text:
    Illinois Central Railroad Co. v. James Turner.
    1. Nuisances — Compensation for Private Property Damaged for the TJse of Railroads. — The authorities of cities and villages may permit railroad companies to-lay their tracks in the streets and operate their roads there, without compensation to the owners of the lots past which their tracks may run, but such railroads must use their property there so as not to injure others.
    3. Same — Remedies of Lot Owners Damaged by the Operation of Railroads in Streets. — Under section 13 of article 3 of the constitution of 1870 providing that private property shall not be taken or damaged for public use without just compensation, the owners of lots abutting upon streets in which railroads have been permitted by municipal authorities to lay their tracks and operate their roads are entitled to damages for injuries to their lots by the throwing of dust, smoke and cinders upon them or otherwise physically damaging them by the operation of cars in close proximity to them, although the tracks on which such trains are operated lie wholly within the public street.
    Trespass on the Case, — Damages from smoke, cinders, etc. Appeal from the Circuit Court of Jackson County; the Hon. Oliver A. H. Harker, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    William H. Green, attorney for appellant; J. M. Dickinson, of counsel.
    James H. Martin, attorney for appellee.
   Mr. Justice Bigelow

delivered the opinion of the court.

This was an action on the case brought by appellee against appellant, to recover damages for injury to his real estate, situated at the southwest corner of block 6, in the city of Murphysboro, caused by building and operating a portion of its railroad in Thirteenth street of the city, in close proximitv with appellee’s lot, on which is located a large two-story brick building, used mainly for business purposes. Walnut street of the city runs east and west along the south line of appellee’s property, and Thirteenth street runs north and south along the west lineof his property. Years ago the railroad was built by a party other than appellant, from the nortli along Thirteenth street south to the north line of Walnut street, and about two years before this suit was brought it was constructed by appellant further south for some distance; and it is for damages claimed to have been suffered on account of building and operating this latter stretch of road that this suit was brought. The track is on the east side of Thirteenth street, and but a few feet west of the west line of appellee’s property.

The evidence shows that appellant’s locomotives, in running on this new piece of road, cast volumes of dust, smoke and cinders on appellee’s premises, which front on Walnut street, thus making this case nearly like the case of Illinois Central R. R. Co. v. Schmidtgall, 91 Ill. App. 23, as the Schmidtgall property is situated on the west side- of Thirteenth street and on the north side of Walnut street.

At the close of plaintiff’s evidence, in chief, appellant moved the court to instruct the jury to return a verdict for the defendant, which motion was denied by the court, and at the close of the evidence in the case the motion was renewed and again denied and defendant excepted to each of 1jhe rulings. The jury returned a verdict in favor of appellee, fixing his damages at $1,500, and it was followed by a motion by appellant for a new trial, which was denied, and j udgment having been rendered on the verdict, the defendant brings this appeal and counsel for appellant make the following points on their assignments of error:

“ 1. The extension of a track beyond appellee’s house and operating same does not give appellee a right of action.”

“ 2. The declaration charges that appellant is now operating its road with cars and engines ‘ south from the north line of Walnut street, at the crossing of 13th, and within ten feet of said building and lot.’ But the evidence is concerning trains that ran north from the north line of Walnut street. Therefore the allegata, and probata do not agree.”

“ 3. The court admitted improper evidence for appellee.”

“ 4. The amount of damages given in the verdict is contrary to the weight of the evidence.”

“ 5. The court admitted improper evidence for appellee.”

As to the first point, it is not contended by appellee that he has suffered any damages for the mere building of the new piece of road, but the damages contended for arise from the operation of that piece of road. The evidence in regard to the operation of the new road is to the effect that it is used mainly as a coal road, and heavy coal trains pass over the road, and on account of a heavy grade on the south end of the road the trains are often stalled on and near the crossing of Warren and Thirteenth streets, near the south front of appellee’s premises, and that large quantities of cinders, smoke and dust are thrown by locomotives upon appellee’s premises and into his buildings, thus damaging his property. On this point there is, and in the very nature of things there could be but little, if any, dispute about the matter, for it is common knowledge that locomotives, in drawing heavy trains, usually emit large quantities of cinders, smoke and dust while passing over up-grades of railroads, and no reasonable person would or could believe a witness who would testify to the contrary.

Of course the authorities of cities, towns and villages that are laid out in full conpliance with the law on the subject may permit railroad companies to lay their tracks in the streets and operate their roads there without compensation to the owners of the lots past which the tracks may run; but when this is done, the familiar maxim of the law that “ one must so use his own as not to injure another,” aided by section 13 of article 2 of the Constitution of this State, which provides that “ Private property shall not be taken or damaged for public use without just compensation,” gives the owners of property situated as appellee’s property is, compensation for the injury done to it by casting dust, smoke and cinders thereon and therein, or otherwise physically damaging it by operating trains of railroad cars in close proximity to the property, though the tracks on which the trains are run and operated may lie wholly in the public streets. It follows then that appellant’s first point on which it relies is without any secure foundation on which to rest, and the court committed no error in refusing appellant’s motion to instruct the jury to find for the defendant.

Appellant’s second point is based upon an incorrect assumption of the facts, as there is no disagreement between the allegata and probata of the case.

The third and fifth points made by appellant are alike and seem to be based upon the assumption that the court allowed improper evidence on behalf of appellee to go to the jury, over appellant’s objection, to which an exception was taken. No such evidence and rulings are pointed out by counsel for appellant, and we do not find in the abstract that any objection even was made to evidence on either side.

As to appellant’s fourth point, that the verdict is against the weight of the evidence, numerous witnesses on both sides testified as to the amount of damages appellee had suffered, and of course they did not agree in their several estimates, some being much larger and some much less than the amount found by the jury. These witnesses were supplemented by twelve others, whose only interest in the case was to find out if possible what testimony was the more reliable, and by consent of the parties to the case, the jury made up the twelve, by viewing the premises, and nothing is urged against their conduct in doing so.

We can not doubt that the court below felt that to set aside a verdict rendered under such circumstances, on the ground that it was excessive, would be nearly equivalent to the denial of a jury trial altogether, and in this view we fully concur.

There is no substantial error in the record and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Worthington

license: Public Domain

text:
    Village of Iuka v. N. Martin Schlosser, Treasurer of the Commissioners of Highways of the Town of Iuka, and J. O. Piper, Collector.
    1. Statutes — Rules of Construction. — It is a rule of construction that when several parts of a statute have a bearing upon the same subject, they are to be construed together, in order to arrive at a correct conclusion of the legislative intent.

      2. Same— Courts Are Not Confined to the Words Used. — In the construction of a statute, courts are not confined to the words used, but may regard the purpose, and when necessary to give effect to the meaning of the law, words used may be rejected and others substituted.
    3. Same — Rule in Doubtful Cases. — In doubtful cases, if by giving a liberal construction to a statute it will be the means of producing great injustice and lead to consequences that could not have been contemplated by the legislature, courts are bound to presume that the legislature intended no such consequences, and give such a construction as will promote the ends of justice.
    4. Same — Construction of See. 16 of Chap. 121, R. S., Roads and Bridges. — Under section 16 of chapter 121, R. S., one-lialf of the road and bridge tax collected within the corporate limits of the village of Iuka, by virtue of the tax levy of the commissioners of highways of the town of Iuka, belongs to the village of Iuka and the other half to the town of Iuka.
    Assumpsit, for money had and received. Appeal from the Circuit Court of Marion County; the Hon. William M. Fabmeb, Judge, presiding. Heard in this court at the February term, 1901.
    Reversed and judgment in this court.
    Opinion filed, etc., September 4, 1901.
    Statement. — This is an appeal from a judgment of the Circuit Court for appellees, reversing a judgment for appellant rendered by a justice of the peace.
    The suit is against Schlosser, as treasurer of the highway commissioners, and Piper, collector of the town of Iuka, to recover one-half of the road and bridge tax collected in 1899, within the limits of the incorporated village of Iuka, which lies wholly within the town of Iuka.
    All the facts in the case necessary to its decision are stipulated; the village of Iuka°claims half of said tax, and the town of Iuka denies its right to said half. The town of Iuka had adopted and was acting under the labor system, as authorized by section 80 of chapter 121, entitled, Roads and Bridges. Hurd’s Statutes, page 1482, Ed. of 1899.
    The following proposition of law was submitted to the court by appellant and was refused :
    “ That the road and bridge tax levied and collected under section 119, of chapter 121, of the Revised Statutes of the State of Illinois, within the corporate limits of the village of Iuka, by virtue of the tax levy of the commissioners of highways of the town of Iuka, as set forth in the statement of facts in the case, belongs, one-half of the tax levied and collected within said village of Iuka to the village of Iuka, and the other half of the tax levied and collected from the property in the village, of Iuka to the town of Iuka.”
    John A. Phillips and L. M. Kagy,attorneys for appellant.
    Kagy & Smith, attorneys for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

As it is stipulated that the only dispute in this case is as to the right of the village to one-half of the tax levied within its limits for road and bridge purposes, and that this' stipulation is for the purpose of submitting this legal proposition for decision, we will not consider the refusal of the court to allow the introduction of the record of the board of supervisors, offered by appellees for the purpose of rais-' ing the question of the legality of the entire tax levy for roads and bridges for that year. The question of the legality of the levy could not affect the legal issue which both parties have stipulated is the issue submitted to this court.

