author: Mr. Justice Scholeield

text:
    L. J. Kadish et al. v. A. N. Young et al.

      Filed at Ottawa November 20, 1883.

    1. Meastjbe oe damages—refusal to complete purchase and pay for goods. IaprclinaiX-Ciises opcontractsbfor the sale of personal property for' future delivery, where the purchaser fails to receive and pay for it at the stipulated time, thejneasure of rlamagesXs the difference between the contract pricp and, tlifAJnarketpr current value of the property at the time. andplace of delivery^and this rule is not affected by notice to the seller by the buyer before the day of delivery that he will not receive the property, unless the seller, upon receiving such notice, shall elect to then terminate-the contract.
    2. The price paid by the seller for an article by him sold and contracted to be delivered in the future, is not a circumstance to be taken into considoration by tbe jury in determining tbe amount of damages the seller is entitled to recover upon the buyer’s refusal to receive aud pay for the property; and evidence of what the property cost the seller, is irrelevant and immaterial.
    - Í!. Contract of sale—notice by purchaser to renounce the contract—' rights of the respective parties. Where a buyer of grain, before the time-for delivery repudiates the contract, and gives the seller notice of that fact, the latter may act on such notice and treat the contract as ended, and bring his action at once for a breach of the contract, or he may disregard such notice and await the time when the contract is to he performed, and then hold the buyer responsible for all the consequences of non-performance. But in this latter case he keejps the contract alive for the benefit of the othe party as well as his 0'wni’-'3Bsgss3!?! -
    4. While a contract is still subsisting the parties can only he compelled to do that which its terms require. The purchaser, by notice that he renounces Ho contract, can not impose a duty on the seller to sell the property before Hi ■ time fixed for its delivery, to protect the former from loss, or even to ¡mi a it ready for delivery before the time fixed by the contract for delivery,
    5 _K a party contracting to sell grain for future delivery is notified by tbe jui'! chaser, some time before the day provided for delivery and payment that, la- renounces the contract, and the_sellgl’ at that time has the grain on hand r, ...ay for delivery, and acts, upon the; notice of repudiation^ and accepts and In at s the contract as then broken, it will doubtless he the duty of the selles’ to make » re-sale within a reasonable time, and give the buyer credit for the pit-seeds of the sale.
    Party piiAintimb’—in suit against purchaser on refusal to complete a . , ri. Where a party who has contracted to sell grain, to he delivered at . r dine time, for a given sum per bushel, before the time for delivery buys ,, |.,t of grain to enable him to deliver the amount sold, for which he agrees one dollar a bushel certain, and one dollar and twenty cents if he , S ¡ ecover the contract price of the purchaser, it was held, in a suit against i1 ; ni, chaser on refusal to receive and pay for the grain, that it in no manner concerned him how much the plaintiff paid for the grain he bought, and that the parties from whom he bought the grain were not necessary parties plaintiff, as they had no privity of contract with the defendant.
    7. Instruction—on the theory of the parties, respectively. Where a custom is claimed on one side to exist in relation to contracts after the sale of grain fur future delivery, which is denied by the other party, and there is evidence both ways, there is no error in instructing the jury, for the party deriving the existence of such custom, with reference to tho obligations and duties of the jitivties under tho contract to make no mention of such custom; and in instructing for the other party, it is proper for the court to include i-Wrein.-a—^^hesis of the custom being proved.

      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.
    This was an action of assumpsit, brought by A. N. Young and George Bullen, against L. J. Kadish and Charles Fleischman. A trial was had, resulting in a verdict and judgment of $20,000 damages against the defendants.
    Mr. John Woodbridge, and Mr. Francis Lackner, for the appellant Kadish *.
    The refusal of Kadish, on December 16, to proceed, was of .itself a breach of dhe contract,-and damages should have \ been assessed as of that date. Danforth v. Walker, 37 Vt. 243 ; Gale v. Dean, 20 Ill. 320.
    Damages are to be assessed,, as a general rule, as of I the day when the cause of action accrues. If the notice of renunciation creates a cause of action, damages are to be assessed as of the day of such notice. Phillpotts v. Evans, 5 M. & W. 475; Hochster v. De La Tour, 2 E. & B. 678; Danube and Black Sea Co. v. Zenos, 12 C. B. (N. S.) 825; Avery v. Bowden, 5 E. & B. 714; Reid v. Hoskins, 6 id. 953; Banick v. Beebe, 2 C. B. (N. S.) 563.
    Where one party gives notice of his intention to abandon the contract, or inability to perform it, the other party may act on such notice, and bring an action before the day arrives. Fox v. Kitton, 19 Ill. 533; Follansbee v. Adams, 86 id. 13; Chamber of Commerce v. Sollitt, 43 id. 521.
    Such notice will excuse a tender by other party. McPherson v. Walker, 40 Ill. 373; 2 Parsons on Contracts, 188.
    A party to an executory contract may stop its performance by an explicit order, and will subject himself only to such damages as will compensate the other party for being deprived of its benefits. Collins v. De Laporte, 162;

      Danforth v. Walker, 37 Vt. 240; Masterton v. Brooklyn, 7 Hill, 61; United States v. Speed, 8 Wall. 77.
    It was the duty of appellees, upon receiving notice, “to mitigate their damages'by all reasonable efforts.” 2 Green-leaf on Evidence, sec. 261; Wood’s Mayne on Damages, 86 ; Sedgwick on Damages, (6th ed.) 249, side p. 361; Roper v. Johnson, L. R. 8 C. P. 183 ; Hamilton v. McPherson, 28 N. Y. 76; Walworth v. Pool, 9 Ark. 394; Tufts v. Plymouth Gold Mining Co. 14 Allen, 407; Revere v. Boston Copper Co. 15 Pick. 363; Bailey v. Damon, 3 Gray, 92; Trustees v. Shaffer, 63 Ill. 244.
    The damages are to be considered with a view to the opportunities of the plaintiff to mitigate them. He is not to be a passive observer, but to make active efforts. Bailey v. Damon, 3 Gray, 92; 2 Greenleaf on Evidence, sec. 261; Tufts v. Plymouth Gold Mining Co. 14 Allen, 407; Revere v. Boston Copper Co. 15 Pick. 363.
    Messrs. Hoadley, Johnson & Colson, for the appellant Fleischman:
    A mere purchase by one for “joint benefit” does not necessarily involve a joint liability. Donnan v. Gross, 3 Bradw. 409; Hoffman v. Palmer, 67 Ill. 161.
    Where partnership is put in issue, it must be established by a preponderance of evidence. Smith v. Knight, 71 Ill. 148; Kennedy v. Hall, 68 id. 165.
    If a party entitled to the benefit of a contract can protect himself from a loss arising from a breach, he must do so, as, one hired to labor, when discharged, must seek other employment. Miller v. Mariner’s Church, 7 Greenlf. 51; Shannon v. Comstock, 21 Wend. 457; Heckscher v. McCrea, 24 id. 303 ; Clark v. Marsiglia, 1 Denio, 317; Spencer v. Halstead, id. 606; Hamilton v. McPherson, 28 N. Y. 72; Dillon v. Anderson, 43 id. 231.

      Mr. William A. Montgomery, for the appellees:
    The date of the breach of a contract is that fixed for the delivery of the goods—not that at which the buyer gives notice that he repudiates the contract. 2 Benjamin on Sales, (4th Am. ed.) 973; 2 Chitty on Contracts, (11th Am. ed.) 1079; 2 Parsons on Contracts, 676; McPherson v. Walker, 40 Ill. 571; Crist v. Armour, 34 Barb. 378.
    When the purchaser of grain to be delivered in the future gives notice, before the time for delivery, that he will not receive and pay for the same, if the seller does not accede to the rescission the damages will not be assessed as of the day of such notice, but on the day fixed by the contract for per- ' formance. 1 Sedgwick on Damages, 601; 2 Addison on Contracts, *952; Leigh v. Patterson, 8 Taunt. 540; Phillpotts et al. v. Evans, 5 M. & W. 475; Brown v. Miller, 7 Law Rep. 319 ; Frost v. Knight, id. 111.
    The notice (that he will not receive the wheat) amounts to nothing until the time when the buyer ought to receive the goods, unless the seller acts on it in the meantime, and rescinds the contract by selling to another person, or otherwise. Fox v. Kitton, 19 Ill. 519; Boorman v. Nash, 9 B. & C. 145; Josling v. Irvine, 6 H. & N. 512; Cort et al. v. Ambergate, 6 Eng. L. & Eq. 230 ; Dunlop v. Higgins, 1 H. L. Cases, (1 Cl. & Fin. N. S.) 381; Ripley v. McClure, 4 Ex. Rep. 344; Hochster v. De La Tour, 20 Eng. L. & Eq. 157.
    The contract in terms ivas to deliver in January. A custom requiring a delivery before the time named in the contract is “inconsistent with the terms of the agreement between the parties, ” and therefore can not control either of the contractors. Bissell v. Ryan, 23 Ill. 566; Wilson v. Bauman et al. 80 id. 494; Coffman et al. v. Campbell et al. 87 id. 98; Turner v. Dawson, 50 id. 85.
    An action can only be maintained in the name of the person who has the legal interest. Kile v. Thompson, 2 Scam. 432; Campbell v. Humphries, id. 478; Corbett v. Schumacher, 83 Ill. 403; McHenry v. Ridgely, 2 Scam. 309.
   Mr. Justice Scholeield

delivered the opinion of the Court:

>

This was assumpsit, by appellees, against- appellants, to i| recover damages sustained by the breach of an alleged con-5 tract, whereby, on the 15th of December, 1880, appellees sold to appellants 100,000 Jmshels of No. 2 barley, at one dollar and twenty cents per bushel, to be delivered .to 'appellants, and paid for by them, 'at such time during the month of January, 1881, as appellees should elect. Appellees tendered to appellants warehouse receipts for 100,000 bushels of No. 2 barley on the 12th of January, 1881, but appellants refused to rcc^tfMft receipts and pay for the° barley. Within a reasomBBMPie thereafter appellees sold the barley upon the market, and having credited appellants with the proceeds tliereof, they brought this suit, and on the trial in the circuit court they recovered the difference between the contract price and the value of the barley in the market on the day it was to have been delivered by the terms of the contract. Upon the trial appellants denied the making of the alleged contract, that th'ey were iiarfcners, or that any purchase of the barley wTas made for their joint account; and they also contended, if a contract was shown, then that on the next day after it was made they gave notice to appellees that they did not consider themselves bound by the contract, and they would not comply with its .terms, and evidence was given tending to sustain this contention.

