author: Mr. Justice Wright

text:
    Theodore M. Hess v. A. J. Miller.
    1. Former Recovery — In Replevin, When a Bar to Subsequent Suit for the Value of the Property Replevied. — M. sold a horse to H. for $50, with the agreement that if H. sold it, he (M.l should be entitled to all he got for it over $100. Subsequently H., with the assistance of M., traded the horse for a mare and $125. Afterward M. obtained possession of the mare and H. brought a suit in replevin before a justice of the peace for her possession and obtained judgment, from which no appeal was prosecuted. Afterward M. brought a suit against H. in the Circuit Court for $25, and the value of the mare ($75). Held, that the judgment in replevin before the justice was a bar to a recovery of the value of the mare.

      Assumpsit, on a contract, etc. Error to the Circuit Court of Christian County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Frank P. Hess, attorney for plaintiff in error; Drennan & Anderson, of counsel.
    A. E. Gowin and J. C. & W. B. McBride, attorneys for defendant in error.
   Mr. Justice Wright

delivered the opinion of the court.

This suit ivas commenced before a justice of the peace by appellee against appellant, and ivas appealed to the Circuit Court, where a trial by jury ended in a verdict and judgment againt appellant for $100, to reverse which he has brought this appeal, and to effect such reversal has argued, among other points, that the verdict is unsupported by the evidence,.and the court gave improper instructions to the jury.

Appellee sold appellant a horse for $50, with the agreement that if appellant sold the horse, appellee should have .■all over $100 for which the horse might be sold. Appellant, with the assistance of appellee, did sell the horse for .$125 and a mare, the appellee obtaining possession of the mare, and a controversy arising between the parties as to ■the same, appellant brought a suit in replevin for the mare .and obtained judgment for the same before a justice of the peace, from which no appeal was prosecuted. After this .appellee brought this suit against appellant and recovered 4>25, and the value of the mare, $75. The judgment in the replevin suit was introduced in evidence, and the court instructed the jury it was not a bar to a recovery of the value of the mare. We think this was error, and the judgment was a bar to the recovery of the value of the mare. The justice of the peace had jurisdiction of the subject-matter and of the parties, and the judgment, not having ■been appealed from, was binding and conclusive as to the rights and claims of the parties to the mare in controversy, and for this reason the judgment of the Circuit Court should be reversed.

There is controversy about horse racing and betting, which is contended entered into the contract of sale, rendering it void, but upon examination we are of the opinion these matters were not a part of the contract, and should be excluded from the case; but for the error indicated the judgment of the Circuit Court will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    R. W. Coates v. A. H. Miller.
    1. Burden of Proof — 0/ Debts Claimed to Be Not Bona Fide.— When a party litigant contends that the indebtedness which a chattel mortgage is given to secure, is not a bona fide debt, the burden is upon him to prove it.
    Replevin. — Appeal from the Country Court of Moultrie County; the Hon. John D. Purvis, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    E. J. Miller, attorney for appellant.
    Whitaker & Thompson, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This was a suit in replevin by appellee against appellant for certain chattel property, and the trial resulted adversely to appellant, who brings this appeal.

W. R. Hill was tenant on lands of appellant, to whom the latter advanced money, and he was also indebted for rent, and gave to appellant a chattel mortgage to secure a note for $500, which mortgage was filed for record at 5 o’clock p. m., on the day it was executed. Hill gave to appellee also a chattel mortgage on the same property, and on the same day, to secure a note for $1,950, which was filed for record at 4:30 o’clock p. m. of the same day. After this, appellant, finding the previous mortgage upon record, took possession of the property, whereupon appellee brought this suit and recovered against appellant, and to reverse the judgment the latter prosecutes this appeal.

It was contended on the trial, and this contention is renewed in this court, that the debt of Hill to the appellee was not bona fide. The burden of proof was upon appellant to prove this. This we think he failed to do, and besides this the appellee testified to the consideration of the note, and if he stated it truthfully, and in this he is not successfully contradicted, all of the note was due but about $75, a balance of $500 he had agreed to advance in cash. While it may seem unusual for a man in the circumstances of Hill to be so much indebted to one person, still this circumstance is not sufficient to justify the inference of fraud against the positive testimony of appellee.

Complaint is made of the rejection of evidence, and of the instructions of the court to the jury, but we find no prejudicial errors in those respects. There is no force in the point that without the assessment of damages no judgment for costs could be given against appellant. It was sufficient for this purpose that the issues were found against him, and that final judgment upon such verdict was entered against him.

Finding no error in the record and proceeding of the County Court its judgment will be affirmed.


text:
    J. B. M. Kehlor v. William Wilton.
    1. Harmless Error— When Overruling a Demurrer Is.— Erroneously overruling a demurrer to a replication, where the verdict is subsequently for the plaintiff, is harmless error.
    2. Statute of Frauds — A Contract Not Amenable To. — A writing in the form of a -letter signed by an agent of the vendor and addressed to the vendee, as follows—
    “Have this day sold you all old brick and stone in old mill, cooper shop, elevator, and office, for the sum of $100, reserving warehouse, smoke stack and foundation, engine bed and bed plates, railroad iron, ties and everything pertaining to railroad, and old shed north of warehouse ”— reduced to writing in the presence of the parties, delivered to the vendee and accepted by him, is a contract of sale, not amenable to a plea of the statute of frauds.
    3. Evidence — Admissibility, Where There is Dispute as to Whether the Contract Under Consideration was in Writing or by Parol. — Parol evidence is not admissible to vary the terms of a written contract, but where the party offering the evidence insists that the contract under consideration was not in writing, the evidence is prima facie admissible, subject to exclusion if the opposite party is succcessful in proving that the contract was in writing.
    4. Verdicts — Not to be Sustained When Against the Weight of the Evidence. — A verdict against the weight of the evidence can not be sustained.
    Assumpsit, for goods sold, etc. Appeal from the Circuit Court of Montgomery County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Rehearing denied November 20, 1901.
    Miller & Miller, attorneys for appellants.
    Zink, Jett & Kinder, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This action was assumpsit by appellee against appellant.

The declaration charges, in the first count, the sale by defendant to plaintiff of scales for $100, the consideration having been paid, whereof the title to such scales failed; the second count avers the sale of a building by defendant to plaintiff for $150, to be delivered within a reasonable time, and to be paid for when delivered, and that defendant refused to deliver the same; the third count is like the second, except the defendant was to procure the building to be delivered, and to all of these was added the consolidated common counts. The general issue was filed to the declaration, and separate special pleas of the statute of frauds were interposed to the first, second and third counts. Keplications were filed to the third and fourth pleas, in which it was in substance stated that the building was sold without the land and was to be severed with right to plaintiff to remove the same as personal property. The court sustained a demurrer to the first and second replications, and defendant abided by his demurrer. Whereupon the remaining issues were tried by a jury, and were found for the plaintiff, and Ms damages assessed at $500, and after overruling appellant’s motion for a new trial, the court gave judgment against him for the damages so assessed and costs, to reverse which he brings his appeal to this court and assigns and argues various errors upon the record, by which he seeks to accomplish such reversal.

It is first argued the court erred in sustaining the demurrer to the plea of the statute of frauds that was interposed to the first count of the declaration, in reference to the sale of the scales, and also in overruling the demurrer to the first and second replications.

Regarding the plea of the statute of frauds, to the alleged contract of sale of the scales, it appears from the evidence that the scales belonged to Nelson, a former tenant of appellant, and were personal property and not real estate, and hence the statute of frauds was not applicable to such property. It was error for the court to sustain the demurrer at the time such order was entered, but subsequent proceedings developed that appellant was not harmed by that order of the court, and hence the error is unavailing in this court. If it was error for the court to overrule the demurrer to the replications, in the view we have of the case, to be hereafter stated, such error was harmless too, and did not prejudicially affect the rights of appellant. It is the familiar rule of practice in this court that harmless errors will be disregarded. *

It is further argued by appellant that the verdict of the jury is contrary to the law and the evidence of the case; the court admitted improper evidence upon the trial, and erred in overruling appellant’s motion for a new trial.

In respect to the issue formed upon the first count of the declaration relative to the sale of the scales, it was objected by appellant upon the trial, that parol evidence was inadmissible because, as he then insisted, the contract was in writing. Appellee in his declaration, however, and in the introduction of his evidence upon the trial, claimed the contract was oral, and upon this theory the evidence was prima facie admissible, subject to exclusion if appellant could successfully prove the contract was in writing. The oral evidence concerning the sale of the scales by appellant to appellee was conflicting. Appellant’s mill at Litchfield had been wrecked by an explosion, and appellee purchased the old brick and stone in old mill, cooper shop, elevator and office for $100, which he paid to appellant for the same. Appellee claimed the scales,which were upon a foundation in the usual manner of such structures, were included in this sale, while appellant maintained the opposite, and the proof showed the scales in fact belonged to Nelson, a former tenant of appellant, who later sold the same to appellee for thirty-five dollars. Whatever the merits of this controversy might be, if they were to be determined upon the oral proof, it is unnecessary for us to decide. Appellee produced and introduced upon the trial a written contract of sale dated May 5, 1899, signed by appellant and addressed to appellee, in the form of a letter, as follows:

“Have this day sold you all old brick and stone in old mill, cooper shop, elevator and office for the sum of $100, reserving warehouse, smoke stack and foundation, engine bed and bed plates, railroad irons, ties and everything pertaining to railroad, and old shed north of warehouse.”

