author: Mr. Justice Craig

text:
    Louisville, New Albany and Chicago Railway Company v. Augustus C. Shires, Admr.

      Filed at Ottawa January 23, 1884.

    1. Evidence—proof of city ordinance—by the record, or a sworn copy. An ordinance of an incorporated city of another State may be proved by the production of the books in which it is recorded, but a sworn copy is also competent evidence. So where a witness, in his deposition, testified that he was city clerk of the city for the year in which the ordinance was passed, that he wrote the record as such clerk, (of which an exhibit attached to his deposition was a copy,) that he compared the exhibit with the record, and that the ordinance was published, etc.: Held., that the witness stated enough to allow the exhibit to be admitted as a sworn copy.
    2. Same—opinions of witnesses—medical experts. On the trial of an action against a railway corporation to recover damages for a personal injury alleged to have been caused by negligence, the plaintiff called a person who was a practicing physician and surgeon, and who was well acquainted with the plaintiff, having met him almost daily for many years, and had been called upon to treat him for the first time when the injury was received, and asked him this question: “What, in your opinion and knowledge of Mr. O.’s previous health and condition, has caused his present illness or disorder, as described by you?” and he answered, “My opinion is, it results from the injury in November last:” Held,, no error in allowing the question to be answered, it appearing the witness had sufficient knowledge upon which to base an intelligent opinion.
    3. In the same case, a witness for the defence, being a practicing physician, was asked this question: “Please state what, in your judgment as a physician, is the present malady of the plaintiff, according to the symptoms as given by Dr. Tillottson?” The witness had stated that he had heard Dr. T.’s testimony, and also that the doctor had made a statement of the case to him on the 'day before: Held, that an objection to the question was properly sustained, as it did not call for an opinion on the testimony of Dr. T. as given on the trial, but according to the symptoms given by Dr. T., which also included statements made by him on the preceding day.
    4. A medical expert will not be allowed to testify to an opinion formed upon information derived from private conversations with witnesses in a case. He may examine the patient, and from this give his opinion, to the jury. If he has not made a personal examination, then the proper practice is to put a question to the witness reciting the supposed facts hypothetically, upon which the opinion of the expert is wanted.

      5. Same—opinion as to speed of train of ears. There is no error in allowing a witness, who has been a brakeman on a train for several years, to state his opinion as to the rate of speed a train was running at the time of an accident.
    6. Pleading and evidence—when plaintiff not required to prove every allegation. In an action of trespass on the case, to recover for an injury caused by acts of negligence, it is not proper to instruct the jury that the plaintiff can not recover unless every material allegation in the declaration is proved. It is sufficient if the plaintiff proves enough of the material allegations of his declaration to make a cause of action.
    7. Practice—time to object. An objection to the introduction of a foreign statute in evidence, on the ground it is not set out or given in the pleadings, comes too late when made in this court for the first time. It should be made in the trial court, so that it may be obviated by amendment.-
    8. Same—when party precluded by his acts from, making a particular objection. On the trial of an action brought in this Slate against a railway company for an injury claimed to have resulted from negligence, the case was tried by both parties on the theory that the doctrine of comparative negligence was applicable, and the defendant asked instructions laying down the rule adopted in this State. On appeal the defendant urged that an instruction given for the plaintiff stating the law of comparative negligence correctly, as expounded by our courts, was erroneous, as not stating the rule as it prevails in the State of Indiana, -where the accident and injury occurred: Held, that the defendant was by acts precluded from urging such ground of error.
    9. Same—when specific objection necessary. A witness in his deposition, which was taken in the presence of counsel on both sides, testified that an ordinance (an exhibit of which was attached) was, on a certain date, passed by the common council of the city. At the taking of the deposition only a general objection was made to the evidence, and no motion was made to suppress the deposition, or any part thereof, before the trial, on the ground that the passage of the ordinance was proved by parol instead of by the record: Held, that by failing to make the specific objection before the trial, so as to afford an opportunity to obviate it, the objection was waived.
    10. Municipal corporation—proof of its existence, in a collateral proceeding. Where the question of the incorporation of a city arises collaterally, it is only necessary to show that the city is, de facto, a corporation. To prove its existence it is sufficient to produce the charter, and prove acts done under it and in conformity with it. Written proof that all the preliminary steps were taken is not necessary.
    11. Same—sufficiency of proof in this case. To prove the incorporation of a city in the State of Indiana, under a general law conferring power to pass an ordinance sought to be proved, the plaintiff read from the statutes of Indiana an act of March 9, 1857, providing for the incorporation of cities, and prescribing their powers, and also certain sections of an act entitled "An act to repeal all general laws now in force for the incorporation of cities, and to provide for the incorporation of cities, prescribing their powers and rights, ” etc., which showed authority to pass the ordinance in question, and then proved by a witness that he was city clerk of the city for the year 1879, (the year in which the ordinance appears to have been passed,) that the city council passed ordinances, which were published, etc., and also passed the ordinance sought to be proved, and in addition to this all the witnesses, in testifying, spoke of the city as an incorporated city: Held, that the evidence was sufficient to show a de facto incorporation.
    12. Fobeign statutes—must be pleaded. Foreign statutes or the laws of other States must be pleaded, but such statutes are not required to be stated in hcec verba. It is sufficient to state the substance of so much of the statute as is relied on, conciseness in pleading being commendable. When the statute is not the foundation of the action, but comes in collaterally as evidence, the same degree of strictness in pleading it is not required.
    13. Instbuctions—should be confined to matters in issue. On the trial of an action for negligence resulting in injury, the defendant asked the court to instruct the jury that the omission of certain acts or duties did not constitute such misconduct as the law would recognize as wanton or willful. Such negligence was not alleged in the pleadings or claimed on the trial: Held, that the instruction was properly refused, for the reason there was no such issue in the case.
    14. Same—as to the relative weight of testimony. An instruction that the affirmative testimony of witnesses that the bell of a locomotive engine was rung at a given time and place, is of greater force and entitled to more weight than the testimony of witnesses of no greater credibility, and who had no better opportunity of hearing, that the bell was not rung, or that they did not hear it ring, and that under such circumstances the jury should give greater weight to such affirmative testimony than to the negative, is properly refused. It is not the province of the court to tell the jury which evidence is the strongest or entitled to the greater weight.
    Appeal from the Appellate Court for tlie First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Messrs. Judd & Whitehouse, and Mr. William Ritchie, for the appellant:
    The ordinance of Michigan City was not provable by copy, as it required collateral proof, such as, proof of power to pass the same, and of its passage in due form. Starkie on Evidence, *268.

      No proper foundation was laid for proof by copy. (1 Dillon on Mun. Corp. sec. 422.) Our statute on this subject has no application to ordinances of cities in other States. Rev. Stat. chap. 24, secs. 65, 82.
    The ordinance was not properly authenticated, under the act of Congress. U. S. Rev. Stat. sec. 906; King v. Dale, 1 Scam. 513 ; Giles v. Shaw, Breese, 125 ; Morrison v. Hinton, 4 Scam. 457; Brackett v. People, 64 Ill. 170.
    Objections to the substance of depositions may be made on the trial. Frink v. McClung, 4 Gilm. 569. See, also, Wolsey v. Mahon, 46 Texas, 62; Steinkel v. Newton, 38 Eng. C. L. 319; Palmer v. Crook, 7 Gray, 419; Atlantic Ins. Co. v. Fitzpatrick, 2 id. 279; Tufton v. Whiteman, 12 A. & E. 370.
    Deposition of a witness, being in the nature of secondary evidence, is not admissible if the witness is present at the trial. Week’s Law of Depositions, sec. 6; Dunn v. Dunn, II Mich. 292; Boetge v. Landa, 22 Texas, 108; Stiles v. Bradford, 4 Rawle, 401; Haywood v. Barron, 38 N. H. 369 ; Sargent v. Adams, 1 Tyler, (Vt.) 197; Brewer v. Beckwith, 35 Miss. 471.
    It devolved upon the plaintiff to show authority to pass the ordinance. City of Alton v. Insurance Co. 72 Ill. 328; Schott v. People, 89 id. 197; Chicago and Alton R. R. Co. v. Engle, 76 id. 318.
    There was no competent evidence of the passage of the ordinance. The only legal mode of proving facts on record is by the record itself, or by an attested copy. Moore v. Newfield, 4 Greenlf. 44; Morrison v. City of Lawrence, 98 Mass. 219; 1 Wharton on Evidence, sec. 65; Ætna Ins. Co. v. Aldrich, 38 Wis. 107; Barr v. Village of Auburn, 89 Ill. 361.
    As to the proper basis on which an expert may give an opinion, see Underwood v. Waldron, 33 Mich. 235; Hitchcock v. Burdet, 38 id. 506; Rich v. Jones, 9 Cush. 337; 117 Mass. 122; Sinnot v. Mullin, 82 Pa. St. 342; Grand Rapids R. R. Co. v. Huntley, 38 Mich. 542; Hunt v. Lowell Gas Co. 8 Allen, 169; Hand v. Brookline, 126 Mass. 326; Gilman v. Strafford, 50 Vt. 726.
    If the laws of another State be relied on, that law must be fully recited in the pleadings. Wilson v. Clark, 11 Ind. 387; 2 Waite’s Practice, 329; Tyler v. Kent, 52 Ind. 584; Walker v. Maxwell, 1 Mass. 103; Roots v. Merryweather, 8 Bush, 397; Homes v. Broughton, 10-Wend. 75.
    Expert need not hear. all the evidence before he can give his opinion. Rogers on Expert Testimony, sec. 22; Miller v. Smith, 112 Mass. 475; Davis v. State, 38 Md. 40; State v. Hayden, 51 V. 296.
    The plaintiff’s right to recover is under the laws of Indiana, where the doctrine of comparative negligence does not prevail. That doctrine is peculiar to this and a few other States. 2 Thompson on Negligence, 1164, 1166; Wharton on Negligence, sec. 334; Shearman & Bedfield on Negligence, sec. 39; Cooley on Torts, 677; Bigelow’s Leading Cases on Torts, 725.
    Counsel made various other points and cited many other cases, which are omitted for want of space.
    Messrs. Edsall, Hawley & Edsall, for the appellee, made the following among various other points of law:
    Pacts showing a de facto organization of a city are sufficient when the question arises collaterally. State v. Carr, 5 N. H. 367; Mendota v. Thompson, 20 Ill. 197; Doyle v. Douglas Machinery Co. 73 id. 273; Doyle v. Village of Bradford, 90 id. 417.
    If an objection to evidence can be obviated, it should be pointed out at the earliest opportunity, or it will be waived. Doyle v. Village of Bradford, 90 Ill. 417; Harvey v. Dunn, 89 id. 585; Wright v. Smith, 82 id. 527; Buntain v. Bailey, 27 id. 410; Swift v. Whitney, 20 id. 144; Kassing v. Mortimer, 80 id. 602.