The questions of fact contested upon the trial in the circuit court, and to some extent discussed in argument here, ¡'are, by the judgment of the Appellate Court, conclusively nettled against appellants, and we are denied the power of inquiring whether they are rightly or wrongly settled. Bridge Co. v. Commissioners of Highways, 101 Ill. 519; Edgerton v. Weaver, 105 id. 43; Indianapolis and St. Louis . R. Co. v. Morganstern, 106 id. 216; Missouri Furnace Co. v. Abend, 107 id. 44.

The questions of law to which our attention has been directed by the arguments of counsel, arise upon the rulings of the circuit judge in giving and refusing instructions. He thus ruled7"aKohg other things, that appellants, by giving , notice to appellees on the next day after the making of the 1 contract that they would not receive the barley and comply with the terms of the contract, did not create a breach of such contract which appellees were bound „, . eg. d, or impose upon them the legal obligation i_ resell “úhe hdey on the market, or make a forward contract for the purchase of other barley of like amount and time of delivery, within a reason^ able time thereafter, and credit appellants mm'~ of \ such sale, or give them the benefit of such forwarocontract, ’ but that appellees had the legal right, notwithstanding such ' notice, to wait until the day for the delivery of the barley by ! the terms of the contract, and then,--upon appellants’ failure ¡ to receive and pay for it on its being tendered, to resell it i on the market, and recover from appellants the difference between the contract price of the barley and its market varne on the day it was to have been delivered.

That in ordinary cases of contract of sale of personal property for future delivéry,- nd failure to receive and pay for it at the stipulated.time, the measure of damages is the f difference between the contrar1 -ice and the market or cur- j rent value of the property at tu'j «mie and place of delivery, has been settled by previous decisions of this court, (see McNaught v. Dodson, 49 Ill. 446, Larrabee v. Badger, 45 id. 440, and Saladin v. Mitchell, id. 79,) and is not contested by appellants’ counsel. But their contention is, that in ease'of Ij such contract of jale for future delivery, where, before the, time of delivery, the buyer gives the seller notice that he will' not receive the property and. comply with the terms of the! 1 contact, this, whether the seller assents thereto or not, creates a breach of the contract, or, at, all events, imposes the legal duty on the seller to thereafter take such steps with reference to the subject of the contract, as, by at once reselling the property on the market on account of the buyer, or making a forward contract for the purchase of other property of like amount and time of delivery, shall most effectually mitigate the damages to be paid by the buyer in consequence of the breach , yt imposing loss upon the seller, ^^the' ’■uyer may th. i cr-ate a 1 jacli of the contract without the^ consent of-the seller, we doubt not the duty to sell, (where the property is in the possession of the seller at the time,) at least withr reasonable time after such breach, will result as a necessary consequence of the breach. When the breach' occurs by a failure to accept and pay for property tendered pursuant to the terms of a contract at the day specified for its delivery, this is doubtless the duty of the seller, and no reason is now perceived why it should not equally result from any breach of the contract upon which the seller is legally boy. J to act.

But the well settled doctrine of the English courts is, that a -ouyer can not thus create a breach of contract upon which the seller is bound to act. In Leigh v. Patterson, 8 Taunt. 540, (4 Eng. C. L. 267,) Phillpotts et al. v. Evans, 5 M. & W. 475, Ripley v. McClure, 4 Exch, 359, and, it may be, also in« other early cases, it was held ; -party to. a contract to be pery formed in the future can not, by merely giving notice to theij opposite party that he will not perform Efs part of the con-jj tract, create a breach of the contract. Subsequently, however, in Cort v. Amhergate and Nottingham Ry. Co. 6 Eng. L. & Eq. 230, and more explicitly in Hochster v. De La Tour, 20 id. 157, the doctrine was announced as not in conflict with previbus decisions, that the party to whom notice is given in such cases will be justified in acting upon the notice, provided it is not withdrawn before he acts. Lord Campbell, Gh. J., in delivering his opinion in the latter case, and speaking for the court, used this language: “The man who wrongfully renounces a contract into which he has deliberately entered, can- not justly complain if he is immediately sued injured, and it seems reasonable to allow an option to the injured party either to sue immediately or to wait till the time when the act was to be done, still holding it as prospectively binding for the exercise of this option, which may ,pe advantageous to the innocent party, and can not be prefor a judicial to the wrong doer."

The leading text-writers who treat of this question follow the authority of these eases, and the rule they announce is thus expressed in Sedgwick on Damages, (6th ed.) 340, *284: “An effort has been made in many cases by the purchaser to relieve himself from the contract of sale before the time fixed for performance by giving notice that he would not be ready to complete the agreement, and in these cases it has been.insisted that the damages should be estimated as at the time of giving notice; but the English courts have justly denied the right of either party to rescind the agreement, and have adhered to the day of the breach as the period for estimating damages. ” To like effect see Chitty on Contracts, (11th Am. ed.) 1079; 2 Parsons on Contracts, (6th ed.) 676 ; Benjamin on Sales, (1st ed.) 559, (4th Am. ed.) 973; Addison on Contracts, *952; Wood’s Mayne on Damages, 250,

The question came before this court in Fox v. Kitton, 19 111. 519, whether, when a party agrees to do an act at a future day, and before the day arrives he declares he will not keep his contract or do the act, the other party may act on such declaration, and bring an action before the day arrives; and it was held, on the authority of Phillpotts v. Evans, and Hochster v. De La Tour, supra, that he may; and in that case it is the eases referred to by counsel in the discussion thereof, and to prove it, this language from the opinion of Parke, Baron, in Phillpotts v. Beans, is quoted: “The notice (that he will not receive the wheat) amounts to nothing until the time when the buyer ought to receive the goods, unless the seller acts oiiJ-t '.a the meantime, and rescinds the contract.” And it is then added: “This is in strict accordance with the principles recognized in the leading case relied on by the plaintiff,—Hochster v. De La Tour. ”

In McPherson v. Walker, 40 Ill. 371, the question before the court was, whether it was error to say in an instruction that where there is a contract for the sale of property to be delivered in the ■ future, a tender or offer of the property by the seller on the day of delivery is excused by a previous notice of. the buyer that he would not accept the property, and it was held that it was. In the opinion of the court it is said: “-The rule is, if one bound to perform a future act, before the tjrne for doing it declares his intention not to do it, this, of itself, is no breach of his contract; but if this declaration be not withdrawn, when the time arrives for the act to be done it constitutes a sufficient .excuse for the default of the other party,”—referring to 2 Parsons on Contracts, 188, Hochster v. De La Tour, supra, and Crist v. Armour, 34 Barb. 378.

In Chamber of Commerce v. Sollitt, 43 Ill. 519, the eharac£ ter of question is the $ame as in the two preceding cases to which we have just referred, and-it was decided the same way. Cort v. Amhergate Ry. Co., supra, Hochster v. De La Tour, supra, and Fox v. Kitton, supra, are referred to as sustaining the decision.

In Cummings v. Tilton, 44 Ill. 173, one of the points decided was, if the party who is to receive informs the party who is to deliver that he can not pay the money, the latter is excused from offering to deliver,—but there is no discussion of the question.

Follansbee v. Adams, 86 Ill. 13, involved 'the same question as that decided in Fox v. Kitton, supra, and on 4he authority of that case, and Chamber of Commerce v. Sollitt, supra, it was decided the same way.

While it is true in none of these ease,: was the ques non whether one party to a contract may, by only a notice of' his intention not to comply with its terms, create a breach of the contract, before the court, still, in.all of .them it i's qssunmd.ihatjie can not, for if he could, the questions they decide would have been immaterial, and the English cases which they profess to follow, as has been seen, expressly hold that he can not.

But counsel insist this court has held the contrary in Gale v. Dean, 20 Ill. 320, and in Trustees v. Shaffer, 63 id. 244. This is a misapprehension. Neither case professes to discuss the question before us, and no notice is taken in either of the decisions or dicta to which we have above referred. In Gale v. Dean no time was fixed by the terms of the contract for its performance, and in view of this omission the court held it reasonable that after the lapse of a reasonable time either party might declare a breach of the contract, if not performed; and it was in reference to this omission and these reciprocal rights of the parties under the contract, solely, that the court used the language quoted and relied upon by counsel for appellants, namely, that “we do not think that Gale, when he found he could not perform, was absolutely at the mercy of Dean for the determination of the time when his liability should be fixed and the measure of that liability determined. ” It had not the slightest reference to the character of question now before us. In the other case, .(Trustees v. Shaffer,) the time for the performance of the contract had arrived. There was no question in that respect. If the plaintiff was improperly discharged, there was a clear breach, of the contract. There was no controJversy in regard to the question whether one party to a contract, to be performed in the future, can, by a mere notice in advance of the time of performance that he does not intend to perform, create a breach of the contract; nor was there any question as to what acts a party may be required to do in advance of a breach of contract to mitigate the damages of the adverse party, because of notice that there would be a breach by him. After breach of a contract, as before "herein intimated, we do not, at present, question that it is the duty of the party entitled to damages to do what he reasonably may, without prejudice to his rights, to lighten the burden falling on his adversary. J

There is nothing in the more recent English eases, as we understand them, repugnant to those to which we have referred upon this question.

In Frost v. Knight, L. R. 7 Exch. 111, (1 Moak, 218,) decided in the Exchequer Chamber in February, 1872, the suit was for breach of a marriage contract, whereby the defendant had promised to marry the plaintiff upon the death of his father, but the father still living, the defendant had announced his intention of not fulfilling his promise on his father’s death, and broke off the engagement. Cockburn, Ch. J., in delivering the opinion of the courtj thus states the law, after referring to the previous decisions: “The promisee, if lies pleases,'may treat the notice of intention” (i. e., not to perform the contract,) “as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-perionnance; but. in’that case he keeps the contract-alive for t'he benefit of the other party.as well as his own. He remains subject to all his own» obligations and liabilitiés under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previpus. repudiation of it, but also to take advantage of any supervening circumstances which would justify him in declining to complete it. On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it, and in such action he will be entitled to such damages as would have arisen from the non-performance of •the contract at the proper time, gubject, however, to abatement in respect of any circumstance which may have afforded him the means of mitigating his loss. ” This was followed, and its doctrine reiterated, in Brown v. Miller, L. R. 7 Exch. 319, (3 Moak, 429,) decided in the Court of Exchequer in June, 1872, and Roper v. Johnson, L. R. 8 C. P. 167, (4 Moak, 397,) decided in the Common Pleas in February, 1873.

