of the property,—he was to receive nothing ; yet if anything was saved out of it, be it much or little, he was to receive half of it, or $4000, at the election of Bicldle. While the contract, in some respects, is inartificially drawn, yet we think the intention of the parties is quite apparent. The fact that an incumbrance existed on the lots in favor of Bosenfeld & Bosenberg, is first recited. Then follows the statement that Badger has undertaken to remove the incumbrance. This is to be done by him without expense of any kind to Biddle. He is to carry out the undertaking “to the best of his ability, ”—that is, he is to give the matter his best judgment, and there is to be no neglect on his part. For his services and expenses he is to receive, if he succeeds, ‘.‘either the sum of $4000 or one-half of the lots, at the option of Biddle." But when is this compensation to be made ? The contract answers this question in express terms. It declares that it is to be made "when, and not until, the undertaking of the said Badger in the premises, above mentioned, shall have been fully performed. ” As the undertaking, as we have just seen, was “to remove the incumbrance,” it is evident that nothing but the removal of it could, with any propriety, be regarded as a performance of the undertaking. The logic of appellant’s construction of the contract is to make the undertaking and its performance one and the same thing,a position which, of course, is wholly inadmissible.

The other features of the ■ contract we have already sufficiently discussed, and what we have said need not be repeated in this connection.

In the view we take of the agreement, it is clear there has not been such performance or part performance under it as gives appellant any standing in a court of equity, and the bill was therefore properly dismissed.

Judgment affirmed.


author: Per Curiam :

text:
    John D. Monroe v. The People of the State of Illinois.

      Filed at Ottawa

      May 15, 1885.

    1. Selling intoxicating liquobs to minob—of the proof that a sale was made. On the trial of one indicted for selling intoxicating liquor to a minor, the minor testified: “I know where defendant’s place of business is. He keeps a saloon under * * * I have been in his place, and have drank intoxicating liquors there, within the past eighteen months, five or six times, and paid for it. The last time was about four months ago. I obtained it of his bar-tender. I drank beer. I don’t remember how many times I bought and paid for intoxicating liquor at his place—in my best judgment it was several times. I am nineteen years of age:” Held, that this evidence was sufficient to justify a finding that intoxicating liquor was sold.
    2. Same—burden of proof to show authority for sale to a minor. To convict a dram-shop keeper of selling intoxicating liquor to a minor, it is sufficient to prove the sale to the minor, without showing it was made without the written order of the parent, guardian or family physician. If the sale is made under such written order, the defendant must show that fact in defence, to exonerate himself from the statutory penalty.

    Wbit of Ebbor to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.
    Messrs. Rubens, McGaffey & Ames, for the plaintiff in error:
    Whether certain beer sold is malt or intoxicating beer, or root beer, ginger beer, or any of the numerous kinds of beer which are well known not to be intoxicating, is a question of fact; and whenever the law does not specifically include “beer” among the liquors the sale of which it prohibits, then no conviction can be sustained without satisfactory proof that the beer in question comes within the provisions of the statute. Lathrop v. State, 50 Ind. 555; Klave v. State, 43 id. 483;
      State v. Chappel, 116 Mass. 7; Commonwealth v. Blos, id. 56 ; State v. Starr, 67 Me. 242; State v. Wall, 34 id. 165; People v. Ziegler, 6 Parker’s Cr. 355 ; State v. Biddle, 54 N. H. 379; Kurz v. State, 79 Ind. 488.
    It devolved upon the prosecution not only to prove the sale of intoxicating liquors to the minor, but also to prove that such sales were without the written order required by the. statute. State v. Evans, 5 Jones, (N. G.) 250; State v. Woodley, 2 id. 276; McGuire v. State, 21 Miss. 257.
    Mr. George Hunt, Attorney General, for the People:
    The testimony of the witness Fallen was, that the minor bought intoxicating liquors at the defendant’s saloon, and paid for them. The beer sold by saloons is well understood to be malt beer. Godfriedson v. People, 88 Ill. 284; Bandalow v. People, 90 id. 218.
    Where proof of a sale of intoxicating liquor is made, the burden of proof is devolved on the defendant to show the sale was lawful. Harbaugh v. City of Monmouth, 74 Ill. 371; Metzler v. People, 14 id. 101; Noecker v. People, 91 id. 468; Town of Flora v. Dills, 5 Bradw. 629.

      To the same effect, see Birr v. The People, ante, p. 645.

   Per Curiam :

This was an indictment against John D. Monroe, for selling intoxicating liquor to a minor, in violation of section 6 of the Dram-shop act. The indictment contained six counts, but defendant was found guilty only under the second count.

It is argued by counsel for the defendant, that it was not proven that intoxicating liquor was sold,—that the evidence showed a sale of “beer,” merely. This is a misapprehension of the evidence. The witness Fallen testified as follows: “I reside at Elgin. I know where defendant’s place of business is. He keeps a saloon under the Molting House, in the city of Elgin, in Kane county, Illinois. I have been in his place, and have drank intoxicating liquor there, within the past eighteen months, five or six times, and paid for it. The last time was about four months ago. I obtained it of his bar-tender. I drank beer. I don’t remember how many times I bought and paid for intoxicating liquor at his place,—in my best judgment it was several times. I am nineteen years of age.” Under this evidence the jury was fully justified in finding that intoxicating liquor was sold.