This instrument was written by Carr, appellant’s agent, at Wood’s office in Litchfield, in the presence of appellee, who testified that Carr wrote it while he sat there, and read it before it was given to him, and that the exceptions or reservations were put in at his, appellee’s, suggestion. It is therefore conclusive the contract was reduced to writing in the presence of the parties and given or delivered to appellee and accepted by him. The case, therefore, as regards the scales, is to be decided upon the terms of the written contract. There is no ambiguity about this contract. It is a contract of sale, for $100, of all the old brick and stone in old mill, cooper shop, elevator and office. Nothing is said about the scales, and it would be hard to say they were included in the description of old brick and stone. They clearly were not. That they were not included in the exceptions or reservation clause is unimportant. Many other things were not included in that, that did not pass with the contract. The contract of sale was complete without this clause, and it was merely added at the suggestion of appellee. The verdict of the jury is clearly against the evidence relative to the sale of the scales. So far as the verdict includes damages for the sale of the warehouse to appellee, we think it also against the evidence. Appellant was negotiating with Bartling about the warehouse at the time he sold the old brick and stone to appellee, and appellee’s first proposition was $350, including the warehouse, but this ivas not accepted by appellant. Appellee insists, hoAvever, that Carr, the agent of appellant, promised him that if he did not lease the warehouse to Bartling he should have it for $250, and that Carr had given Bartling the refusal until the Thursday folloAving. Carr sold the warehouse to Bartling for $350, subject to the approval of appellant, insisting that he had no authority to sell Avithout such approval. Carr denied that he had made such promise to appellee conditioned only upon leasing to Bartling, but testified that such condition was that if he did not deal or trade with Bartling, and in this we think he is supported by the weight of the evidence and the undisputed facts and circumstances. There is no doubt from the evidence that Carr used the word lease in his talk with appellee, because his negotiation with Bartling Avas at that time tentative, but it is difficult to consider the whole evidence in the case without reaching the conclusion that Carr named to appellee the substance of his prospective dealing with Bart-ling, including the proposed sale as Avell, and this we think was at the time Avell understood by the parties. This branch of the case turns upon a very sharp pivot — whether Carr used the word lease alone, or in connection with trade or deal. We believe upon the whole evidence his meaning was clear, that if he did not trade with Bartling, appellee could have the warehouse at his first proposition. He did trade with Bartling, sold | the warehouse to him for $350 Avithin the time limited, and this sale was approved by appellant, and the money accepted.

For the reasons given the judgment of the Circuit Court will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.


text:
    Thomas Wilson v. George E. Whitten, Adm’r.
    1. Admissions — Of a Partner After the Dissolution of the Partnership — Evidence.—The admissions of a partner after the dissolution of the partnership, relative to partnership transactions, arising prior to the dissolution, are inadmissible as to members of the partnership, other than the one making them.
    Claim in Probate. — Appeal from the Circuit Court of Montgomery County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the November term, 1900.
    Affirmed.
    Opinion filed June 10, 1901.
    Rehearing denied November 20, 1901.
    Lane & Cooper, attorneys for appellant.
    Zink, Jett & Kinder, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

Appellant filed his claim in the Probate Court for $100 against the estate of W. T. Pritchett, deceased, and the case having been appealed to the Circuit Court a trial by jury ended by the court directing a verdict against appellant, to reverse which he brings this appeal, and for error to reverse the judgment, argues such action of the court in so directing a verdict, and also in the rejection of evidence tendered by him.

Lewis Trexler and the deceased had been partners in business as Pritchett & Trexler, and after Pritchett died the assets of the firm fell to Trexler for the purpose of settling the partnership business. It was claimed on the trial that Irwin & Co. had been creditors of the firm, and having sought payment of Trexler, the surviving partner, he at such time not having the funds in hand, borrowed $100 of the appellant, paid it to the agent of Irwin & Co., executed a note to appellant for the amount and signed it .in the names of Pritchett & Trexler, by himself as surviving partner. One witness, McFarland, testified that he was present when the money was borrowed and paid to the agent of Irwin & Co., and applied upon the latter’s claim, but he did not assume to state concerning the indebtedness due from the partners to Irwin & Co., further than was admitted by Trexler. Appellant offered to testify to the same facts, and to what Trexler said to him regarding the indebtedness due to Irwin & Co., but the court sustained appellee’s objection and rejected the testimony, to which appellant excepted, and .a similar ruling occurred upon the offer of a written statement of Trexler, tending to prove the indebtedness. We are referred by counsel for appellant to the written and sworn petition to the County Court by appellee, as set forth in the abstract, as containing evidence of the latter’s admission of the debt due to Irwin & Co., but upon examination we do not discover such admission. The evidence discloses the fact that Trexler, as surviving partner, paid to appellee $1,800 as the estate’s share of the partnership assets, and at the time the claim was filed for probate Trexler was insolvent. The court directed a verdict against appellant and after overruling a motion for a new trial gave judgment against him in bar of the action and for costs.

The question chiefly argued by counsel is whether a surviving partner, under the circumstances here claimed to exist, can borrow money and separately bind the estate of his deceased partner for its payment. We think such question can not properly arise for our decision unless the evidence first establishes a just claim against the estate upon which the money borrowed was applied. FTo proper evidence was introduced or offered to prove the liability of the firm to Irwin & Co. The present suit is separate against the representatives of one partner, and it has been held and we think is the well settled law that the admissions, whether verbal or written, of one partner made after the dissolution of the partnership, relative to partnership transactions, arising prior to the dissolution, are inadmissible as to members of the firm, other than the one making them. Miller v. Neimerick, 19 Ill. 172; Winslow v. Newlan, 45 Ill. 145.

If follows, therefore, that the court properly rejected the offered evidence, and did not err in directing the verdict, and it is unnecessary that we should express any opinion concerning the other questions argued.

The judgment of the Circuit Court will be affirmed.


author: Mr. Justice Burroughs

text:
    Charleston State Bank v. Charles Edman et al.
    I. Gambling — Recovery of Money Loaned to Pay Losses Incurred by. —Where losses have been incurred in an illegal transaction, a person who lends money to the losing party with which to pay his losses can recover the same back, notwithstanding his knowledge of the fact that the money was to be used in paying such losses.
    Assumpsit, for money loaned. Appeal from the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the November term, 1900.
    Reversed and remanded.
    Opinion filed June 10, 1901.
    Rehearing denied November 20, 1901.
    J. H. Marshall, A. C. Anderson and J. W. & E. C. Craig, attorneys for appellant.
    Neal & Wiley, Andrew L. Chezem and C. C. Lee, attorneys for appellees.
   Mr. Justice Burroughs

delivered the opinion of the court.

Appellant, having filed with the clerk of the Circuit Court of Coles County the necessary declaration, cognovit and proof that appellees had executed the promissory note and power of attorney thereto attached, obtained in vacation, on June 28, 1900, a judgment by confession against appellees for §4,205.44 upon the note, which is as follows:

“Charleston, Ill., June 21,1900.
$4,000.00.
On demand, after date, we promise to pay to the order of Charleston State Bank, of Charleston, Illinois, at said bank, four thousand dollars, for value received, with interest at seven per cent per annum from date. (Here follows a power of attorney to confess judgment for the amount due on the note, and five per cent of the face of the same for attorneys’ fees.
(Signed) Chas. Edman.
(Signed) Kenny Edman.”

At the next term of the Circuit Court of Coles County, after the judgment was rendered, appellees obtained an order staying further proceedings upon the same, and were given leave to plead to the declaration and defend the action; and by a number of pleas afterward filed, in substance, they charged, that the note sued upon was void, because the entire consideration therefor was $4,000, advanced by appellant to appellee Charles Edman, to enable him to pay “ margins ” upon a gambling contract which he made for an option to sell a large quantity of grain for future delivery and settlement at a specified price, with an agreement that the grain was not to be, in fact, delivered, but only the difference between the contract price and the market price thereof at the time specified for delivery, should be paid by the loser; and that the money so advanced was used by Charles Edman in payment of said “ margins,” with the full knowledge and express consent of appellant at the time it was advanced.

By appropriate replications, appellant denied the facts stated in appellees’ pleas, the case was tried by jury and a verdict returned in favor of appellees. Appellant moved to set the verdict aside, and for a new trial, which being denied, an exception was taken and preserved. Thereupon the court vacated the confessed judgment and rendered judgment for appellees in bar of the action and for costs. Appellant brings the case to this court by appeal, and urges a reversal of the judgment upon the alleged grounds, among many others, that the court refused to direct a verdict for appellant at the close of the evidence.

The evidence shows that the consideration for which the note and power of attorney were given, was $4,000 loaned by appellant to appellees at its bank and through its cashier. The cashier knew at the time the money was borrowed that it would be, and was in fact, used to pay “margins” which had then accrued and were owing to Odell Commission Company of Cincinnati, Ohio, by Charles Edman, under the terms of a wheat option contract which he had made before the money was borrowed; and that said contract was such as is prohibited by section 130 of our criminal code; but there was no evidence that appellant, its cashier, or any officer of its bank, had any interest in either said contract or said “ margins,” or that any of them had in any way aided, assisted or induced Charles Edman to enter into said contract.

At the close of all the evidence, counsel for appellant requested the court to give an instruction which they had prepared in writing, directing the jury to find a verdict for the defendant (appellant), which the court refused, and an exception was taken and preserved.

In Armstrong v. Toler, 11 Wheat. (U. S.) 258, Chief Justice Marshall said:

“ Questions upon illegal contracts have arisen often both in England and this country, and no principle is better settled than that no action can be maintained on a contract, the consideration of which is either wicked in itself or prohibited by law. How far this principle is to affect subsequent or collateral contracts, the direct and immediate consideration of which is not immoral or illegal, is a question of considerable intricacy, on which many controversies have arisen, and many decisions have been made.”