The amount in controversy is small, involving only the one-half of $75.80, but the decision of the question involves the construction of section 16, of said chapter 121, in connection with the entire statute contained in said chapter. The latter part of said section 16 provides :

“ One-half of the tax required to be levied in sections thirteen and fourteen and collected for road and bridge purposes, on the property lying within an incorporated village, town or city in which the streets and alleys are under the care of the corporation, shall be paid over to the treasurer of such village, town or city, to be appropriated to the improvement on roads, streets or bridges either within or without said village, town or city, and within the township, under the direction of the corporate authorities of such village, town or city; * * * and provided further, that in all cities of thirty-five thousand inhabitants or upwards, all of said tax required to be levied and collected under said sections 13 and 14 within the limits of such city, shall be paid over to the treasurer of such city for city purposes.” '

If the part of this section above quoted applies to incorporated villages and" cities in towns adopting the labor system, then the court erred in refusing to hold the proposition of law asked by appellant. If it does not so apply, the court did not err in refusing it. Section 80 of chapter 121 provides how towns may by vote adopt' the labor system.

The sections from section 80 to section 123 contain provisions and regulations that apply to towns adopting said system.

Section S3 requires the commissioners in towns adopting the labor system, to ascertain how much money must be raised by tax on real and personal property for “ making and repairing roads only,” not exceeding forty cents on the $100, and provides that such talx collected on property within the limits of an incorporated village or city shall be paid to the treasurer of said village or city. Or, the corporate authorities of such village or city may direct that such tax shall not be collected in the village or city. This tax in the town outside of the limits of municipal corporations can be paid in labor under the supervision of overseers of highways in the road districts. People v. Suppiger et al., 103 Ill. 437.

It will be observed, that the half tax to be paid to the treasurer of an incorporated village or city, referred to in section 16, is not limited to a tax levied fpr making and repairing roads, but includes the taxes levied under sections J3 and 14. These taxes-are “for road and bridge purposes and the payment of any outstanding orders drawn by them (the highway commissioners) on their treasurer, which levy shall not exceed forty cents on the hundred dollars.” See section 13.

Also for an additional levy not to exceed forty cents on the $100, which may be raised under section ,14, as provided for in said section. In such towns there is not a separate levy for “ making and repairing roads only,” and another levy for road and bridge purposes and for the-payment of such other expenses as are incurred by the-commissioners. One-half of all said tax collected from! property lying within the limits of an incorporated village or city is to be paid to the treasurer of said village or city.

Section 119 provides for the money tax to be raised in towns adopting the labor system. It includes money for the purchase of “ materials for building, or repairing, or draining roads,and bridges,” and limits the amount to be raised for those and other purposes specified in the section, to forty cents on the $100. But this amount may be increased by vote at the annual town meeting by an additional forty cents on the $100, provided that such larger levy is required for “ the purpose of constructing or repairing roads or bridges.” The substantial difference between the taxes authorized to be collected under sections 83 and 119, and under sections 13 and 14, fis that the tax for “ making and repairing roads only,” authorized by section 83, may be paid in labor. All other taxes embraced in these sections are to be paid in money.

If the position of appellees is correct, it follows that the money tax collected, under section 119, on property lying within an incorporated village or city, in a town adopting the labor system, for “ the purchase of material for the building or repairing or draining of roads and bridges,” and the increased tax “ for constructing or repairing roads and bridges” that may be levied by vote at the annual town meeting, must all be paid to the treasurer of the commissioners, to be expended by them outside the limits of the village or city, even though the city may have a population of 35,000 or upward. As the law now stands the commissioners have no authority to expend it anywhere else. It was different under the law of 1879, which authorized a part to be expended in a city or village under the direction of the corporate authorities. Such a construction of the statute works an injustice. Municipal corporations have exclusive control of their streets, alleys and bridges. They must keep them in repair or be mulcted in damages if they fail to do so and persons or property are injured in consequence thereof. In this connection it -is proper to call attention to the fact that the case of People v. Suppiger et al., 103 Ill. 434, cited by appellee, is not in point. This case was decided under section 122 of the act of 1879, which section declares that such tax- — the road and bridge tax — “ shall be paid to the treasurer of the commissioners of highways. It also provided that the commissioners may, in their judgment, expend such funds upon roads within the limits of any incorporated town, village or city, the same shall be done by and with the consent of the corporate authorities. Hurd’s Statutes of 1880, p. 941.

This section does not appear in the act of 1883, the act now in force, the last section of which specifically repeals the act of 1879, excepting certain matters not pertaining to this case. Chap. 121, Sec. 124, Hurd’s Statutes 1899, p. 1488.

It is fair to presume that when the legislature repealed the statute that specifically required all taxes for road and bridge purposes collected in towns adopting the labor system, that it did not act inadvertently or unintentionally. Such repeal leaves the taxes collected under section 119 without any direction as to whom they shall be paid, unless section 10 controls such payment. But if section 10 is to be construed with the sections succeeding section 80, why is not section 16 also to be so construed ? If it is to be so construed, its provisos must also be given effect and they require the payment of one-half the road and bridge tax collected in an incorporated village or city to be paid to its treasurer. It is apparent that the provisions of the roads and bridges statute must be considered in their relations to each other. That is, the act must be construed so as to give effect, so far as possible, to each of its sections. It can not be said that the sections preceding section 80 do not apply to towns under the labor system. They do apply unless they are clearly inconsistent with sections succeeding said section 80.

The authority of the commissioners, their organization and the appointment of a treasurer, his duties, and the general provisions controlling roads and bridges, are all found in the sections preceding section 80, but they equally apply to succeeding sections. It is said in P. & P. U. Ry. Co. v. The People ex rel., etc., 144 Ill. 470, in speaking of the roads and bridges act:

In order to determine the intention of the legislature in the enactment of the proviso, the different provisions of section 16 and the remaining portions of the act must all be considered.”.

It is a rule of construction that when several parts of a statute have a bearing upon the same subject, they must be construed together in order to arrive at a correct- conclusion of the legislative intent in the different sections. Commissioners, etc., et al. v. Com., etc., 100 Ill. 631.

As to the tax provided by section 83 for “ making and repairing roads only,” which tax may be paid in labor, an incorporated village or city may direct the collector not to collect the tax so levied upon property within the limits of said village or city. If such tax is collected in the village or city in money, it is all to be paid to the treasurer of said village or city. Sec. 83, supra. It .is clear then that this labor tax is not the tax referred to in the stipulation. If not the tax referred to, it is the tax authorized in section 119, for which no direction is given as to whom it shall be paid, unless such direction is found in section 16.

As the money tax authorized to be levied in section 119 is substantially for the same purposes as the tax authorized to be levied by sections 13 and 14, we conclude that it should be treated as the money tax is treated that is raised under these sections. The fact that a part of the tax levied in towns under the labor system may be paid in labor, is no reason why such towns should receive for their use, outside the limits of incorporated villages and cities, a money tax which towns not adopting the labor system do not receive.

In treating of the tax for opening or altering roads, the court say in P. & P. U. Ry. Co. v. People ex rel., supra:

“ Why should the city expect any part of the tax with which to pay damages bv reason of the opening, altering or laying out of new roads'? To our minds the answer is obvious. ‘ The city is burdened with the entire expense of laying out, improving, repairing, etc., all avenues of travel within its limits, whether they be called streets, boulevards, alleys or roads or highways, and of constructing and repairing bridges, culverts, etc., and it was deemed by the legislature unjust to burden it also with the expense incident to the highway system beyond its limits.”

It would certainly be equally unjust to require incorporated villages and cities to pay a road and bridge tax, all of which was to be expended outside their limits, and to compel them also to maintain roads and bridges within their limits.

To take from one corporation a tax collected from property within its limits, and give it to another corporation to be used within its limits, is so manifestly unjust as to be sanctioned by the courts only when compelled to do so by statutes that are capable • of no other construction. The legislative intent to enact such statutes can not be presumed but must be explicit and unmistakable. We think that an examination of the entire roads and bridge act, not only fails to show such an intent, but instead thereof shows an entirely different intent. We think that the repeal of section 122 in the law of 1879, leaves section 16 to be construed in connection with section 119. If this is not so, then not only the tax for the road and bridges purposes collected in a small incorporated village in a town where the labor system is adopted, must all be paid to the treasurer of the board of highway commissioners to be used by them outside the village, but all the tax for such purposes collected in a city of 35,000 or upward, must be so paid and so used.

This would be manifestly unjust, and it is a reasonable presumption that this is why section 122 of the act of 1879 is repealed by the act of 1883.

“ In the construction of a statute, courts are not confined to the words used, but may regard the purpose, and when necessary to give effect to the meaning of the law, words may be rejected and others substituted.” Perry County v. Jefferson, 94 Ill. 214; Anderson v. C., B. & Q. R. R. Co., 117 Ill. 26; P. & P. U. Ry. Co. v. People ex rel., 144 Ill. 470.