It is also contended that it devolved on the People to prove that the sale was made without the written order of the parent, guardian or family physician. We do not so understand the law. This was a matter of defence, which, if relied upon, it devolved on defendant to establish. Where the People proved a sale of intoxicating liquor to a minor, the law required nothing further on their part. After a sale was established, if the defendant desired to exonerate himself from the penalty provided by the statute, it devolved upon him to prove that he made the sale under a written order from the parent, guardian or family physician. The proposition contended for would impose on the prosecution^the burden of proving a negative, which the law does not require. Harbaugh v. City of Monmouth, 74 Ill. 371.

So far as is disclosed by the record no error is perceived, and the judgment will be affirmed.

Judgment affirmed.


text:
    Jane Kaufman v. Thomas Cook.

      Filed at Ottawa May 15, 1885.

    1. Specific performance—of a verbal promise to procure title and convey land—Statute of Frauds—making improvements without possession under the contract. A person obtained a lease of a tract of land, and put his niece in possession thereof, under a verbal promise that if he succeeded in acquiring the title thereto he would give the same to her. She made some valuable improvements on the same, but it was held, that as she did not enter into possession under the agreement to convey, being a mere tenant at sufferance, the Statute of Frauds, which was interposed, was a bar to a bill to compel a conveyance from the promisor.
    2. A vendor who, for a valuable consideration, enters into a verbal contract for the sale of premises to which he has no title, and who subsequently acquires the title, will be bound to specifically perform his contract when the purchaser has taken possession under it, and made valuable improvements thereon,—but not where he had no title when the possession was taken, and his promise was without consideration.
    3. The possession of real estate must be taken under the contract of purchase, or agreement to give the same, to take the case out of the Statute of Frauds, and not be taken as a mere tenant. The entry must be under a binding contract, with one having title either in possession or expectancy.

      4. Tenancy at sufferance—what so regarded. Where one having no title to premises leases the same from the owner, and puts another in possession thereof under a promise to give to the latter the property in case he can acquire the title, .the person so put into possession will occupy the position of merely a tenant at sufferance of the party having the leasehold interest.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Mr. J. C. Pepper, for the appellant:
    A parol gift of real estate will be enforced whenever the donee has taken possession and made valuable and lasting-improvements on the faith of the gift. Young v. Gleudenning, 6 Watts, 509; Mahon v. Baker, 26 Pa. St. 519; Ungley v. Ungley, L. R. 4 Ch. 78 ; Burkholder v. Ludcam, 30 Gratt. 255 ; Lobdell v. Lobdell, 36 N. Y. 327 ; Freeman v. Freeman, 43 id. 35; Bright v. Bright, 41 Ill. 97; Kurtz v. Hibner, 55 id. 214; Langston v. Bates, 84 id. 524.
    Messrs. Bassett & Wharton, for the appellee:
    To enforce a párol' contract for the conveyance of real. .estate, the evidence must be clear, certain and satisfactory. Wallace v. Rappleye, 103 Ill. 229; Bailey v. Edmunds, 64 id. 126; Allen v. Webb, id. 342; Hartwell v. Black, 48 id. 301.
    The supposed donor could not give what he did not have, and a promise to make a gift of something thereafter to be bought; being by parol, could not be enforced. Cassell v. Cassell, 104 Ill. 361; Galloway v. Garland, id. 276; Walton v. Walton, 70 id. 142.
    Possession was not taken under the gift. -The act of taking possession must be such as can not be referred to any other title. 3 Washburn on Real Prop. 236; Fry on Specific Per. 176, sec. 387.
    . The use of the property, was ample compensation for the improvements. Walton v. Walton, 70 Ill. 142; Cassell v. Cassell, 104 id. 361 ; Bailey v. Edmunds, 64 id. 128.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was a bill in chancery, filed by Jane Kaufman, in the circuit court of Mercer county, against Thomas Cook, the appellee, to compel the latter to convey certain real estate in pursuance of an alleged parol gift. The subject of the controversy is known to and designated by the witnesses as the “Atcheson property. ”

The bill charges, in substance, that appellee, who is the uncle of appellant, and without children, being displeased with the treatment the latter had received from the Stonier family, who were related to appellee by marriage, told her he would “give her a home; ” that he would, for the time being, rent for her the Atcheson property, which was shortly after-wards to be sold, and if he could buy it when offered for sale he would deed it to her for a home for herself and children; that he accordingly did rent the property, subject to sale, and left a bid of $800 for it; that he got the property at his bid of $800, and obtained the title thereto; that he put the complainant in possession of the property, with the agreement that it should be hers and her children’s forever, if he got the title; that she went into possession of said property, under the said promise and agreement, in April, 1882, and made lasting and valuable improvements on the same, under said agreement and promise; that she had the inside of the house altered, at an expense of from $25 to $30, built a stable at an expense of from $30 to $50, built and repaired fences at an expense of from $15 to $20, put a porch at the north end of the house, and made other lasting and valuable improvements thereon, and has resided on the property since April, 1882; that the defendant refuses to complete his gift by deed, and is trying to get possession of the property and oust her therefrom. The court, upon the hearing, rendered a decree dismissing the bill, and the present appeal is frond that decree.