And in the same case, in referring to Faikney v. Reynous, 4 Burr. 2069, he also said:

“ Lord Mansfield gave his opinion on the general ground that if one person apply to another to pay his debt (whether contracted on the score of usury or for any other purpose), he is entitled to recover it back again. This is a strong case to show that a subsequent contract, not stipulating a prohibited act, although for money advanced in satisfaction of an unlawful transaction, may be sustained in a court of justice.”

And in speaking of the case of Steers v. Larseley, 6 Term Rep. 6, he also in the same case said Lord Kenion said “ ‘ that if the plaintiff had lent the money to the defendant to pay the differences (in a stock jobbing transaction) and had received the bill (of exchange) for the money so lent, he might have recovered on it; * * * the money lent would constitute a new consideration, and be the foundation of a new contract, which could not be vitiated by the knowledge of the purpose for which the money was lent, and the bill drawn.’ ”

In Armstrong v. American Exchange National Bank of Chicago, 133 U. S. 433, at page 470 of the opinion, Mr. Justice Blatchford said, “ Where losses have been made in an illegal transaction, a person who lends money to the loser with which to pay the debt can recover the loan, notwithstanding his knowledge of the fact that the money was so to be used,” and cites Armstrong v. Tolar, supra; Kimbro v. Bullitt, 22 How. 256; Planters Bank v. Union Bank, 16 Wall. 500; Tyler v. Carlisle, 79 Me. 210; McGavock v. Puryear, 6 Cold. (Tenn.) 34; and Waugh v. Beck, 114 Pa. 422.

In Tracy v. Talmage, 4 Kernan (14 N. Y.), 162, Mr. Justice Selden, speaking for the majority of the court, at page 176 of the opinion, said:

I consider it, therefore, as entirely settled by the authorities to which I have referred, that it is no defense to an action brought to recover the price of goods sold, that the vendor knew that they were bought for an illegal purpose, provided that it is not made a part of the contract that they shall be used for that purpose; and provided, also, that the vendor has done nothing in aid or furtherance of the unlawful design.”

And at page 214 of the volume, where that case is reported in a separate opinion, Mr. Justice Comstock said:

“ Money may be lent in a gambling house, for the specific purpose of staking it on the result of a game. The law says it can not be recovered. But suppose a broker or a banker lends money in his office in the regular course of bis business, knowing his customer to be a gambler by habit, and believing that he wants the loan for gambling purposes. If the illegal design does not enter into the ■negotiations of the contract — if it forms no part of the inducement to the transaction — will the knowledge or belief of the lender (and knowledge and belief for the purpose of this question are the same) prevent him from recovering the money when due ? Such a doctrine, I apprehend, would be highly inconvenient in a community like this. It would exact a more frequent scrutiny on the part of dealers in the habits and designs of others, than the law requires of any man to make.”

As-the evidence in this record fails to show that the bank or any of its officers were in anywise connected with or aided in the unlawful contract which appellee had entered into with the Odell Commission Company, and it does show that the “ margins” which appellees used the borrowed money in paying, had accrued before the same was loaned to them, as well as the illegal contract under which they accrued, we are satisfied that appellant was not particeps criminis with appellee Charles Edman or Odell Commission Company in relation to such contract. And since the note and power of attorney were given for money loaned to appellees, it rests, as against appellant, upon a valuable consideration, distinct from the use to which it applied.

Under the pleading, the burden was upon appellees to establish a good defense to the action, and failing to do so, the Circuit Court commi tted reversible error in not directing a verdict for appellant at the close of the evidence, for which error we reverse the order vacating the judgment confessed and the judgment in bar of the action, and will remand the case for such further proceedings as to law and justice appertain. Be versed and remanded.


author: per Curiam.

text:
    James M. Tinsley v. R. W. Durfey and J. W. Davidson.
    1. Real Estate Agents — Equitable Liens for Commissions. — Where the owner of real estate, owing a couple tí£ real estate agents the sum of two thousand dollars for negotiating a trade between him and a purchaser, executed a contract which was recorded in the office of the recorder of deeds and by which he agreed to give them the exclusive control of the sale of the land and to pay them out of the proceeds in the event of the sale, it was held that the contract gave the agents a lien upon such proceeds.
    2. Same— When the Lien Attaches. — The owner of real estate who owed a couple of agents for negotiating a sale of his land, had entered into a contract giving them the exclusive, control of its sale and by which . he agreed to pay them out of the proceeds, but reserved to himself the right to fix the price, which he afterward refused to do, and incumbered the title with mortgages; it was held that upon such action by him the debt became due and the lien attached.
    3. Contracts — Where Equity Treats that as Done Which Ought to be Done. — Where a contract for the sale óf land between the owner and a couple of real estate agents provides that the owner shall fix its selling price, the law infers that he shall fix a reasonable price and that the sale shall be made within a reasonable time.
    ' 4. Equity Practice — Equitable Liens — Remedies at Law. — The fact that an applicant for an equitable lien has a remedy in a court of law and could have maintained an action at law and an attachment in aid of it, is no answer to a bill to enforce an equitable lien.
    5. Equitable Liens — Recognized by Courts of Chancery. — An equitable lien is one which a court of chancery recognizes as distinct from strictly legal rights, and is always open to enforce regardless of what rights the applicant may have in a court of law.
    6. Appellate Court Practice — When the Regularity of a Sale Can Not be Raised for the First Time in the Appellate Court. —Where no motion is made in the court below to set aside a sale on the ground that the court erred in approving the master’s report because it failed to show that the land was offered in separate parcels and was sold before the time within which the defendant was to pay the money as fixed by the terms of the decree had expired, or any objection raised to the master’s report, the regularity of the sale can not be questioned in the Appellate Court.
    Bill to Enforce an Equitable Lien. —Error to the Circuit Court of Vermilion County; the Hon. Ferdinand W. Bookwalter, Judge, presiding. Heard in this court at the November term, 1900.
    Affirmed. Mr. Presiding Justice Harker, dissenting.
    Opinion filed June 10, 1901.
    Rehearing denied November 21, 1901.
    Statement. — E. W. Durfey, a real estate agent at Canton, Miss., and J. W. Davidson, a real estate agent at Dan-ville, Illinois, negotiated a deal between one John M. Hankey and James M. Tinsley whereby Hankey conveyed to Tinsley 120 acres of land, situated in Vermilion county, Illinois, for one-half interest in 2,200 acres of land situated in the State of Mississippi. Tinsley agreed to pay to Durfey and Davidson §2,000 for their services, and in accordance with such agreement, executed and delivered to them the following written contract:
    “ This contract, made this twentieth day of December, 1897, by and between J. M. Tinsley, of Canton, Miss., party of the first part, and R. W. Durfey, of Canton, Miss., and J. A. Davidson, of Danville, Illinois, parties of the second part, witnesseth, the party of the first part agrees to pay the party of the second part $2,000 when the following described lands are sold or transferred, viz., south half of northeast quarter and the southeast quarter of northwest quarter of section thirty-one (31), in township twenty (20) north, range eleven (11) west' 2nd P. M., one hundred and twenty acres, more or less, situated in county of Vermilion, State of Illinois, out of the money received in sale of said land, providing said land sells for $75 per acre or over, and it is hereby understood between the parties that if the said land is sold for less than $75 per acre, the second parties are to receive $1,500 out of the sale or transfer for their commission in a certain deal between the party of first part and John M. Hankey of Danville, Illinois. It is further understood between these parties and the first party does hereby agree to place the above described lands in the hands of the second parties for sale, and that he will give them the exclusive control of the sale of said lands at whatever price the first party may place thereon. It is further agreed that when any portion of the above described land is sold, either of the above sums then becomes due and payable, said which sum is dependent upon the price paid per acre for said portion.
    Dated at Canton, Mississippi, this twentieth day of December, 1897.°
    J. M. Tinsley,
    R. W. Durfey,
    J. A. Davidson.”
    Indorsed on the back of the contract is the following:
    “It is understood by parties herein named, who hold this land herein named, that in the event of a sale being consummated, the parties selling said land are to charge not more than $50, and no commission if the parties find a buyer themselves.
    (Signed) R. W. Durfey,
    “ J. A. Davidson.”

      The instrument was filed for record with the recorder of deeds for Vermilion county on the 12th day of January, 1898. Within a few weeks afterward, Tinsley incumbered the lands with two mortgages and refused to give Durfey and Davidson exclusive control of the sale of the land, or fix a price for their sale. Thereupon, Durfey and Davidson presented to the Circuit Court of Vermilion County a bill in equity, claiming a lien upon the lands to the extent of $2,000, and asking a foreclosure of the same. Upon a hearing, the Circuit Court found the issues for the complainants, declared a lien in their favor to the amount of $2,000, and decreed a sale of the premises unless that sum should be paid them within thirty days.
    Wm. A. Young, attorney for plaintiff in error; Wm. B. Morris, of counsel.
    Winter & Rearick, attorneys for defendants in error.
   Opinion

per Curiam.

The main question at issue in this case and the only one we shall discuss is whether an equitable lien existed in favor of the complainants. Upon the disputed question of facts, the testimony supports the findings of the master and the court.

Tinsley owed the complainants $2,000, for negotiating the trade between him and Hankey. Having failed to pay in cash and refusing to convey to Durfey so that.he could hold the title to the land as security for the debt, as he had promised, he executed a contract by which he agreed to give them the exclusive control of the sale of the land and to pay them out of the proceeds of such sale. In the event of sale, unquestionably, the contract gave complainants a lien upon the proceeds. While it allowed Tinsley the right to fix the price, it contemplated, and the law inferred that he should fix a reasonable price and that the sale should be made within a reasonable time. Equity treats that as done which ought to be done, and as Tinsley had refused to fix a price and had incumbered the title with mortgages, it follows as a logical sequence that complainants’ debt became due and a lien on the land attached.