      A general objection is available only when the evidence is inadmissible under any circumstances. Wilson v. King, 83 Ill. 232; Buntain v. Bailey, 27 id. 410; Sidwell v. Schumacher, 99 id. 426; Garrick v. Chamberlain, 97 id. 621.
    Only objections to the substance or pertinency of evidence taken by- depositions can be made for the first time at the trial. Winslow v. Newton, 45 Ill. 146.
    If the deposition is taken on written interrogatories, the objections must be taken on motion to suppress, before the trial. Cooke v. Orne, 37 Ill. 186; Corgan v. Anderson, 30 id. 95.
    If taken by oral examination, in the presence of both parties or their attorneys, objections which might be obviated must be specifically made before the commissioner, and noted by him. Goodrich v. Hansen, 33 Ill. 499 ; Lockwood v. Mills, 39 id. 602.
    The ordinance was proved as an examined copy by the clerk who made the original record. All the law respecting such copies was fully met. 1 Greenleaf on Evidence, sec. 508.
    The objection that the Indiana statute had not been specifically pleaded, not being made on the trial, was waived. Indianapolis and St. Louis R. R. Co. v. Estis, 96 Ill. 470; Doyle v. Douglas Machinery Co. 73 id. 273.
    The law does not require that a statute of another State shall be copied at length in the pleadings. Stacy v. Baker, 1 Scam. 418; Hyman v. Bayne, 83 Ill. 258.
    When the medical expert has not examined the patient, the general rule is, to require the questions to be so framed as to recite the supposed facts hypothetically, so that the witness may state his opinion upon such supposed facts, in case the jury find the same to be true. Rogers on Expert Testimony, secs. 24-26; City of Decatur v. Fisher, 63 Ill. 241; Chicago, Rock Island and Pacific R. R. Co. v. Moffitt, 75 id: 525; 1 Greenleaf on Evidence, sec. 440; Sills v.
      Brown, 9 C. & P. 601, 38 E. 0. L. 352; 1 Phillips on Evidence, (C. & H.’s notes,) 662, note.
    There was no error in the instruction as to comparative negligence. Both parties tried the case with reference to the doctrine of comparative negligence as held by our courts. If the rule is different in Indiana, it was incumbent on the party seeking the benefit thereof to aver and prove what the Indiana law was. Rorer on Inter-State Law, 33, 34; Story on Conflict of Laws, secs. 637, 638; Monroe v. Douglas, 1 Seld. 447; Chumasero v. Gilbert, 24 Ill. 293; Crouch v. Hall, 15 id. 263; Milwaukee and St. Paul Ry. Co. v. Smith, 74 id. 197; Tinkler v. Cox, 68 id. 119.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by James G-. Ostrander, against the Louisville, New Albany and Chicago Railway Company, to recover damages for an injury received in Michigan City, Indiana, at the crossing of the railroad track with Franklin street, on the morning of November 21, 1881. The trial of the cause in the circuit court resulted in a verdict and judgment in favor of the plaintiff, which, on appeal, was affirmed in the Appellate Court.

In the first count of the declaration it is averred that Michigan City is a duly incorporated city under the laws of Indiana, and had power to pass ordinances for regulating the speed and management of cars and engines crossing its streets; that by virtue of such power the common council of said city passed an ordinance, which was approved and published as by law required, and was in force at the time of the injury; that said ordinance contained the following:

“See. 1. No locomotive or car shall be run faster than six (6) miles per hour within the following limits in said city, viz: From Chicago street (or Prison crossing) to the east line of Trail creek.
“Sec. 3. All railroad companies upon track or tracks which cross or intersect the following named streets at the points herein designated, to-wit: Franklin street and Chicago street, (or what is known as Prison crossing,) and at all other street crossings where they shall be required so to do by the mayor, shall keep a flagman stationed from six A. M. to nine P. M.: Provided, that when two or more roads so intersect a crossing, they may jointly employ one flagman.
“Sec. é. Every locomotive or train running in the night time in said city, shall, while running, keep a brilliant light on the forward end, and some sufficient signal light in charge of some competent person, who shall remain on the rear end of such locomotive or train whenever it is backing.”

It is then averred that the accident occurred after six o’clock in the morning, and before seven o’clock; that no flagman was present at the crossing to warn plaintiff of danger ; that the train was running at a rate of speed exceeding six miles an hour; that the bell was not rung or the whistle sounded as the engine approached the crossing. Other averments are found in this • count of the declaration, but it will not be necessary to state them here.

In order to prove that there was. an ordinance as averred in the declaration, plaintiff offered to read in evidence the deposition of D. S. Brown. He testified that he was city clerk of Michigan City in 1879, and kept the city records; that he wrote the record, as clerk, of which exhibit “A,” attached to his deposition, is a copy; that he compared the exhibit with the record; that the ordinance was published in the “Michigan City Enterprise, ” a paper published in Michigan City, for two consecutive weeks following its passage. In answer to a question, the witness, in his deposition, stated that exhibit “A” is a copy of an ordinance passed by the common council of Michigan City in 1879. This evidence was objected to by the defendant, but the court overruled the objection, and that decision is relied upon as error. We do not regal’d the decision erroneous. The ordinance might have been proved by the production of the books in which it was recorded, but a sworn copy was also competent evidence. (1 Greenleaf on Evidence, sec. 508.) Upon an examination of the deposition enough was stated by the witness to bring it within the rule laid down by the author to allow exhibit “A” to be admitted as a sworn copy.

But it is urged that the evidence to prove the passage of the ordinance was incompetent. The witness testified that the exhibit "A” was an examined copy, compared with the original record in the office of the city clerk, where the records were properly kept; that the ordinance was passed by the common council of Michigan City, July 14, 1879. This deposition, as appears from the bill of exceptions, was taken in Michigan City, in August, 1883. The attorney of the defendant was present, and made such objections to questions propounded as he saw proper, as to the manner in which the ordinance was proved or passed. Nothing but a general objection was made, and after the deposition had been taken it remained on file about two months before the trial, and no motion was ever made to suppress the deposition, or any part thereof. 'We think the objection to the evidence, made for the first time on the trial, comes too late. If the defendant was not satisfied with the manner in which plaintiff had proved the passage of the ordinance, he should have entered a motion to suppress that part of the deposition before the trial. If the objection had been made in season, it might have been obviated by producing other proof of the proper passage of the ordinance. But as defendant failed to object before the trial that the passage of the ordinance was proven by parol, when, perhaps, it should have been proven by the records of the common council, the objection was waived. Cooke v. Orne, 37 Ill. 186.

It is also contended that there is no proper evidence that Michigan City was a corporation. The question of the incorporation of the city in this case arises collaterally, and it was only necessary to show a cle facto incorporation. In Mendota v. Thompson, 20 Ill. 197, where the question arose collaterally, as here, it was held: “To prove the existence of a corporation it is sufficient to produce the charter, and prove acts done under it and in conformity with it. Written proof that all the preliminary steps were taken was not necessary. ” See, also, Doyle v. Village of Bradford, 90 Ill. 417.

For the purpose of proving that Michigan City was incorporated, the plaintiff, on the trial of the cause, read from the statutes of Indiana an act of March 9, 1857, providing for the incorporation of cities, and prescribing their powers, etc. The plaintiff also read from the Session Laws of Indiana of 1867, the title of “An act to repeal all general laws now in force for the incorporation of pities, and to provide for the incorporation of cities, prescribing their powers and rights, and the manner in which they shall exercise the same, and to regulate such other matters as properly pertain thereto, approved March 14, 1867,” and from which act the following was read:

“Sec. 47. The common council shall hold stated meetings at least twice in each month, and the mayor or any five councilmen may call special meetings. A majority of all members to which the wards are entitled shall be a quorum. ”
■ “Sec. 53. * * * The common council shall have power to enforce ordinances. * * * Eighth. To establish and regulate the police of the city. * * * Forty-second. To regulate the speed of railroad trains through the city, and also to provide by ordinance for the security of citizens and others from the running of trains through any city, and to require railroad corporations to observe the same, and also to require such corporations to keep clean the gutters and crossings of the streets along which their railways may pass.”

Section 56 of the same act confers power to make ordinances, and section 57 provides for the publication of ordinances.