“ In doubtful cases, if by giving a liberal construction to a statute, it will be the means of producing great injustice, and lead to consequenpes that could not have been contemplated by the legislature, courts are bound to presume that the legislature intended no such consequences and give such a construction as will promote the ends of justice.” Bryan v. Buckmaster, Breese, p. 410; People v. Canal Com’rs, 3 Scammon, 153.

It would be as unjust to take all the road and bridge tax from cities and villages in townships adopting the labor system, as it would be from townships not adopting the system.

As we have seen before, the law conferring authority and defining the duties of the commissioners are found in sections preceding section 80. If these sections and one part of section 16 are to be construed with the entire act, as they plainly must be, what reason is there for holding that another part of said section 16 must not be so construed %

The sections following section 80, which authorizes the • commutation of labor for money, are peculiar to towns which adopt the labor system. The provisions in these sections which require the collection of taxes in money for purposes for which money must be used, are not peculiar to these towns. Neither are they so inconsistent with the provisions in section 16, which direct how road and bridge tax, collected in municipal corporations, shall be paid, as to repeal these provisions. Repeals by implication are not favored.

In the absence, then, of any clause or section confining the operation of the provisions in section 16, referring to the road and bridge tax, to townships that do not adopt the labor system, we hold that they apply equally to. all townships. Such construction accords with justice and equity and with the legislative intent, as shown in the entire act.

- The judgment of the Circuit Court will be reversed, and judgment entered in this court for appellants for. the amount claimed, namely, $37.90 and costs.


author: Mr. Presiding Justice Creighton

text:
    People, for the use of, etc., v. William Suhre et al.
    1. Judicial Officers — Not Amenable in Civil Suits for Judicial Acts. — A justice of the peace, or other inferior magistrate, is not answerable in a civil suit to the party aggrieved, for any judicial acts, done by him within his jurisdiction.
    Debt, on the official bond of a justice of the peace. Error to the Circuit Court of Madison County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed,
    Opinion filed September 4, 1901.
    Burton & Wheeler, attorneys for plaintiff in error.
    Travous, Warnock & Burroughs, attorneys for defendant in error.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was au action in debt on the official bond of a justice of the peace, in the Circuit Court of Madison County, by plaintiff in error against defendants in error. The declaration is in the usual form, against the justice and his bondsmen, and consists of two counts. The first charges that the justice did not faithfully discharge all the duties of such justice to the best of his skill and ability in this,that in a certain suit pending before him wherein said F. M. West was defendant, said justice willfully and unlawfully refused to grant to said West a change of venue, and willfully and unlawfully retained the suit and proceeded to try the same, over the objections and protests of said West.

The second count charges that the justice corruptly, oppressively, and with partiality refused the change of venue, retained the suit, proceeded to hear and determine the issues, and rendered judgment against said West, over his objection and protests. To this declaration defendants in error filed a general demurrer, which the court sustained and rendered judgment thereon, dismissing the case at costs of plaintiff.

We have diligently searched the authorities to ascertain the present state of the law as to liability of judicial officers fco answer in civil suits for judicial acts, and are satisfied with the expression of it as found in Lund v. Hennessey, 67 Ill. App. 233. In that case the court say:

“Ho judicial person, whether a chancellor sitting in a court of equity, a judge of a common law court of record, a justice of the peace, or other inferior magistrate, member of a court martial, or juror, who is a part of the court, is, for any judicial act within his jurisdiction, ■ * * * answerable in a civil suit to a party aggrieved.”

It is not contended by counsel for plaintiff in error that up to the time of making the application for change of venue the justice did not have jurisdiction of both the subject-matter of the suit and of the parties, and the law is, that the refusal of a justice of the peace to grant a change of venue even where a party is clearly entitled to it, does not oust the justice of jurisdiction. The People v. Watkins et al., 19 Ill. 117; Adkins et al. v. Mitchell, 67 Ill. 511. The justice did not act without jurisdiction at any stage of the proceeding.

Counsel for plaintiff in error contend that the act of a justice of the peace in passing upon and granting or refusing a change of venue is a purely ministerial act, and that therefore the justice in performing such act is not within the protection which the law accords to judicial officers in • the exercise of judicial powers. They say:

“ Where a petition for change of venue in a civil case conforms to the requirements of the statute the application must be granted. The mandate is peremptory, the court in such case has no discretion.”

True, but the justice, and not the petitioner, must judicially determine whether or not the petition conforms to the requirements of the statute, must judicially interpret the meaning of the statute and determine what its requirements are, must himself judicially determine whether or not the condition of peremptory mandate does in fact exist. All the cases relied on by counsel for plaintiff in error are cases which recognize this principle, and in which appeals and writs of error were prosecuted to correct such judicial errors of the trial court. We find no error in this record. The judgment of the Circuit Court is affirmed.


author: Mr. Justice Bigelow

text:
    John L. Moore v. Thomas D. Foster et al.
    1. Bills of Sale — When to he Considered as Mortgages. — A bill of sale of a stock of goods to secure an indebtedness, where the title passes absolutely to the purchaser, with an understanding that if there is anything left after paying the indebtedness such balance is to be returned to the seller, is in legal effect a mortgage and nothing else.
    2. Same — The Actual Transaction May Be Shown hy Proof Aliunde. —It is competent, no matter what are the terms of a bill of sale, to show by parol evidence that the actual transaction was in legal effect a mortgage of chattels.
    3. Pleading — What a Plea of Set-off, Founded on the Loss of Collaterals, Ought to Allege. — A plea of set-off, founded on the loss of collateral securities, ought to set out the facts from which the duties of the holder of such securities, as to the collection of them, arose, and wherein he failed to perform such duties so as to make him chargeable with the value of such collaterals supposed to have become valueless through his negligence.
    Assumpsit, on promissory notes. Appeal from the Circuit Court of Jasper County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1901.
    Reversed and remanded.
    Opinion filed September 4, 1901.
    Geo W. Fithian and E. J. Kasseeman, attorneys for appellant.
    Davidsoh & Islet, attorneys for appellees.
   Mr. Justice Bigelow

delivered the opinion of the court.

On the 3d of August, 1898, appellees were indebted in the sum of $2,225 to appellant, who is a wholesale grocer in Indianapolis, Indiana. A few days prior thereto, appellant sent John Eeagan, as his agent, to effect a settlement of this indebtedness. No conclusion was arrived at between the parties, and Eeagan returned to Indianapolis without having accomplished anything.

One W. D. Miller ivas a traveling salesman for appellant and resided in Newton, Ill., where appellees also had their place of business,and on the day first mentioned, hearing that an attachment might possibly be brought by other creditors of the firm of T. D. Foster & Co., took from appellees a bill of sale to appellant, as purchaser of the grocery stock belonging to appellees; this bill of sale was recorded, the key to appellee’s store was delivered to Miller and by him returned to appellees. The stock inventoried $1,180.

At the same time, notes and accounts, good and bad, to the amount of $2,700, were turned over to Miller for appellant’s benefit, by terms of absolute transfer. These notes and accounts were also returned to appellee Foster, who agreed to collect them and turn the proceeds over to appellant. Miller’s authority was that of selling appellant’s goods; he had no authority to effect settlements by taking property in payment of his principal’s claims.

■ Two or three days after the execution of the bill of sale appellant sent jEteagan to Newton, to act on his behalf, and appellees executed a judgment note to appellant for the sum of $2,225, bearing interest at the rate of seven per cent. With the approval of appellees the note was dated back, by Tteagan,to August 3, 1898, and made payable one day after date. At the same time, appellee John Matheny assigned to appellant a bond for a deed to a piece of property in Newton, his equity in the land being estimated at $500 or $600. After these transactions had taken place the store was run in the name of W. D. Miller, agent. The money taken in, both from sales of groceries and from collections of the notes and accounts, was deposited in the People’s Bank, to the credit of “W. D. Miller, store account.”

Appellees T. D. Foster and Mack Miller continued about the business in the store until December 11, 1899, when, at the instance of W. D. Miller, the services of Mr. Foster were dispensed with; finally, appellant sold what remained of the stock to one Fuller, who purchased it in August, 1900. The evidence fails to show what amount of money he paid' for it.

W. D. Miller looked after the business in a general way, and had general control of the store. Collections were made by appellee Foster on the notes and accounts to the amount of $1,498. After the store had been transferred by the bill of sale, and before December 11, 1899, Foster drew out of the business §765.97, appellee Miller drew out §515.87, and appellee Matheny drew out §76.20. There was credited on the $2,225 note the sum of $865, in various amounts, between August 3,1898, and January 17,1S99.