The form of the agreement Avhich shall create a lien is not very material, for equity looks at the intent and purpose rather than at the form; and so it has been held that an agreement in writing, Avhereby the contracting party indicates an intention to make some particular property, or the fund arising from the sale of it, security for a debt or other obligation, creates an equitable lien upon the property so indicated. 3 Pomeroy’s Equity, Secs. 1235, 1236; Near v. Donnelly, 80 Mich. 130.

An agreement that certain claims shall be paid out of certain property is held to be an equitable mortgage. Seymour v. Freer, 8 Wallace, 202; Wylie v. Coxe, 15 Howard 415; Ketchem v. St. Louis, 101 U. S. 306; Donald v. Hewitt, 33 Ala. 534; Pinch v. Anthony, 8 Allen (Mass.) 536.

It is vigorously argued that complainants have an adequate remedy at 1-aAv, and can not, therefore, call to their aid a court of equity to enforce collection of the debt. The fact that they have a remedy in a court of law and could maintain an action of assumpsit and might proceed by attachment is no answer to an application to enforce an equitable lien. An equitable lien is one which a court of chancery recognizes as distinct from strictly legal rights, and is always open to enforce it, regardless of what right the applicant may have to proceedings in a court of law.

To the contention that the court erred in approving the master’s report of sale because it fails to show that the land was offered in separate parcels, and because it was sold before the time within which the defendant was to pay the money, by the terms of the decree, had expired, it is only necessary to say that no motion to set aside the sale Avas made below, or any objection whatever raised to the master’s report. The regularity of the sale is not properly before us; in fact, it does not appear from the abstract that any of the defects urged to the report exist. Decree affirmed.

Harker, P. J., dissenting:

The foregoing opinion expresses the views of a majority of the court. As I am unable to concur with my associates as to the written contract creating an equitable lien upon the land in question, I dissent.


text:
    Danville Press Co. et al. v. Robert P. Harrison.
    1. Libel — Liability of Newspapers Published by Corporations.— Where a newspaper is published and controlled by a corporation, one who is merely an officer of the corporation is not responsible individually for libelous publications made without his knowledge or consent, but it is otherwise where such officer is the general manager of the paper and authorized by the directors of the corporation to control its policy.

      2. Same — Evidence of Provocation, When Inadmissible. — The fact that the person libeled had previously published in a newspaper controlled by him an article reflecting upon the author of the libel in question and which provoked its publication is no defense to an action for its publication.
    3. Damages — Where $800 is Not Excessive. — In an action for publishing in the columns of a newspaper having a large circulation in a populous community, an article concerning the plaintiff, highly libelous and wholly unjustifiable in language and sentiments, and in many respects unfit for publication, a verdict for §800 is not excessive.

      i. Same — Punitive Damages — When Proper in Actions for Libel.— Where the general manager of a corporation engaged in the publication of a newspaper neglects to control his employes in respect to what shall appear in the paper and a libel is published, such neglect is equivalent to a reckless disregard of the rights of others, equal to a willful or intentional wrong, and renders both the manager and the corporation liable to be mulcted in exemplary damages. .
    5. Same — WTiere the Court Will Not Presume that Punitive Damages Were Allowed. — Where the damages awarded in an action for publishing a libel are not excessive the court will not presume the jury allowed anything for exemplary damages.
    Trespass on the Case, for the publication of a libel. Appeal from the Circuit Court of Vermilion County; the Hon. Henry Van Seller, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    Rehearing denied November 20, 1901.

      Copy of the Libel Sued Upon.
    “ Trouble Has Begun — Editor Crayton Fires a Lyddite Bomb into Bluff Rider’s Camp — Pays Respects to Harrison — He Reproaches Mr. Jewell and Gives Capt. Yeager His Dues in His Own Inimitable Manner.
    The following is taken from this week’s edition of the Potomac Republican and it amply verifies the prediction of The Press of a few days ago, that the Commercial had started something fierce when it jumped onto the young editor of the Artesian City for roasting the Bluff Riders. In several places The Press has taken the liberty of drawing a pencil through a few lines as a mark of courtesy and commiseration for the Commercial editor. The Press is very sorry to see two good republican brothers tearing at each other’s throats in such a fashion but it seems to be a republican fashion much in vogue of late and about all we can do is to stand at a safe distance and yell Go it bear, go it wife,’ like the veteran backwoodsman whose better half had an adventure with bruin, trusting to the best man to win out in the struggle. Here is Brother Crayton’s hot stuff from Potomac:
    ‘ FROM EDITOR CRAYTON.
    Tuesday’s Commercial contained a scurrilous personal attack upon the editor of the Republican, written by a sickly young buzzard, who is the journalistic joke of Danville; who wants to be a politician when nature made him a fool, and aspires to be a dictator when God created him a jackass.
    His name is Robert Harrison.
    He says we asked Capt. Yeager to take us back into the battery; he says we are fighting republican institutions; he says we “ marched with Coxey.”
    Before we begin talking to this sore-eyed paralytic, of whom John Beard offers to bet that a scientific test will show that he hasn’t two ideas above a baboon, we want to inform the half-dozen people here who read the Commercial what he is talking about.
    Last week we wrote a private letter to Superintendent R. B. Holmes to which was added a postscript that read thus:
    “ P. S. — I see that the battery is going to China. Tell Yeager that if he will let me go along I’ll take back everything I said about him.”
    How how this chalk-faced young specimen of lost manhood got it we can’t say. We do not believe that Mr. Holmes would give up a private letter for publication. Heither do we care. As our readers can plainly see it was written in jest. Why, Battery A stands about as much show of going to China as Bob Harrison does of having an honest principle.
    Another word as to his “idea of Capt. Yeager.” We do not like Capt. Yeager and he does not like us, so it is an even split. Capt. Yeager is a man of ability. As a drillmaster and disciplinarian he had few equals among the volunteer officers. We want to give the devil his dues. That’s “ Cap.” And the bare mention that an animated Egyptian mummy like Harrison could have any sort of a notion is laughable. That is how we tried to buy our way into the battery. The idea! Why don’t someone kill the idiotic skunk ? Why, if we wanted to go to war there are plenty of chances. We might join the “Bough Eiders.”
    Mr. Harrison says we “ marched with Coxey.” Mr. Harrison, is simply a liar. We never saw Coxey or his army in our life. That is but a pleasant tale we told for twenty-two caliber intellects like Harrison to believe.
    He says we are fighting republicanism. This will also be laughable to the readers of the Bepublican who know us. We do not like the “Bough Eider” idea and we said so. But we did not accuse Harrison of secreting it. Why, if an idea was to get into that monkey head of his it would kill him.
    Mr. Harrison used to like us. We can rake up old files of the Commercial where Mr. Harrison said nice things about us and reprinted pieces from the Bepublican. Why this sudden change? It takes but a few words to tell.' Last spring we assisted a number of other republicans in throwing Mr. Harrison’s father-in-law so high that he caught a glimpse of the pearly gates. Mr. Harrison feeds at the family crib. So it hurts Mr. Harrison.
    The argument that he uses shows that he is hurt. We hate that, but we are not going to run this great journal of reform to suit him. We can give Mr. Harrison all the journalistic row he wants. We can also whip him, if that is what he wants.
    So you see we are occupying the easy chair.
    It will be seen that Mr. Harrison does not rely upon anything but “ mud slinging ” to gain his point, and it can also be seen that the article is purely personal. He has been up here for several days and probably went home with instructions to flay us. Before the mangy cur gets through with it he will discover that where we come from they flay one another.