In the view we take of the case, it is not important to discuss the evidence in detail, or the claim that there is a variance between it and the allegations of the bill. It maybe stated, in general terms, that we are of opinion that when the testimony is considered as an entirety, in the light of the relations-of the parties and of all the surrounding circumstances, about which there is no controversy, it substantially sustains the bill.

The Statute of Frauds having been interposed by the answer, the question is presented whether, proof of the facts alleged in the bill makes out a case of equitable cognizance not falling within the Statute of Frauds. As the property in question was not purchased by appellee until in May,— near a month after appellant had taken possession of it,— it follows that at the time of making the promise relied on, appellee had no title to the premises whatever, either legal or equitable, and this was well known to appellant. This being so, it is clear the entry of appellant was not un'der the title which she now seeks to obtain. On the contrary, it was under a mere license from one having a chattel interest, only. The leasehold was in appellee, and appellant’s occupancy was that of a tenant at sufferance. She entered, therefore, solely upon the voluntary promise of appellee that he would, if he succeeded in acquiring it, convey to her a title which he did not possess, or even have a promise of. Nor did his promise to appellant impose any legal obligation on him whatever to purchase the property in question. Suppose he had withdrawn his bid of $>800 for the property, and had not bought it at all, it will not be pretended appellant could have maintained an action against him for not doing so; and yet she unquestionably could, if what occurred created a valid contract between them. It is clear, therefore, appellant’s entry was not under any binding contract or engagement with one having title, either in possession or expectancy, with which to connect her subsequent expenditures on account of improvements, so as to take the case out of the statute. We do not desire to be understood as intimating, much less holding, that a vendor who, for a valuable consideration, enters into a verbal contract for the sale of premises to which he has no title, will not, on subsequently acquiring the title, be hound to specifically perform his contract where the purchaser has taken possession under it, and has made valuable improvements thereon. That he would be bound to do so under the circumstances stated, we have no doubt. But this is not a case of that kind. Here, the promisor not only had no interest in possession or expectancy, but his promise was without consideration, and the entry made under it was before anything had been done by the promisee to make it binding upon him. In such a case we are of opinion there is no ground for equitable relief.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scholfield

text:
    Asahel Gage v. Adlai T. Ewing.

      Filed at Ottawa May 15, 1885.

    1. Former adjudication—dismissal of bill for reasons not affecting the merits—whether a bar fo a subsequent suit. The dismissal of a bill in chancery because of a defect therein, such as a failure to allege a matter essential to the jurisdiction of the court, is no bar to a second bill in which such defect is cured or obviated by further and sufficient allegations.
    2. Thus, where the owner of land filed a bill to set aside a tax title as a cloud on his title, which failed to show that the land was in the possession of the complainant, or was unimproved and unoccupied, so as to give a court of equity jurisdiction, its dismissal by the court is no bar to a second bill brought for the same purpose by a purchaser of the complainant in the former bill, purchasing during its pendency, which alleges that the premises are vacant and unoccupied.

      Appeal from the Circuit Court of Cook county; the Hon.'. Thomas A. Moean, Judge, .presiding.
    Mr. Augustus N. Gage, for the appellant:
    This suit was brought to remove as a cloud'upon title the tax deed held by appellant, and that was the only object.of, the suit. This court lias repeatedly held that chancery has. jurisdiction for such purpose. The suit at .bar is-for precisely the same purpose, and none.-otlier, therefore the subject-matter and the grounds for relief in the suit of Gage v. Abbott are identical, and the same as the subject matter and thegvounds for relief in the suit at bar. Thomson v. Morris, 57 Ill. 333; Theological Seminary v. Gage, 103 id. 175; Ohling, v. Luitjens, 22 id. 23.
    A decree or order dismissing a bill upon its merits, where there is no direction that the dismission be without prejudice, is conclusive until reversed, and is a good plea in bar to a new bill for the same matter. 2 Story’s Eq. Jur. sec. 1523; Forte v. Gibbs, 1 Gray, 412; Garrick v. Chamberlain, 97 Ill. 620.
    Messrs, W. G. & A. T. Ewing, for the appellee;
    The dismissal of a bill which is so defective as to show no right to relief, is no bar to a second' showing of a right. Emory v. Keighan, 88 Ill. 516.
    In urging a former.adjudication as an estoppel, the decree in the former suit must be as beneficial to the plaintiff as.that which might be obtained in the second súit. 1 Daniell’s Ch., Prac. 561, 633, 660.
    A judgment upon a demurrer for a defect in the pleadings' will not bar another action for the same cause. Vallandingham v. Ryan, 17 Ill. 25.
    When, by a defect in pleading, the merits of an action or defence were not presented, a plea of former recovery will not' be a bar to a second action. Vallandingham v. Ryan, 17 Ill. 25.