Counsel for appellants refer to the fact that Keating, J., in Roper v. Johnson, says : “If there had been any fall in the market, or any other circumstances calculated to diminish the loss, it would be for defendant to show it, ”—and then cites with approval from the opinion of Cockburn, Ch. J., in Frost v. Knight, supra, to the effect that “the damages are subject to abatement in resjiect of any circumstances which would entitle him to. a mitigation, ” etc., and insist they recognize the duty, here, of appellees, upon receiving notice, etc., to have sold upon the market or have entered into another contract for January delivery, etc. It is enough to observe in answer to this, that in both Frost v. Knight and Roper v. Johnson, supra, the notice that defendant would not comply with the contract was accepted and acted upon by ¡the plaintiff as a breach of the contract; and so wliat' was said in respect of the duty of the plaintiff to mitigate damages was said with reference to a case wherein he recognized the con- . tract as having been broken by the notice of the adverse party, and with reference to what' was to be done by him upon and after The recognition of that breach, and hence can have no application here. If a party is not compelled to accept the declarations of the other party to a contract that he will * not perform it, as a breach, it must logically follow that h;e * is under no obligation to regard that declaration for any pufpose, for, as we have seen, the theory in such ease, as laid down_byj^gSüS7 Ch. J., in Frost v. Knight, supra, is: “He keeps the' contract alive for the benefit of the other party as' well as -his own. He remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it. ”

Nothing would seem to be jplainer _than that while the- contract is still subsisting and unbroken, the parties can only be’coinpelled to do that which its terms' require. This contract imposed no duty upon appellees to nfake other contracts for January delivery, or to sell barley in December, to protect appellants from loss. It did not even contemplate that appellees should have the barley ready for delivery until such time in January as they should- elect. If appellees had then ■ the barley on hand, and had acted upon appellants’ notice,, and accepted-and treated the contract as then broken, it - , would, doubtless, then have been their duty to have resold the barley upon the market, ^precisely as they did in January,; and have given appellants credit for the proceeds of the sale;' but it is obviously absurd to assume that it could have beenW appellees’ duty to have sold barley in December to other/j/ parties which it was their duty to deliver to appellants, and/ which appellants had a legal right to accept in January..

We have been referred to Dillon v. Anderson, 43 N. Y. 232, Danforth et al. v. Walker, 37 Vt. 240, (and same ease again -m 40 Vt. 357,) and Collins v. De Laporte, 115 Mass. 159, as rd^ognizing the right of either party to a contract to create a b/reach; oHt obligatory upon the other party, by giving notice, in advance* of the time for the commencement of the performance of tlie contract* ’that he will not comply with its terms. An examination of the eases will disclose that they do not go so far, but that they are entirely in harmony with what we have heretofore indicated is our opinion in respect of the law applicable to the present question.

In Dillon v. Anderson, the action was for a breach of contract for-the construction of a pair of boilers for a steamboat. After work had been commenced under the contract, and a certain amount of material had been purchased therefor by the plaintiff, notice was given by the defendant to stop work, that the contract was rescinded by the defendant, and that he would make the plaintiff whole for any loss he might suffer. The court held that it was the duty of the plaintiff, as soon as he received the notiee, to have so acted as to save the defendant from further damage, so far as it was in his power.

In Danforth et al. v. Walker, 37 and 40 Vt., the defendant made a contract with the plaintiffs to purchase of them five car loads of potatoes, being fifteen hundred bushels, to be delivered at a designated place as soon as the defendant should call for them, and as soon as he could get them away, some time during the winter: Soon after the first car load .was taken, potatoes fell in the market, and the defendant thereupon wrote the plaintiffs not to purchase any more potatoes until they should hear from him. The court held this created a breach of the contract, and that plaintiffs w'ere not authorized to purchase any more potatoes on account of the defendant after they received the notice. The court, in the case in 37 Yt., on page 244, use this language: “While a contract is executory a party has the power to stop performance on the other side by an explicit direction to that effect, by subjecting himself to such damages as will compensate the other party for being stopped in the performance on his part at tjiat point or. stage in the execution of the contract. The party thus forbidden can not afterwards on, and thereby increase the damages, and then recover] such increased damages of the other party. ” And this same' rule, upon the • authority of these cases, is laid down in 2 Sutherland on Damages, 361.

The points! in issue in Collins v. De Laporte, are not pertinent to the present .question, but in the opinion the court quotes the rule as above laid down, upon the authority of Dahforth et al. v. Walker, and other cases.

It will be‘Observed that in each of these cases the time for the performance of the contract had arrived, and its perform-. lem was anee haa been eñterecfTipon: £U~H5itner or dlTendanFaFIiberty. after notifying the plaintiff not to proceed further in the' performance of the contract, to demand that he should proceed to perforin it, as it was said in Frost v. Knight, supra, the defendant was, in case of notice, not to perform a contract the time of the performance of which is to commence in the future. In these cases there is no time or opportunity for repentance or change of mind,—in those there was. That it was not intended, by these cases, to trench upon the doctrine of Leigh v. Patterson, Phillpotts v. Evans, and other tases of like character, is manifest from the-fact that they; .ake no reference to those cases, or to the rule they announc^; and in Collins v. De Laporte, no reference is made to Daniels v. Newton, reported in the next preceding volume, (114 Mass. 530,) therein that court refused to follow the modification made in Hochster v. De La Tour, and Frost v. Knight, of the rule -recognized by the preceding English decisions, but held that an action for the breach of a written agreement to purchase lancl, brought before the expiration of the time given for the purchase, can not be maintained by proof of an absolute refusal, on the defendant’s part, ever to purchase. It follows that, in our opinion, the ruling on A ... the pq» in question was free of substantial objection.

Oh|^B?u ds urged because the circuit judge gave an in-it the instance of appellees, with reference to the and duties of the parties under the alleged con-in which no mention is made of a custom affect-legations and duties, of which custom proof was the trial. The existence of this custom was not conceded. Appellants claimed its existence, and appellees denied it. There was evidence both ways. This instruction presented the law correctly upon Appellees’ theory of the ease, and the seventh instruction, given at the instance of appellants, presented the law,—including the hypothesis of a custom being proved,—upon their theory of the case. There is no repugnance between them. Bach simply presents a different theory of the- case, having evidence tending to sustain it,-—and in this there is no error. City of Chicago v. Schmidt, Admx. 107 Ill. 186; Illinois Central R. R. Co. v. Swearingen, 47 id. 206.

There was proof, upon the trial, tfending to show that although appellees owned and had in. t,heir possession, at the time of the making of the alleged contract, an amount and kind of barley equal to or greater than that professed thereby to be sold, yet that they then only had ef the warehouse receipts, which they actually tendered to appVjiants in January,' those for 48,500 bushels, and that they subsequently obtained from Huek & Lefens the warehouse receipts for the remaining 51,500 bushels, upon a contract, whereby appellees agreed to pay Huck & Lefens therefor, at all events, one dollar per bushel, and one dollar and twenty cents per bushel if appellees shall recover from appellants in this suit. The,court, in giving and refusing instructions, ruled that this in nowise concerned appellants,—that if tlm facts were as claimed, it did not make Huek & Lefens necessary parties to the suit, nor entitle appellants to any reduction in the measure of damages. In this there was surely no error. Huck & Lefens ¿lave no privity of contract with appellants, and whether pay much or little for the barley with which to their contract, can not concern appellants. It wa, they owned and tendered the barley at the appoj ^f it had been given them, their measure of damq precisely the same as it would be had they paid kpellees i with than -it was worth. The only effect of tho transactions by which they obtained the barley is to vest title in them, and when it was thus vested it was absolutely theirs to do with as they pleased. No court, so far as our researches have enabled us to know,. ever held that the price paid by the seller for an article sold and contracted to ho delivered in the future, was a circumstance to be taken into consideration by the jury in determining the amount of damages tho seller is entitled to recover upon the buyer’s refusing to receive and pay for the property, and the distinguished counsel representing appellants have been unable to refer us to any such decision.

Objection is also taken to the language of the instruction with reference to the joint liability of appellants. The language of the instruction is objectionable, hut, in our opinion, it is not possible that it could have misled the jury. The question was put in issue whether apjiellants were partners in the transaction, by»proper pleadings. Evidence was introduced by each parly on that question. There was not a particle of evidence tending to show that appellants were jointly interested in the transaction, if interested at all, otherwise than as partners. If the evidence in behalf of appellees prevailed, appellants were partners in the transaction ; if that in behalf of appellants prevailed, they were not.

Upon'tlie whole, we perceive no error of law in the rulings below. ’ The judgment is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    William J. Dobbins, Admr. v. Sarah J. Cruger, Admx. et al.

      Filed at Ottawa November 20, 1883.

    1. Assignment—a judgment not assignable. A judgment is not assignable, either at the common, law or under the statute, so as to vest the legal title in the assignee. It is a mere chose in action, and only the beneficial interest, whatever that may be, passes to the purchaser.
    2. Same—assignee h Ids subject to all defences. The assignee of a judgment takes it subject o all infirmities that existed between the parties to the record.
    3. T’kaudulent convey, noe—vendor and purchaser—whether a grantor who has given covenants for title, may question that title. Property conveyed to the wife of a judgment debtor by the usual warranty deed, can not, in the absence of any fraud on the part of the grantee, or of the debtor, towards the grantor, be subjected to the payment of a judgment in favor of the grantor, obtained before the making of the conveyance,—and this upon the principle, that a warrantor will not be permitted to assail a title which he has covenanted to maintain.
    4. It is a rule, that when a person has conveyed lands by deed with full covenants of warranty, he will not be suffered to allege the lands are the property of another than his grantee. His deed will work an estoppel in that regard.
    5. Or, if it appear that the grantor in a deed to- the wife of a debtor made the deed with the knowledge that it was a scheme to hinder and delay other creditors of such debtor in the collection of their just debts, the grantor can not himself be -permitted to challenge the validity of his own conveyance, made in furtherance of such scheme,—certainly not so far as his own preexisting claim is concerned.
    6. And if it be shown the grantor in such case permitted the debtor to pay his own money for property being conveyed to the wife of the latter, at a time when the grantor, one of the creditors, alleges his debtor was insolvent, and largely indebted to other persons,—that would be a- fraud upon the other creditors, and as the grantor thus enablod the debtor to make such a disposition of his property, neither he, nor his assignee standing in his shoes, will be permitted to allege the fraud, or derive any advantage from the transaction.

      Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.
    Messrs. Hopkins & Hammond, for the plaintiff in error:
    When the funds of one person are put into the purchase of land, and the legal title taken to another, the equitable title vests at once in the party whose money went into t'he purchase. When an insolvent debtor invests his funds in lands and has the legal title placed in another, such debtor is the equitable owner to the extent that his funds went into the purchase, and the lands are subject to the payment of his existing debts. The following authorities sustain the foregoing points: Stevenson v. Thompson, 13 Ill. 186; Perry v. McHenry, id. 227; Williams v. Brown, 14 id. 200; Seaman v. Cook, id. 501; Nichols v. Thornton, 16 id. 113; Bruce v. Rouney, 18 id. 67; Franklin v. McEntyre, 23 id. 91; Loomis v. Loomis, 28 id. 454; Sheldon v. Harding, 44 id. 68; Holmes v. Holmes, id. 168; Roberts v. Opp, 56 id. 34; Tyler v. Daniel, 65 id. 316; Cookson v. Richardson, 69 id. 137; Mason v. Showalter, 85 id. 133; Emmons v. Moore, id. 304; Smith v. Smith, id. 189; Lofton v. Witboard, 92 id. 461; Cramer v. Hoose, 93 id. 503; Mathis v. Stufflebeam, 94 id. 481; Perry on Trusts, secs. 126, 127; 1 Leading Cases in Equity, 203, 210, 333-364.
    If the husband’s solvency is such that he may make a settlement upon his wife by purchasing lands and placing title in her without jeopardizing dr materially impairing the rights of his creditors, he may lawfully do so, but otherwise such gift and title to the wife are fraudulent and void as to existing creditors. Moritz v. Hoffman, 35 Ill. 553; Gridley v. Watson, 53 id. 186; Sweeney v. Damron, 47 id. 450; Bridgford v. Riddell, 55 id. 261; Pratt v. Myers, 60 id. 23; Mitchell et al. v. Byrne, 67 id. 522; Emerson v. Bemis, 69 id. 537; Griffin v. First Nat. Bank, 74 id. 259.

      Messrs. Puterbaugh & Puterbaugh, for- the defendants in error :
    A judgment is not assignable at common law, or under the statute, so as to vest the legal title in the assignee. The assignee will take the judgment subject to all the equities existing between the original parties. Hughes v. Trahern, 64 Ill. 48; Hossack v. Underwood, 55 id. 123; McJilton v. Love, 13 id. 486; Chamberlain v. Day, 3 Cow. 353; Jeffries v. Evans, 6 B. Mon. 119.
    - The assignee of a judgment occupies no more favored position than that of the assignor. Padfield v. Green, 85 Ill. 529; Himrod v. Baugh, id. 435; Aliens v. Watts, 79 id. 284; Olds v. Cummings, 31 id. 188.
    Dobbins, by his warranty deed to Mrs. Cruger, is estopped, in both law and equity, from questioning her title as fraudulent in respect to creditors of her husband. Andrews v. Coleman, 82 Ill. 26; Hoppin v. Hoppin, 96 id. 272; Jones v. King, 25 id. 387; Needham v. Clary, 62 id. 344; Bigelow on Estoppels, 241.
    A deed made to a wife to hinder and delay creditors of her husband is binding inter partes, and the grantor is estopped to allege the fraud. Grant v. Morse, 22 N. Y. 323; Phillips v. Wooster, 36 id. 412; French v. Mehan, 56 Pa. St. 286; Clark v. Baker, 14 Cal. 630.
    A conveyance of a debtor’s property is void only as to existing creditors when made to defraud them, and not as to subsequent creditors. Woolbridge v. Gage, 68 Ill. 157; Mixell v. Lutz, 34 id. 382; Tunison v. Chamblin, 88 id. 378. See, also, as to the rights of subsequent creditors: Union. Mutual Life Ins. Co. v. Spaids, 99 Ill. 249; Moritz v. Hoffman, 35 id. 553; Phillipts v. North, 77 id. 243; Sweeney v. Damron, 47 id. 451; McLaurie v. Partlow, 53 id. 340; Crawford v. Logan, 97 id. 396.
    If, at the time' of making a voluntary settlement by a father upon .his children, he still retains sufficient property to pay all his debts, such settlement can not be impeached, unless it is fraudulent in fact. Merrell v. Johnson, 96 Ill. 224; Fanning v. Russell, 94 id. 386.
   Mr. Justice Scott

delivered the opinion of the Court:

Although the argument in this case has been elaborated at great length, the views entertained by the court on what are thought to be the controlling questions in the case may be shortly stated. The bill is the usual creditor’s bill, and its purpose is to subject certain real estate conveyed by Thomas S. Dobbins to Mary J. Cruger, by warranty deed containing full covenants, to the payment of a judgment recovered by the grantor against William H. Cruger, the husband of the grantee, which judgment had been recovered long before the mating of the deed. The bill was brought by the assignee of the original judgment creditor, and since her death the suit has progressed in the name of her executor. The ease may be treated as though the bill had been filed by the original judgment, creditor. It is but re-stating the former decisions of this court to say a judgment is not assignable at common law, or under the statute, so as to vest the legal title in the assignee. It is a mere chose in action, and only the beneficial interest, whatever it may be, passes to the purchaser. In this case the assignee of the judgment takes it subject to all infirmities that existed between the parties to the record. The case is not therefore embarrassed by any collateral consideration, and it will be determined precisely as though the present litigation was confined' to the original parties interested.

In the view taken of the case it will not be necessary to determine whether the original transaction was, in fact, a fraudulent scheme on the part of William H. Cruger to hinder and delay his creditors in the collection of their just debts against him, or to ascertain what portion, if any, of the purchase money of the property conveyed to-Mrs. Cruger was in fact paid by him out of his own private funds. Both parties concede that a portion of the purchase money was paid from the^ separate funds of the grantee, derived from sources other than her husband. The effect of what the court is asked to decide is, that property conveyed to the wife of the judgment debtor, by the usual warranty deed, may be subjected to the payment of a judgment in favor of her grantor, obtained long before the making of the deed to her. This, it is thought, can not be done. The principle is, a warrantor will not be permitted to assail a title he has solemnly covenanted to maintain-. It would be a solecism to say a party may destroy that which, at the same instant, he must uphold. How could he secure his grantee in the quiet enjoyment of the premises, and yet subject the property to the payment of a preexisting indebtedness that might ultimately defeat the object of his grant? That would present a difficulty that could not well be overcome. It is, of course, impossible for the grantor, at the same time, to maintain the title to the property, and yet assail it as fraudulent as to himself.

The ease seems to have been tried in the circuit court on the theory of the last amended bill,—that is, that at the time of the sale and conveyance of the property to Mrs. Cruger both she and her husband represented to the grantor that Mrs. Cruger had sufficient property and means in her own right with which to purchase and pay for the property, which representation he believed to be true, and on the faith of the same conveyed the premises to her, and that when the deed was delivered to her it was further represented she could not immediately procure the $5000, with which to make the cash payment, from her father’s estate, but that her husband would, and did, advance the same temporarily for her, upon her undertaking she would reimburse him when funds should thereafter be received from her father’s estate. This allegation in the bill was doubtless made with a view to repel the idea the judgment creditor voluntarily and knowingly participated in what it is now alleged was a fraudulent scheme to hinder and delay the creditors of William H. Cruger in the collection of their just claims, of whom he was himself one. Unless this theory of the case can be maintained, it is not perceived how complainant can have any standing in a court of equity, for if it shall be once ascertained the judgment creditor voluntarily and knowingly participated in a fraudulent scheme to hinder and delay other creditors of William H. Cruger in the collection of their just debts, neither he nor his assignee can be permitted to challenge the validity of his own conveyance made in pursuance of that scheme,—certainly so far as his preexisting claim is concerned. The answer of defendants denies the allegations of the bill in this respect, and, even treating the answer as not being under oath, it can hardly be said the bill, so far as that most material allegation is concerned, is sustained by any fair preponderance of the evidence. Both of the defendants state most positively they made no such representations, and there is but little, if anything, in the record, other than the testimony of the grantor, to overcome their positive denial. His testimony, unaided by other proof, is not sufficient to overcome the testimony given by the defence. The bill itself alleges William H. Cruger made the first payment of $5000 out of his own funds, and if there was no agreement on the part of his wife to repay, it is plain the grantor permitted his judgment debtor to pay his own money for property he was conveying to his wife, at a time when he alleges his debtor was insolvent, and largely indebted to other persons. That would be a fraud on the other creditors of William H. Cruger, and as the grantor enabled him to make such a disposition of his property, neither he, nor his assignee standing in his shoes, will be permitted to allege the fraud, or derive any advantage from the transaction. Other payments were made by Cruger out of his own funds on the notes given by his wife to secure-the deferred installments, and were knowingly received by the grantor. His request made to William H. Cruger, to allow payments made out of his own funds to be credited on his judgment indebtedness to the grantor, was refused, and such payments were accordingly applied to the extinguishment of his wife’s notes given for the property. It is a rule, resting on sound principle, that where a party conveys lands by deed, with full covenants of warranty, he will not be suffered to allege it is the property of any one other than his grantee. His deed works an estoppel in that regard. That principle has its application to the facts of the case being considered. Here the grantor conveyed the premises to the wife of his debtor by warranty deed, voluntarily, and with the full knowledge his debtor was paying at least a part of the purchase money out of funds that should equitably have been appropriated to the payment of the claims of his creditors. ' Under such circumstances neither the grantor, nor any one standing in his shoes, will be allowed to assert the transaction was illegal, and make it the basis of equitable relief in his own favor. The following cases sustain in some degree the views here expressed, and some of them bear a close analogy to the case in hand, and are therefore authorities in point: Jones v. King, 25 Ill. 383; Needham v. Clary, 62 id. 344; Grant v. Morse, 22 N. Y. 323; Phillips v. Wooster, 36 id. 412; French v. Mehan, 56 Pa. St. 286; Clark v. Baker, 14 Cal. 630.

The judgment of the Appellate®Court will be affirmed.

Judgment affirmed.

Mr. Justice Dickey took no part in this decision.


author: Mr. Justice Walker

text:
    George P. Barton v. Calvin De Wolf et al.

      Filed at Ottawa November 20, 1883.