All of the facts which have been stated are, in substance, conceded by both parties to be correct. Appellees claim, however, that the bill of sale and the transfer of the notes and accounts were in absolute payment of their indebtedness to appellant, and that they made the $2,225 note at the suggestion of Beagan, who wanted the note so that the indebtedness might draw interest at seven per cent, inasmuch as the amount of property transferred greatly exceeded the indebtedness, as there would be quite an amount of money coming back to appellees after the indebtedness had been satisfied; that Beagan said that he also wanted the note only as a sort of memorandum, on which credits could be made of money which would be paid from time to time. Appellees also claim that although Foster and Miller remained in the store after August 3, 1898, yet they did do so as servants and clerks of appellant, and each were to receive the sum of § 1 per day for their services, so that their accounts with appellant were merely overdrawn.

On the contrary, appellant claims that although the bill of sale and the transfer of the notes and accounts were, by the terms thereof, absolute, yet the whole thing was merely intended as security for the repayment of the $2,225 debt; that W. D. Miller did not accept the bill of sale and the notes and accounts in any other way than as collateral security; or that if he did, he had no authority to accept property in payment of appellant’s claim; that appellees executed the bill of sale primarily for their own benefit, so as to keep off other creditors, and that appellant’s agent, Beagan, who alone had authority in the matter, fixed the true status of the transaction when he took the $2,225 note, to be, that appellees were running the store under the direction and supervision of appellant’s agent, so as to keep down expenses, and to the end that all moneys coming in from the business should, as far as practicable with the gradual winding up of the store, be applied on the indebtedness, and that the money retained by appellees while in the store was their own money, retained by the consent of all parties for their living expenses.

On the 15th of March, 1900, appellant had a judgment by confession entered on the balance due on the note, being the sum of $1,528.95. This judgment was entered up in vacation; appellees filed a motion and an affidavit in support of it, to set aside the judgment by confession; the motion was sustained and the judgment set aside. Thereupon appellees filed the general issue and a notice of special matters of defense. The cause was tried at the April term of court, 1900, and a verdict for the sum of $137.75 was returned against appellant.

A new trial was granted and the cause was again tried at the following October term, when the jury returned a verdict against appellant in the sum of $150; the court overruled a motion for a new trial and rendered judgment on the verdict.

The notice filed with the general issue is very lengthy and no useful purpose would be served by copying it into this opinion. Appellees contend that the notice is good, both as a plea of want of consideration for the note sued on and as a plea of set-off. Appellant contends that as a pleading the notice is valueless for either purpose.

In the view we take of the case, it will be unnecessary to pass on the sufficiency of the notice in either aspect; granting that it is good in law for either purpose, we are of opinion that the evidence fails to sustain either contention. Appellees were unquestionably indebted to appellant in the sum of $2,225, on August 3, 1898; but W. D. Miller had no authority to accept the bill of sale and the transfer of the notes and accounts in cancellation of this debt, and we do not think that he undertook to do so. Mr. Stewart, circuit clerk of Jasper county, who was the active means of getting the bill of sale executed, testified that he understood the title to the goods was going absolutely to appelhint, “ with a string to it,” and all of the appellees testify, that if there was anything left after the payment of the indebtedness to appellant, such balance should be returned to them.

The fact that the note was dated back so as to bear the same date that the bill of sale and the assignment of the notes and accounts bore, is a very strong circumstance that, the indebtedness was still considered to be subsisting in connection with the bill of sale, notwithstanding the absolute terms of transfer contained therein. The testimony of Mr. Reagan, who had full authority to settle this matter, is that he never accepted the bill of sale and the assignment of the notes and accounts in cancellation óf appellant’s claim.

The fact which all of appellees insist upon is, that they were interested in the overplus after paying the note; their set-olf is based on the contention that they had turned over more than $4,000 worth of property which appellant had failed to account for.

The fact that appellees were to pay interest on the $2,225 is the clear recognition by all parties to the transaction that the indebtedness was still subsisting.

No matter what form of words were used in the bill of sale and in the transfer of the notes and accounts, such an arrangement was a mortgage and nothing else. Jones on Chattel Mortgages, Sec. 1; 3 Pomeroy Eq. Jur., Secs. 1192-1196. It was competent, notwithstanding the terms of the bill of sale, to show by parol what the actual transaction was. The National Ins. Co. v. Webster, 83 Ill. 470. Appellant was a mortgagee in possession, responsible for ordinary care in the collection of the notes and accounts and in the disposition of the stock of groceries; and inasmuch as appellees themselves had full charge of such matters up to December 11, 1899, they must be content with the diligence and the care which was exercised up to that time. Whether the balance of the notes and accounts were returned by Mr. Poster to appellant, the evidence fails to show; if appellant is in possession of them his liability to account for their value will depend on many things not shown by this record.

Did he undertake to collect them? Are the notes and accounts good and collectible ? If so, did he use ordinary care in enforcing their collection, assuming that he undertook to do so? See Rice v. Benedict, 19 Mich. 131; Burroughs v. Bangs, 34 Mich. 304; Runals v. Harding, 83 Ill. 75; Union National Bank v. Post, 64 App. 404.

A plea of set-off founded on the loss of collateral securities, if such is appellee’s cause of action — and this is the only tenable theory of set-off we can see under the evidence —ought to set forth the facts from which appellant’s duties arise, as to the collection of the collaterals and wherein appellant has failed to perform such-duties, so as to make him chargeable with the value of the notes and accounts supposed to have become valueless by his negligence; otherwise appellant would not know what defaults he is chargeable with in dealing with collaterals which might be and probably were in all stages of collectibility when he received them.

The sale of the balance of the stock to Fuller, without notice to appellees, presents no question for review, because there is nothing in the record to show whether any injury resulted from the lack of such notice, admitting that notice was required by law.

The defense of want of consideration in the noté we regard as entirely opposed to all the evidence, even of appellees themselves; and the theory of the defense of appellees’ set-off is not borne out by the facts. That a set-off may be framed on the lines we have suggested, we do not doubt; and if sustained by proof, appellant will be accountable for such collaterals as he has lost by his lack of ordinary care in making the collections, if any.

A reversal of the judgment from any other supposed errors of law would leave the controlling question in this case untouched; we have therefore expressed our views in reference thereto at this time, so as to save useless litigation and expense which might be entailed had we waited until the case might be returned here on another appeal.

The judgment of the Circuit Court is reversed and the cause remanded.


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    James F. Carroll v. Abraham McNeill.
    1. Verdicts — Upon Conflicting Evidence Conclusive upon the Appellate Court. — A verdict upon, conflicting evidence is conclusive upon this court.
    Assumpsit, for money paid as surety. Appeal from the Circuit Court of Bond County; the Hon. William Harztell, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    O’Donnell & Brady, John B. Brady, Charles W„ Thomas and Fritz & Hoiles, attorneys for appellant.
    Dawdy, VanIIoorebeke & Louden, attorneys for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

This was an action in assumpsit brought March 9, 1900, to recover from appellant money paid by appellee as his surety, on two promissory notes, one for $1,000, to Hoiles & Son, dated May 10, 1884, and due six months after date, with interest at eight per cent after maturity, and one for $2,083.51 to Wm. G-. Bartle & Co., dated June 1, 1886, and due the following September 12th, with eight per cent from maturity.

Yerdict and judgment for appellee for $5,000.

Appellant pleaded the statute of limitations and appellee replied alleging new promise to pay.

These pleadings present the only material issue in the case.

Appellee testifies to the new promise to pay, and appellant denies it. The jurors heard both parties and found for appellee.

Under decisions of the Supreme and Appellate Courts, too numerous to be cited, such finding is conclusive upon this court. It is urged by appellant that the testimony of appellee is not sufficiently definite as to the indebtedness which he testifies appellant promised to pay.

From an examination of the evidence, we have no doubt that if the promise was made, as testified to by appellee, it was made by appellant referring to this indebtedness, and no other. Judgment affirmed.


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    Bernhardt Hund v. William Gardner.

      1. Verdicts— Upon Conflicting Evidence Conclusive on Questions oj Fact.— Where the evidence in a case is conflicting on the principal issues, the verdict of the jury is conclusive upon the questions of fact submitted.
    Assumpsit, for work, labor and services. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Winkelmann & Baer, attorneys for appellant; A. A. Hunt, of counsel.
    F. H. Kruger, attorney for appellee.
   Mr. Justice Bigelow

delivered the opinion of the court.

Appellee commenced his action before a justice of the peace of St. Clair county, and recovered a judgment against appellant for the sum of $116.35. An appeal was taken by appellant to the Circuit Court, where a verdict for the sum of $141 was returned against appellant.' A new trial was awarded and the cause being again tried, a verdict for the sum of $116.35 was returned in favor of appellee. Judgment was rendered on the verdict and appellant has appealed to this court.

The evidence of appellee tends to show that he commenced to work for appellant on- the 12th of June, 1894, and continued to work for him until some time in February, 1897, at the rate of $25 per month for a part of the time, and $35 for a part of the time.

■ This action is brought to recover the balance which appellee claims appellant owes him. That appellee performed the work for which the action is brought is admitted; and it seems also to be admitted, if appellant is liable at all, that the amount of the claim is correct. At least the point litigated is, whether appellant or his deceased son, B. M. Hund, owed this balance. On this question there was introduced considerable evidence.