      ‘We w.ould not advise the “ Rough Riders” to delegate to Mr. Harrison the task of defending them. He is a poor, little, cowardly, white-livered sneak with about as much honor as a striped hyena.
    A Rough Rider! Him a Rough Rider! Wearing the uniform of a soldier! Why, we could take a willow switch and run him until he fell from exhaustion. That poor, measly, idiotic parietic has not kidney enough to look into the cannon down at the Armory.
    Him go to war! Why, they would hitch him up in the wagon train!
    There is only one place he could possibly fill. After all armies follow a swarm of human vultures that creep upon the field of battle when the fight is over and under the cover of the black of night rob the dead and murder the wounded for loot. Vampire Harrison! That’s what he would be. Soldiers shoot such scavengers on sight.
    Harrison, the political leader, a member of the “ brother-in-law combination.” Why, he hasn’t brains enough to grease the fly-wheel of a lady’s watch, nor principle enough to keep him out of jail if he had sense enough to be wicked. To think that that half-baked cuss could have any influence over anybody with as much character as a yellow dog! If the judges were to enforce the “non compos mentis” clause he wouldn’t be allowed to vote.
    For heaven’s sake, Mr. Jewell, what do you mean by letting such pulp-headed infants mix up in political affairs ? Do you want a mortgage on the rest of the Commercial’s
    stuff? This political role is a new thing. We were informed that he had been trying to break into Danville society for the past five years, but he never got closer than; the outside door. He may come up into the country and make his relatives believe he is a great man, but he don’t fool the rest of the farmers. They know an idiot by the shape of his forehead.
    Who is Robert Harrison?
    He is a freak from the Indiana woods that tried to report on a Chicago “fly-by-night” sheet and failed. He then mortgaged his mother’s farm and bought a newspaper, and then had to mortgage the newspaper to keep alive. That’s the business ability of the man that wants to be manager of the republican party.
    If it wasn’t for his cousin the Commercial wouldn’t last until sundown. They tell us that John Harrison is a gentleman.
    Oh, we have forgotten. He is an orator. All the farmers remember the county convention and when the “unit” amendment was in danger of being lost. Jewell was stroking his wise old head. He was puzzled what to do next. Bill Cannon was for a moment in a quandary. Hot so with Bob. He was “next.” He rushed upon the floor with the air of a Demosthenes and said six words loud enough to be heard ten feet away. Then he grew pale and turning his back to the audience collapsed.
    Another great speech that had been set up late at night had died “a homin’.”
    He is a coward, because A. B. Hill, whom everybody whips, made him run like a turkey.
    An indecent personal attack like that would never emanate from any one with the first instincts of a man. And he isn’t one. Look at the pale, bleached out little insect, look at his starved carcass, his long, flapping, mulish, ears, his big, expressionless, owlish eyes, and that sickly simper on his face that makes a man want to offer it someth into eat. If it isn’t an animal, what is it?
    We may in our young and bucky days have been wicked. We have not denied it. We are never afraid that the angels will swoop down and bear us away on the account of our purity but there is one thing that we never have been. We have woke up in the middle of the night when the stars were twinkling in the swart heavens and thanked God that, we was not born a fool.
    We have never stolen anything. We wouldn’t say that for Harrison. We are morally certain that he stole that sickly grin from the striped hyena and his personal beauty from the kangaroo.’ ”
    Kimbrough & Meeks and Winter & Rearick, attorneys for appellants.
    George T. Buckingham and O. M. Jones, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This was a suit by appellee against appellants for damages for the publication of an alleged libelous article in a newspaper called The Danville Daily Press, of which the appellant John Beard was the general manager. The trial by jury ended in a verdict and judgment for $800, to reverse which this appeal is brought, and it- is argued, to effect such reversal, that the court admitted improper evidence, rejected competent evidence, gave wrong instructions and refused proper instructions.'

The article published of and concerning appellee, we think was highly libelous and wholly unjustifiable. Its language and sentiments in many respects unfitted it for public prints and we feel compelled, for the same reason, to refrain from reciting it in this opinion. It is enough to say that all the venom that can be engendered by envy and malice appears in every line of it. It contains no clever phrase, but it is the shriek of a vulgar mind dominated by the demon of hate. The article was written by Crayton, the publisher of another paper, and sent to the editor of appellants’ paper and published in its columns. Appellants offered to prove upon the trial that appellee had published an article in the Commercial, a newspaper of which he was the publisher, reflecting upon Crayton, and it is argued these reflections provoked the libel that was afterward published. The court rejected such evidence, as we think, properly; for as we have said before, the publication of the libelous article was wholly unjustifiable, and there was nothing in the Commercial’s reflections that even mitigated the Press article. The appellant Beard claimed he knew nothing of the libel before its publication and had ■ not authorized it to be published, and therefore he should not be held liable for its publication — and inasmuch as he could not have intentionally or willfully caused its publication he was not liable for punitive damages. The evidence shows, however, that Beard was the general manager of the publication and was authorized by the directors to control the policy of the paper. He had also' assumed to do this, and had employed Bobinson, the editor who published the libel. We think Beard as much responsible for the publication as if he knew the libel was about to be published and did not prevent it. In other words a person can not avoid liability by putting instruments of harm, which he is authorized and it is his duty to control, into the hands of others, and then by abandoning the same in the hands of his agent, be heard to say that the agent acted without his knowledge or consent, after the harm has been accomplished. The instructions of the court on this line applied the correct principles and were therefore right.

We find no prejudicial errors in the ruling of the court upon the evidence in the case' nor upon the instructions to the jury, and all that was proper in the refused instructions was contained in those given by the court. In truth the instructions contained as a whole as fair and impartial an exposition of the law as the rights of appellants’ case demanded.

The damages were not excessive, and it may be well conceived the jury awarded only actual damages. We are unwilling to say that such a libel, published in the way this one was published — in the columns of a newspaper having a large circulation, in a populous community, does not actually damage the victim of its venom the whole amount of the verdict that was returned. It is inconceivable to persons of correct thought and sentiment, having a proper regard for the characters and feelings of others in civilized society, how the amount of damages in this suit could afford adequate compensation for the contumely and humiliation of such a libel.

We can not presume the jury gave punitive damages, and even if they did, it was proper against both defendants— at least within the right of the jury to do so, in their sound discretion. If the appellant Beard had no actual knowledge of the libel — and from the evidence he probably did not — still if he neglected to control his agent in this respect, and that he did, that was equivalent to a reckless disregard of the rights of others which was equal to a willful or intentional wrong.

The judgment will be affirmed.


text:
    Village of New Holland et al. v. Oliver W. Holland.
    1. Mandamus — For the Disconnection of Territory. — Under the act of 1879 (Laws 1879, p. 77), where parties who desire to disconnect territory, present to the municipal authorities a petition in compliance with the statute, it is the imperative duty of such authorities to disconnect the lands.
    2. Appellate Comer — Solely a Court of Appeal.— The Appellate Court has no original jurisdiction. It is solely a court of appeal; its duties are limited to reviewing the proceedings of trial courts and in a case where such proceedings are regular, and the final judgment justified by the law in force at the time it was rendered, the judgment should be affirmed.
    8. Judgments — Merger of Rights in. — The rule is one of universal application, that whatever the previous cause of action may have been, when merged into a judgment, the rights of the parties are beyond legislative interference.
    4. Same — When Not Affected by Subsequent Legislative Enactments. —It is not competent for the legislature to pass an act which deprives a citizen of the fruits of a judgment obtained before its passage.
    Mandamus, to disconnect territory. Appeal from the Circuit Court of Logan County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Baldwin & Stringer, attorneys for appellants.
    Blinn & Harris, attorneys for appellee.
   Opinion

per Curiam.

At the September term, 1900, of the Logan County Circuit Court, appellee filed a petition for mandamus to compel appellants to pass an ordinance disconnecting certain territory within the boundary of New Holland, a village, in accordance with the disconnecting territory act of 1879. To the petition, appellants interposed a number of pleas, some of which set up that the territory sought to be disconnected did not lie upon the border of the village, because certain strips of land used by the public for travel, as roads and streets, intervened, and some set up that some of the territory was divided into lots and blocks. The court sustained a demurrer to all the pleas and awarded a peremptory writ of mandamus as prayed for. An appeal was perfected on the 17th of December, 1900, but the case comes here without a bill of exceptions.

It is assigned for error that the court refused to allow appellants to file additional pleas, upon the ground that they presented no defense, and that the court ordered the writ to issue upon the averments in the petition without hearing any proofs. In the absence of a bill of exceptions, these alleged matters of error can not be considered. The sufficiency of the petition and the sufficiency of the pleas filed are the only questions in the record properly presented for our determination.

To the third point of appellant’s brief, that it was within the discretion of the village board of trustees to grant or refuse the application to disconnect, it is only necessary to say that the decision of the Supreme Court in the case of Young et al. v. Carey et al., 184 Ill. 613, settles that question to the contrary. Under that decision and a number of others that have since been rendered by this court, the petition for mandamus was sufficient.

The pleas which set up as a defense that strips of land used as public roads lie between the village and the land sought to be disconnected, were bad. In the statute authorizing the disconnecting sought to be enforced, there is nothing indicating that a public road or street between the village and the owner’s land would be an obstacle to his invoking the aid of the statute.

The pleas which attempted to set up that some part of the land had been laid off into lots and blocks are bad because they do not definitely show that the lots and blocks are not contained within the exception named in the petition.

The most serious question arises upon the effect which certain recent legislation has upon the rights of the parties to the record. The last general assembly passed an act, Hay 10, 1901, with an emergency clause repealing the act of 1879, and expressly making the granting of a petition to disconnect territory discretionary with the city council or village board of trustees to whom presented. The fourth section of the act reads :

“ This act shall apply to and affect all cases where property has not been disconnected by such city council or trustees of such village, whether application has been made for disconnection or not.”

The final judgment of the Circuit Court was rendered November 26, 1900.

No one of the errors assigned upon the record by appellants is found to exist. Upon the contrary, we find all the proceedings in the Circuit Court regular, and the final judgment in perfect accordance with the law in force at the time it was rendered. But we are asked to reverse the judgment because the statute authorizing it has since been repealed. This court has no original jurisdiction. It is solely a court of appeal and its duties are limited to reviewing the proceedings in trial courts. It would seem, then, that in a case where the proceedings are regular and the final judgment was justified by the law in force at the time it was rendered, the judgment should be affirmed.