    1. Specific pereobmance—contracts for sale of personally. To authorize a court of e'quity to specifically enforce agreements respecting goods, chattels, stocks, choses in action, and other things of a merely personal nature, it must appear or be shown that the remedy at law is inadequate. A court of equity will not exercise jurisdiction when there is a complete and satisfactory remedy at law for damages.
    2. The fact that a purchaser of stock in a corporation is an employee of such corporation, and interested in its success, affords no ground for a specific performance of the contract of sale by a court of equity
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Mr. James S. Murray, for the appellant:
    A bill for specific performance "will be sustained for the purchase of chattels, when the purchaser has a special object in obtaining the particular thing purchased. It appears that appellant is employed by the company on a salary, that his brother is' secretary, and that fifteen out of the thirty-four stockholders w7ere employed by the company, and that the stock is not upon the market, except at rare intervals. Fry on Specific Per. secs. 36, 37, note; 1 Story’s Eq. Jur. secs. 717, 717 a, 718; Pierce v. Plumb, 74 Ill. 326.
    It was contended that De Wolf had the right to revoke the offer he had made after Barton signified his acceptance of it. It is conceded that he might have revoked it before acceptance, but we claim that acceptance within the time given, and before revocation, binds the party. 1 Parsons on Contracts, *480; Boston and Maine R. R. Co. v. Bartlett, 3 Cush. 224.

      Messrs. J. P. & T. B. Wilson, for the appellees:
    There was no sufficient tender of the money. De Wolf v. Long, 2 Gilm. 679 ; Doyle et al. v. Teas et al. 4 Scam. 203 ; Wright v. McNeely, 11 Ill. 241; Webster v. French et al. id. 255; Knox v. Light, 12 id. 86; Stowe v. Russell, 36 id. 18; Hartwell v. Black., 48 id. 301.
    The appellant is not entitled to a specific performance, because the alleged contract is vague, uncertain, not sufficiently proven, or founded upon mistake,—in either of which cases the court will leave the party to his legal remedy. Fitzpatrick v. Beattie, 1 Gilm. 554; Broadwell v. Broadwell, id. 599 ; Frisby v. Ballance et al. 4 Scam. 287; Trailer v. Hill, 2 id. 364; Johnson v. Dodge, 17 Ill. 433; Lear v. Choteau,, 33 id. 39; Bowman v. Cunningham, 78 id. 48; Proudfoot v. Wightman, id. 553; Fleischman v. Moore, 79 id. 539; Underwood v. Hitchcock, 2 Ves. 279; Seymour v. Delaney, 3 Cow. 505.
    A specific performance is not decreed as a matter of course, even in cases where there is no mistake, and no failure in proof. It rests in the' sound discretion of the court. Frisby v. Ballance et al. 4 Scam. 287; Fish v. Leser, 69 Ill, 394; Alexander v. Hoffman, 70 id. 114; Hoyt v. Tuxbury et al. id. 331; Rutherford v. Sargent, 71 id. 339; Gosse v. Jones, 73 id. 508; Franz v. Orton, 75 id. 100; Bowman v. Cunningham, 78 id. 48; Ralls v. Ralls, 82 id. 243; Beach v. Dyer, 93 id. 295; Eastman v. Plummer, 46 N. H. 478; Willard’s Eq. Jur. 263.
    In almost every case above reported there was no dispute as to the fact or the terms of the contract.
    Equity will not usually entertain jurisdiction to enforce specific performance of contracts relating to personal property. Unless some valuable privilege is to be obtained by the purchase of stocks, courts will not compel the specific performance of contracts of purchase, and they will scrutinize the nature and character of such valuable privilege. Pierce v. Plumb, 74 Ill. 326; 3 Parsons on Contracts, 371.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellant filed his hill in the Cook circuit court, for the specific performance of a contract to sell fifty shares of the stock of the Western Electric Manufacturing Company. The shares were for $100 each. It is claimed that appellee DeWolf bargained to sell to appellant the shares, and appellant agreed to receive and pay for them at their par value, but on a tender of the price and a demand of the stock by appellant, DeWolf failed and refused to deliver the shares of stock. On a hearing on the bill, answer and proofs, the court below dismissed the bill. Complainant appealed to the Appellate Court for the First District, where, on a hearing, the decree of the circuit court was affirmed, and the case is brought to this court and a reversal is asked.

The evidence in the case is inharmonious and by no means satisfactory, but in the view we take of the case it will be unnecessary to discuss it. The rule “is not to entertain jurisdiction, in equity, for a specific performance of agreements respecting goods, chattels, stock, choses in action, and other things of a merely personal nature; ■ yet the rule is (as we have seen) a qualified one, subject to exceptions,—of, rather, the rule is limited to cases where a compensation in damages furnishes a complete and satisfactory remedy.” (2 Story’s Eq. sec. 718.) Thus it is seen that a court of equity will not exercise jurisdiction wdaere there is a complete and satisfactory remedy at law.

There has, as in other cases, been some diversity in the application of the rule. Appellant refers to Pierce v. Plumb, 74 Ill. 326. That case adopts the same rule as laid down by Story. It was announced in that ease that equity would not entertain jurisdiction to enforce a specific performance of a contract for the sale of chattels where there is an adequate remedy at law. In that case there was a contract, among other things, to transfer $15,000 of railroad stock, and the bill, among other things, sought a specific performance of that portion of the contract, but it was held that there was a complete remedy at law, and the relief sought was denied. To authorize a decree for the performance of such a contract specifically, it must appear that the remedy at law is inadequate. This, from all of the adjudged cases, seems to be indispensable. Then, has appellant brought himself within the exceptional rule ? We think not. If there was a contract for the sale of the shares of the stock, and a breach of the contract, he can be fully compensated in damages at law. No such peculiar case is made by appellant as requires a court of equity to interfere. No such special circumstances .are shown as to take the case out of the general rule. It is true that it is alleged that this stock is seldom found for sale. That is no doubt true of the stock of a vast number of corporations in the country, and can form no ground for equitable interposition. It is also alleged that most of the stock is held by the employees of the company, and appellant is one of its employees. We do not see that this fact requires a court of equity to depart from the general rule, and decree •the relief sought. Appellant must be left to seek his remedy at law, if he has one, where it is complete.

Perceiving no error in the record, the decree of the Appellate Court is affirmed.

Decree affirmed.


author: Mr. Chief Justice Sheldon

text:
    Amos Rice et al. v. S. F. Rice et al.

      Filed at Ottawa November 20, 1883.

      1. Trust—cestui que trust may pursue trust fund into property in which it is invested. If a guardian invests the moneys of his ward in the purchase of land, talcing the title to himself, a resulting trust arises, and the ward may follow the moneys into the land and hold it as trust estate, the same as was the money, or he may sue upon the guardian’s bond.
    2. Subrogation—right of surety. A surety has a clear right, in equity, upon paynng the debt of his principal, to be substituted in the place of the creditor as to all the securities held by the latter for the debt, and to have the same benefit therein as the creditor would have.
    3. Where a surety of a guardian is compelled to pay the ward, or his personal representative, in an action on the guardian’s bond for a failure to pay over money's found to be due the ward, such surety, in a court of equity, will be subrogated to the ward’s right to enforce a resulting trust against the guardian, arising out of his purchase of land with the funds of the ward, and may have such land sold for his reimbursement.
    4. Same—when the keeping alive the judgment is not essential. Where a surety on a guardian’s bond is compelled to pay a judgment rendered on such bond for the sum due the ward, he will, in equity', be entitled to have the benefit of a resulting trust in land which the ward had as a security for his money used in its purchase, and for this purpose it is not material that the judgment on the bond should not be extinguished by the payment. A proceeding to he subrogated to the right to enforce such trust, is not one to enforce the bond or the judgment thereon.
    5. Evidence—only person affected may object to. A guardian gave two bonds,—one of $1000, on his appointment, and another of $8000, on obtaining a decree to sell lands. He used the proceeds of the land sold in the purchase of other land in his own name, and made default in paying one of his wards what was found due him. Judgments and decrees were recovered against the guardian and all the sureties on both bonds, or against their estates or lands devised by them, and the several sureties, or their representatives, arranged between themselves that each should pay an equal part of the judgment, which was done, and the parties so paying filed a bill to be subrogated to the rights of the ward to enforce a resulting trust in the land bought by the guardian with trust funds: Held, that on the hearing the defendants could not urge the admission of the first bond as error, as the question whether the second bond discharged the first was one material only as between the sureties, and had been already arranged by them.
    6. Same—decree as evidence against one not a party. Where a decree is rendered against the sureties, and heirs and representatives of sureties, upon a guardian’s bond for the same amount found to be due from the guardian to a ward by the county court, the judgment of the' county court is sufficient evidence that the decree was for a just liability of the defendants therein as sureties of the guardian, and there is no error in admitting such decree in evidence against the guardian and his wife and daughter, although they were not parties to the suit in which it was rendered, in a suit 'by such sureties to secure payment from the guardian of the sum paid for him. The wife and daughter of such guardian, during his life, have no such interest as to enable them to object to the decree as evidence.
    7. Decbee—as not having regard, for another party. Where sureties on a guardian’s bond, after having paid to the estate of one of the wards the sum found due from the guardian, filed a bill in chancery to reach certain trust property in the hands of the guardian, derived from a purchase with the ward’s moneys, out of which to reimburse themselves, the decree granting the relief sought will not be erroneous in not also providing for the share of another ward who is made a defendant, it not appearing that the guardian owes such other ward anything, or that any claim was interposed in his behalf.
    8. Witness—competency. A guardian is a competent witness against one of his wards, on a bill in chancery by his sureties against him and such ward, seeking to reach trust funds in his hands, and be subrogated to the equitable rights of the other ward to whom they have been compelled to pay money as such sureties.
    9. Homestead and dowee—in what estate. Where a party holds the mere naked legal title in land in trust for another, he will have no such interest therein as that homestead and dower rights will attach.
    Appeal from the Circuit Court of Knox county; the Hon. John J. Glenn, Judge, presiding.
    This was a suit in chancery, brought by S. F. Rice, William H. Parker, (administrator of the estate of George W. Parker, deceased,) Eliza A. Anderson, and Hans Anderson, her husband, against Amos Rice, and Lucinda Rice, his wife, Caroline Rice, and Fannie Rice, (now Tucker,) and others, to reach a trust fund in the hands of Amos Rice, as guardian of Caroline Rice and others.