In 1894 appellant was doing a business in ice, grain and teaming; he had been in the ice business since 1870. Appellant testified that on the first day of May, 1895, he sold the ice business to his son, B. M. Hund, who carried on that business until his death, in January, 1897; that prior to the sale of the business to his son, appellee had been driving the ice wagon for appellant, but that after the ice business had been transferred to B. M. Hund, appellant, his son, and appellee came together, and at that time Bernhardt Hund notified appellee that the ice business had been transferred to B. M. Hund, and that thereafter appellee should look to him for his pay. Appellant also testified that after his son's death, he hired appellee, at the rate of $25 per month, to drive the wagon in connection with the ice business, which he says had been taken back by him, and in that connection he also says, that he paid the estate, nothing for the business when he took it back. The evidence also tends to show that after May 1, 1895, statements for ice sold were made out with B. M. Hund as the owner of the ice business, and that appellee collected such bills from customers. On the part of appellee the evidence tends to show that sometimes appellant and sometimes his son paid the hired help, who did work about the ice business; that appellant, after May 1, 1895, made contracts with the St. Louis Ice and Cold Storage Company for the purchase of ice, and made payments therefor in the business that either he or his son was at that time conducting. Appellee denies that appellant notified him that the ice business had been sold to his son, or that thereafter appellee must look to B. M. Hund for his wages. These are the facts that bear directly on the main issue; there are other facts, which are in the nature of impeaching evidence, and by appellant thought to bear heavily against the justice of appellee’s claims. After B. M. Hand’s death appellee presented a claim against his estate for $91 for the same services which are in controversy in this case, and when the estate proved to be insolvent, appellee brought this suit against appellant. To this fact appellee replies, that he tried to have a settlement with appellant after B. M. Hand’s death, and that appellant told him to put in his claim for wages after May 1, 1895, against the estate of B. M. Hund, which appellee did merely at appellant’s suggestion. There is considerable other testimony on collateral issues, bearing more or less on the principal issue, whether appellant owed appellee the balance of wages for which this action is brought, and in view of counsel’s insistence of the manifest wrongfulness of the verdict, we have carefully considered each point made; it would serve no useful purpose to make a detailed analysis of this impeaching testimony, much of which is irreconcilable, and will remain so after repeated trials.

There is evidence to support the judgment, and the trial court’s approval of the third verdict rendered in this case, justifies us in saying, that it must be an extraordinary case indeed which would justify us, as a court of review, in setting aside the verdict as contrary to the evidence.

In many respects appellee seems to be impeached by his own testimony; yet this impeachment is not of that decisive character which should cause us to disregard the verdict of the jury and the trial judge’s approval of it, if the law laid down to the jury was correctly stated. Parmly v. Farrar, 67 Ill. App. 624.

It is not contended and can not be, that there is no evidence to support the finding of the jury. At the instance of appellee, the following instructions, among others, were given by the court:

“ 4. The court instructs the jury that the weight to be given to the testimony of the witnesses in this case, is a question exclusively for you; and the law is, that where two witnesses testify directly opposite to each other on a material point, and are the only ones that testify directly to the same point, you are not bound to consider the. evidence evenly balanced, or the point not proved; it is your duty to regard all the surrounding facts and circumstances proved on the trial, and give credit to one witness over the other, if you think such facts and circumstances warrant it.”

“ 5. The jury are instructed that, in determining the weight to be given to the testimony of the different witnesses in this case, you are authorized to consider the relationship of the different witnesses to the defendant, B. Hund, if the same is proved; their interest, if any in the event of this suit; their feelings or prejudice, if any has been shown; their actions while upon the stand, and their means of knowing of the things of which they speak; and it is your duty to give only such credit to the testimony of such witnesses, as under all of the circumstances such witnesses seem to be entitled to.”

The complaint of the first above quoted instruction is, that it assumes that there was a conflict of evidence on some material point. That there may be such an implied assumption contained in the instruction is true, but as applied to the evidence, we are unable to see wherein there is reversible error on that account, for it is admitted by both appellant and appellee that there was a direct conflict on the question whether appellee had been notified by appelant — they being the only surviving witnesses to this transaction- — to look to B. M. Hund for the payment of his wages after May 1, 1895. That the absence or presence of such a notice is evidence to a material point can not well be questioned, so that both the assumed conflict of the evidence and its assumed materiality was really a conceded fact.

In regard to the second above quoted instruction, it would seem, on first impression, to be faulty in calling attention specially to the supposed infirmities of the appellant’s witnesses. The record discloses the fact that a son and -a son-in-law of appellant testified as witnesses on his behalf, while no person who was in any way related to appellee was a witness in his behalf. We do not say that we are entirely satisfied with an instruction framed on this plan, yet had the instruction called attention to the fact of relationship in general terms, the jury would just as readily have applied its meaning to appellant’s witnesses. We think it would have been preferable to have framed the instruction in such a way as not to have called special attention to the witnesses by reason of their relationship to the defendant, though such relationship is even proven. Ammerman v. Teeter, 49 Ill. 400.

The bias, feeling or interest of a witness in the event of a suit is a matter for the consideration of the jury, whether it comes from relationship or not, and in this respect the instruction is faulty, but in the face of three verdicts we do not feel warranted in reversing for error, in a mere cautionary instruction not directly controlling the issue litigated.

The issue in this case was a very narrow one; after carefully weighing all of the testimony presented, we are unable to say that there is no evidence tending to prove appellee’s cause óf action, or that the trial judge’s final approval of the verdict is of no significance.

The judgment of the lower court is accordingly affirmed.


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    Thomas F. Farrelly v. A. Hogshead.
    1. Appellate Court Practice— What Points Can Not Be Raised for the First Time in the Appellate Court.— The point that when two or more persons are sued jointly upon a contract, the judgment must be against all or none, can not be raised for the first time in the Appellate Court.
    Assumpsit,, for goods sold, etc. Appeal from the Circuit Court of Clinton County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Mulkey & McHale, attorneys for appellant.
    Thos. E. Ford, attorney for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

Suit commenced before a justice by appellee against appellant, Richard O. Gorman and Mrs. Richard 0. Gorman, for groceries sold and delivered to Richard O. Gorman. Judgment for appellee by default for $15.49 against all three defendants.

Farreliy alone appealed, filing his bond in the Circuit Court, from which a supersedeas issued commanding “ the justice and constable to suspend all further proceedings on said judgment and cease from molesting the said Thomas F. Farreliy on occasion thereof,” etc.

FTo summons or notice from the Circuit Court was served upon the Gormans.

The case was tried in the Circuit Court by jury and a verdict rendered against Farreliy for $11.89. A motion for a new trial was overruled and judgment .rendered on verdict against Farreliy, from which he appealed. No objection or exception is shown to have been taken to the judgment against Farreliy alone. It is now urged that the suit being originally against three defendants, and one only having appealed to the Circuit Court, that the court erred in entering judgment against him alone, for the reason that when two or more are sued jointly upon a contract, judgment must be against all or none. It is a sufficient reply to this alleged error, that the objection is now for the first time made. The attention of the court below was not called to it, and the objection made now comes too late.

The instruction given for appellee is not open to the objection urged by counsel, and the two instructions, one for appellant and one for appellee, taken together, correctly state the law of agency applicable to the case.

There was some evidence tending to sustain the verdict. The jurors heard the witnesses, and found against appellant in an amount too small to warrant protracted litigation. The judgment will therefore be affirmed.


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    Grand Lodge Brotherhood of Locomotive Firemen v. Charles Orrell.
    1. Fraternal Insurance Associations— Construction of Contracts Making Officers of the Association Final Judges of Controversies. — It is competent for the members of fraternal insurance associations to contract that their rights as members shall depend upon the determination of a tribunal of their own choice, which shall be conclusive. But where it is sought to make certain officers of the association final judges of controversies arising between the association and its members, the courts will not give to the contract such a construction where it is possible to give it any other.

      2. Practice — On Overruling a Demurrer to a Declaration. — Where a defendant demurs to a declaration and his demurrer is overruled, he can either stand by his demurrer and suffer judgment to go against him, trusting to the higher court to sustain his position, or he can plead to the declaration and go to trial; but if he follows the latter course, he loses any rights he might have had under his demurrer if he had stood by it.
    3. Instructions — When to he Accurate. — Where there is evidence before the jury, pro and con, as to the controlling issues of fact in a case, and upon some material points the issue is close and doubtful, material inaccuracies in the instructions will constitute such, error as will call for a reversal.
    Assumpsit, on a beneficiary certificate. Appeal from the Circuit Court of Jackson County; the Hon. Oliver A. Harker, Judge, presiding. Heard in this court at the February term, 1901.
    Reversed and remanded.
    Opinion filed September 4, 1901.
    John H. Murphy, Irwin & Slemmons and J. H. Martin, attorneys for appellant.
    ft. J. McElvain, attorney for appellee.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was an action of assumpsit, in the Circuit Court of Jackson County, by appellee against appellant, to recover as a beneficiary member of appellant’s order, for alleged total disability. Trial was by jury. Verdict and judgment in favor of appellee for $1,500.