      If the facts stated in a count being admitted or proved will not entitle the plaintiff-to a judgment, a judgment for the defendant would not bar the plaintiff from suing again on the same contract. Smalley v. Edey, 19 Ill. 207; 3 Greenleaf on Evidence, secs. 35, 36; 2 Phillips on Evidence, chap. 2, see. 2; 1 Chitty’s Pleading, 198.
    Judgment for defendant in ejectment, where it appeared at the commencement of the suit that the defendant was not in possession, will be no bar to another suit. Oetgen v. Ross, 51 Ill. 81.
    Bigelow, in his work on Estoppel, (2d ed. page 21,) says: “Further, a judgment, in order to work an estoppel to another litigation, must have been rendered upon the merits. If the cause were dismissed upon some preliminary issue, as, upon a plea in abatement, the parties are at liberty to raise the main issue again, in any form they choose. * * * Judgment proceeds upon the merits when the original cause of action is decided upon. ”
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This was a bill in equity, by appellee, against appellant, to remove two tax deeds as clouds upon his title, upon grounds sufficiently set forth in the bill. Appellant filed two pleas, the first setting up that the land mentioned in the bill was unimproved and unoccupied at the time of filing the bill, and that, because thereof, appellee had a complete remedy at law in an action of ejectment; and the second setting up, that the complainant purchased the property in question during the pendency of a bill in equity filed by his grantor, against the appellant, for the same purpose as the present bill, that the former cause was brought to issue, and the bill dismissed for want of equity, and such former adjudication is set up in bar of this suit. These pleas having been set down for argument, were overruled by the circuit court, and appellant electing to stand upon his pleas, a final decree was entered in favor of appellee. • On appeal to this court, we held the circuit court properly overruled the first plea, but that it erred in overruling the second plea, and we remanded the cause to the circuit court for further proceedings consistent with that opinion. (Gage v. Ewing, 107 Ill. 11.) After the cause was remanded, replication was filed, and subsequently the cause was heard on bill, answer, proofs, etc., and the court decreed in conformity with the prayer of the bill, and this record is brought before us by appeal from that decree.

It appears that in this bill there is an allegation that the premises are unimproved and unoccupied, while in the bill set up in the second plea that allegation is wholly wanting; and the only question discussed upon this record is, whether, in the absence of that allegation, the suit set up in the second plea is a bar to the present suit. Our answer must be in the negative. When the suit set up in the second plea was before us, (Gage v. Abbott, 99 Ill. 366,) we held that because the bill failed to show that the complainant was in possession, or that the premises were unimproved and unoccupied, the decree of the circuit court granting the relief' prayed for, was erroneous,—that one or the other of these allegations was essential to give the court jurisdiction. That bill not having been subsequently amended, but dismissed in conformity with our ruling, the decree therein can not. be urged in bar of the relief sought by this bill. It contains the precise allegation because of the absence of which that bill was held to be defective. The dismissal of a bill because of some defect precluding relief, is no bar to a second bill in which such defect is cured, notwithstanding in other respects the material allegations are the same. Emory v. Keighan et al. 88 Ill. 516; 1 Daniell’s Chancery Practice, (Perkins’ ed.) 660.

The decree below is affirmed.

Decree affirmed.


text:
    Ellen R. Stevenson v. Edwin A. Crapnell et al.

      Filed at Ottawa May 15, 1885.

    1. Escrow—effect of delivery to the grantee. There can not be a delivery of a deed to the grantee in escrow. Such delivery makes the deed an absolute one to the grantee.
    2. Statute op Frauds'—reserving a verbal trust by a grantor. An express trust between the grantor and grantee of land, that the grantee is to hold the land in trust for the grantor, or is to reconvey to him in a certain contingency, is invalid, under the Statute of Frauds, unless evidenced.by some writing signed by the grantee.
    3. Resulting trust—when it arises. Where there is an express trust, there can not be a resulting or implied trust.; and in case of a voluntary conveyance, no resulting trust can arise in favor of the grantor.
    Writ of Error to the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Mr. J. C. Pepper, for the plaintiff in error.
    Messrs. Bassett & Wharton, for the defendants in error.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill for partition of certain lands described in the bill, filed June 30, 1883, by Edwin A. Crapnell, against Ellen R. Stevenson and Emily J. Noble. The bill states that William B. Crapnell died December 15, 1881, seized of the lands, leaving complainant, his brother, and the defendants, his sister and niece, his sole heirs at law, and entitled each to one-third of the land. The defendants filed a joint answer, setting up the facts stated in the following bill. Ellen R. Stevenson had before, on March 7,1883, filed her bill against Edwin A. Crapnell and Emily J. Noble, in which she stated that previously to June 29, 1877, she, and her brother, William B. Crapnell, and Emily J. Noble, were unmarried people, and had never left their home they had had with their parents; that on said 29th of June she was about to be married and go to the State of Texas, and thought she might never return to live at the old home, and desiring, if she never returned, that her brother, William B., should have the old farm and home, she made to him a deed of one hundred and twenty acres of the land which is described in this bill for partition ; that the understanding and agreement between her brother and herself was, that if she never returned he was to own and hold the land, but if she returned from Texas to live at the old home, he was to give up the land and deed to her, and it was to remain her property; that no consideration was ever paid for the land; that shortly after making the deed she was married and went to Texas, and resided there until in July, 1878, when she returned to Illinois and to the old homestead, where she resided with her brother, William B., until his death, in December, 1881. The bill prayed for a decree for $1500, the consideration named in the deed, and that it be made a lien on the land. That bill became a cross-bill to the present bill for partition, by consolidation. The answer of Edwin A. Crapnell denies the allegation that William B. Crapnell had not paid for the land, and sets up the Statutes of Frauds and of Limitations, and laches.