      In 1863 Amos Bice was appointed guardian of Obed, Fannie and Lydia Bice, and as such executed his bond in the sum of $1000, with S. F. Bice and George W. Parker as sureties. Amos Bice took possession of personal property of his wards of the value of $350, and sold their real estate, under order of the county court, for $1000. Upon this sale, by requirement of the county court, Bice gave an additional guardian’s bond in the sum of $3000, with T. G. Stewart and George W. Parker as sureties. The guardian, Amos Bice, afterward purchased a certain eighty acres of land in Knox county, and took the conveyance in his own name, paying therefor $3200, and as a part thereof paid $1000 of funds belonging to his wards. Bice and his family occupy the land as their homestead. T. G. Stewart, one of the two sureties on the last bond, died in 1870, testate, leaving to his widow, Eliza Stewart, (now Eliza Anderson,) by will, real estate in Knox county. George W. Parker, another surety on both the bonds, died in 1879, leaving a solvent estate, and real and personal property in Knox county. William H. Parker was appointed administrator. Obed Bice, one of the wards, married Caroline Bice, and in 1879 he died, leaving Caroline, his widow, and she was appointed administratrix of his estate. Amos Bice, as guardian, was cited to appear before the county court of Knox county, and at the August term, 1879, he was found to be indebted to the estate of Obed Bice in the sum of $1100. That claim was, at the December term, 1879, of said court, allowed against the estate of George W. Parker,-and Caroline Bice, as administratrix, recovered, in the Knox circuit court, a judgment against S. F. and Amos Bice for $474, a portion of said trust funds. Afterwards, Caroline Bice, as administratrix of Obed Bice, proceeded in chancery, in the Knox circuit court, and obtained against Eliza Anderson, devisee of the surety T. G. Stewart, and her husband, Hans Anderson, and the land devised to Eliza Anderson, a decree for $1171.55, which was the full amount of her claim, as administratrix, against Amos Rice, as guardian. The complainants paid the full amount of this decree, and filed this bill to have subjected for repayment to them of this amount, the lands aforesaid of Amos Rice, purchased in part with the trust funds. The ward Lydia Rice had died previously. The circuit court decreed in favor of complainants, ordering sale of an undivided five-sixteenths of the land for the repayment of said sum of $1171.55, with interest, subject to two mortgages which had been placed upon the land.
    Messrs. Douglass & Bbadfobd, for the appellants:
    ' Where a judgment is rendered against principal and surety, payment of the amount by the surety extinguishes the judgment, and the surety can thereafter derive no benefit therefrom by means of subrogation. State v. Miller, 5 Blackf. 381; Laval v. Rowley, 17 Ind. 36; Briley v. Sugg, 1 Dev. & Batt. Eq. (N. C.) 366.
    • There is no evidence tending to show that Lucinda Rice has been guilty of fraud, or has disposed of any trust money, and yet the decree gives the complainant a lien on the farm, not even exempting homestead or dower.
    • The court erred in admitting in evidence the first bond of $1000, as the last bond given operated to discharge the first. International Bank v. Poppers, 105 Ill. 491.
    Neither Amos, Lucinda nor Fannie Rice being parties to the suit of Caroline Rice v. Eliza Anderson et.al., the decree therein was not evidence against them.
    The court erred in allowing Amos Rice, the guardian, to testify against his ward, Fannie Rice, whereby a decree was found giving the whole estate to Caroline Rice, administratrix of the estate of the other ward. When does Fannie get hex-share ?
    There is no evidence that any claim was ever made against Earker, or that he or S. F. Rice was bound or compelled to pay a cent, and yet they come in as volunteers, and join with the Andersons in paying one-third each towards the satisfaction of the decree. Strangers who are not compelled to pay, but voluntarily do pay, can not have the benefit of subrogation.
    Messrs. .McKenzie & Calkins,, for the aj>pellees:
    Caroline Rice obtained judgment against S. F. and Amos Rice for $474. Her claims were allowed against the estate of George W. Parker, and she obtained a decree against the devisee of T. G. Stewart, and the land devised to her, for $1171.55. In short, every one of the bondsmen of Amos Rice was made liable by the judgment of the court.
    Upon payment to Caroline Rice, the bondsmen, sureties, or their heirs, were entitled to be subrogated to whatever rights the ward had against the guardian. Fogarty et al. v. Ream et al. 100 Ill. 379.
    A surety is a favorite of the law, and every intendment is in his favor. Pope v. Chalmers, 60 N. Y. 164; Trustees of Schools v. Otis, 85 Ill. 179.
    A surety on the bond of an administrator or guardian, on payment, is subrogated to all the prior remedies of the heir or ward. Rhame v. Lewis, 13 Rich. (S. C.) 269; Smith v. Alexander, 4 Sneed, 482.
    A surety is entitled to every remedy. Willard’s Eg. 111.
    So where a person participating with a guardian in wasting property of his ward rendered himself a trustee for the ward, the sureties in the guardian’s bond, upon paying the devastavit, were subrogated to the rights of the ward against the constructive trustee. Fox v. Alexander, 1 Ired. (N. C.) 340; Talbot v. Wilkins, 31 Ark. 411; Clark v. Williams, 70 N. C. 679; Cottrell’s Appeal, 23 Pa. St. 294; Orem v. Wrightson, 34 Am. Ed. 287.
    The county court, on proof, found what was due Caroline Rice. Fannie’s share will be considered when she appears in court asserting the same.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

Amos Eice, the guardian, having paid $1000 of his ward’s money in the purchase of the land in question, the ward might follow the money into the land, and claim it to be trust estate, as was the money. The ward, then, had a double recourse for his guardian’s defalcation,—either to this land, or to the guardian’s bonds. The ward’s personal representative resorted to the bonds, obtained judgment against the sureties, and they' paid the judgment in full. A surety has a clear right, upon paying the debt of a principal, to be substituted in the place of the creditor as to all the securities held by the latter for the debt, and to have the same benefit that he would have therein. (1 Story’s Eq. Jur. sec. 327.) Under this equitable doctrine of subrogation, the sureties, upon payment of this j udgment, were entitled to stand in the place of the personal representative of the ward, and have all the means for satisfaction of the payment they made that such representative had in respect to the ward’s claim, and, therefore, right of resort to this land, as held in trust for such purpose. Marsh v. Pike, 10 Paige, 595; McNeill v. Morrow, Rich. Eq. Cases, 172; Rhame v. Lewis, 13 Rich. Eq. (S. C.) 269 ; Cottrell’s Appeal, 23 Pa. St. 291.

The point*is taken by appellant, that where a judgment is rendered against principal and surety, payment of the judgment by the surety extinguishes it, and the surety can thereafter derive no benefit therefrom by means of subrogation. Although authority is to be found to that effect as to enforcing such a judgment after it has been paid, Mr. Bispham lays it down that it must be considered to be the generally received doctrine that a surety who pays a debt which has been' reduced to judgment, is entitled to have the judgment kept alive for his benefit, and to enjoy, as against the principal debtor, exactly the same advantages which could have been claimed by the judgment creditor. (Bispham’s Equity, sec. 336, and authorities cited.) But it is not necessary in this case to go to that length, as it is not sought here to enforce the guardian’s bond, or the judgment rendered on it, but to have the benefit of a resulting trust in land which the creditor had,—something entirely distinct from, and independent of, the bond and judgment.

The objection that the decree is not supported by the evidence is not well founded.

It is claimed that it was error to admit in evidence the $1000 bond, the first bond,—that the giving of the $3000 bond fully .satisfied and discharged the first. That is immaterial here. It would be a question entirely between sureties. The misappropriation of money was under the last bond, the $1000 which went into the land coming from the proceeds of the sale of the ward’s real estate. T. Gr. Stewart, against whose devisee, Eliza Anderson, the judgment paid was got, was surety on the last bond; and further, the three sureties on the two bonds arranged between themselves that each should pay one-third of the judgment, as was done.

It is claimed that it was error to admit in evidence the decree in the case of Caroline Rice v. Eliza Anderson et al.— the one which was paid,—because neither Amos Rice” nor Lucinda or Fannie Rice was a party to that decree. The liability of Amos Rice, as guardian, and the amount of it, had been established in the county court, and judgment therefor rendered against him. The decree against Eliza Anderson, devisee of the surety Stewart, was but for the amount of that liability thus established, and so was evidence against Amos Rice that the decree was for a just liability as surety of Rice. We see no interest which Lucinda, the wife of Amos Rice, and Fannie Rice, have, entitling them to object. Fannie Rice is said to be one of the heirs of Amos Rice. She can not be heir of a person living.

It is said the decree gives the whole estate, only amounting to $1000, to Caroling Bice, administratrix of the ward Ohed Bice; that Fannie Bice is one of the two wards, and it is asked when she gets'her share. It does not appear that the guardian is indebted to her. The county court determined what was due to Caroline Bice, as administratrix of Obed Bice, and the case has proceeded without reference to Fannie, except that she is made a party defendant, and merely adopts the answer of Amos Bice, and Lucinda, his wife, making no reference whatever to any interest of her own as a ward. We see no reason why the decree should have any regard for her as ward.

It is objected that Amos Bice was not a competent witness against Fannie Bice. All the reason given is, that Fannie is one of the heirs, and her guardian is called to testify against her interest. We fail to see why he was not a competent witness.

It is said, finally, the fact that the decree provides for the sale of homestead and dower rights is enough to reverse it. Amos Bice had no iuterest in the land for homestead and dower rights to attach to. The land was trust estate, in which he had nothing more than the naked legal title. The ■decree ordered sold but an undivided five-sixteenths of the land,—the proportional part represented by the $1000.

We find no error in the decree, and it is affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    Harmon Phenix v. Phebe Castner.

      Filed at Ottawa November 20, 1883.

    1. Witness—credibility—how to be determined,. An instruction that “no matter how prominent or respectable any one man or woman may be, the jury ought not arbitrarily and without just cause to believe such man’s or woman’s testimony as against the testimony of two or more persons testifying differently upon the same matter,” is calculated to mislead, and is erroneous. It would doubtless be understood that in a conflict the greater number of witnesses should control.
    2. One “respectable” witness may be believed, notwithstanding any number of persons testify the other way, if from their reputation, or manner of testifying, etc., it is doubtful whether they tell the truth.
    3. Evidence—cross-examination—as to state of feeling of a witness towards a party. As to collateral matters, in general, if gone into on cross-examination, the party is bound by the answers of the witness, but the state of feeling of the witness toward the adverse party is held not to be irrelevant. Hence it is competent to inquire, on cross-examination, if the witness has not used expressions of animosity or revenge toward the party against whom he bears testimony, and if the witness deny that he has, to introduce evidence to contradict him.

      i. The fact the witness states he has an unfriendly feeling toward a party, will not stop the inquiry of the witness as to particular declarations or expressions of ill-will, resentment or revenge, and proof of them, if denied by him. There is a wide difference between a mere feeling of unfriendliness, and one of hatred with a willingness to do a personal injury, which implies a heart disposed to the commission of crime, while a want of friendly feeling may be consistent with the highest type of morality. A party is not compelled to put up with the statement of a. witness concerning his own interest or personal relation to the case or the parties.
    5. Instruction—as to the consideration of testimony—directing the jury in respect thereto. It is not proper in an instruction to tell the jury that they ought not to believe one man’s testimony in preference to that of twro witnesses, “without just cause,” or that they ought not, “without good and sufficient cause,” to believe one side of a witness’ testimony and not the other. It leaves each of the jury to determine what is just or good cause, to suit himself.