Here was an act of the State under which the city in question might have become incorporated, which conferred the power to pass the ordinance read in evidence. Brown testified that he was city clerk of the city of Michigan City for the year 1879; that the city council passed ordinances which were published in the “Michigan City Enterprise,” a paper published in the city. He also testified that the common council of Michigan City, on June 14, 1879, passed an ordinance, a copy of which was attached to his deposition. In addition to this, all the witnesses, in speaking of Michigan City, refer to it as an incorporated body. This evidence, where the question arose collaterally, as here, must be regarded as sufficient to establish, prima facie, that Michigan City was incorporated under the act of 1867.

It is next contended that the court erred in permitting Dr. Brown to answer the following question: “What, in your opinion and knowledge of Mr. Ostrander’s previous health and condition, has caused his present illness or disorder, as described by you?” • The witness answered: “My opinion is, it results from the injury in November last.” The objection to the answer, as we understand the argument, is, that the witness was not shown to have had any knowledge of plaintiff’s previous condition upon which to base an opinion. The witness, as disclosed by his evidence, was a physician and surgeon. He was called to examine the plaintiff on the morning he was injured. He had not, before the injury, made an examination of the plaintiff, but he had met him almost daily, before the accident, in going to and from his work. If the witness had met the plaintiff almost daily for a number of years, and was well acquainted with him, as is disclosed by his evidence, and was called upon to treat him when he was injured, we think he had sufficient knowledge upon which to base an intelligent opinion as to the cause of his then illness.

It is also claimed that the court erred in allowing the witness Neat to state the rate of speed the train was running at the time of the accident. This witness had been a brakeman on a train for several years, and if any degree of skill is required before a witness can give an opinion as to the rate of speed a train is running at a particular time, he seemed to have been properly qualified.

The statutes of Indiana, act of March, 1857, March 14, 1867, and April 8, 1881, read in evidence by plaintiff, were, as defendant insists, erroneously admitted in evidence, on the ground they were not pleaded by the plaintiff. There is no doubt in regard to the rule that foreign statutes, or the laws of other States, must be pleaded. As to the act of 1881, the record fails to show that objection was made to its admission on the ground it had not been pleaded, and as the objection was not made on the trial, when an amendment of the pleadings might have obviated the difficulty, the objection must be regarded as waived by the defendant,—when made for the first time here, it comes too late. As to the other acts, the- objection was made at the time they were offered in evidence, and the court-held that they were sufficiently pleaded by the plaintiff.

In the first count of the declaration it is .averred that Michigan City “was then and there a city, duly incorporated under the laws of the State of Indiana, and under its charter and the laws of the State of Indiana possessed full power and authority to pass all necessary ordinances to regulate the running of trains, cars and engines upon railroads passing through or within said Michigan City and across the public streets, and to regulate the speed thereof, and to ordain and establish all necessarypolice regulations respecting the same. ” The ordinance passed under the authority of the statute was set out in hcec verba,, but it is claimed that the statute should have been pleaded in the same way. We do not concur in this view of the law. The pleader, in the first count of the declaration, as we have seen, set out the substance of the statute, which, as set out, showed the authority of the city council to pass the ordinance in question. The substance of the act relied upon, clearly stated, is all that could be required. Conciseness in pleading is always commendable. If the statute relied upon had been set out in hcec verba, the defendant gould not have been any better prepared to meet the case made by plaintiff than he was under the averment ■which set out the substance and legal effect of the statute. Why, then, incumber the record by setting out the entire statute, when an averment of its substance and legal effect gave ample notice that the statute would be relied upon ? In 1 Cliitty on Pleading, 216, in discussing this subject, it is said: “The courts will not, ex officio, take notice of private acts of parliament, and consequently such parts of them as may be material to the action or defence must be stated in the pleading. ” In Walker v. Maxwell, 1 Mass. 113, (a case cited by appellant,) it is said: “The plea ought to have set forth the statute, * * * that the court might see whether the proceedings stated in the plea were authorized by the statute. 0 0 0 The general allegation that those proceedings were pursuant to the statute 0 0 0 in such case made and provided, was not sufficient. ” We fully concur in the view taken in that case, but the question here involved is entirely different. In this case the substance and legal effect of the statute was set out, which was not done in the case cited. But it will not be necessary to examine other eases cited. We think the statutes of Indiana were sufficiently pleaded. (Stacy v. Baker, 1 Scam. 418; Hyman v. Bayne, 83 Ill. 258.) Had the action been brought on a statute, more strictness might be required in pleading the statute, but such is not the case. Here the statute is not the foundation of the action, but it comes in question collaterally, as evidence in the ease.

It is also contended by counsel for appellant, that the court erred in refusing to permit Dr. Hunter to answer the following question: “Please state what, in your judgment as a physician, is the present malady of the plaintiff, according to the symptoms as given by Dr. Tillottson. ” The witness had stated that he had heard Dr. Tillottson’s testimony, and also that the doctor had made a statement of the case to him on the day before. The question put to the witness did not call for his opinion on the testimony of Dr. Tillottson, as given on the trial, but according to the symptoms given by the doctor, which included statements as well, made on the previous day. We are not aware that it has ever been held that a medical expert has the right to testify to an opinion formed upon information derived from private conversations with witnesses in the ease, and we are not inclined to adopt a rule of that character. A medical expert may examine the patient, and from such personal examination give his opinion to the jury. If the medical expert has not made a personal examination of the patient, then the proper practice is to .put a question to the witness reciting the supposed facts hypothetically, upon which the opinion of the expert is wanted. 1 G-reenleaf on Evidence, see. 440.

The court gave one instruction for the plaintiff which it is conceded in the argument correctly states the law of comparative negligence as it exists in this State, but it is urged that the law of this State is not applicable to a case where an injury was received in Indiana; and hence it is urged that the instruction was erroneous. We shall not stop to determine whether this case should be controlled by the law of Indiana, or not, as we are of opinion that the defendant is precluded by his own instructions from raising this question. In defendant’s instruction No. 4, at his'request the court instructed the jury as follows: “In case of negligence by both parties, resulting in such injury, the question to be determined by the jury, from the evidence, is, did the negligence of the plaintiff materially contribute to the injury, or was it so slight, and that of the defendant so gross in comparison, as to incline the balance in • his favor. ” Again, in defendant’s instruction No. 18, the jury were told, “if the negligence of the plaintiff materially contributed to the injury, then he can not recover unless his negligence was slight and that of the railroad company so gross in comparison as clearly to preponderate. ” The case was tried on the theory, by both parties,” that the doctrine of comparative negligence was applicable to it. The jury were so instructed at the instance of the defendant, and he can not now complain of an instruction given for the plaintiff, which only announces the same rule which he himself caused to be laid down to the jury. McGonigle v. Dougherty, 71 Mo. 259.

The court refused defendant’s ninth instruction, and this is relied upon as error. The substance of the instruction was, that the omission of a duty enjoined by law on defendant, such as, the absence of a flagman from a railroad crossing, did not constitute such misconduct as the law would recognize as wanton or willful. It was not alleged in the declaration or claimed on the trial that the conduct of the defendant was willful or wanton,—indeed, there was no issue of that character in the case,—and for this reason, if for no other, the instruction may be regarded as improper. It was not only proper, but the duty of the court, to confine the instructions to the questions properly involved in the case.

The court refused instruction No. 11, which declared: “In no event can the plaintiff recover unless every material allegation of the declaration is proven by a preponderance of the evidence to be true. ” This was an action on the case,— a tort,—and the plaintiff was not bound to prove every material averment of his declaration. If the plaintiff proved enough of the material allegations to make out a cause of action, lie would be entitled to recover, although all the material averments were not proven. The instruction was wrong, and the court did right in refusing it.

The court also refused instruction No. 13, as follows:

“The jury are further instructed that the affirmative testimony of witnesses that the bell of a locomotive engine was rung at a given time and place, is of greater force and is entitled to more weight than the testimony of witnesses of no greater credibility, and who had no better opportunity of hearing, that the bell was not rung, or that they did not hear it ring, and under such circumstances the jury should give greater weight to such affirmative testimony than to the negative.”

A similar instruction was condemned by this court in Rockwood v. Poundstone, 38 Ill. 200. It is the peculiar province of the jury, where the evidence is conflicting, to properly weigh all the evidence, and determine for themselves what the weight of evidence- may be. We do not understand that it was the province of the court to tell the jury which evidence was the strongest, or which is of greater force. The instruction was wrong, and properly refused.

It is also urged that the damages are excessive. That is a question of fact which was proper for the consideration of the Appellate Court, but under the rulings of this court it is not reviewable here.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Dickey Sheldon, Oh. J., and Craig, J.:

license: Public Domain

text:
    The First National Bank of Galesburg v. William Davis et al.

      Filed at Ottawa January 23, 1884.