Appellee’s beneficiary certificate provides for the payment to him by appellant of the sum of $1,500, in the event of his total disability, and it also provides that such certificate is issued on the condition that appellee shall comply with all the laws, rules and regulations of the order while a member of the same; “ otherwise this certificate shall be canceled and become null and void.” This certificate bears date March 4, 1895, and was issued by appellant and accepted by appellee in lieu of a similar one of date April 25, 1890.

Section 49 of the constitution of 1892 of the order, is:

“ Upon the death of a beneficiary member in good standing, the person or persons named in the beneficiary certificate of the deceased member shall be entitled to receive the sum of $1,500; and in the event of total disability of a beneficiary member in good standing, he shall be entitled to receive a like amount, provided said deceased or disabled member shall have complied with all the laws and requirements of the order.”

Section 60 supplements the foregoing section. It defines what is meant by total disability, and provides that such claims shall be referred to the grand lodge officers for investigation. These two sections must be construed together. Section 60 is as follows:

“ A beneficiary member in good standing who shall be totally and permanently incapacitated from performing manual labor, shall be entitled to the full amount of his beneficiary certificate, provided that all claims arising under the provisions of this section shall be referred to the grand lodge officers, who shall make a personal investigation' thereof, employing such physicians as in their judgment may be necessary to determine the validity of the" same.”

Section 62 went into force January 1,1895, shortly prior to the date of appellee’s second certificate, and is:

“ A beneficiary member in good standing who shall be totally and permanently incapacitated from performing manual labor from consumption, Bright’s disease of the kidneys, or total and permanent paralysis, shall be entitled to the full amount of his beneficiary certificate, providing that all claims arising under the provisions of this section shall be referred to the grand lodge officers, who shall make a personal investigation thereof, employing such physicians as in their judgment may be'necessary to determine the validity of the same.”

These sections of the constitution of the order are as much parts of the contract sued on as are the beneficiary certificates set out and referred to in the declaration.

The declaration consists of three counts. The first count alleges that on the 31st day of May, 1892, while appellee was engaged as fireman on the Mobile and Ohio Railroad, in a wrreek he was injured in the back and other portions of the body, and in consequence thereof he has become and is totally disabled, etc. The second count alleges that on the 27th day of December, 1892, while the plaintiff was employed as a fireman on the Illinois Central Bailroad, to avoid a collision he jumped while the engine was in motion, from the cab window, injuring his hands and arm, from which he has become and is totally disabled, etc. These two counts are based on sections 49 and 60 above quoted.

The third count alleges that appellee was at the commencement of his suit sick of chronic gastric catarrh and tuberculosis or consumption of the left lung, whereby he has become and is totally disabled, etc. This count is based on said section 62. To this declaration appellant filed the general issue, and it was stipulated that all competent and material evidence might be introduced and admitted under the general issue that would be competent or material under any special pleas well pleaded.

Appellant’s counsel contend that in 1894 the constitution, by-laws, rules and regulations of the order were revised, to take effect January 1, 1895, and that in such revision section 49 was entirely eliminated and section 60 modified. Upon that question this record is not clear. Appellee’s counsel put in evidence sections 49 and 60 of the constitution of 1892, and appellant’s counsel put in evidence section 62 of the constitution of 1894. (These sections were all-admitted in evidence without objection.) But if appellant’s contention as to the revision of 1894 be true, still we do not see that such revision could bar appellee from the right to recover on any cause of action that may have accrued to him prior to such revision, and such is the case as to the alleged causes of action set up in the first and second counts. It is otherwise as to the third count. In it appellee’s prior certificate of date April 25, 1890, is not set up, but only his certificate of date March 4,1895. The date of the certificate which he sets up and the date of the disability for which he claims, are both subsequent to the date upon which section 62 took effect.

On December 16, 1893, appellee made his claim under section 60 for total disability, and it was referred to the grand lodge officers, who made investigation as required by that section and rejected the claim. Again on May 20, 1894, he made a like application, and his claim was again investigated and rejected. And on the 7th day of August, 1896, he made his claim under section 62 of the constitution of 1894, for total and permanent ” disability from “ tuberculosis, affecting principally the left lung,” and it Avas duly referred to the officers of the grand lodge. This claim was also investigated by the grand lodge officers and also rejected. The rejection of each claim was based upon the report of the physicians whom the grand lodge officers had employed to assist them in determining the validity of the claim.

Appellant’s counsel insist that as the constitution of the order requires that a member’s claim shall be referred to the grand lodge officers, no right of action can accrue until such officers have allowed his claim. That in the absence of their failure to act upon the claim, or of fraud on their part, a finding by such officers in favor of the claimant is a condition precedent to his night to recover; that a member is bound by the finding, and that a rejection of his claim is final and conclusive. Our courts have had this question under consideration. A similar position was contended for in Railway Conductors’ Benefit Association v. Robinson, a case tried in the Circuit Court before the writer, of this opinion, appealed to the Appellate Court of the Third District and reported in 38 Ill. App. 111. In that case it is said.

We are then brought to the remaining point, which is the one of chief interest and importance, whether the decision of the board of directors rejecting the claim is a finality.” * * * “It would be a very strange and unusual provision, that one party to a contract might have the sole power to determine the rights of the other in respect to the subject-matter of the contract — subversive in a great measure of the obligations of the contract — and opposed to the fundamental principle that no one shall be the judge in a case affecting his interests. The construction contended for by appellant would enable it to say for itself whether it would abide by the contract or not, thus rendering it nugatory at the will of one of the parties.” * "* * “ It was in effect a contract of insurance intended to be mutually binding, but by giving to the clause referred to the force and import now insisted upon, there was really no contract —no mutuality — nothing binding upon the appellant in respect to the sole important object in view by the insured, and for which he paid a valuable consideration. We are not inclined to adopt the views of appellant in this respect.”

This case was appealed from the Appellate Court to the Supreme Court, and it is reported in 147 Ill. 138. That court, in rejecting the proposition contended for, said:

“The judicial mind is so strongly against the propriety of allowing one of the parties, or its especial representative, to be judge or arbitrator in its own case, that even a strained interpretation will be resorted to, if necessary, to avoid that result.”

The provision of the constitution of the order, relied on by appellants in the case at bar, do not state that the action of the grand lodge officers in “ determining the validity of the claim” shall be final or conclusive, nor do they make such provisions for a contest or hearing upon the merits of the claim as will satisfy the requirements of the principals of natural justice. We can not adopt the views of appellant’s counsel in this respect.

Appellant’s counsel further contend, if we do not agree with them as to the conclusiveness of the action of the grand lodge officer in rejecting appellee’s claims, still the presenting of his claims and their reference to such officers were conditions precedent to any right of recovery, and that appellee’s suit was not commenced within a reasonable time after his claims were rejected. As to this contention, we deem it sufficient to say, that the record does not disclose any “law, usage or regulation of the order” limiting the time within which suit may be brought after a claim has been rejected or a cause of action accrued.

Some complaint is made of the declaration and the action of the court in sustaining the demurrer thereto, and we think such complaint not wholly unprovoked; but appellant demurred to the declaration, its demurrer was overruled and it pleaded to the declaration and went to trial.

“Where a defendant demurs to a declaration and his demurrer is overruled, he has two courses before him. He can either stand by his demurrer and suffer judgment to go against him, trusting to the upper court to sustain his position, or he can plead to the declaration and go to trial. If he does the latter, he loses any rights which he might have had under his demurrer if he had stood by it.” J. A. & N. Ry. Co. v. Velie, 140 Ill. 59.

But notwithstanding appellant pleaded, after demurrer overruled, and that the declaration does not in any count, accurately, or at least does not in very apt words, state the degree of stability indemnified against in the contract, and that in the third count it does not limit, and correctly state the cause of the disability, as provided in section 62 of the constitution of 1894, upon which that account is based, still, under the issues and stipulation in this case if appellee shall recover it must be under the contract declared upon, and upon proof of compliance on his part with all the terms and conditions of such contract, and upon proof of the existence of the condition which his contract undertakes to indemnify against. We are of opinion that the presentation of his claim and its reference to the grand lodge officers for investigation and the affording to them of reasonable time and opportunity to make reasonable investigation, are required by the sections of the constitution in evidence which are parts of the contract, and that the doing of this is a condition precedent to any-right of recovery — as much so as proof of death under an ordinary life insurance contract or proof of loss under an ordinary fire insurance policy— and that recovery must be, if at all, for a disability existing at the time of presenting such claim, and for the disability therein claimed.