      6. It is a serious objection to an instruction that it singles out a particular part or piece of evidence, and holds up to the jury the consequences that would result from perjury with reference to it.
    Y. On the trial of an action for slander for the speaking of words imputing adultery to the plaintiff, a woman, in which a justification was set up, the court instructed the jury, that “if any witness introduced for the purpose of establishing adultery has testified to circumstances which may be construed against plaintiff, and if those circumstances would tend to show that perhaps the plaintiff committed adultery with such witness, and if such witness positively testifies that such adultery was not committed or attempted, the jury ought not, without good and sufficient cause, believe the things such witness testifies which may be deemed beneficial to defendant, and disbelieve all such testimony (if any) as may be deemed favorable to plaintiff. Especially is this true if the testimony deemed favorable to plaintiff must either be true, or else the witness be a willful and corrupt and intentional perjurer:” Held, that the instruction was a mere argument directed against a particular witness, and otherwise erroneous.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Stark county; the Hon. David McCulloch, Judge, presiding.
    This was an action on the ease, by Phebe Castner, against Harmon Phenix, for verbal slander, in the Stark circuit court. There was a trial at- the March term, 1883, of the court, resulting in a verdict for the plaintiff, assessing her damages at $1500. Motion for new trial was made by the defendant, but the court overruled the motion, and gave judgment upon the verdict. The defendant appealed to the Appellate Court for the Second District, and that court, at its May term, 1883, affirmed the judgment of the circuit court. This appeal is from that judgment. Errors are assigned raising the questions discussed in the opinion.
    The declaration contains three counts. In the first count it is alleged, that “on the 27th day of June, 1882, the defendant spoke, etc., of and concerning the plaintiff, etc., the following words: ‘You (meaning plaintiff) damned dirty bitch.’ ‘You (meaning plaintiff) are a damned dirty bitch.’ ‘You (meaning plaintiff) damned dirty whore.’ ‘You (meaning • plaintiff) are a damned dirty whore.’ ‘You (meaning plaintiff) God damned dirty whore.’ Meaning and intending thereby to give out and be understood, and to charge, that this plaintiff was a bitch and a whore, and had been guilty of adultery. ”
    The second count alleges, that on the 16th day of September, 1S81, “there was held a funeral of a littl'e child of this plaintiff, which said child was born in lawful wedlock, and was the child of plaintiff’s husband. The said defendant, on the same day, and after said funeral, * * * in a certain conversation had of and concerning the plaintiff, in the presence and hearing of diVers persons, and speaking to one and more of said persons, and which said person had just been at the funeral of said child of this plaintiff, maliciously and falsely spoke of and concerning the plaintiff, and referring to this plaintiff, the false, scandalous, malicious and defamatory words following: ‘You (meaning the said person who had been to plaintiff’s child’s funeral) have been down to attend the bastard’s (meaning plaintiff’s child) funeral.’ ‘You folks (meaning the persons addressed) have been down to the funeral of the bastard, (meaning plaintiff’s child) have you ?’ ‘You (meaning said parties) have been down to the damned bastard’s (meaning said child’s) funeral ?’ T (meaning defendant) wasn’t obliged to go to the damned bastard’s (meaning said child’s) funeral.’ T (meaning defendant) didn’t have to go to the damned bastard’s (meaning said child’s) funeral.’ ‘Have you (meaning said parties to whom he, defendant, was talking,) been to the young bastard’s (meaning said child’s) funeral?’ ‘Have you (meaning said parties to wdiom he, defendant, was talking,) been to the little bastard’s (meaning said child’s) funeral ?’ Meaning thereby to charge that the said child of plaintiff was begotten by adulterous intercourse on the part of this plaintiff. ”
    The allegations of the third count are; that “on the same day a little child of this plaintiff, which child was duly begotten in lawful wedlock, was dead, and about to be buried, and the said defendant maliciously intending to defame and injure plaintiff, and not having his malice and ill-will tempered or softened by the sorrow which the death of said child had placed upon her heart, in a certain conversation, which said defendant then and there had and held of and concerning said child and this plaintiff, its mother, in the presence and hearing of, and spoken to, divers persons then and there present, and about to attend the funeral of said child, spoke and published, unlawfully and wickedly, of and concerning this plaintiff, the false, malicious, scandalous and defamatory words following, that is to say: ‘You (meaning said person about to attend said funeral) must be hard up to attend the funeral of a bastard,’ (meaning this plaintiff’s said child.) ‘Its (meaning said child’s) mother (meaning plaintiff) is a damned bitch of a whore.’ ‘You (meaning said parties) must be hard up to go to a bastard’s (meaning said child’s) funeral.’ ‘It (meaning said child) was a bastard, and its (meaning said child’s) father was a bastard, and its (meaning said child’s) mother (meaning plaintiff) was a damned bitch.’ Meaning and intending to charge and be understood that this plaintiff w7as unchaste, and had been guilty of adultery. ”
    The defendant pleaded, first, not guilty; and second, that before the committing of the said supposed grievances in the said several counts mentioned, etc., on, etc., at, etc., “the said plaintiff was a wdiore, and had committed adultery,” wherefore, etc. To this there was a general replication, putting in issue the allegation.
    Mr. M. Shallenbergeb, and Mr. B. F. Thompson, for the appellant:
    It is not irrelevant to inquire of a witness, on cross-examination, whether he has not expressed feelings of hostility against the prisoner: The like inquiry may be made in civil cases, and if the witness denies the fact, he may be contradicted by other witnesses. 1 Greenleaf on Evidence, see. 450; 2 Phillips on Evidence, (5th Am. ed.) 902, 905; Rex v. Yewin; 2 Campb. 638; Atwood v. Melton, 7 Conn. 66; Newton v. Harris, 2 Seld. 345; Long v. Lambkin, 9 Cush. 361; Folson v. Brown, 5 Foster, 114; Drew v. Wood, id. 363; Stark v. People, 3 Denio, 106.
    It is the right of a party to show the animus and bias of a witness towards him, and the extent thereof. Daflin v. State, Texas App. 184.
    A witness may be contradicted as to statements made, on cross-examination, if the evidence tends to show the temper, disposition or conduct of the witness in relation to the cause or the parties. State v. Roberts, 81 N. C. 605; Polk v. State, 62 Ala. 237; Mason v. State, 7 Texas App. 623; Gray v. People, 22 Mich. 222.
    The plaintiff’s ninth instruction is bad, because it leaves out the word “credible.” To be good it should read, “two or more credible persons.”
    The tenth instruction for plaintiff is bad, because argumentative. It is a speech,—not an instruction. The last part is especially bad. It tells the jury they must believe the plaintiff’s testimony to be absolutely true, if to believe otherwise would make the witness liable for perjury.
    Mr. James EL Millee, for the appellee:
    The witness White admitted that in 1881 he was unfriendly to appellant, that now he was unfriendly to him, and that he had feelings against him. This could mot have been made stronger by contradicting his sworn statements, if he had made any. Chicago, Rock Island and Pacific R. R. Co. v. Bell, 70 Ill. 104; Schmidt et al. v. Sinnott, 103 id. 160.
    A witness can not be cross-examined as to any distinct collateral fact for the purpose of afterwards impeaching his testimony. Chicago, Burlington and Quincy R. R. Co. v. Lee, 60 Ill. 504; 1 Starkie on Evidence, 189; 1 Greenleaf on Evidence, 449.

      As to the objection urged against appellee’s instructions, they are all without force, in our judgment, when the cause is fairly considered, as we look at it. They are all to be construed as a series, in passing upon them. Toledo, Wabash and Western Ry. Co. v. Ingraham, 77 Ill. 309.
   Mr. Justice Scholfield

delivered the opinion of the Court:

There was a conflict in the evidence with reference to the speaking of the words in the second and third counts, and also in that with reference to the defence of justification.

The ninth instruction, given at the instance of the plaintiff, was as follows:

“No matter how prominent or respectable any one man or woman may be, the jury ought not arbitrarily and without just cause believe such man’s or woman’s testimony as against the testimony of two or more persons testifying differently upon the same matter.”

We are of opinion that this was calculated to mislead. The fact that two or more persons testify one way, and a “prominent and respectable” person testifies another way, is all that is tangible. What is “just cause,” in the sense in which the term is here used, is not defined, but is left to be determined by the members of the jury to suit themselves. One “respectable” person may be believed, notwithstanding any number of persons testify the other way, if, from their reputation, or the matters or manner of their testimony, it is doubtful whether th'ey tell the truth. A jury would doubtless understand this as asserting that where two testify one way, and only one the other way, the one, although “prominent and respectable, ” ought not to be believed as against the two, disregarding any circumstances affecting their credibility, and the letter of the instruction plainly justifies this,— in other words, that mere numbers should control.

The tenth instruction, given at the instance of the plaintiff, is as follows:

“If any witness, introduced for the purpose of establishing adultery, has testified to circumstances which may be construed against plaintiff, and if those circumstances would tend to show that perhaps the plaintiff committed adultery with such witness, and if such witness positively testifies that such adultery was not committed or attempted, the jury ought not, without good and sufficient cause, believe the. things such witness testifies which may be deemed beneficial to defendant, and disbelieve all- such testimony (if any) as may be deemed favorable to plaintiff. Especially is this true if the testimony-deemed favorable to plaintiff must either be true, or else the witness be a willful and corrupt and intentional perjurer.”

This is a mere argument directed against a particular witness, and erroneous in the implied assumption that if his evidence be false in a particular respect, he will be guilty of willful and corrupt perjury, while if false in another respect equally pertinent and material, he will not be guilty of willful and corrupt perjury. Besides, the jury are left in the dark as to what, in such connection, is .meant by “good and sufficient cause.” It is always seriously objectionable to single out in an instruction a particular part or piece of evidence, and hold up to the jury the horrible consequences that would result from perjury with reference to it. The jury are suj)posed to know that all witnesses testify under oath, and they should not be morally intimidated by pictures of the results of perjury in one part more than in another.