The placing of the deed of Ellen R. Stevenson to William B. Crapnell in the hands of the latter, upon the condition that the deed was to take effect only in case the grantor remained in Texas, and that if she returned, the deed was to be delivered back to her and be of no force, was a delivery of the deed in escrow, and it is the well settled rule of law that there can not be delivery of a deed to the grantee as an escroiv,—that such delivery makes thejleed an absolute one to the grantee. Neely v. Lewis, 5 Gilm. 31; 3 Washburn on Real Prop. 267, and cases cited in notes.

Whatever of condition or understanding there was as to William B. Crapnell holding the deed or land, was verbal, only, and so far as there might be supposed to arise therefrom any trust, it was an express trust, which would be invalid because of not being manifested by some writing, signed by the party declaring the trust. (Rev. Stat. 1874, chap. 59, sec. 9.) Where there is an express trust, there can not be a resulting or implied trust. (Kingsbury v. Burnside, 58 Ill. 310.) A voluntary conveyance can not be held to create a resulting trust for the grantor. Jackson v. Cleveland, 15 Mich. 94.

There was no purchase of the land by the grantee,—no agreement by him to pay anything for the land,—and there was no indebtedness for it on his part, and thus there can not be any vendor’s lien.

The decree of the circuit court ordering partition and dismissing the cross-bill, must be affirmed.

Decree affirmed.


text:
    Elmer W. Adkinson v. Thomas Gahan et al.

      Filed at Ottawa May 15, 1885.

    1. Appeal—right of parties to dismiss an appeal by agreement. The appellant in this court may dismiss his appeal at his own costs, when the suit brought by him is not one to enforce a public right.
    2. In this case the appellant filed his bill in equity as a citizen and taxpayer of the town of Lake, to restrain the trustees of the town from making payment to one of their number, the supervisor of the town, of two per cent on all moneys coming into his hands for the fiscal year 1884-85, which was dismissed on demurrer, and he brought the case to this court by appeal, and during the pendency of the appeal moved the court to dismiss the same, on stipulation of the parties that it should be dismissed, and the motion was allowed.

      Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    This was a bill in equity, filed by the complainant, as a citizen and tax-payer of the municipality, to restrain the defendants, as trustees of the town of Lake, from making-payment to one of their number, Thomas Gahan, the supervisor of the town of Lake, pursuant to the following resolution : “Resolved, that the treasurer of the town of Lake be and he is hereby allowed two per cent on all moneys coming into his hands during the fiscal year 1884-85, and that he report to this board, monthly, the receipts and disbursements on hand, less commissions. ”
    The bill showed that the town of Lake is a municipal corporation, incorporated under an act of the General Assembly entitled “An act to revise the charter of the town of Lake, in the county of Cook, ” approved March 26, 1869, (Private Laws of 1869, vol. 4, p. 324,) and-as changed and amended by the constitution of the State, adopted in 1870, and the several acts of the legislature which apply to said town of Lake, and are amendatory of its charter. The court below sustained a demurrer to the bill, and dismissed the same, and as the case involved a construction of section 11, of article 10, of the constitution, and the validity of the act of 1869, an appeal was taken directly to this court.
    Mr. Elmer W. Adkinson, pro se.

    Mr. J. B. Thomas, and Messrs. A. H. & J. L. Veeder, for the appellees.
   Per Curiam :

Upon motion of the appellant, supported by a stipulation signed by the parties to the record, this appeal is dismissed at the costs of the appellant. Since the motion and stipulation were filed, an affidavit of certain citizens of the town of Lake who are interested in the questions involved in the litigation, has been filed in opposition, and we are asked, therein, to deny the motion. The affidavit states that the stipulation to dismiss is the result of a collusive and fraudulent agreement between the parties.

It must be borne in mind this is not a suit to enforce public rights, but one in which the rights of private parties (i. e., those to the record,) are alone concerned. The interest of the public is purely incidental,—an interest in the settlement of a legal principle,—just as may happen in any suit between private parties. But in all such cases any other party is at liberty to commence a suit and litigate the same question, if the suit first brought be dismissed before it is there settled. No one but the parties to the suit is liable for the payment of the costs, or directly affected by the result of the dismissal. Suppose we were to overrule the motion, who is responsible for the additional costs that may be incurred ? No indemnity is given, or could legally be required to be given, the appellant, against the additional costs. We are aware of no practice by which a party can be compelled to continue the prosecution of a private suit against hisa will and at his own expense. If, while the suit was pending, it had been alleged and proved that the suit was collusive, we would have dismissed it, promptly, out of court. But ceasing to prosecute an appeal,—ceasing to ask the aid of a court,—is a different thing.

Any party who wishes to re-litigate the questions involved in this record is at perfect liberty to do so. No one was under obligation to await the issue of this litigation for a settlement of those issues, and no one has any vested right in the appeal of the appellant.

The appeal is dismissed.

Appeal dismissed.


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    Michael Sullivan v. The People of the State of Illinois.

      Filed at Ottawa May 15, 1885.

