text:
    Appollos C. Edgerton v. Cornelia R. Weaver et al.

      Filed at Ottawa November 20, 1882.

    1. Evidence—burden of proof to show contract to pay interest on interest. In a suit where the plaintiff seeks to recover interest on interest after clue, the burden of proof is upon him to prove a promise to pay such interest, for a consideration deemed valuable in law, and an acceptance of such promise, either actual or constructive.
    2. Consideration—forbearance to sue. Where forbearance is relied on as the consideration of a promise, the proof must show more than that it was followed by.forbearance. It must appear, not only-that the promise was made for the purpose of obtaining time, and that time was actually given, but also that the indulgence thus accorded was in pursuance of the request implied by the promise.
    3. Appeals—review of facts. On an ordinary claim against an estate, taken by appeal to the Appellate Court, where the judgment below is affirmed, this court is precluded from investigating any and all disputed questions of fact, and all matters relating to the character, force and effect of the testimony, on appeal or error.
    , Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of DeKalb county; the Hon. C. W. Upton, Judge, presiding.

      Appellant, as surviving executor of the estate of Gurdon H. Edgerton, deceased, filed a claim in the county court of DeKalb county, against ’the estate of Norman Weaver, deceased, based on a note and an alleged promise to pay interest upon the interest due thereon,—of which note, and a statement of the payments made thereon, the following is a copy:
    “$1240. For value received I promise to pay Charles A. Edgerton and Appollos C. Edgerton, executors of the estate of Gurdon H. Edgerton, deceased, the sum of one thousand two hundred and forty dollars, by the first day of-June, in the year 1866, with annual interest at ten per cent per annum, interest payable on the first day of June in each and every year.
    “Dated September 29, 1860, DeKalb county, Illinois.
    (Signed.) Norman Weaver.”
    Indorsed: “$1000 rec’d March 10, 1876. $500 June 30, 1876. $500 September 20, 1876. $500 October, 1876. $600 December 25, 1876. $400 September 23, 1878.”
    The county court found there was nothing due the claimant. From that decision an appeal was taken to the circuit court of that county. The cause was there tried by the court, without the intervention of a jury, and that court also gave judgment against the claimant. The claimant then appealed to the Appellate Court for the Second District, and assigned as error in that court—
    First—The court erred in refusing proper evidence.
    Second—The finding of the court was against the weight of evidence.
    Third—The court erred in denying the motion for a new trial, and entering judgment.
    The Appellate Court affirmed the judgment of the circuit court, and the case is brought here by appeal from that judgment. •

      Mr. Frank E. Stevens, for the appellant:
    A promise to pay interest upon interest due and unpaid at the time of the promise, is valid in law. Camp v. Bates, 11 Conn. 488; Van Benschooten v. Lawson, 9 Johns. Ch. 313; Mowry v. Bishop, 5 Paige, 98; Wilcox v. Howland, 23 Pick. 167; Fobes & Adams v. Cantfield, 3 Ham. 17; Niles v. Sinking Fund, 8 Blackf. 158; Pawling v. Pawling, 4 Yeates, 229; Kennon v. Dickens, Cam. & Nor. Rep. (N. C.) 357; Haworth v. Hiding et al. 87 Ill. 23.
    Forbearance to enforce payment was a sufficient consideration. Underwood v. Hossack, 38 Ill. 208; Austin v. Bainter, 50 id. 308.
    The assent of the creditor to forbear may be inferred from his acts in not suing and profiting thereby. 1 Parsons on Contracts, (6th ed.) 476, 483, 478; Miller v. McManis, 57 Ill. 130; Robbins v. People, 95 id. 178; Moore et al. v. Rogers, 19 id. 347; Dixon v. Buel, 21 id. 203; Moline Water Power and Manf. Co. v. Webster, 26 id. 233; Hurd, Admr. v. Slaten, 43 id. 348.
    Messrs. Lowell & Carnes, for the appellees:
    Interest is- payable on interest only on express contract made after the interest has become due. Leonard v. Villers, 23 Ill. 377; Barker et al. v. International Bank, 80 id. 101; Young v. Hill, 67 N. Y. 162.
    Before forbearance is a good consideration for a promise to pay interest, there must be an express agreement to forbear. Mere delay without such an agreement will not suffice. Thompson v. Leith, 4 Jur. (N. S.) 1091; Brown v. Barkham, 1 P. Wms. 652.
    There was no valid binding contract to forbear for any length of time, and hence the promise to pay interest on the interest due, was void for want of consideration and mutuality. McKinlay v. Watkins, 13 Ill. 140; Olney v. Howe, 89 id. 560; Chitty on Contracts, 13; Story on Contracts, secs. 377, 378.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The case seems to have been considered by the Appellate Court purely as presenting only a question of fact, viz: whether the evidence sustained the judgment of the circuit court,—for although one of the errors assigned in that court is that the circuit court erred in rejecting proper evidence, no point appears to have been made in argument on such ruling, and the abstract furnishes no ground for the error. There is, in our opinion, no question of law before us.

The credits indorsed on the note which was read in evidence exceed, by a considerable sum, the amount of the principal of the note and simple interest thereon at the rate provided by the terms of the note,—i. e., ten per cent; and it was not controverted that those payments were in fact made at the dates they respectively bear. The sole controversy was, whether there was a contract to pay interest upon interest. Appellant asserted there was such a contract, while appellees denied its existence. Necessarily, upon this question the burden was upon appellant, and it was incumbent upon him to prove a promise to pay such interest for a consideration deemed valuable in law, and an acceptance of such promise, either actual or constructive.