During the progress of the trial Frederick 6. White was called and examined as a witness on behalf of plaintiff, and gave material evidence on her behalf. On cross-examination he admitted that he was then unfriendly towards the defendant. He was then asked if he had not, on different occasions, to different persons, (giving time, place and person,) made remarks (that were 'repeated in the several questions) in regard to the defendant, showing a bitter and revengeful feeling towards him. He denied that he had made such remarks. The counsel for the defendant, at the proper time, called the persons named in these questions, and offered to prove by them, respectively, that the witness had made such remarks, but the court, on objection, refused to allow the witnesses to be heard in that respect. As to collateral matters in general, if gone into on cross-examination, the party is bound by the answers of -the witness, but the state of feeling of the witness towards -the adverse party is held not to be irrelevant, (1‘Greenleaf on Evidence, sec. 450,) and hence it is held to be competent to inquire, on cross-examination, whether the witness has not used expressions of animosity or revenge towards the party against whom he bears -testimony, and if the witness deny that he has, to introduce evidence to contradict him. 2 Phillips on Evidence, (Cowen & Hill’s and Edwards’ notes,) 971; Best on Evidence, (1st Am. from 6th Lond. ed.) 1081; Stark v. The People, 5 Denio, 106 ; Newton v. Harris, 2 Seld. 345.

But counsel insist the witness having admitted that he felt unfriendly towards the defendant, the inquiry should have been stopped,—that that was all that could be shown by proof of the making of the revengeful remarks,—and in confirmation of this he cites Schmidt et al. v. Sinnott, 103 Ill. 160. That case is not at all analogous. There the witness vTas asked: “Has there not been a feud or quarrel between your family and Dr. Schmidt’s family ?” This was disallowed by the trial court, because the inquiry was not limited'to the feelings of the witness, and we said it might, with propriety, • have been answered, but that the ruling did no harm, because the witness elsewhere stated fully what his feelings were towards the party.

Between a mere feeling of unfriendliness, which was here admitted, and a willingness to do a personal injury, of which the offer was to make proof, there is morally a very wide difference. The one implies, of necessity, no lawlessness, and may be perfectly consistent with the highest type of morality, while the other shows a disposition of lawlessness, and indicates a heart favorable to the commission of crime. Suppose it could be' proved that a witness had said his feelings towards a party were such that he would be willing to commit any crime that could injure him,—even perjury. Must the inquiry be stopped in such a case by the simple answer of the witness that he felt unfriendly towards the party? Surely not. The inquiry would then, beyond all question, go directly to his veracity. If, in such case, it would not be limited to the answer of the witness, upon what principle can that .ease be distinguished from this, so as to limit the inquiry here to the answer of the witness ? We can perceive none. Geary v. The People, 22 Mich. 222, is in point. There the witness was asked whether she had not made certain specified declarations in regard to the defendant, and the trial court refused to allow the question to be answered. On error to the Supreme Court this was held to have been improper, and ground of reversal, the court, among other things, saying: “We think this proof should have been admitted. It is true that where a wdtness is cross-examined on matters purely collateral, the cross-examiner can not inquire of other witnesses whether the answers are truthful, because the inquiry would open irrelevant issues. But the interest or bias of a witness has never been regarded as irrelevant. It goes directly to his credit, and must determine, with the jury, how far facts depending on his evidence are to be regarded as proven. A party can not be compelled to put up with the statements of a witness concerning his own interest or personal relation to the ease or parties, where it becomes necessary to know his position. ” We think it was error to refuse to admit the evidence.

For the errors indicated the judgment is reversed and the causó remanded.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    Alfred Dormueil et al. v. Henrietta Ward et al.

      Filed at Ottawa November 20, 1883.

    1. CbeDitok’s bill—jurisdiction—no judgment at law, etc. A creditor’s bill will not lie in any case upon a purely legal demand, where tlie creditor has not first exhausted his remedy at law by obtaining a judgment and execution, which prove unavailing by reason of fraudulent conveyances or want of property subject to execution at law. The creditor can not proceed in equity in the first instance, unless his claim has some equitable element, such as a trust, or the like.
    2. ■ Where an execution has been returned nulla bona upon a judgment at law, and the creditor can show that'the debtor has equitable assets whiqh can not be reached by execution, or that he, or others acting in concert with him, have fraudulently placed obstructions in the way of collecting the demand by execution,,a case will then arise for the interposition of a court of equity. This is a part of the ancillary jurisdiction of a court of equity.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior' Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Messrs. Gr. W. & J. T. Keetzingeb, for the appellants:
    It appears that a judgment at law and an execution thereon would he unavailing. The creditor is not bound first to obtain these, and thus do a useless act, before seeking the aid of a court of chancery. Steere v. Hoagland et al. 39 Ill. 266; Nelson v. Rockwell, 14 id. 375; Greenway et al. v. Thomas et al. id. 271; United States v. Parrott, 1 McLean, 271; Heynemann v. Danneberg, 6 Cal. 376.
    There is no remedy at law against this fund in the hands of the officer of the court; by execution on judgment, or garnishment. Reddick v. Smith, 3 Scam. 452; Lightner v. Steinagel, 33 Ill. 515; Drake on Attachments, secs. 504-507.
    In case of fraudulent conduct, and where fictitious debts are charged, the party injured can come into a court of equity

      in the first instance. Pendleton v. Perkins, 49 Mo. 565; Turner v. Thomas, id. 95; Conro v, Port Henry Iron Co. 12 Barb. 58; Bank v. Paine, 13 Rep. 796.
    Messrs. Flower, Bemy & Gregory, for the appellees:
    Conceding that appellees were disposing of their property-in fraud of their creditors, appellants had no right either to enjoin or call such transfers in question until their claim had been reduced to a judgment. Miller et al. v. Davidson, 3 Gilm. 518; Greenway v. Thomas, 14 Ill. 271.
    Bill does not lie to restrain debtor from disposing of goods pending a trial at law, so that they may be levied upon. Phelps v. Foster, 18 Ill. 309; Bigelow et al. v. Andress et al. 31 id. 322; Shufeldt v. Boehm, 96 id. 560; Scripps et al. v. King et al. 103 id. 469.
   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 a decree of the Superior Court of Cook county dismissing a bill in chancery, in the nature of a creditor’s bill, for want of equity.

.The bill shows that shortly after the 15th of May, 1S81, Charles and Henrietta Ward commenced business as merchants in the city of Chicago, under the firm name of Ward & Co., and continued in business until November 22, 18S2; that the business was conducted exclusively by Frederick Ward, the husband of Henrietta Ward; that the complainants are creditors of Charles and Henrietta Ward, on account of goods sold to the firm of Ward & Co., in the sum of $2481.02, none of which (except $617.26) was then due, and would not be due until the months of January and February, 1883; that Charles Ward had left the State and removed to Dakota; that he is now, and always has been, irresponsible, and has had no property liable to execution, except the partnership effects; that appellees claim he sold out his interest in the firm about the 24th of January, 1882, to Henrietta Ward, for which she gave him her note of that date, for $8500; that she subsequently, on the 28th of November, 1882, confessed a judgment in his favor on said note, upon which an execution was issued, and levied upon the stock of goods then belonging to her as surviving partner of the firm of Ward & Co., and that the same was sold under the execution; that a large portion of the goods thus sold had been purchased of complainants ; that of the proceeds of such sale there was then in the hands of the sheriff $2374.05, which complainants insist should be applied to the payment of their debts; that said note was given without consideration, and is therefore void.

All of the foregoing acts are charged to have been done fraudulently, and with the intent to defeat, hinder and delay complainants and other creditors in the collection of their just debts. Many other fraudulent acts and pretenses on the part of appellees are charged in the bill, which are not necessary to be stated, for if a bill of this kind can be maintained at all on the ground that the debtor has been guilty of fraud, and is seeking to defeat the collection of an honest debt by covering 'up his property or placing it beyond the reach-of his creditors Avith a fraudulent intent, enough is clearly shown to maintain this bill.

But it is clear, unless we are prepared to overrule a long line of decisions extending back almost to the time of the organization of this court, a bill of this character can not be maintained upon the ground suggested, and this, of course, we can not consistently do in face of the fact the rule adopted by this court is supported by the decided weight of authority. As Avas said in a recent case, this is no longer an open question in this court, and we should have contented ourselves Avith a simple reference to the previous cases on the subject, but for the fact that counsel have insisted Avith so much earnestness that this case comes within one of the exceptions to the general rule which most of the eases concede to exist. These so-called exceptions, when properly understood, are rather nominal than real, for a bill of this character will not lie in any ease where the claim, as it is here, is a purely legal demand. In all cases where such a bill has been maintained the claim of the complainant has had some equitable element ■ in it,—such as a trust, or the like. But in the absence of some element of this character there is a want of jurisdiction to adjudicate upon the claim at all, and it is upon this fundamental doctrine the rule controlling this class of cases rests. When, however, a judgment has been obtained, and an execution has been returned nulla bona, and it can be showm the defendant has equitable assets which can not be reached by execution, or that he, or others acting in concert with him, have fraudulently placed obstructions in the wray of collecting the claim by execution, a case will then be made out for the interposition of a court of equity. The jurisdiction of the court thus invoked is known as a part of the auxiliary jurisdiction of a court of equity; but as a condition precedent to its exercise, where the demand is purely legal, as it is here, the claim must be reduced to a judgment, and an execution thereon returned nulla bona. Such is the settled law of this State, and it is supported by the general current of authority. Bispham’s Equity, 525-527; Miller et al. v. Davidson, 3 Gilm. 518; Greenway v. Thomas, 14 Ill. 271; Phelps v. Foster, 18 id. 309; Bigelow et al. v. Andress et al. 31 id. 322; Shufeldt v. Boehm, 96 id. 560.

In the present case the complainants are seeking to recover a simple contract debt for goods sold and delivered. There is no claim or pretense that the debt itself has any equitable element in it that is not found in any other just debt, or that will give a court of equity jurisdiction to adjudicate upon it. It is just like any othér strict legal claim. All the equitable features of the present case consist of the fraudulent acts of appellees in their efforts to defeat the collection of the claim of appellants. These are not sufficient, as is fully shown by the authorities already cited, to give a court of equity jurisdiction.

The decree in this case being in conformity with the views here expressed, the judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.