      1. Criminal law—of the venae—sufficiency of proof. On a trial for robbery, while no witness testified directly that the offence was committed in Peoria county, but the evidence showed that it was committed on W. street, in Peoria, Illinois, it was held, that this was sufficient to show the offence was committed in Peoria county, Illinois.
    2. Same—accused as a witness in his own behalf—of the consideration to be given to his testimony—tests of credibility, etc. On the trial of two persons on the charge of robbery, two witnesses testified in behalf of the prosecution, and the two defendants testified in their own behalf, the four being present at the time of the alleged robbery. The court instructed the jury, as to each defendant, “that ■while the defendant is by law a competent witness in his own behalf, yet his credibility, and the weight to be given to his testimony, are matters exclusively for the jury to pass upon; and while they should not disregard his testimony through mere caprice, y'et the jury are not bound to believe him, nor are they bound to treat his testimony the same as the testimony of other witnesses, but they may take into consideration the fact that he is the defendant, and his interest in the result of the case, as such, and give his testimony such weight as, under all the facts and circumstances in evidence in the case, they may think it is entitled to:” Held, that the instruction was erroneous in telling the jury they were under no obligation to treat the defendant’s evidence the same as the testimony of other witnesses.
    3. In a criminal prosecution, the accused, as a witness in his own behalf, differs from other witnesses only in the fact that he is the defendant, charged and being tried for crime, which may be taken into consideration by the jury in passing on his credibility. But his testimony' must be treated the same as any other witness.
    4. In such case, the interest of the accused in the matter of the prosecution, and his desire to shield himself from punishment, may properly be considered by the jury in passing upon his credibility, and his evidence may be subjected to all the tests resorted to in order to elicit truth from an unwilling witness; but where the evidence has undergone all these tests, then it is to be treated the same as the evidence of other witnesses.
    Writ of Error to the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.

      Mr. Daniel E. Sheen, for the plaintiff in error:
    The fourth instruction given for the People tells the jury that while they have no right to disregard the testimony of defendant through mere caprice, they are not hound to believe him, nor to treat his testimony the same as that of other witnesses. This instruction goes further than any yet sanctioned by this court, and if it embodies the law, the presumption of innocence is supplanted by one of guilt, and while the jury can not disregard testimony through mere caprice, they may disregard it on account of the interest of the witness. His credibility is to be tested as that of any other witness. Chambers v. People, 105 Ill. 410; Higgins v. People, 98 id. 519 ; Bulliner v. People, 95 id. 396 ; Creed v. People, 81 id. 569; Hirschman v. People, 101 id. 568.
    It is not sufficient that the instructions given for the defendant upon the same point, state the law correctly. The jury would have as much right to follow one instruction as the other. Steinmeyer v. People, 95 Ill. 390.
    Proof of the venue was easy, and a failure to prove it, fatal to the conviction. Sutler v. People, 59 Ill. 68; Jackson v. People, 40 id. 405.
    Mr. J. M. Neihaus, and Mr. George Hunt, Attorney General, for the People:
    The fourth of the People’s instructions differs materially from the one condemned in Chambers v. People, 105 Ill. 410. The jury, being the judges of the credibility of the witnesses, were not bound to believe the testimony of this or any other witness any further than such testimony, when tested by the rules of evidence, commended itself to them as true, and it was not error to so instruct the jury. Hirschman v. People, 101 Ill. 568; Gaincy v. People, 97 id. 270.
    No question was raised as to the venue, in the court below.
   Mr. Justice Craig

delivered the opinion of the Court.:

Michael Sullivan, the plaintiff in error, was indicted in Peoria county, jointly with Frank Sehroeder and Thomas Smith, for robbery of a watch from Peter Miller, on November 23, 1884. Sehroeder obtained a separate trial. Smith and Sullivan were tried together, and the jury acquitted Smith, but convicted Sullivan, and he sued out this writ of error.

Whether Sullivan was guilty of the crime for which he was indicted, was a question purely for the determination of the jury, and had the instructions of the court conformed to the law, so that it could -be seen that defendant had received a fair and impartial trial, we would not regard it our duty to disturb the judgment. But we are not satisfied that the instructions given on behalf of the ^People presented the law involved in the case fairly before the jury. The fourth instruction given for the People was as follows:

“The court further instructs you, as to each defendant, that while the defendant is by law a competent witness in his own behalf, in this case, yet his credibility, and the weight to be given to his testimony, are matters exclusively for the jury to pass upon; and while they should not disregard his testimony through mere caprice, yet the jury are not bound to believe him, nor are they bound to treat his testimony the same as the testimony of other witnesses, but they may take into consideration the fact that he is the defendant, and his interest in the result of the case, as such, and give his testimony such weight as, under all the facts and circumstances in evidence in the ease, they may think it is entitled to. ”

Four witnesses were sworn, and testified in the case before the jury. Miller, who claimed to have been robbed, and Logan, one of the four young men who were alleged to have been with the defendants and connected with the crime, testified in behalf of the People, while the two defendants testified in their own behalf. It will thus be seen the two witnesses for the People, and the two defendants who testified in their own behalf, were all present when the alleged crime was committed, and all had the same knowledge of the facts as they occurred. It was therefore a matter of the highest importance, so far as the rights of the defendants were concerned, that the jury should be correctly instructed in reference to the weight to be given to the evidence, of the defendants, as it is plain, if the jury were led to believe, by the instructions of the court, that the evidence of the defendants was not to be regarded.in the same way as that of other witnesses, little or. no regard w'ould be given such evidence, and conviction would follow as a matter of course. As will be observed, the fourth instruction, supra, informs the jury in plain words that they are under no obligation to treat the evidence of the defendants the same as the testimony of other witnesses. An instruction of this character was condemned in Chambers v. The People, 105 Ill. 409, where it was held that the accused, as a witness, differs from other witnesses only in the fact that he is the defendant, charged and being tried for crime, which may be taken into consideration by the jury in passing on his credibility, but his testimony must be treated the same as tíiat of any other witness. The case seems to be directly in point, and conclusive of the instruction. Where a defendant testifies in his own behalf, his interest in the case,—his desire to shield himself from punishment,—may properly be considered by the jury in passing upon his credibility, and the evidence may be subjected to all the tests resorted to, in order to elicit truth from an interested witness; but when the evidence has undergone all of these tests, then it is to be treated the same as the evidence of other witnesses. The instruction, under the evidence before the jury, was calculated to mislead, and probably did mislead, the jury.