    1. Promissory note—construed, as to the real payee, in equity, from the circumstances and intention of the parties. A and B being liable to a bank by their note, then due, in which A was principal and B surety, only, B made his note for the sum due the bank, with one year’s interest, payable to A, in one year, secured by mortgage on real estate, to be, and which was, indorsed by A to the bank in payment of th.e note of A and B. On a bill to foreclose the mortgage, B contended that as he owed A nothing, the bank could not enforce the latter note and mortgage: Held, that the defence was untenable,—that the note being intended as a payment to the bank, might be held given to the bank directly.
    2. USURY—reserving interest on interest in advance. A party indebted to a bank in the sum of S8000, for forbearance gave a now note for §8880, of which §800 was for the first year’s interest, and §80 was interest on the interest: Held, that the transaction was usurious, under the statute, and that on the maturity of the note only §8000 was collectible.
    3. If a party should give his note to a bank for the principal debt, due in one year, and pay the first year’s interest in advance, and the bank, under an understanding to that effect, should immediately loan the interest so advanced, to the party, taking another note from him for that sum with one year’s interest added thereto, the transaction could not be sustained. The courts would hold such an arrangement a mere device and trick to cover the real transaction, which is to give the bank more than ten per cent interest.

      i. Same—extent of forfeiture. Under the statute in force in 1S7G, the reserving to the creditor in a note or contract more than the lawful rate of interest, works a forfeiture only of the interest contracted to be received, which is the interest provided up to the maturity of the debt, from which time, there being no provision in the contract for further forbearance, the debtor will be liable for interest on the principal at the rate of six per cent.
    5. A provision in a note in which usury is reserved, for the payment of ten per cent interest on the face of the note after its maturity, is not such an absolute contract for forbearance as to incur a forfeiture of interest after maturity, at six per cent.
    Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.

      On November 4, 1876, the bank held the note of Davidson and Davis for the sum of $8000, given six months before that day, and payable on that day, with interest after due at the rate of ten per cent per annum. The debt was really the debt of Davidson, and as between the makers, Davis was merely bound as security for Davidson’s debt. Davidson was not prepared to pay the note at maturity, and by agreement of parties Davis executed to Davidson his note of that-date for $8880, payable one year from date, with interest after due at ten per cent per annum, and Davis and his wife made a mortgage, to secure the payment of this $8880 note, upon certain lands owned by Davis’ wife. Davidson indorsed upon the back of this note a guaranty that the note should be paid at maturity. The note, so indorsed, and the mortgage, were then delivered to the bank, and the old note of Davidson and Davis was produced by the bank and cancelled. Payments were made on this note from time to time, in 1878 and 1879, by Davidson, which were indorsed upon the note, amounting to something over $3000. This is a bill in chancery, exhibited by the bank in the circuit court of Knox county, for a foreclosure of that mortgage, for the amount apparently due and unpaid upon this note, given November 4,1876, for $8880, and interest after due, as above stated. Davis and his wife and Davidson, and others who had some interest in the land mortgaged, were made defendants. The only controversy in the ease relates to the amount chargeable upon the laud by reason of the mortgage.
    Davis and his wife in their answers set up that the transaction was usurious, and also that they owed Davidson nothing, and that the bank can assert no claim against the land which Davidson could not set up had he retained the note. The court, upon the facts stated, referred the case to the master to report the amount to be decreed against the land, and holding the transaction to be usurious, directed the master to reject $880 from the face of the note, charging the land with $8000, without interest, less the amount of the several payments, allowing no interest upon the payments, and on that basis the master made his report, which, though excepted to, was approved, and a decree of foreclosure passed for the sum of $4128.47. From this decree the bank appealed to the Appellate Court, assigning errors. Davis and his wife assigned cross-errors. The decree was there affirmed, and the bank brings the record here for review.
    Mr. L. Douglas, for the appellant:
    The bank was authorized to discount notes, etc., at the rate of interest allowed by the laws of this State, taking interest in advance. U. S. Stat. sec. 5197.
    Forfeiture of the entire interest takes place only when the taking, receiving and charging a greater rate of interest than is allowed in the section above cited is knowingly done. U. S. Stat. sec. 5198.
    This case must be determined by the act of Congress. Tiffany v. National Bank, 18 Wall. 413; First National Bank v. Lamb, 17 Barb. 429.
    These parties dealing with this bank, and offering the note for discount, were bound by the custom and usages of the bank, whether they had notice or not. Bank of Washington v. Triplet, 1 Pet. 16; Fowler v. Brantly, 14 id. 318.
    The law of this State does not make the taking of interest in advance usurious. McGill et al. v. Ware, 4 Scam. 21 ; Mitchell v. Lyman, 77 Ill. 525; Goodrich v. Reynolds, 31 id. 498.
    Mr. E. • P. Williams, and Mr. Gf. W. Thompson, for the appellees:
    The bank, under its charter, could not make a loan on real estate. U. S. Stat. sec. 5137.
    The debt the mortgage was given to secure, not being a preexisting debt, the mortgage is void and will not be enforced. Fridley v. Bowen, 87 Ill. 151; Fowler v. Scully, 72 id. 456; First National Bank v. National Bank, 2 Otto, 122.
    Appellant’s counsel gives but a part of section 5197 of the United States law.’ That allows such banks to take and receive interest the, same as State banks are allowed, and the quotation does not state the law correctly. If a State has interest laws, they must govern; but Congress has not said National banks may charge and reserve interest at the rate allowed by the State, in advance. The penalties for usury is the same under both the State and .Federal statutes.
    Discounting paper, and buying paper, are not synonymous terms. National banks have power to discount, but not to buy paper. To discount is to take the paper of the maker, or accommodation paper, presented by an indorser, and advance the money on it at the same time of making the discount. The word “discount” means to hold back the interest in advance at the time of making the loan. Morse on Banking, 17.
    The first ease cited from our State reports was under a. statute giving a forfeiture of three-fold the whole interest. To avoid heavy penalties the courts have ever given such laws a strict construction. Hamill v. Mason, 51 Ill. 490.
   Mr. Justice Dickey

delivered the opinion of the Court:

The position, of Davis and wife, that, as in equity they owe Davidson nothing therefore the bank can claim nothing, is not tenable. In chancery the substance, and not the mere form, is regarded. While in form this was a note and mortgage to Davidson, it was, with the indorsed guaranty, made for the purpose of securing to the bank the debt of $3000, to be paid, with interest, at the end of the year. The doctrine they contend for has no application to such a case.

The taking of the note for $8880 is defended by counsel for the bank as free from usury, upon the ground that the Banking law of the United States expressly authorizes the bank to reserve interest on loans at the rate of interest authorized by the interest laws of the State as to transactions between natural persons. It is contended that the bank might lawfully have demanded and received $800 in cash, as interest in advance upon the $8000 of principal extended for one year, and then it might lawfully have lent to Davidson the $800 in cash so received, for one year, and taken their note for $880, payable in one year, without interest,—and it is insisted that what was done was the same thing in substance, the difference in the result being merely that the amounts to be paid at the end of the year are embodied in one note instead of two. It is true it has been held by the courts of this and other States that an agreement to take interest in advance is not usurious, but it is hard to defend that position by sound reasoning. That doctrine stands as stare decisis, upon authority only, and can be carried no further than the decisions have already gone. By the authorities, if Davidson or Davis had paid, when this note was given, $800 in advance, as interest upon the $8000 for one year, and the note had then been taken for $8000, at one year, without interest, until after maturity, there would have been no usury in that; and after receiving the $800 in that way, in good faith, so that the bank might loan the same or refuse to do so, the bank might lawfully have lent the $800 to Davidson, and might lawfully have either taken a separate note for the $880, or have merged the two notes into one, and made a note for $8880,, without violating the usury statute. In this case it is not perceived that the difference consists merely in the fact that one note is taken for the aggregate instead of two notes. If, however, it were a part of the agreement of the parties in the case put, that as soon as the §800 was paid in for advance interest, it should at once be loaned back to the debtor and a separate note taken for $880, it is not conceived that such a transaction could be sustained. Courts would hold such an arrangement a mere device and trick to cover the real transaction, which, by the agreement, gives the creditor more than ten per cent interest, and is clearly usurious. The only reason occurring to the writer for the support of such a distinction has relation to public policy. The weakness of debtors will often lead them to make improvident promises to secure the present possession of money, or to put off the evil day when debts are due, which they would not do if they were able to pay as they go. Be this as-it may, we regard the toleration of taking interest in advance at the highest rate allowed by law, as an artificial rule, resting upon long usage and authority, unsupported by any sound reasoning, and can not consent to take that artificial rule as the basis of a philosophy by which a like rule may be extended to eases not within the artificial rule. The circuit court was right in holding the note usurious.

It is not so plain, however, that appellee ought not to have been charged, in making up the amount due upon this mortgage, with lawful interest upon $8000 (the principal of the note) from and after maturity. The statute in force at that time provided that if any person shall contract to receive a greater rate of interest than ten per cent, such person shall forfeit the whole of said interest so contracted to be received, and shall be entitled only to recover the principal sum due to such person. The note of Davis, given for $8000 principal and $880 interest, dated November é, 1876, payable one year after date, was a clear contract, binding upon both parties,—on the creditor, to forbear for one year, and upon the debtor, to pay $880 for that forbearance. This much, as interest, the creditor contracted to receive. This being more than the rate allowed by law, this $880 was clearly forfeited, and the creditor could not, at maturity of the note, recover more than the principal,—that is, $8000.

By section 2 of the Interest act it is provided: “Creditors shall be allowed to receive at the rate of six per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument in writing. ” Now, by the provisions of section 6, when applied to this note, there was due on this note on November 4, 1877, the sum of $8000, and Davis, by his guaranty, became on that day liable to pay to the bank that sum upon this contract, although it was usurious, and by section 2 that sum bears interest from that day, at six per cent. It is true, section 6 says the creditor in such ease can “only recover the principal sum due,”— that is, upon the principal sum as due, when by this section, under the contract, it became due.