The statute of 1879 gave appellees the right to have their land detached upon presenting to appellants a petition in compliance with the statute. The conditions existed which made it the imperative duty of appellants to detach the lands. ¡Refusing, they were coerced into a performance of that duty by a judgment of the Circuit Court, a judgment which definitely fixed the rights of the parties. The rule is one of universal application that whatever the previous cause of action may have been, when merged into a judgment, the rights of the parties are beyond legislative interference. The judgment then becomes a property, right. It is not competent for the legislature to pass an act which deprives a citizen of the fruits of a judgment obtained before .its passage. (Dobbins et al. v. First National Bank, 112 Ill. 553; Fisher et al. v. Green et al., 142 Ill. 80.) The act of May 10, 1901, does not make a mere change in the remedy. Under the decision of Young v. Carey, 184 Ill. 613, appellees had an absolute right to have their lands detached. That right had merged into a judgment. The act of 1901 not only took from all parties owning lands bordering on a village that right, but sought to set aside and annul appellees’ judgment. Judgment affirmed.


author: Mr. Presiding Justice Harker

text:
    Staunton Coal Co. v. Clara Menk, Adm’x, etc.
    i. Practice — Trial of Oases in Their Order on the Docket. — All cases are to be tried, or otherwise disposed of, in the order they are placed on the docket, unless the court for good and sufficient cause, shall otherwise order. (R. S., Chap. 110, Sec. 17.)
    2. Same — Review of Matters Not Appearing in the Common Law Record. — In order to have reviewed what is done by the trial judge, or what occurs' in his presence and within his knowledge, such matters must be recited in a bill of exceptions over the certificate of the judge.
    3. Same — Affidavits—How Preserved in the Record. — In order that affidavits stating matters as transpiring at a trial in the presence of the judge, and used on the hearing of a motion for a new trial, may be considered on appeal, it is necessary for the trial judge to certify in a bill of exceptions that the statements set out in the affidavits are true.
    4. Same — Where Different Judges Preside at the Same Case. — In a proceeding in which different judges preside ih the same case, if a party desires to have matters transpiring before different trial judges reviewed by the Appellate Court, such matters should be preserved by several bills of exception certified by the respective judges who heard the different matters in question.
    5. Presumptions— Where a Cause is Tried Out of Its Order. — The statute allows cases to be tried out of their order where sufficient cause exists, and where a cause has been so tried, it will be presumed, in the absence of anything in the record showing the contrary, that it was so tried by the direction of the court for sufficient cause.
    6. Appellate Court Practice — Discretion as to Trying Causes Oat of Their Order, Not RevieiocCble, Unless, etc. — The statute does not attempt to determine what shall constitute sufficient cause for trying a case out of its regular order on the docket, but leaves it to the sound discretion of the court in which the case is pending, and such discretion can not be reviewed on appeal unless a flagrant abuse of such discretion has worked manifest injury to the party.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.

      Charles W. Thomas, attorney for appellant.
    Zink, Jett & Kinder, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellee brought this suit to the September term, 1900, of the Macoupin Circuit Court, to recover damages resulting from the death of her husband, who was killed through the alleged negligence of appellant while working in its coal mine. There was a plea of not guilty filed on which issue was joined. Court convened on the 17th of September and the cause was tried, in the absence of appellant’s attorney, on the 10th of October, and a verdict returned against it, fixing the damages at $2,800.

On the 12th of November, appellant’s attorney filed a motion to set aside the verdict upon the ground that the case was tried out of its order on the docket and without notice to appellant. The court overruled the motion and rendered judgment against appellant for $2,800.

The sole question presented by this appeal is whether the Circuit Court should have set aside the verdict and granted a new trial because the case was tried out of its order for no sufficient cause and without notice to appellant. The statute, which it is contended was violated, reads as follows :

“All causes shall be tried, or otherwise disposed of, in the order they are placed on the docket, unless the court for good ancf sufficient cause, shall otherwise direct.” Ill. Kev. Stat.,. Ch. 110, Sec. 17.

Before this court would be justified in holding that the Circuit Court erred in overruling appellant’s motion, it must appear from the record that the case was tried out of its order. There is nothing in the record tending to show that alleged fact except the affidavit of John Homer, the clerk of the court. It is not certified in the bill of exceptions that the case was so tried, nor is it certified that the statements contained in Homer’s affidavit are true.

What is done by the trial judge, or what occurs in his presence, is within his knowledge, and if a party desires to have it passed upon by a reviewing tribunal, it must be recited over the judge’s certificate. It can not be made part of the record by ex parte affidavits, filed in support of a motion for a new trial. That such affidavits may be considered, it is necessary that the trial judge certify in th^bill of exceptions that the statements set forth in the affidavits are true. Peyton v. The Village of Morgan Park, 172 Ill. 102; Gunderson v. Sirborn, 31 Ill. App. 612.

Counsel for appellant deny the application of the authorities above cited, because the record in each of these cases shows that the matter presented by affidavits was within the personal knowledge of the judge who signed the bill of exceptions, whereas in this case there were two judges, Shirley and Thompson, one of whom set the case for trial and the other tried it. We can not see why that fact should alter the rule. If matters occurred within the knowledge of Judge Shirley and not within the knowledge of Judge Thompson, which appellant desired this court to review, they should have been preserved in a bill of exceptions, signed by Judge Shirley. It not infrequently occurs in practice that matters occurring in the same case before different trial judges are preserved by several bills of exceptions, certified to by the respective judges who heard the different matters in question.

There being no statement in the bill of exceptions that this case was tried out of its order and no statement that the matters set out in the affidavit of Homer are true, it must be presumed that the case was tried in its regular order, or, if not, that the court acted from good and sufficient cause.

But if the affidavit of Homer is considered, it shows no violation of the statute. It merely shows the number of cases on the docket for the September term; that on the Saturday preceding its commencement, Judge Shirley set for trial on days of the first week certain cases on the law docket; that it had been the custom for several jears for the court on Monday and Tuesday of each week to set for trial for the coming week as many cases, respective of their kind or position on the docket, as would probabjy occupy the time of the court for that week, and that such settings were generally made in such manner as to accommodate counsel; that on Friday, September 28th, another setting, ending with October 12th, was made, in which this case was set for trial October 10th; that neither the attorneys for the plaintiff nor defendant were present, but that the case was set in pursuance of a request of plaintiff’s attorneys; and that the cases which had been tried at that term were tried without reference to their place on the docket. This case was numbered 76 on the law docket, and it nowhere appears in this affidavit, or in any of the other affidavits, that when tried, all other cases standing on the docket before it had not been disposed of for the term.

Again, if the court did set and try cases out of the order in which they were placed on the docket, it nowhere appears that “good and sufficient cause ” for so doing did not exist. The statute allows cases to be tried out of their order where' sufficient cause exists; and where a case has been so tried, it will be presumed, in the absence of am^thing in the record showing the contrary, that it was by direction of the court for sufficient cause. Smith v. Barlow, 67 Ill. 519; Anthony v. International Bank, 93 Ill. 225.

The statute does not attempt to determine what shall constitute sufficient cause, but leaves that to the sound discretion of the court in which the suit is pending. Such discretion can not be reviewed on appeal unless a flagrant abuse thereof has worked manifest injustice to a party. Clark v. Marfield, 77 Ill. 258; Morrison v. Hedenberg, 138 Ill. 22; In re Estate Wincox, 186 Ill. 445.

Attorneys for appellee had the right to have the case set for trial, and there is nothing in the statute or in the rules of the Macoupin Circuit Court, so far as this record discloses, which required notice of such setting to be given to appellant, or its attorney. In the absence of a rule of court • requiring notice of a setting to be given, it is the duty of a litigant to watch his case on the docket or arrange with the clerk of the court to be notified. In this case, it does not appear that appellant or its attorney, after filing the general issue on the 11th of September, paid any further attention to the case or made any inquiry concerning it until after the same was tried.

In our opinion, no error was committed in overruling the motion to set aside the verdict, and the judgment will be affirmed.


text:
    Mary A. Richardson v. Geo. B. Ranson et al., Trustees, etc.
    1. Parties — WTio May Question the Fraudulent Disposition of Property. — Where there has been a fraudulent disposition of his lands by a testator in his will, creditors alone can invoke the remedy to subject nuch lands, and the income from the same, to the payment of their ■claims. Executors are not trustees or agents for the creditors of the ■estates represented by them.
    2. Wills — When a Testamentary Disposition of Property is Void as to Creditors. — A testamentary disposition of real estate, or the rents ,of the same, is null and void as to the creditors of the testator.
    3. Courts op Equity— Will Retain Jurisdiction Until Complete Jusdice is Done. — When a court of chancery obtains jurisdiction of a subject-matter, and of all the parties interested therein, it will retain the ■.same until complete justice is done, even though it settles some questions cognizable in az court of law.
    4. Administration op Estates — When an Executor May Re-imburse Himself for Over-payments. — Where, in the administration of an estate, an executor has by some inadvertence, overpaid a claim, a court of .equity may, under the circumstances of this case, rightfully direct him .to re-imburse himself out of rents in his hands.
    Bill for Relief. — Appeal from the Circuit Court of Morgan County; •the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at Éhe May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    William A. Crawley and C. Epler, attorneys for appellant.
    Worthington & Reeve, attorneys for appellees.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellant, as devisee under her deceased husband’s will, was given for life the use and income of all the real property of which he died seized. Appellees, Ranson and Richardson, as executors, were by the terms of the will given control of the real estate and directed to pay the rents to her after deducting for taxes and repairs. They collected rents but failed to pay them over to her; wherefore she filed a bill in equity in the Circuit Court of Morgan County, to compel them to account to her for the rents. They answered that one Charles E. Good rick held an unsatisfied judgment against the estate of her deceased husband; that there were no personal assets of the estate with which to satisfy it, and that the fund derived from the rents was required to pay it. The Circuit Court took that view of the case and dismissed appellant’s bill. On appeal, this court reversed the decree of the Circuit Court, holding that the executors were not trustees or agents for the creditors of their testate, and that if any fraudulent disposition of his lands were made by him in the will, creditors alone could invoke the remedy to subject the lands and the income from them to the payment of their claims. Richardson v. Richardson, 87 Ill. App. 354.