It is also claimed the evidence did not show that the alleged crime was committed in Peoria county,, and upon this ground the judgment is erroneous. No witness testified directly that the offence was committed in Peoria county, but the evidence is that the offence was committed on Washington street, in Peoria, Illinois. If the offence was committed in Peoria, Illinois, as Peoria is in Peoria county, the venue was sufficiently proven.

Other questions have been raised, but it will not he necessary to consider them.

We are of opinion that the court erred in giving the fourth instruction for the People, and for this error the judgment will he reversed and the cause remanded.

Judgment reversed.


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    Herbert S. Gilbert & Co. v. Patrick McGinnis et al.

      Filed at Ottawa May 15, 1885.

    1. Contract—right to rescind for refusal to comply with terms except upon new conditions. Where a purchaser of a lot of corn to be delivered to him at a future time, agrees, as a part of the contract of sale, to make such advances from time to time as the seller may require, if the purchaser refuses to make an advance when demanded, except upon condition that the vendor shall give his note for the amount, the seller may rescind the contract, and refuse to deliver the corn.
    2. Same—custom, usage—how far admissible to explain or vary terms of contract. Where a commercial contract is in any respect ambiguous, a particular custom or usage of trade known to the parties, or which, under the circumstances, they are presumed to know, or any previous course of dealing between them that will have a tendency to disclose the real intention of the parties, and to aid the court in arriving at the true construction of the contract, is admissible in evidence.
    3. Evidence of a particular custom or usage of trade is also admissible, for the purpose of engrafting, as it were, new terms into a contract, subject, however, to the qualification that such terms are not expressly or impliedly excluded by the express agreement. To have this effect the custom or usage must he reasonable, and not in conflict with any general rule of law.

      4. But it is not admissible to prove a custom or usage the effect of which will be to add to an express agreement a condition or limitation which is repugnant to or inconsistent with the agreement itself. Such evidence is never admitted -to vary or contradict, either expressly or by implication, the terms of an agreement, written or verbal.
    5. In February a person agreed to sell to another a quantity of corn at a stipulated price per bushel, to be delivered in the months of August and September following, and the purchaser, as a part of the same agreement, promised to make advances on the contract to the seller of what money he might, from time to time, require. It was held, in a suit upon the contract brought by the purchaser for non-delivery of the corn, that evidence that a custom or usage prevailed requiring the vendor to give to the vendee his note upon receii'ing any such advances, was not admissible in behalf of the plaintiff, as it was inconsistent with the express contract.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. George W. Stipp, Judge, presiding.
    iessrs. Bull, Strawn-& Ruger, for the appellants:
    On entering into a commercial contract, it is presumed that the parties made it in view of the known usage and custom which relates to that branch of trade. Insurance Co. v. Advance Co. 80 Ill. 549; Doane v. Dunham, 79 id. 131.
    A person dealing in a particular market must be taken to deal according to the known, general and uniform custom or usage of that market. Bailey v. Bensley, 87 Ill. 556; Pennsylvania Co. v. Stoelke, 104 id. 201.
    This is true unless the custom is inconsistent with and directly opposed to the express terms of the contract. Custom may even give the contract a different interpretation than would otherwise be given to its clearly expressed terms. Insurance Co. v. Favorite, 46 Ill. 263.
    The contract is presumed to have been made in reference to existing usage or custom relating to the grain trade, and it was competent to resort to such usage to ascertain and fix the terms of the contract. Lonergan v. Stewart, 55 Ill. 44.