The question arises, does the provision in the note that it shall bear ten per cent after maturity, debar the bank from claiming interest upon the sum that was at the maturity of the note lawfully due ? We think not. There is no agreement for any forbearance after • maturity. This court has treated provisions for interest after due, as stipulated damages. That promise is not strictly an agreement to receiv.e interest at that rate after due, for the creditor was not bound to forbear a day after maturity. The most that can be said, is that it is a contingent agreement, which, if not usurious, might be enforced upon the happening of the contingency, but still is not, at its making, such an absolute contract as is necessary to incur a forfeiture, and therefore it should hot be regarded as subjecting the party to forfeiture in that regard. This contingent contract was, however, unlawful, for the amount mentioned (that is, ten per cent upon $8880,) was more than the law állowed, for by law only $8000 was due. Being unlawful, the court should not enforce it; but not being such a contract as under the statute carries with it a forfeiture, it should be disregarded. The case, we think-, especially in view of the long delay, should be treated as though the note was simply to pay $8000 at maturity of the note, and interest should run from that date, at six per cent. As we have seen, upon the contract, usurious as it was, there was by law due and.payable upon this paper on November 4, 1877, the sum of $8000. On this sum, so long as unpaid, Davis ought to be charged with interest at six per cent per annum, and at the same rate, from time to time, upon the unpaid part thereof, from the time of its reduction by payment. The decree of the circuit court ought to have been reversed for not regarding this feature of the case.

The judgment of the Appellate Court is reversed, and the cause remanded, that the decree of the circuit court be there reversed and the cause sent to the circuit court, that the account may be stated in accordance with this opinion, and for such other proceedings as justice may require.

Judgment reversed.

Sheldon, Oh. J., and Craig, J.:

Under the decisions in this State there is no usury in taking the legal rate of interest in advance for no longer time than one year. [McGill v. Ware, 4 Scam. 21; Goodrich v. Reynolds, 31 Ill. 490; Mitchell v. Lyman, 77 id. 525.) Ten per cent was a lawful rate of interest at the time the note was given.

It was the practice of appellant, in its loans, to receive interest in advance. In the four successive instances of the original loan in this case of $8000, and its three renewals, the interest had been paid in advance. On the further renewal on November 4, 1876, the interest was not formally paid in advance, but it was made equal to that by giving a note for $S880, payable at the end of one year. That was no more than might have been realized from lawful interest, had the interest for one year been paid in advance. Or, if Davis and Davidson had had their note for $8880, at one year, discounted by the bank, and with the proceeds taken up their overdue note of $8000, the bank, at the discount rate of ten per cent, would have not paid to them more than $8000. Indeed, the note should have been for. $8888, to have given $8000 on such discount. Although the transaction was not in form a loan of $8000, with the interest paid in advance, and a loaning of such interest, or the discount of a note for $8880, it might, in its essential character, be viewed as either one of such, under a favorable construction, which would impute innocence rather than wrong.

As the note calls for no more than, upon a ten per cent discount of it, would have yielded $8000, (the sum which the bank paid appellees by the surrender of their old note of that amount,) or than could have been lawfully realized upon the loan of $8000, with the interest paid in advance, and the loan of such interest, we think there need not be put upon it the construction of being usurious. We therefore disagree with the opinion on the point of there being usury.

r,

Scott and Walker, JJ.: We concur in holding the transaction was usurious, but dissent from all other views expressed in the opinion, and from the judgment of reversal. We think the judgment should be affirmed.


author: Mr. Justice Mulkey

text:
    Eliza Heacock v. William Lubukee.

      Filed at Ottawa January 23, 1884.

    1. Evidence—identity of party m different suits. In an action of ejectment, the plaintiff sought to support bis claim of title by a decree rendered in a proceeding under the Burnt Records act, against tbe same defendants. A question arose as to tbe identity of tbe plaintiff in tbe two suits, there being a difference in tbe spelling of tbe surname. In tbe ejectment suit, throughout tbe whole proceedings, tbe plaintiff’s name was spelled “Lubukee, ” while in tbe proceedings in tbe other case it was, with one exception, written “Lubeke.” In entitling tbe copy of tbe decree in that case, as tbe same was set out in tbe record in tbe ejectment suit, tbe name was spelled “Lubuke." In tbe two suits tbe names of tbe defendants, tbe Christian name of tbe plaintiff, tbe court in which tbe suits were brought, the appeals in both cases to tbe Supreme Court, and the proceedings therein, all corresponded with literal accuracy. There was no evidence, aside from the diversity in spelling the name, that Lubeke and Lubukee were different persons, or that there'was ever but one proceeding brought against the same defendants under the Burnt Becords act, involving the title to the land in controversy, and in an application for a continuance in the ejectment suit in the trial court, the defendant expressly stated that the plaintiff in that suit was plaintiff in the former suit: Held, in the absence of countervailing evidence, these facts sufficiently established the identity of the plaintiff in the two suits.
    2. Same—as to variance arising collaterally. Where the question of variance arises collaterally, a much more liberal rule prevails than in cases of variances in instruments sued on from the description in the declaration.
    3. -Practice—waiver of jury—parties held to waiver at a succeeding term. At the October term of the trial court the record of a suit showed a waiver of a jury, and an agreement to try the cause then at issue before the court alone. The cause, for some reason, was not tried at this term, but was called for trial, on the same issues, at the May term following, when the defendant, after failing to obtain a continuance, demanded a trial by jury, which the court refused, and tried the cause without a jury: Seld, that the court did not err in denying the defendant a jury trial.
    Appeal from the Superior Court of Cook county; the Hon. Bollin S. Williamson, Judge, presiding.
    Mr. J. Burnham, for the appellant.
    Mr. E. A. Otis, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 27th of April, 1881, William Lubukee, the appellee, commenced in the Superior Court of Cook county an action of ejectment against the appellant, Eliza Heacock, and William O. Heacock, for the recovery of certain real estate situate in Cook county. Prior to the institution of this suit Lubukee had obtained a decree in a proceeding commenced by him in 1879, under the Burnt Becords act, against the Heaeocks and others, confirming his title to the land in controversy, from which an appeal was prosecuted to this court, resulting in a judgment here affirming that decree. (See Heacock v. Lubuke, 107 Ill. 396.) Owing to the pendency of the appeal in that case the trial in the present suit was delayed till the May term, 1883, of the Superior Court, when the cause was tried, resulting in a judgment in favor of appellee, and this appeal is brought to reverse that judgment.

On the trial in the court below appellee relied exclusively upon the record in the former suit to establish title in himself, and it was clearly sufficient for that purpose, if the identity of the plaintiff in that and the present suit is conceded. But appellant claimed upon the trial below, and the claim is renewed here, that it does not sufficiently appear, from the record in this cause, that the same person was plaintiff in both suits, and that it therefore devolved upon appellee to show this fact by extrinsic testimony. An examination of the two records will show the only ground for this objection is a diversity in the spelling of the plaintiff’s surname. In the summons and declaration, and, indeed, throughout the whole proceedings in this case, the name is spelled “Lubukee, ” while in the proceedings in the other case it is, with one exception, written “Lubeke.” In entitling the copy of the decree in that case, as the same is set out in the present record, the name is spelled “Lubuke, ”—only wanting, as it will be perceived, an additional final “e” to make the spelling precisely the same as it is in the present case. It is not important as to how the' plaintiff’s name was spelt in the former suit, provided sufficient appears upon the face of the record in that suit, or otherwise, to show the plaintiff in both suits is the same person. While names are to be looked to as one of the means of identifying the parties to a suit, yet they are not the only ones, nor are they by any means conclusive.

A careful examination of the decree and other proceedings in the former suit, in connection with the proceedings in this cause, in our judgment, sufficiently establishes the identity of the plaintiff in the two actions to shift the burden of proof upon appellant, and as she offered no evidence to establish the contrary hypothesis, we think the law is with the appellee on this question. The names of the defendants, the Christian name of the plaintiff, the description of the land, the court in which the suits were brought, the appeal to this court, and proceedings here, are all set forth in both records, and correspond with literal accuracy. In addition to this, there is not a particle of evidence tending to show,—except that which is afforded by the diversity in spelling, above mentioned,—that William Lubeke and William Lubukee are different persons, or that there was ever but one proceeding brought against the Heacocks under the Burnt Records act, involving the title to the land in controversy, and in an application for a continuance of this cause in the court below the appellant expressly states that appellee was plaintiff in the former suit. Assuming this to be so, it is not very material as to how his name was spelt in that suit. This is not a direct proceeding on the record of the former suit, as seems to be supposed by counsel for appellant, and hence the strict doctrine relating to variances in that class of cases has no application to this suit. Where the question of variance arises collaterally, as it does here, a much more liberal rule prevails, as is fully shown by the following authorities: Leidig v. Rawson, 1 Scam. 272; Hull v. Blaisdell, id. 332; Plumleigh v. Cook, 13 Ill. 669; Chiniquy et al. v. Catholic Bishop, 41 id. 148; Phelan v. Andrews, 52 Ill. 486; Stevison et al. v. Earnest, 80 id. 513; Beaver v. Slanker, 94 id. 175.

It is also objected that the court erred in refusing to submit the cause to a jury for trial. The record before us contains, among others, the following recitals: “And on the 27th day of October, 1882, the said parties came, by their attorneys, and in open court waived a jury, and submitted said case to the court for trial, and on the 31st day of May, 1883, the same being one of the days of the May term, 1883, of said court, and the cause being called up for trial, on motion of the said plaintiff, before the said Judge Williamson, the said defendant, Eliza Heacock, by her attorney, objected, on the ground that said cause was not upon the trial calendar, ” and thereupon entered a motion, founded on affidavits, for a continuance of the cause, which was overruled by the court, and an exception taken. The appellant then demanded a jury, but the court declined to order one, and proceeded to hear the cause without a jury, against her objections, and this is assigned for error.