When the case was re-docketed, Goodriclc obtained leave and filed his intervening petition in which he set up that he was a creditor of the testator; that his claim had been allowed in the Probate Court; that the personal estate was insufficient to pay his claim; that as to it the will was void, and that the funds in the hands of the executors as rents from the real estate, should be applied to the payment of his claim. The cause was referred to the master in chancery to state an account as to the rents received by the executors, and as to receipts and disbursements of the personal estate of the testator. The master made a complete and lengthy report, which the court, after overruling appellant’s objections to it, approved, and rendered a decree finding that the executors had in their hands a balance of personal assets amounting to $1,539.93, and rents amounting to $1,775.48; that the allegations in Goodrick’s intervening petition were true; that there was then due him $2,844.54; that after exhausting the personal estate there would be due him $1,307.61, and that the devise to appellant was null and void as to Goodrich’s claim. The decree directed the executors to pay over the balance of the personal assets in their hands, $1,539.93, to Goodrich, and the balance of his claim, $1,307.61, out of the rent money. The executors had overpaid appellant on her award as widow, $277.80, and the decree directed that they re-imburse themselves for that amount out of the rents.

The chief grievance urged by appellant is that it appropriates from the rents devised to her by the will an amount to satisfy the balance of Goodrich’s debt.

It appears from the pleadings and evidence in the record that Vincent S. Richardson was a member of a banking firm, which closed its doors on August 25, 1893, largely indebted; that after the failure of the bank and after depositors had brought suit, Richardson executed to appellant, his wife, a mortgage for $20,000, conveying all his real estate; that he subsequently made his will disposing of all his real estate; that he devised to appellant the income of the real estate for her life, and disposed of the fee to others, but made no sufficient provision for the payment of his debts. It is clear to our minds that it was the intention of the deceased to so dispose of and incumber his real estate that it could not be reached by his creditors. The provision of the will in question reads as follows:

“ I give and bequeath to my beloved wife, Mary Ann Richardson, the use and undisputed possession of all my homestead, farm and dwelling, and all improvements, household goods and all appurtenances thereto belonging; and all income from my real estate, rents or other income, shall be paid to my beloved wife, Mary A. Richardson, to be hers to have and to hold and to use as she pleases. Said homestead is situated in section 33, T. 15, R. 11, in the county of Morgan and State of Illinois, and it is my wish and desire that my executors, hereinafter named, shall collect all rents or income from the above mentioned real estate, and all the rest of my real estate, be it situated in Morgan county or Scott county, Illinois, and pay the same to my beloved wife-as long as she shall live.”

Section. 10, chapter 59 of the Eevised Statutes, entitled, “ Frauds and Perjuries,” provides that any testamentary disposition of real estate or the rents out of the same, shall be null and void as to creditors. In this case, the testator devised the rents of his real estate to appellant without making provisions for the payment of Goodrick’s claim, which has since been duly probated and remains unsatisfied by reason of insufficiency of personal assets to pay it. Applying the provision of section 10 to appellant’s case, she can not rightfully receive the rents until the judgment of Goodrich is paid.

Appellant contends that if it be held that the devise is void as to creditors under section 10, that Goodrich is given a remedy by section 12 of the same chapter. The insistence is, as the last mentioned section gives a creditor a right of action at law against a devisee who has taken lands or rents, when the personal assets of the testator are not sufficient to satisfy the debt, the court below, sitting as a court of chancery, had no jurisdiction to decree the payment of Goodrick’s claim out of the rents. In the same connection it is contended that the court has invaded the jurisdiction o£ the Probate Court of Morgan County in rendering the decree. To the contention of appellant on jurisdictional lines, it is sufficient to say that the chancellor was given jurisdiction in the first instance by the appellant’s bill, seeking from the executors an accounting for rents; that Goodriclc, as we have seen, had a lawful claim upon the rents, and that if paid over to appellant, he could maintain a suit against her to the extent of $1,307.61. The chancellor had before him the fund, the two adverse parties claiming it, and the executors who held it, awaiting the court’s direction. It was entirely competent, therefore, for the court to decree such disposition of the fund as would end the litigation. It is a firmly settled and familiar rule that where a court of chancery has jurisdiction of a given subject-matter and of all the parties interested therein, it will retain the case until complete justice has been done, even though it settles questions cognizable in a court of law.

Having probated his claim, and finding that because of the insufficiency of personal assets of the estate he must look to the rent fund to obtain satisfaction of his judgment, undoubtedly Goodrick had the right to intervene. Counsel seem to misunderstand the former opinion of this court. What was then said was with reference to the right of executors to withhold the rent money and apply it on a credit- or’s unsatisfied judgment. A careful reading of the opinion will show that we held merely that as between appellant, a devisee, and the executors, the executors could not set up the statute of frauds; that if a fraudulent disposition of the rents had been made, a creditor only could assert it and invoke the remedy to subject the rents to the payment of his debts. In that opinion it is nowhere said or intimated that Goodrick could not intervene.

It is contended that the court erred in approving and adopting the master’s report of accounting because it charged the executors less than should have been done, both on account of the personal estate of the deceased and on account of the rents derived from the real estate. It would render this opinion too lengthy to discuss in detail the various items of the report and the evidence heard by the master. We are content to say that the accounting made by the master is fair and is supported by the evidence. The court rightfully directed the executors to re-imburse themselves out of the rent for the §277.80 overpaid to appellant on her widow’s award. We see no just ground for reversing or modifying the decree and same will be affirmed.


text:
    Edward W. Ashmore v. Charleston Light, Heat and Power Co.
    1. Fellow-servants — iVho Are, When a Question of Lato. — Where the undisputed evidence is such that all reasonable minds must agree that the relation of fellow-servants exists, the existence of such relation becomes a question of law.

      Trespass on the Case, for personal injuries. Error to the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Edward Craig and F. W. Dundas, attorneys for plaintiff in error.
    Neal & Wiley, attorneys for defendant in error.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

The plaintiff in error, while engaged as a laborer for the defendant, was badly injured by coming in contact with a live electric light wire. Upon the trial of a suit brought by him to recover damages for the injury, the court directed a verdict for the defendant, and subsequently rendered judgment against the plaintiff for costs.

The evidence in the record discloses the following facts: On the day the plaintiff was injured, he was sent to assist one Frank Miller, another employe of the defendant, in repairing certain telephone and electric light wire, which had been cut for the purpose of allowing a tree to be felled on one of the streets of Charleston. There were two in can-descent light wires and five telephone wires which had been cut and which hung from their poles, when the plaintiff and Miller arrived upon the ground. The two incandescent wires were insulated; the telephone wires were not, as the current through them was too light to be dangerous. When the tree fell, one of its branches caught a wire which ran from one pole to another across the street and carried it nearly to the ground. The only office of that wire was to support a street arc light. It was not insulated, as no electric current was intended to pass through it. Under the direction of Miller, the plaintiff cut it near the middle of the street and left it there. Miller telephoned the power house to shut off the electric current and set about splicing the wires that had been cut He added a short splice to each of the two incandescent wires. In doing so, it was necessary to peel back for a few inches the tape used for insulation, twist the ends together, solder them, and then re-tape them. After doing that, Miller climbed the pole and spliced the two wires to the other ends at a point four or five inches from the cross-arm. In doing that,work the plaintiff assisted by heating the solder and passing tools to Miller by means of a rope. When the job was about completed, Miller called to him from the pole to go to a near by telephone and ’phone the power house to turn on the current, and then to return and help gather up the tools. The plaintiff did as directed, and when he returned a few minutes later, he found Miller on the ground gathering up the tools. He saw the wire which he had cut still dangling from the pole with one end on the ground. For the purpose of getting it out of the waj and wrapping it about the pole, he grasped it with his left hand. It had been so heavily charged by coming in contact with the untaped end of one of the incandescent wires at the top of the pole, that he was knocked to the ground and received injuries of a most serious a.nd permanent nature.

The declaration charges that the proximate cause of the injury was the negligence of the defendant, through Miller, in improperly leaving certain wires, which had just been repaired, untaped, while at the same time it caused the electric current to be turned on, whereby the dead wire which the plaintiff endeavored to remove from the street became charged.

It is not contended that any negligence is chargeable to the defendant otherwise than through the conduct of Miller. The important question for our decision, therefore, is whether Miller, in doing the act which caused the plaintiff’s injury, sustained the position of vice-principal or the position of fellow-servant toward the plaintiff. Miller had no authority to employ or discharge and was not a foreman within the meaning winch usually and generally attaches to that term. He was simply a lineman and worked with the plaintiff as a co-laborer. The two worked together under instructions from the superintendent, Brooks, but because of Miller’s superior experience and regular employment he was authorized to direct the manner of prosecuting each job on the line, and gave directions to the plaintiff as his assistant.

It is clear that the plaintiff did not meet his injury in following any direction given him by Miller. Bo one told him to take hold of the live wire that caused his unfortunate accident. The direction of Miller went no further than to telephone the power house to turn on the current and to then return and assist in gathering up the tools. There was nothing improper in such direction, and had the plaintiff limited his action to a strict performance of it, he doubtless would have escaped injury. At all events, the negligence causing the injury did not consist in giving an improper direction to the plaintiff. The negligence of Miller which did cause the injury was in leaving the end of the incandescent wire and splice at the top of the pole untaped and exposed, whereby the loose guide wire became charged. But we are unable to look upon him in the performance of that work as a vice-principal. In splicing the different wires and in putting them up, the two men co-operated with each other; the one splicing the wires and covering them with tape, the other heating the solder and passing up tools and material. They were brought into such association as to enable them to observe each other’s conduct. We are clearly of the opinion that the men were, while engaged in that work, fellow-servants.

To the contention that the court erred in taking the case from the jury because the question of fellow-servants is one of fact resting within the province -of the jury to determine, we desire to say that where the undisputed evidence is such that all reasonable minds must agree that such relation existed, the question of the existence of the relation of fellow-servants becomes one of law for the court. C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330; Meyer v. I. C. R. R. Co., 177 Ill. 591.