The evidence in this case shows that prior to commencement of the suit, appellee duly presented his claims, that they were duly referred to the grand lodge officers, and that they acted upon them, and it is admitted that during all the time he was a beneficiary member in good standing. In order to recover under either the first or second count of the declaration, it was necessary for appellee to prove that at the time of presenting at least one of his claims, relied on in those counts, he was “ totally and permanently incapacitated from performing manual labor,” as provided in section 60 of the constitution, and in order to recover under the third coúnt it was necessary for him to prove that at the time he presented the claim relied on in such count, he was “ totally and permanently incapacitated from performing manual labor from consumption,” or from “ Bright’s disease of the kidneys,” or from “ total and permanent paralysis.” This count does not set up any disability from Bright’s disease of the kidneys, nor from total and permanent paralysis, but he does set up consumption as a cause of his disability, and in his presentation of the claim relied on in this count, to the officers of the grand lodge, he states the cause of his disability to be, “ tuberculosis of the lung,” which we understand to be a form of consumption. It is true that in this count he sets up, in connection with consumption, other diseases not provided against in the section of the constitution upon which that count is based nor elsewhere in his contract, as causing his disability, but under the state of the pleadings this must be treated as surplusage and does not relieve him from the duty of proving that the disability was from “ consumption ” as stated in his claim and provided for in his contract. It is also true that in all the counts of his declaration, he states his disability in language somewhat different from that used in the contract, but in the present state of the record the language used in the declaration must be interpreted to be the equivalent in meaning of that used in the contract — i. e., in sections 60 and 62 of the constitutions in evidence. He can not by stating bis disability or the degree thereof, in his declaration, in different language from that used in his contract, escape the duty of proving the character and degree of disability demanded by his contract. This is the most favorable view of this feature of the case that can be taken for appellee. A view of the situation less favorable to him would call for the application of the rule as to variance.

There was evidence before the jury, pro and con, as to the controlling issues of fact in this case, and upon some material points^the issue of fact was close and doubtful. In such state of case material inaccuracies, in the instructions, constitute such error as calls for a reversal. There are serious inaccuracies in the instructions given to the jury in this case. All those given on behalf of appellee entirely ignore the fact that it was incumbent upon him to prove that at the time he presented his claims to-the grand lodge officers, or at the time of presenting some one of them, he was “ totally and permanently incapacitated from performing manual' labor.” He could not recover in this suit for a disability that did not exist when he presented his claim to the grand lodge officers, nor for a disability not embraced in such claim, nor for any degree of disability short of total- permanent incapacity to perform manual labor existing at the time of presenting his claim. Instruction “ 8a” not only ignores, as do all the others, these necessary elements in appellee’s case, but expressly directs the jury to the contrary. These errors are neither cured nor mitigated by any instruction given in the case. The judgment of the Circuit Court is reversed and the cause remanded.


text:
    Bart S. Adams et al. v. Crown Coal and Tow Co. et al.
    I. Jurisdiction — When Too Late to Question. — Where a controversy-in the nature of a bill of interpleader, is in a court of general jurisdiction, the form of the procedure being somewhat irregular, but the parties all appear before the court and submit to its jurisdiction without objection, it is too late to raise the question of jurisdiction in the Appellate Court.
    Proceeding in the Nature and Effect of a Bill of Interpleader.— Appeal from the Circuit Court of Clinton County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    J. M. Holmes and Kent K. Koerner, attorneys for appellant.
    Webb & Webb, attorneys for E. L. Thomas, appellee.
    Gustavus A. Koerner and Victor K. Koerner, attorneys for appellee Crown Coal & Tow Co.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was a summary proceeding in the Circuit Court of St. Clair County, quite analagous in its nature and effect to a bill of interpleader. All the interested parties were before the court, all were fully heard with respect to their interests and claims, and a decree was rendered by the court. From such decree Bart S. Adams alone appealed, but the Crown Coal and Tow Company also assigns errors.

The parties to this controversy had been engaged in extensive business enterprises and transactions, in which they sustained various and complicated relations to and with each other, out of which much litigation arose. After certain suits had progressed to judgments in the Circuit Court, and while the suit in chancery to which this controversy is attached was still pending and undetermined in that court, Adams,' Thomas and Taylor entered into the following agreement:

“ Whereas, a controversy has arisen between Bart S. Adams, E. L. Thomas and John T. Taylor over their respective rights and interests in the amounts due to them, respectively, from the Grown Coal and Tow Company, now it is agreed between the three said parties, for the purpose of settling the said controversy, and for the further purpose of settling and adjusting all claims and disputes between them arising from or growing out of their connection with the Crown Coal Company, that the judgment for $1,900 and a fraction, be the same more or less, heretofore rendered by the Circuit Court of St. Clair County, Illinois, in the case of Bart S. Adams v. Crown Coal and Tow Company, and the judgment heretofore rendered in the same court for $3,20(3, be the same more or less, in the case of Bart S. Adams and John T. Taylor v. The Crown Coal and Tow Company, and the judgment which may hereafter be rendered in the accounting suit of Bart S. Adams and John T. Taylor against the- Crown Coal and Tow Company and pending in said court, shall be deemed and considered as belonging to the said Bart S. Adams, E. L. Thomas and John T. Taylor; and the proceeds and avails thereof, after deducting therefrom the costs, fees and charges due on account thereof, shall be divided equally between the said three parties,- as and when the same shall be realized.”

The accounting suit of Bart S. Adams and John T. Taylor against the Crown Coal and Tow Company, mentioned in the above contract, progressed to final decree in the Circuit Court, in favor of Adams for the sum of $2,124.33, and in favor of Taylor for the sum of $952.66. The Crown Coal and Tow Company appealed the case but it was affirmed, and thereafter on the 8th day of October, 1900, the Crown Coal and Tow Company were served by Adams with the following notice.

“ You are hereby directed to pay the amount found by the decree in said cause by the Circuit Court of St. Clair County, Illinois, in chancery sitting, and affirmed by the Appellate Court of the 4th District of Illinois, to Bart S. Adams in person, and not to any agents or attorneys appearing for him of record in said cause; that no execution is to issue for the amount so found to be due to said Adams in said cause unless directed by said Adams in person. Bart S. Adams.”

And on the 15th day of October, 1900, said company was served by Thomas and Taylor with the following notice:

“ Ton will please notice, that you will not pay more than one-third of the amount of the total sum of the decree in the above case to Bart S. Adams or his attorney, John TVL Holmes. We further notify you, that we, the undersigned, are the owners of two-thirds of said decree, and shall require you to pay the same to Webb & Webb, our attorneys. We hereto attach a copy of the agreement between ourselves and Bart S. Adams, showing interests of the several parties in the said decree. Edward L. Thomas, John T. Taylor.”

Accompanying this notice was a copy of the contract above quoted. On this same 15th day of October, the Crown Coal and Tow Company paid to the clerk of the court $1,021.20 for the use of Taylor, being the amount, with interest, recovered in his favor in said decree, and this sum was credited on the decree.

On the 25th day of October, Messrs. Webb Webb, attorneys of record in the case, sued out an execution, and on the 29th day of said month, the Crown Coal and Tow Company, having given due and proper notice, filed its motion to quash the execution. ,A hearing was had upon this motion, and the court ordered that upon payment to the clerk by November 5th, the sum of $1,359.72, in addition to the $1,021.20 theretofore paid, the sheriff should return the execution satisfied except as to costs; that in default of such payment the execution should remain in full force, and said sum, if so paid, should remain in court until the court should determine who was entitled to receive it. The money was paid into court, and on the 26th day of E ovember, Bart S. Adams filed his petition and motion for a rule on the clerk to pay the- same over to him, he claiming that the contract above quoted between him and Thomas and Taylor “ was wholly without consideration, has not been observed by Thomas and Taylor,” and that the charges for attorney’s fees are improper and excessive. Taylor having received the $1,021.20, his portion, had no further interest in the controversy.

•The fund remaining in court was $1,359.72, and for this stake all the interested parties contested. The Crown Coal and Tow Company claiming that it had settled with Adams and paid the full amount to him before it was ordered to pay it into court and that therefore this money ought to be returned to it. Thomas and Webb & Webb claiming that it ought to be paid to them, as Thomas’ share under the agreement, and Webb & Webb’s fees, being the “fees and charges due on account thereof,” provided for in the agreement. And Adams contending, as stated in his motion, that the contract was wholly without consideration and not kept by Thomas and Taylor, and that the attorney fees of Webb & Webb were improper and excessive, and that he being the decree creditor was entitled to the money.

While the amount in controversy here is only $1,359.72, the amount originally decreed as due to Adams with accrued interest was $2,283.66, and it was for this latter sum that execution issued. There is evidence tending to show that the Crown Coal and Tow Company did have some kind of understanding with Adams and had his receipt in full, yet it is conclusively shown that prior to the date of this receipt the Crown Coal and Tow Company had been fully notified of the claims and interests of Thomas and Webb & Webb, and had been served with a copy of the contract upon which these claims are based, so that whatever settlement was made with Adams, if any such was in fact made, was made with full knowledge of the rights and interests of Thomas, and Webb & Webb, in the subject-matter of the settlement, and their rights under such circumstances were not affected. It will be observed that the trial court did not attempt to disturb this alleged settlement as between the Crown Coal and Tow Company and Adams and did not order the whole of the $2,283.66 paid into court but only so much of it as would cover the claims of Thomas and Webb & Webb. Counsel for the Crown Coal and Tow Company now say that the whole proceeding is irregular and that the court had no jurisdiction. It is true-that the form of the procedure is somewhat irregular, but the court had general jurisdiction of such subject-matter, and the parties were all before the court and submitted themselves to its jurisdiction without objection. It is too late to raise the question of jurisdiction here.