In Town of Carthage v. Buckner, 8 Bradw. 152, it is held, where a jury has been waived by a party, and there has been a trial by the court in pursuance of such waiver, the waiver thereupon ceases to have any further binding force, so that upon another trial of the cause the party, as a matter of right, may demand a jury, if under the circumstances he would otherwise be entitled to one.

In Gage v. Commercial National Bank of Chicago, 86 Ill. 371, it was held that where a party had stipulated to submit a cause to the court without a jury, upon certain “issues joined,” and there was subsequently a continuance of the cause to another term of the court, and the pleadings so amended as to raise, in part, new and different issues, such stipulation, by reason thereof, .ceased to be operative and binding, and that to deny a trial by jury, when demanded under such circumstances, was error. The implication here is patent, that if there had been no change in the issues the parties would have been bound by the agreement, notwithstanding there had been a continuance of the cause.

The present case is unlike either of the cases last cited. Here, the cause, as in the Gage case, was at issue at the time the stipulation to waive the jury was entered into, but, unlike that case, there was no subsequent change of the issue upon which the parties had agreed to go to trial without a jury. The only reason assigned by appellant why she should not be held to abide by her stipulation, is the suggestion of her counsel that she “was willing the case should be tried by the court if the case were tried in October, 1882, but she was not willing in May, 1883.” We'think there are two sufficient answers to this position: First, the stipulation, as shown by the record, contains no such limitation as that suggested. So far as the record shows, nothing whatever was said as to when the trial should take place, and if appellant understood it was to' take place immediately, she should then have insisted upon it, and made that a condition of her entering into the stipulation; but nothing of this kind was done. Second, it is manifest, from an examination of the record before us, that the delay in the trial of the cause from October, 1882, to May, 1883, was in conformity with her own wishes, and even at the time of the trial she applied for a still further postponement of the trial of the cause.

We perceive no reason for disturbing the judgment of the court below, and it is therefore affirmed.

Judgment affirmed.

Mr. Justice Scott : I am of opinion it was error to refuse a trial by jury. As to the other questions discussed I do not now wish to express any opinion.


author: Mr. Justice Scholeield

text:
    Charles Piper v. Francis Connelly et al.

      Filed at Ottawa January 23, 1884.

    1. Appeal—whether freehold involved—in trespass quare clausum fregit, on plea of liberum tenementum. In trespass quare clausum fregit, for breaking and entering tbe plaintiff’s close and cutting arid carrying away Ms ice, when tbe pleas are tbe general issue and liberum tenementum, a free-bold is involved, and an appeal lies directly from tbe trial court to tbe Supreme Court. Tbe plea of liberum tenementum, when put directly in issue by tbe replication, necessarily involves a freehold.

      2. Conveyance—rule of construction. The question of the intention of the parties in conveying land must be ascertained from the language of the deed and all the attendant circumstances in evidence, and not merely by the letter in the descriptive part of the deed.
    3. Same—reference to a prior bond for a deed. In construing a deed made in discharge of a prior bond for a conveyance, the bond may be referred to as a circumstance showing the intention of the parties, as respects the sale, not of itself conclusive, but to be considered in connection with other circumstances.

      4. ' Boundakies—as to land on a water-course—whether the line extends to the center of the stream. A grant of land bounded upon a river or its margin, above tide-water, carries with it the exclusive right and title of the grantor to the center thread of the current, unless the terms of the grant clearly denote an intention to stop at the margin.
    5. Same—a bond, for a deed construed, as to whether grant extends to center of river. A bond for a deed of land on a river, after describing the land, contained the further words, “together with all water privileges, rights and immunities of the said party of the first part therewith connected:” Held, that these words, taken in connection with the fact that there were no water privileges, etc., connected with the tract save those resulting from the river being the boundary on one side, rendered it absolutely certain it was not intended that the purchaser’s right should terminate at the water’s edge.
    6. Same—reference in deed to a plat, as controlling description. A deed, after giving the description of the premises conveyed, stated that all the premises were situate in a certain section, township, etc., “according to the map drawm on back hereof:” Held, that this made such plat a part of the deed, and a descriptive part of the subject of the conveyance.
    7. Where a plat on the back of a deed is referred to in the description of the premises conveyed, it can not be presumed to be inaccurate, but it must be regarded as more fully representing the intention of the parties than the preceding language, so far as fixed monuments are concerned. Where such plat shows a single line for the stream as a.boundary, it will be taken as representing the center of the stream, and not the banks, as it would if another line was drawn for the margin.
    8. Same—;fixed monuments control' courses and distances in description. Fixed monuments always control courses and distances in the description of land in a deed. Where a river is made a boundary line it is a fixed monument, the same as the starting point in the description, and the distance between such monuments is immaterial.
    9. Evidence—relevancy. In an action of trespass for entering plaintiffs close and cutting and removing ice, it was not claimed there was any trespass beyond the center line of the river, and the proof showed the defendant had a right to take the ice to such center. It was held no error to exclude evidence showing the meandered line of the stream.

      10. Measure or damages—trespass in talcing plaintiff’s ice in river. In trespass for breaking into the plaintiff’s close and cutting and removing his ice from the river, the measure of damages is the value of the ice as soon as it had been scraped, plowed, sawed, cut and severed, and rea'dy for removal, and this generally, and not with reference to the particular situation or convenience of one person or another.
    Appeal from the Superior Court of Cook county; the Hon. Bollin S. Williamson, Judge, presiding.
    Messrs. C. H. & C. B. Wood, for the appellant:
    Under the issues the question of title was necessarily involved. Dean v. Comstock, 32 Ill. 179.
    The owner of land may maintain trespass without actual entry, unless there is an actual exclusive adverse possession. Wilcox v. Kinzie, 3 Scam. 218; Cook v. Foster, 2 Grilm. 655 ; Holligan v. Chicago and Rock Island R. R. Co. 15 Ill. 558; Barber v. Trustees of Schools, 51 id. 396.
    If a grantor describes the boundary line as running along the bank of a river, as here, the grant will not extend to the center of the stream, but only to its bank. Angell on Watercourses, (7th ed.) 28. In support of this principle, see Child v. Starr, 4 Hill, 369; Starr v. Child, 5 Denio, 599; Halsey v. McCormick, 3 Kern. 297; Sizer v. Devereux, 16 Barb. 160; Babcock v. Utter, 1 Abb. Court of App. Dec. 40; Jackson v. Hathaway, 15 Johns. 447; Lapish v. Bangor Bank, 8 Me. 85; Bradford v. Crescey, 45 id. 13; Stone v. Augusta, 46 id. 127; Nickerson v. Crawford, 16 id. 245 ; Stover v. Freeman, 6 Mass. 440 ; Hatch v. Dwight, 17 id. 297; Daniels v. Cheshire R. R, Co. 20 N. H. 85; Lessee of McCulloch v. Aten, 2 Ohio, 425; Houghton v. Roscoe, 3 Hawks, (N. C.) 21; Rockwell v. Baldwin, 53 Ill. 19.
    But where one is bounded on a stream generally, without words of restriction, he takes to the center of the stream. Middleton v. Pritchard, 3 Scam. 522; Braxon v. Bressler, 64 Ill. 488; City of Chicago v. Laflin, 49 id. 176; Houck v. Yates,
      82 id. 179; Village of Brooklyn v. Smith, 104 id. 429; Washington Ice Co. v. Shortall, 101 id. 46.
    Mr. Heney W. Leman, and Mr. William J. Hynes, for the appellees:
    An action of trespass does not involve title, the gist being possession. Unless there is possession, actual or constructive, whether the plaintiff has title or not, the action will not lie. Cook v. Foster, 2 Gilm. 655.
    Natural boundaries and directions, when at variance with number of feet or distance, when given in a conveyance, will govern. Davis v. Rainsford, 17 Mass. 207; Lodge v. Barnett, 46 Pa. St. 484; Evansville v. Page, 23 Ind. 527; Brown v. Huger, 21 How. 305; Hall v. Davis, 36 N. H. 569; Murphy v. Campbell, 4 Pa. St. 485; Commomuealth v. Roxbury, 9 Gray, 490; Coburn v. Coxeter, 51 N. H. 158.
    All the cases cited as to the extent of a grant bounded on a river, depend, as a rule, upon the peculiar circumstances arising in each. State v. Gilmanton, 9 N. H. 461; Newton v. Eding, 23 Vt. 319; Cold Spring Iron Works v. Tolland, 9 Cush. 492; Newhall v. Iveson, 13 Gray, 262; Steamboat “Magnolia” v. Marshall, 39 Miss. 109; Rhodes v. Otis, 33 Ala. 578.
    Washburn on Real Prop. (3d ed.) p. 353, sec. 46, lays down the doctrine that a grant to a river, or the bank of a river, (not navigable,) unless there be something in the instrument limiting such grant, takes to the center or thread of the. stream, subject, however, to the public easement for water-course or highway purposes. This doctrine is followed in this State. Middleton v. Pritchard, 3 Scam. 510; Board of Trustees v. Haven, 5 Gilm. 548; Same v. Same, 11 Ill. 554; Braxon v. Bressler, 64 id. 490; Cobb v. Lavadle, 89 id. 331.
    The only Illinois case that can be tortured into sustaining a different doctrine, is Rockwell v. Baldwin, 53 Ill. 19. In that the description is, “to the west side of Cedar creek, thence down along the west line of said creek.” We submit that the words “west side,” and “down the west line,” do not comprehend as much as the word “bank.”
   Mr. Justice Scholeield

delivered the opinion of the Court:

This was an action of trespass quare clausum fregit, for breaking and entering'the close of the plaintiff and cutting and carrying away his ice. The pleas were the general issue and liberum tenementum. The jury found the defendants guilty, and assessed the plaintiff’s damages at $75. Plaintiff thereupon moved the court for a new trial, but the court overruled the motion, and gave judgment upon the verdict. The plaintiff prosecutes this appeal to reverse that judgment.