Taking the testimony for the plaintiff alone, we are clearly of the opinion that the negligence which caused the plaintiff’s injury was that of a fellow-servant, and the court properly directed a verdict for the defendant. Judgment affirmed.


author: Mr. Presiding Justice Burroughs

text:
    John Eddy v. Edward Barry, Receiver of the Interstate Building and Loan Association.
    1. Building and Loan Associations — Officers Not Entitled to Pay for Services— No officer except the secretary of a building and loan association, organized under the statutes of this State, can be allowed pay for services rendered by him for such association, and a contract or agreement by such an association to allow its president or other officer pay for services rendered, is ultra vires and against public policy, although the association has received the benefit of such services.
    Assumpsit, for services. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in tills court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    A. E. DeMange, attorney for appellant.
    John J. Morrissey, attorney for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

In May, 1898, the auditor of this State filed in the Circuit Court of McLean County a bill in chancery against the Inter-State Building and Loan Association of Bloomington, Illinois, to have the court declare it insolvent, decree its dissolution, and compel its liquidation. And in' pursuance thereof, and for the purpose indicated, appellee was by that court then appointed receiver of said association, and he took possession of its property. The court afterward made an order directing all persons having claims against the association to present same to the court for adjudication and allowance, if same were found valid.

Afterward appellant, John Eddy, presented to the court a claim of §500 for services rendered by him prior to May, 1898, for the association, in the inspection of real estate mortgaged to it.

Appellee objected to the allowance of the claim upon the ground that appellant was both a director and the president of the association when he was employed and performed the services in question, and for that reason ought not to be paid by it therefor, and the court referred the claim to the master in chancery to take testimony and report same with his legal conclusions thereon.

The master took testimony and reported that the claim of appellant was for services performed by him for the association at the request of its directors while he was its president, and was for examining and appraising real estate of the association in the city of Chicago and surrounding towns, and for making two trips to the city of Pittsburg, and one trip each to the cities of Altoona and Johnstown in Pennsylvania, and examining and appraising the property of the association in said cities, preliminary to the scaling of the assets of the association, as directed by the auditor of this State; that claimant spent about two months’ time in performing said work, and that the directors, the secretary and manager of the association, at a meeting held by them before said work was done, stated that the claimant should be paid therefor, but did not fix the amount he should be paid, or make a written record of their action in the matter; that afterward the association gave claimant a check for $500 for said services, but before same was collected by him, the property of the association was taken possession of by the auditor of this State, and its payment stopped; that said services were not such as were usual or required to be performed by the president of the association, but were unusual services which did not pertain to his office of president; that the directors and manager had the legal right to employ claimant to perform said special services, and $500 is a reasonable charge for same, and that amount ought to be allowed him therefor. Appellee filed with the master, written exceptions to his report, which were by him overruled. The exceptions- were afterward presented by appellee to the court, and it heard the claim on the evidence taken by the master, his report and appellee’s exceptions thereto, and entered an order finding that the claim is not a valid legal obligation against the association, disallowed it, and taxed the costs to claimant. Appellant excepted and was allowed an appeal to this court, which appeal he prosecutes and insistá that the finding and order of the court on the claim are against the law and the evidence.

The Inter-State Building and Loan Association of Bloomington, Illinois, was organized March 27, 1889, under the act of 1879, authorizing the incorporation of building and loan associations in this State, and thereafter it began doing business on what is called the national plan, by establishing branch offices in several of the States and obtaining shareholders in each, to whom it made loans upon real estate there situated.

Appellant became a director of the association at the time it began doing business, and continued to act as such until appellee was appointed its receiver; and in 1896, he become its president also, and acted as such from then until the receiver was appointed.

In the winter of 1898, the auditor of this State, from an inspection of the assets of the association and its manner of doing business, was of the opinion that its shareholders were in danger of sustaining loss, and he suggested a scaliug down of the book value of its real estate mortgages to their real value.

The president, secretary and directors of the association, fearing that the auditor might take steps, under our statute, to compel a dissolution of the association and compel its liquidation, employed appellant to ascertain the real value of its real estate mortgages, and for that purpose to go-to the cities of Chicago, Pittsburg, Altoona, Johnstown and Philadelphia, where much of the real estate upon which it held mortgages was situated, and after inspecting same, to report its real value, to the end that the assets of the association might be scaled down from their book value to their real value, and the loss, if any, charged up to its shares in 'good standing, in accordance with section 4 of its by-laws, which is as follows:

“Section 4. If the undivided profits on hand at any time are not sufficient to pay any loss that may occur, the balance shall be charged up to the shares in good standing pro rata in proportion to the value thereof, and if any share is withdrawn, the amount so charged shall be deducted from the amount due on such share.”

And they gave appellant $Í20 for the purpose, agreeing to pay him all the expenses he incurred and a reasonable amount in addition as compensation for his services, but no record was made of this arrangement. He accepted the employment, did the work, made report, and claimed the $120 was exhausted in expenses, and that he ought to have §500 as compensation for his services.

The statute under which the Inter-State Building and Loan Association was incorporated, expressly provides that. no officer of such association, except its secretary, can be allowed pay from it for services rendered by him for it, and in Equitable Building & Loan Association v. Fritze, 83 Ill. App. 18, affirmed in 186 Ill. 183, it was held that a written contract made by the board of directors of such an association with its vice-president to pay him a certain sum of money for services which were beneficial to it -would not be enforced against the association as to the unexecuted part of it, because such contract was ultra vires and against public policy, although the association had received the benefit of the service and paid a part of the contract price.

The evidence in this case conclusively established the fact that appellant was both director and president of the Inter-State Building and Loan Association when he agreed with its directors and secretary to- perform the services in question in this case, as also when he performed them; so that the trial court, for that reason, properly ordered his claim disallowed, and its order will be affirmed.


text:
    Jane Hand v. John F. Simpson.
    1. Attorney Pees,. — When a Proceeding in Foreclosure is a Suit for the Collection of a Note. — A proceeding to foreclose a mortgage given to secure a promissory note is a suit for the collection of a note containing a stipulation “ that in case of collection by suit, an attorney’s fee of ten per cent is to be paid” by the maker of the note.

      3. Same — When a Separate Suit is Necessary to Collect the Attorney's Fee. — Under a promissory note containing a stipulation that in case of collection by suit, an attorney’s fee of ten per cent is to be paid, a separate suit is necessary to collect the attorney’s fee.
    3. Estoppel — To Ash for the Reformation of a Promissory Note. — i Where the maker of a promissory note tenders a sum of money to the holder of the note in payment of the same, and the tender is accepted, such maker will be estopped to contend afterward that there was a mistake in making the note bear interest from maturity only.
    Action to Recover an Attorney’s Fee, stipulated in a promissory note. Appeal from the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed December 10, 1901.
    Chiperfield & Chiperfield, attorneys for appellant.
    M. P. Rice, attorney for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

This suit was commenced by appellant to recover an attorney fee upon the following note:

“$2,300. Farmington, III., February 25,1895.
Two years after date I promise to pay to the order of Jane Hand, at Farmington, Illinois, twenty-three hundred dollars, value received, with interest at seven per cent per annum, after maturity.
It is further agreed that in case of collection by suit, an attorney’s fee of ten per cent is to be paid by the undersigned. Secured by real estate mortgage of even date.
[Signed] J. F. Simpson.”

In May, 1900, appellant commenced a suit in the Circuit Court of Fulton County to foreclose a mortgage given to secure the note. Appellee and his wife filed an answer to the bill, admitting the execution of the note and mortgage, and tendered $2,662.69 as the amount due as principal and interest. The tender was accepted with leave to the complainant to withdraw the.note, which was accordingly done. In addition to a prayer for foreclosure, appellant’s bill asked for a reformation- of the note, and that an attorney’s fee of ten per cent be allowed for collecting the amount.

At the next term of court, this suit was commenced to recover the attorney’s fee provided for by the note. A jury was waived and the cause was tried by the court. The court held that the foreclosure proceeding was not a suit for the collection of the note within the meaning of the provisions of the note for the payment of ten per cent in case of collection by suit, and rendered judgment against appellant for costs. He refused to hold that the filing of the bill to foreclose the mortgage, followed by service or appearance by the defendant was, in effect, a suit to collect the note within the meaning of the stipulation for the payment of attorney’s fees. The court below was in error. Because of the peculiar wording of the provision of the note under consideration, the attorney fee could not be included in a judgment or decree for the amount due as principal and interest. To collect the attorney’s fee, a separate suit was necessary.

We think the foreclosure suit and the proceedings had therein was a collection by suit within the meaning of the stipulation. Appellant was forced to resort to the courts by suit to collect, and it is immaterial that appellee did not a.llo'w the suit to go to decree and sale.

There is no ground for the contention that appellee'has overpaid appellant according to the terms of the note, it bearing interest only from maturity. In the bill to foreclose, it was averred that a mistake was made in having the note bear interest from maturity only, instead of from date, and a reformation was asked. By tendering, as appellee did in his answer, the amount of principal and interest from date, he conceded the mistake and is now estopped from making suph contention.

It docs appear, as contended, that the offer and acceptance of the tender was a settlement of all claimed to be due appellant. Although she claimed an attorney fee in the foreclosure suit, it is clear none could have been legally allowed her in the decree; again, the withdrawal of the note by order of the court refutes that contention.

The court erred in giving the proposition of law in behalf of appellee, and erred in refusing the third, fourth, fifth and sixth propositions tendered by appellant. The judgment is reversed and the cause remanded.