      That the custom of requiring notes for advances was general and universal, and therefore well known in this market, we offered to show, but were not permitted. We think this proof was proper and competent. 1 Powell on Contracts, 272, 273, 384; 2 id. 41; Chitty on Contracts, 112; Insurance Co. v. Advance Co. 80 Ill. 549.
    Unless making advances was a condition precedent, a failure to make the same furnished no ground for rescinding, but gave only a right of action. McKee v. Ritter, 5 Gilm. 315; Barruso v. Madan, 2 Johns. 145; 2 Parsons on Contracts, 677.
    Messrs. Duncan & O’Connor, for the appellees:
    Every element of this contract was expressed, and no necessity existed for invoking any of the rules of law or customs of business for the interpretation of ambiguous features, or supplying omitted details. The promise to deliver corn was dependent upon the promise to make advances, and a refusal to make advances authorized the vendor to rescind.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 16th of February, 1881, Patrick McGinnis, the appellee, sold to the appellants, Herbert S. Gilbert & Co., seven thousand bushels of corn, at thirty-nine cents per bushel, to be delivered in the months of August and September following. As a part of the same agreement the appellants promised to make advances on the contract to appellee of what money he might,- from time to time, require. A short time after the making 'of this agreement, appellee called on the appellants, at their business house in Ottawa, and requested an advance on the contract, as per agreement. The clerk in charge of their business told him he could have the money, and commenced writing a note for the amount, whereupon appellee stated to the clerk he would not sign a note, remarking, in effect, that if he wanted to obtain money in that way he could get it from the bank. Appellants refused to make the required advance unless appellee would give his note for the amount. This he declined to do, and informed the clerk at the time he would not let appellants have the corn. The corn not having been delivered within the time specified in the agreement, the appellants, on the 3d day of October, 1881, commenced an action of assumpsit, against appellee, in the circuit court of La Salle county, to recover damages for the non-delivery of the corn, which resulted in a judgment in favor of the defendant, for costs. This judgment having been affirmed by the Appellate Court for the Second District, the plaintiffs appealed to this court.

On the trial the plaintiffs offered to show there was a general custom among grain merchants to take notes from the seller for the amount of advances made under contracts for the sale of grain, like the one in question. They also proposed to prove that on previous occasions there had been contracts and dealings similar in character to the one sued upon, and that the manner of dealing between the parties was, when an advance was made, memoranda or notes should be taken for the money advanced. The court declined to admit evidence to the jury in support of either of these positions, and the ruling of the court in this respect presents the only question for determination. The same question is raised by certain refused instructions asked on behalf of the appellants.

The rule is well recognized that where a commercial contract is in any respect ambiguous, a particular custom or usage of trade known to the parties, or which, under' the circumstances, they are presumed to know, or any previous course of dealing between them that will have a tendency to disclose the real intentions of the parties, and to aid the court in arriving at its true construction, will be admissible in evidence. Such evidence is not only admissible for the purpose of explaining the terms of a contract, but also for the purpose of ingrafting, as it were, new terms into it, subject, however, to the qualification .that such new terms are not expressly or impliedly excluded by the express agreement. (1 Smith’s Leading Cases, *307, et seq.) To have this effect, however, the usage must be reasonable, and not in conflict with any general rule of law. (Macy et al. v. Wheeling Ins. Co. 9 Metc. 354.) The proof offered in this case was clearly not for the purpose of explaining any ambiguity in the contract, or for the purpose of showing that some particular word or phrase in it is used out of its ordinary signification. No claim of this kind is made. It is conceded by both parties that appellants were to make advances,—that is, let appellee have money, from time to time, as he might need it, under the contract. So far there is no controversy. But appellants contend that a custom or usage prevailed, not adverted to in the express agreement, which required the appellee to give to them his note upon receiving any such advances. The usage here sought to be shown, it is clear, was for the purpose of adding a stipulation on the part of appellee which, it is conceded, is not found in the express agreement. This, as we have already seen, may sometimes be done; but whether it could be done in this particular case depends upon whether the stipulation thus to be added is inconsistent or in conflict with that part of the agreement which is expressed, and about which there is no controversy. We are clearly of opinion that it is, and that the trial court therefore ruled properly in excluding the evidence and in refusing the instructions complained of.

An advance or payment of money on a contract of sale, without doubt, is" altogether a different thing from that of obtaining money from the purchaser on the seller’s own note. The legal effect of the transaction in the first case is to extinguish, pro tanto, the seller’s claim and the purchaser’s corresponding liability. In the second, no part of either is extinguished. Instead of collecting something on his corn, as provided by the agreement, the seller is offered a loan of money on his individual note, which would be a complete change of the legal relations of the parties. Whereas the seller was, before, a mere creditor of the purchaser, he at once, upon giving such a note, becomes the debtor of the purchaser, and no part of the debt due him on account of the sale is thereby discharged. Thus it is seen the legal effect in the one case is practically the very opposite of what it is in the other, and might in many cases result in the grossest injustice. For instance, had appellee given his note for the required advance, the appellants might, the next hour thereafter, have transferred it to another for value, and appellee would have been compelled to pay it, whether he ever got a cent for his corn or not. This is apparent. That one will not be permitted to prove a custom or usage the effect of which will be to add to an express agreement a condition or limitation which is repugnant to or inconsistent with the agreement itself, will hardly be questioned. This is not only the universally received doctrine on the subject, but it has been often fully recognized by this court. Cadwell v. Meek, 17 Ill. 220; Bissell v. Ryan, 23 id. 566; Deshler v. Beers, 32 id. 368; Wilson v. Bauman, 80 id. 493. In the editor’s note to Wigglesworth v. Dalleson, Smith’s Leading Cases, 309, it is said: “Evidence of usage, though sometimes admissible

to add to or explain, is never to vary or to contradict, either expressly or by implication, the terms of a written instrument,”—citing in support of the proposition, Magie v. Atkinson, 2 M. & W. 442, Adams v. Worldley, 1 id. 374, Freeman v. Loeder, 11 A. & E. 589, and Gates v. Pym, 6 Taunt. 445. The rule here stated is equally applicable to a verbal contract, where the terms of it are definitely fixed, as they are in the present case.

It follow's from what we have said, and the authorities cited, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.