A question in limine, raised by a motion of the defendants to dismiss the appeal for want of jurisdiction in this court, is, whether a freehold is involved, within the meaning of those words as used in the Appellate Court act. (Laws of 1877, p. 70, sec. 8.) The answer must be in the affirmative, and the motion be overruled. The plea of liberum tenementum, necessarily, where, as here, it is directly put in issue by the replication, involves a freehold. Addison on Torts, (4th ed.) 282; 2 Greenleaf on Evidence, sec. 626; Cocker v. Crumpton, 1 Barn. & Cress. 491; Doe v. Wright, 10 Ad. & Ellis, 780; 37 Eng. Com. Law, 410.

The main point in contestation upon the merits is, whether the court below erred in holding that the defendants had a freehold in a part of the locus in quo, and in excluding from the jury, in consequence, all evidence relating to the cutting and taking away of ice thereon. The defendants claim title to this part of the locus in quo by virtue of- a written contract of sale made between Hugh Alexander and them on the 30th of May, 1873, and possession thereunder-, and also by virtue of a deed from the same party to them on the same day. The plaintiff claims, remotely, under a deed of trust made by said Hugh Alexander on the 30th of March, 1875. This cleecl of trust is not only junior to the deed fo the defendants, but it expressly excepts from its operation the real estate thereby conveyed, including, however, all, within a described tract, not included in it nor occupied by the Illinois and Michigan Canal, and the Chicago, Alton and St. Louis Railroad Company. The question, therefore, depends upon the construction of the defendant’s deed. Shall it be construed as conveying to the defendants title to the center thread of t£e current of the Desplaines river ? If yes, the ruling below was right; if otherwise, it was erroneous.

The general doctrine that grants of land bounded upon rivers or their margins, above tide-water, carry the exclusive right and title of the grantee to the center thread of the current, unless the terms of the grant clearly denote the intention to stop at the margin of the river, has been too long established, and too firmly adhered to by this court, to be now questioned. Village of Brooklyn v. Smith, 104 Ill. 429; Cobb v. Lavalle, 89 id. 331; Chicago and Pacific R. R. Co. v. Stein et al. 75 id. 41; Braxon v. Bressler, 64 id. 488; Chicago v. Laflin 49 id. 172; Board of Trustees v. Haven, 11 id. 554; Same v. Same, 5 Gilm. 548; Middleton v. Pritchard, 3 Scam. 510.

In Rockwell v. Baldwin et al. 53 Ill. 19, it was, however, said, that this was but a presumption, for one man may own the bed of such a stream, and another may own the banks; that where, in a deed conveying land, the boundary is limited to the bank of the stream, instead of bounding it along or on the stream, the presumption must fail, and that the party must be controlled by the terms of his deed. Counsel for appellant insist this is conclusive of the present ease, for, here, defendants’ boundary is limited to the banks of the Desplaines river. The question of intention must be. settled by the language of the deed and all the attendant circumstances in evidence, and not merely by the letter in the descriptive part of the deed. (Hadden v. Shoutz, 15 Ill. 582; Batavia Manf. Co. v. Newton Wagon Co. 91 Ill. 239; Louisville and Nashville R. R. Co. et al. v. Koelle et al. 104 id. 460.) It does not clearly appear, here, whether the contract or the deed was prior in execution, but the fair presumption is that the contract was, and that the deed was executed in discharge or satisfaction of the contract; but even in that view the contract may be referred to as a circumstance showing the intention of the parties as respects the sale,—not of itself conclusive, but to be considered in connection with other circumstances. This contract, after the description of the property, had these words added: “Together with all water privileges, rights and immunities of the said party of the first part therewith connected. ” This, in connection with the fact that there is no pretense that there are any water privileges, rights, etc., connected with the tract save those resulting from the river being the boundary on one side, renders it absolutely certain it was not then intended that the defendants’ rights should terminate at the water’s edge. The description in the deed is as follows:

“Commencing at a point of land on the east line of section 32, T. 38, N. of R. 12, east of the 3d P. M., at the intersection of the north line of the Illinois and Michigan Canal right of way; thence north along said section line 717 feet to the south bank of the Desplaines river; thence south 47 deg. west along said south bank 1360 feet; thence south 52 deg. 30 min. east 656 feet to the north line of said canal right of way; thence north 37 deg. 30 min. east along said line 500 feet; thence north 45 deg. 15 min. east 285 feet, to the place of beginning,—all said premises being situated in said section 32, T. 38, N. of R. 12, E. of the 3d P. M., according to the map drawn on back hereof.”

This makes the plat on the back of the deed as much a part of the description as if it were drawn in the description,—a deserijitive part of the subject of the conveyance. Louisville and Nashville Railroad Co. et al. v. Koelle et al. supra.

The map drawn on the back of the deed is as follows, as shown by the appellant’s abstract:

This, it will be observed, shows the Desplaines river, and not its banks, as the boundary on that side, there being but a single line, indicating the river alone.

In the language that Chancellor Walworth quotes from Pothier, and uses in his opinion,in the leading case cited in behalf of appellant, (Child v. Starr, 4 Hill, 369,) the description in the plat is one “where the grant to the riparian proprietor has no other boundary on the side thereof which is adjacent to the river but the stream itself,” and so, as he continues, “the legal presumption is, that his grantor intended to convey to the middle of the stream. ”. (See page 373.) Had it been intended the grantor was reserving to himself the ownership of the entire stream, the plat, to have been accurate, would have had' another line, parallel to that indicating the stream, indicating the line of its bank, and, consequently, the boundary line. We are not to assume this plat is not accurate, but must assume that it more fully represents-the intention of the parties than the preceding language, so far as fixed monuments áre concerned, and that it was made and adopted by the parties because they were not fully satisfied with the language they had employed in that respect. Whatever presumption, then, would have arisen as to the intention of the parties to make the bank of the stream the boundary line, from the mere words employed in the description, is neutralized and overcome by this plat, especially when it is considered in connection with the language we have quoted from the contract of sale. The river being the boundary line, it was a fixed monument on that side, and all inquiry into the distances from the starting point, which is also a fixed monument, to the river, and from the river to other points indicated in the description, is unimportant, for no rule of law is better settled, than in such eases fixed monuments always control courses and distances. Miller v. Beeler, 25 Ill. 163; Kamphouse v. Gaffner, 73 id. 453.

This rule is well illustrated in its application to the present ease by Oxten v. Graves, 68 Me. 371, (28 Am. R. 75,) where it was held that a line “'to a road, and thence by the road, ” was evidence of a grant to the center of the road, though the measurement of the distances given would only extend to the side.

It is also contended by counsel for appellant that the court below erred in refusing to admit evidence offered as to where the meandered line was, with reference to the premises in question. If we are correct in the view expressed with reference to the river, and not its banks, forming the boundary line on that side, there are two reasons why the ruling complained of does not constitute error for which there should be a reversal: First, since it was not claimed, as we understand the evidence, that the defendants trespassed upon the plaintiff by cutting ice beyond the center of the stream, it is not important where the meandered line was. Second, the evidence offered was not original, nor was it even secondary. The drawing made by the witness was, as he testified, from a copy of a copy.

Another objection urged is, that the court improperly excluded evidence of the value of ice in the Desplaines river to men who had facilities there for storage, and also as to the value of ice at the stock yards. The proof fails to show that appellant had any ice house, or facilities for storing ice, near the premises in question, and the true measure of damages was, as laid down in Washington Ice Co. v. Shortall, 101 Ill. 46, the value of the ice as soon as it had been scraped, plowed, sawed, cut and severed, and ready for removal, and this generally, and not with reference to the particular situation or convenience of one person or another.

The final objection urged as ground of reversal is, that the damages are not assessed high enough. We have carefully examined the evidence, and we are not able to say there is plainly and palpably error in that regard. The amount of damages, from the nature of the article which was the subject of loss, was, in a large degree, matter of speculation. Different witnesses expressed different opinions of the value of the ice at the time and place taken, and it is impossible to say that the verdict does injustice to the plaintiff on that evidence.

We perceive no cause for disturbing the judgment below. It is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    The Bangor Furnace Company v. Charles J. Magill.

      Filed at Ottawa January 23, 1884.