The testimony upon the disputed questions of fact is very voluminous, covering almost a hundred pages of the record, and we can not consume time and space in discussing it in detail. Our conclusion from it all is, that the agreement between Adams, Thomas and Taylor, is supported by sufficient consideration, that Thomas and Taylor did substantially perform their part of it, that the fee due to Webb & Webb is embraced within the provision of the contract for payment of “fees and charges,” and that the amount of such fee, as allowed by the trial court, is not excessive but is reasonable and just.

We find no such error in this record as calls for a reversal. The judgment of the Circuit Court is affirmed.


text:
    Jacob Hileman et al., Trustees, etc., v. Harlan P. Tuthill, Exr., etc.
    1. Wills — Rules of. Construction. — In expounding a will great care must be taken by the expounder to avoid all extraneous influences in ascertaining the intention of the testator.
    2. Same — Grammatical Sense of Words Used, Adhered to Unless, etc. —In the construction of a will the grammatical and ordinary popular sense of the words used by the testator are to be adhered to, unless such adherence leads to some absurdity, repugnance or inconsistency with the rest of the instrument.
    3. Same — The Intention of the Testator Governs. — It is the intention of the testator, as expressed in his own will, which governs; and this intention must be discerned through the words of the will itself, as applied to the subject-matter of the will and the surrounding circumstances; the plain and unambiguous words of the will must prevail and they are not to be controlled or qualified by any conjectural or doubtful constructions growing out of situation, circumstances or condition of the testator, his property, or the natural objects of his bounty.
    Suit in Equity, for the construction of a will. Appeal from the Circuit Court of Union County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Hileman & Sessions, attorneys for appellants.
    John M. Lansden, D. W. Karraker and James Lingle, attorneys for appellee.
   Mr. Justice Bigelow

delivered the opinion of the court.

Charles M. Willard died on the 30th day December, 1893, at the age of seventy-seven years, leaving a last will and testament, executed about a month before his death. His nearest surviving relatives were a brother-in-law, the executor of his will, sisters-in-law, nephews and nieces. His estate consisted of lands valued at $50,000 and of personal property valued at about $18,000. He left debts to the amount of $4:,000. In his lifetime deceased was a business man, being president of the First National Bank of Anna, Illinois, at the time of his death. He was one of the founders of the Union Academy, an institution of learning at that place.

The first clause of the will directs the payment of his debts and funeral expenses. The second, third, fourth and fifth clauses are devises of real estate, valued at about. $33,000, to the Union Academy; and the sixth is a bequest of his library to the academy.

The' seventh clause is a devise to appellee of a business block in Anna, valued at. $16,000; in this block the bank is located of which the deceased was president at the time of his death; this devise is on condition that the devisee pay the sum of $5,000 to the First Presbyterian Church of Anna.

By the eighth, tenth, twelfth, thirteenth, fourteenth, fifteenth and sixteenth clauses, the sum of $9,000 is given in various amounts to his nearest relatives above mentioned.

It is the eighteenth and nineteenth clauses of the will which occasion the actual controversy in this case. The eighteenth clause reads as follows:

“18th. I hereby give and devise to the said Union Academy of Southern Illinois all the money, promissory notes, accounts, stock in Anna Building and Loan Association, and stock in the Southern Illinois Fair Association which shall remain and belong to my estate after" the full payment of all the sums of cash or money givenand devised in clauses first, eighth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth and sixteenth of this my last will. Said money, promissory notes, accounts, stock in Anna Building and Loan Association, and stock in Southern Illinois Fair Association, shall, when converted into cash, be added to and form a part of the endowment fund of said Union Academy, and be subject to all conditions imposed on said fund in this will.”

The nineteenth clause of the will is as follows:

“ 19th. I give and devise all the residue and remainder of my estate, real, personal and mixed, which I may own at the time of my death, or which may revert to me by reason of any contingency in this will, to Harlan P. Tuthill, Belle 0. Barr, Mary B. Jenks and Laura M. Tuthill, in equal parts by valuation, to be divided by themselves after my death.” * * *

The notes, accounts and stocks mentioned in the eighteenth clause were appraised and inventoried at the sum of $9,738.92. There was no “ money ” on hand at time of death. Of property not specifically mentioned in the will and therefore coming under operation of the nineteenth clause the deceased owned bank stocks to the amount of $7,534.50, Anna Lumber Co. stocks $500, other personal property $872, and real estate valued at $1,400, making a total of $10,306.50.

The debts, funeral expenses and money legacies mentioned in the eighteenth clause of the will amounted to $13,048.52; the executor, in settling the estate, used the proceeds of the notes, accounts and stocks mentioned in the eighteenth clause of the will, for the payment of debts and legacies, making up the deficiency from the- property found in the nineteenth clause.

It is the contention of appellants that the bequest contained in the eighteenth clause is a specific one, and that, therefore debts and legacies can not be charged against such bequest; that debts and legacies must be paid out of the property mentioned in the nineteenth clause, inasmuch as it is residuary estate, and liable in'the first instance for the payment of debts and legacies, if of sufficient value; if not, then the general money legacies contained in the eighth, tenth, twelfth, thirteenth, fourteenth,’ fifteenth and sixteenth clauses must proportionately abate, so as to leave the property mentioned in the eighteenth clause wholly intact. The contention of appellee is that by the express provisions of the will, debts and legacies are made a charge on the property enumerated in the eighteenth clause, so as to constitute that property the primary fund from which payments are to be made.

The construction contended for by appellants would amount to an actual elimination of the words which shall remain and belong to my estate after the full payment of all sums of cash of money given and devised in clause first, etc., of this my last will,” from the place where such words are found.

The insufficiency of property in the eighteenth clause of the will for paying debts and legacies, to say nothing of the endowment fund which the testator evidently intended to create by the will, is the fact which creates the frictional controversy in this case; if that fact is not considered, it is as plain as language can make it that a remainder is given by this clause of the will, and not any specific property at all, although this remainder is to come out of certain specified property. Did the testator own $1,000 at the time he wrote the will ? Did he have any money at that time which might have formed part of the fund found in the eighteenth clause % If not, did he intend to die possessed of a sufficient amount of “ money ” so that the remainder, after paying debts and legacies, should, to use the language of counsel, “ form something substantial for an ‘ Endowment Fund?’” He owned seventy-five shares of Anna Buildino- and Loan Association stock; this class of stock, the statute provides, shall be issued for $100 per share. Hurd’s Devised Statutes, 1899, Chap. 32, Sec. 83. The appraised value of the stock shows that only a part of the dues had been paid. Did the testator intend, without expressing himself to that effect, that his executor should continue these payments after his death until the stock should arrive at the matured value of $7,500 ? In such case the assets of said clause would amount to $16,271.17, excluding the item of “money ” which the testator at the time of the execution of his will may have intended to have supplied from other sources. The character of these conjectures show that the fact of the deficiency of the property found in the eighteenth clause is a mere circumstance to be considered by the court. To be guided by considerations of that kind would be to sail out into the illimitable.

“ Great care must be taken that the expounder scrupulously avoid all extraneous influence in ascertaining the testator’s intention. This must be gathered from the language employed in the instrument and from that alone. An eminent authority on testamentary law declares that 1 the question in expounding a will is not what the testator meant, but what .is the meaning of his words.’ And text writers generally caution against the danger of insensibly substituting the expounder’s views for the testator’s intention by speculating upon what the testator may be supposed to have intended to do, instead of giving strict effect to his words. * * * The grammatical and ordinary popular sense of the words should be adhered to, unless it would lead to some absurdity or repugnance or inconsistency with the rest of the instrument.” 2 Woerner’s Law of Administration, § 414.

As formulated by another text writer, the same rule is stated to be:

“ But it is the intention of the testator, as expressed in his own will, which governs; and this intention must be discerned through the words of the will itself, as applied to the subject-matter and the surrounding circumstances. In other words, the plain and unambiguous words of the will must prevail, and can not be controlled or qualified by any conjectural or doubtful constructions growing out of situation, circumstances or condition of the testator, his property or the natural objects of his bounty.” Schouler on Wills, § 466.

We regard the eighteenth clause as it stands to be a clear case of charging the payment of debts and legacies on certain specified property, in exoneration of other property which in a will differently constructed might have been primarily liable for such payment. The order in which legacies abate on deficiencies of assets, and the rule that the residuary legatee takes only after payment of debts and of general and specific legacies, are considerations which we think inapplicable to this will.

As a matter of both logic and grammar, the words “ which shall remain and belong to my estate, after the full payment of all sums of cash or money given and devised,” etc., are restrictive in their operation on the preceding language used by the testator, and this is so clearly the fact that no argument can make the matter plainer. The loss of the legacy intended for appellant’s benefit does not spring out of a necessary repugnant use of the words just quoted; to the creation of the legacy itself the matter which causes the loss of the legacy is wholly extraneous, and of no necessary connection with the grammatical or logical frame-work of the eighteenth clause of the will.

The order of the lower court approving the action of appellee in charging the debts and legacies to the property, found in the eighteenth clause of the will, is affirmed.