    1. Practice—waiver of objection, by pleading to merits. Pleading the general issue and going to trial upon the merits, is a waiver of any defects in the service of process or erroneous rulings of the court in respect to such service, and it even obviates the necessity of any process or service at all.
    2. Contract—for transportation, construed, as to furnishing articles for carriage. A contract whereby one party is obligated to carry by a vessel on the lakes ten thousand tons of ore for a defendant from one place to another, and the latter to pay a certain price per ton as fast as received, requires the latter to furnish the ore at the place named for transportation, and a failure to do so is a breach of the contract on his part.
    3. Measure oj? damages—neglect to furnish ore for transportation. In a suit upon a contract whereby the plaintiff was to transport by vessel ten thousand tons of ore during a particular season from one place to another, in which it was shown the defendant failed to furnish all the ore that was to be carried, the court instructed the jury that the plaintiff, if a breach of the contract was proved, was entitled to recover the difference between what he would have earned or made as net profits if the remaining ore had been delivered for shipment under the contract, and what the vessel earned in other employment during the remainder of the season after notice that no more ore would be furnished for transportation: Held, that the instruction was as favorable to the defendant as he had any right to ask.
    á. Arpead—reviewing facts. The amount of damages sustained by a plaintiff is a question of fact not open to review in this court, and the rule is the same whether the damages are found by the court or the verdict of á jury. This applies only in that class of cases in which this court is precluded from examining controverted questions of fact.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Bobert Bae, for the appellant:
    Service of process upon the vice-president of a foreign corporation is not authorized by statute. A plea in abatement was filed to the writ, asking that the same be quashed. Union National Bank of Chicago v. Bank, 90 Ill. 56.
    At common law a corporation can not be served outside of the State under whose laws it is created. Midland Pacific Co. v. McDermid, 91 Ill. 170; Tappan v. Boner, 5 Mass. 196; Peckham v. North Parish, 16 Pick. 286; McQueen v. Middleton, 16 Johns. 5; Clark v. Stevens & Co. 1 Story, 536; Bushel v. Insurance Co. 15 H. & R. 176; Missouri Telegraph Co. v. N. B. 74 Ill. 217.
    The contract in this case was severable, each sum being recoverable on the performance of the several items. Debal & Plank v. W. & E. H. Nemott, 9 Iowa, 403; Withers v. Reynolds, 2 B. & A. 404; Sircle v. Patterson, 14 Wend. 276; 2 Smith’s Leading Cases, 42. See, also, 13 Wis. 658.
    On the question of damages, counsel cited Winnesheik Ins. Co. v. Scheuller, 60 Ill. 470; Bourland v. Gibson, 7 Bradw. 230.
    As to demurrer to evidence, or "motion to instruct jury to find the issues for defendant, counsel cited Phillips v. Dickerson, 85 Ill. 15; Pratt v. Stone, 10 Bradw. 635; Houfes v. Wilder, 37 Ill. 510; Coleman v. Johnson, 84 id. 269.
    Obedience to order to answer over by filing the general issue was not a waiver of the plea in abatement to the original writ. Delaney v. Clement, 3 Scam. 202; Drake v. Drake, 83 Ill. 526; Harkness v. Hyde, 98 U. S. 478.
    Messrs. Schuyler & Follansbee, for the appellee:
    Defendant was to employ the “Lotus” for the whole season, and as iron ore was the only thing mentioned in the contract to be carried, this fact precludes the idea that anything else was contemplated, or that it was not to be furnished pursuant to the contract. Expressio unius est exclusio alterius. Hair v. Horton, 5 B. & A. 715; Cook v. Jennings, 7 T. K. 381; Hill v. Bearse, 10 Allen, 406; 2 Parsons on Contracts, (5th ed.) 516.
    The measure of damages is the difference between what the vessel could have earned by performing the contract, and what she actually earned in other employment. (Woods’ Mayne on Damages, 253, sec. 371.) So that if the defendant was not bound to furnish the ore, it was bound to employ the vessel in any event, and was liable for a breach in not doing so. Aspdin v. Austin, 5 A. & E. 670.
    If a party appears for any purpose except to object to the process or service, he waives all objections thereto, although the service may be void, or there may have been no service. Mitchell v. Jacobs et al. 17 Ill. 235; Easton et al. v. Altum, 1 Scam, 250; Long v. Trabue, 8 Bradw. 132; Knott v. Pepperdine, 63 Ill. 219; Mineral Point R. R. Co. v. Keep, 22 id. 9; Baldwin v. Murphy, 82 Ill. 485.
    The defendant, by filing its plea of the general issue, waived its demurrer. Cobb v. Ingalls, Beecher’s Breese, 233; Ferguson v. Rawlings, 23 Ill. 69; Burnham v. Webster, 5 Mass. 266; Lindsay v. Stout, 59 Ill. 491.
   Mr. Justice Scott

delivered the opinion of the Court:

This action was brought by Charles J. Magill, against the Bangor Furnace Company, on a contract made and entered into by Rhodes & Bradley, as agents for and on behalf of defendant. The contract is set out in hcec verba in the declaration, from which it appears plaintiff agreed-the “Lotus” would carry seven thousand tons of iron ore during the season of 1873, from Escanawba to St. Joseph, in Michigan, for two dollars per ton, and also three thousand tons from Marquette to St. Joseph, for three dollars and twenty-five cents per ton, “freight to be due and payable upon delivery of each cargo at St. Joseph,” and in consideration of the undertaking of plaintiff, Rhodes & Bradley, agents, agreed to employ such vessel, and agreed to pay the freights, as above mentioned. It was further agreed, in ease the “Lotus” was unable to carry all the “ore stipulated for above,” then another standard vessel, of about the same draught of water, might be substituted on the same terms, should plaintiff elect to do so. It was also further agreed plaintiff should be “personally responsible” for the delivery at St. Joseph of the whole ten thousand tons of ore, and that Rhodes & Bradley would promptly “lighter off” all cargoes from the vessel or vessels carrying such ore. The contract contains other provisions, but it will not be necessary to state them to an understanding of the questions of law discussed. The judgment rendered in the trial court having been affirmed in the Appellate Court, there are no questions of fact to be considered in this court. Whether Rhodes & Bradley were the ageuts of defendant, and whether defendant was an undisclosed principal, to whom credit was given, and whether plaintiff waived the breach of the contract, were all questions of fact, and the issues as to them were found in favor of plaintiff. It will be assumed these facts were well found in favor of plaintiff, under the evidence, and will be so treated in considering the questions of law raised.

The defendant is a corporation existing under the laws 'of the State of Michigan, and it is objected the court did not obtain jurisdiction by any lawful service of process on it. Pleas in abatement, and motions calling in question the sufficiency cif the service, were filed or made in the trial court, and the decisions of the court touching them are assigned for error. An answer to all the objections taken to the service of process is, that after the decisions of the court of which complaint is made, defendant filed the general issue to the declaration, and had a trial of the cause upon its merits. That, by the previous decisions of this court, was a waiver of any defects in the service of summons, and it would even obviate the necessity of the service of any process at all. The rule is well understood that after a party has filed the general issue to the declaration, and had a full trial of the cause upon its merits, he will not be permitted to say he was not in court.

It is to be observed plaintiff’s instructions proceed on the theory a refusal by defendant, or its agents, to furnish ten thousand tons of iron ore to be carried, constituted a breach of the contract. On the other hand, defendant asked the court to instruct the jury, as a matter of law, there was no undertaking on behalf of defendant to furnish plaintiff with ten thousand tons of ore to be carried. By its instructions the court construed the contract as obligating defendant to furnish ten thousand tons of ore to be carried under the contract, and a refusal so to do as a breach of the agreement, and that decision raises the principal question of law to be considered. It is thought the construction given by the court to the contract is the true one. It is readily seen plaintiff was bound by a positive agreement to carry ten thousand tons of ore, under the contract, during the season of 1873. In that respect his undertaking was absolute. The contract provided plaintiff should be “personally responsible” for the delivery at St. Joseph of the whole amount of ore mentioned, “dangers of navigation, fire and collision excepted.” As to the undertaking of plaintiff the contract is unambiguous, and can be readily understood. Now, what was defendant obligated to do? It was to “employ” the vessel and to pay the “freights, ” as mentioned in the contract. What was the vessel to be employed to do ? It was to carry ten thousand tons of iron ore, from and to the places mentioned, during the season covered by the contract. What “freights” did the agreement obligate defendant to pay? The answer is plain. It was the freight on ten thousand tons of ore, “as above mentioned, ”—that is, on the ore to be carried during that season from Escanawba and Marquette to St. Joseph, in the vessel “Lotus,” or any other standard vessel that might be substituted. Unless this is the true construction of the contract, plaintiff was under a positive contract, and was “personally responsible, ” to carry ten thousand tons of ore for defendant, with no corresponding obligation on the part of defendant to furnish the ore to be carried. Such a contract would have no mutuality at all. That construction would work a great hardship on plaintiff, and ought not to be adopted unless the contract will bear no other. It seems quite clear, from a close reading of the contract, it was the intention both parties should be bound. Plaintiff undertook by his contract to be “personally responsible” to carry the whole ten thousand tons of iron ore for defendant during the season of 1873, and defendant by its contract agreed to “employ” his vessel, the “Lotus,” to do that work, and it also agreed to pay the “freights, ” as mentioned in the contract.

Thus it is seen the covenants are mutual, and of course binding on both parties. Any other construction would conflict with what seems to have been the clear intention of the parties at the time the contract was entered into.

The case being considered does not come within the principle of Orr v. Ward, 73 Ill. 318, and other cases cited by counsel for defendant. In Orr v. Ward it was thought the contract on which the action for damages was based did not obligate defendants to continue plaintiff in their service for any definite period, and that conclusion was reached by interpreting the contract by what it contained. On the same principle of construction the conclusion is reached in the case at bar, the covenants are mutual and obligatory on both parties. There is no analogy between the case of Orr v. Ward and the case being considered, and the principle of that case, which is still adhered to, has no application.

The point is made the damages found are excessive. Under the previous decisions of this court the amount of damages sustained is a qusticn of fact, and one not open to review in this court. The rule is the same whether the damages are found by the court or the verdict of the jury. The mode stated by the trial court, in its instructions, for ascertaining the damages, is thought to be favorable to defendant. It is, that plaintiff, in case a breach of the contract was proven, would be entitled to recover the difference between what he would have earned or made in net profits if the remaining portion of the ore had been delivered for shipment under the contract, and what the vessel “Lotus” earned i.n other employment during the remainder of the season after notice no more ore would be furnished for transportation. The rule for ascertaining the damages is certainly as favorable to defendant as it could ask to have it stated.

No material error appearing in the record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed,.