The consideration ¿laimed for the promise to pay interest upon interest was forbearance, pursuant to the promise. But clearly it was a question of fact, first, whether there was such a promise; second, if such promise, upon what consideration ; and third, -whether there was an acceptance of such promise.

A promise to pay the debt of another, it has been held, can not be rendered binding by proof that it was followed by forbearance, unless there be something to show, not only that it was made for the purpose of obtaining time, and that time was actually given, but that the indulgence thus accorded was in pursuance of the request implied by the promise. Snyder v. Leibengood, 4 Barr, 305; Cobb v. Page, 5 Harris, 469; Shupe v. Galbraith, 8 Casey, 10; Young v. Hill et al. 67 N. Y. 167. The question is one of fact, which can not be found affirmatively in the absence of proof. (Ibid.) And so, obviously, whether actual forbearance, following a promise to pay interest upon interest for forbearance, is evidence of an acceptance of the promise, is a question of fact. If, under all the circumstances in . evidence throwing light upon the question, it is reasonable to believe the party acted upon the faith of and pursuant to the promise, a jury would be justified in finding that he so acted,—otherwise not. But it is a mere matter of reasoning about human affairs, in which the individual knowledge and experience of the reasoner as to the motives of human action become a factor. It is finding a fact from circumstantial evidence,—or, as is said by some writers on evidence, a principal fact from subordinate evidentiary facts. If the question were whether there was an express acceptance by words, there could be no difficulty in perceiving the question to be purely one of fact; yet the only difference between that and the present question is that between direct and circumstantial evidence. There the proof is direct, and it is only to determine whether it shall be believed; here it is indirect, and requires reasoning, as well as perception and memory. But the conclusion is all the time one of fact,—in the one case, from evidence directly to the point; in the other case, from evidence more remote, but, it may be, equally convincing.

In Bridge Company v. Comrs. of Highways, 101 Ill. 519, we held that under section 89 of the amended Practice act of 1877, the sufficiency of the evidence to support the finding in the circuit court, however clear the question, would not be inquired into, and we there said: “The plaintiff in every action either assumes or expressly charges upon the record the existence of certain facts, upon the proof or admission of which his right of recovery depends. These facts, thus assumed or directly alleged to exist, are the principal facts pertaining to the suit. Sometimes they are established or proved by direct testimony, but they are often, indeed most generally, established by the proof of other facts, from which their existence is inferred. The latter, being mere evidence of the principal facts, are properly designated as evidentiary facts, and are so known to .the law. Both of these classes of facts we understand to fall within the statutory provisions that make the judgments of the Appellate Court ‘final and conclusive as to all matters of fact in controversy.’ In short, we understand that the ultimate facts to be proven on the trial, together with all subordinate facts offered as mere evidence of their existence, fall within the general statutory description, ‘all matters of fact in controversy,’ and as to such matters the statute declares the judgment of the Appellate Court shall be final. The ultimate propositions to be proven, the evidence submitted in support of them, the finding of the trial court on those propositions, and the judgment of the Appellate Court upon such findings, are matters which this court is not permitted to review where no exception has been taken or question of law has otherwise been preserved upon the record. ”

Whether the evidence clearly and decidedly preponderates one way or the other is manifestly of no consequence, since to determine this requires 'us to go into the controverted question of fact. Nor can it make any difference whether evidence be given upon one side only, or on both, or by but one or by many witnesses, for in a controversy of fact the party holding the negative may insist that the evidence introduced by the party holding the affirmative is insufficient, and on this ground alone controvert the question of fact.

The fallacy of counsel for appellant lies in supposing that the one-sidedness of the evidence, or its sufficiency to prove a fact in issue, can at all be inquired into by this court. As we said in a case in all respects analogous, (Fitch v. Johnson, 104 Ill. 118,) after quoting the statute: “All matters relating to the character, force and effect of the testimony, which counsel for appellant have discussed with so much earnestness and ability, are not before us at all, and by the above provision of the statute we are expressly forbidden to consider them. ” Propositions of law might have been presented to the court whereby the ruling of the judge on the various legal aspects of the case might have been obtained, (Fitch v. Johnson, supra,) but this was not done.

There being no question of law before us, the judgment of the Appellate Court must be affirmed.

Judgment affirmed. •


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    David Kreigh et al. v. John J. Sherman.

      Filed at Ottawa November 20, 1882.

    1. Appeals—finding of facts by Appellate Court. The affirmance of a judgment by the Appellate Court implies a finding of the facts in the same way they were found in the trial court; and where the action is upon a promissory note, and infancy, and illegality of the consideration are pleaded, such finding of the facts upon issues thus formed can not be reviewed by this court.
    2. Error—will not always reverse. An error in the admission of evidence which does no injury, as, where the same fact has been shown by other unobjectionable evidence, is no ground for a reversal of the judgment.
    3. Practice-—when to object to question to witness. An objection to a question to a witness comes too late when made for the first time in this court. It should be made at the time the question is propounded.
    4. Evidence—question to party—whether improper. On the trial of a suit upon a promissory note, in which one of the defences was that the note was given for money due and owing upon a gambling contract for the purchase of options on the board of trade, the court asked one of the plaintiffs, who was a witness in the case, if there was no understanding between him and the defendant that he was to furnish pork or grain, and whether the whole of the transaction, from beginning to end, was not merely to charge the defendant with the differences that might have grown out of the transactions: Held, that there was no special objection to the questions.
    5. Instruction—modifying, by directing jury to the evidence, no error. The modifying of instructions, by calling the attention of the jury to the fact of their duty to determine the nature and character of the transaction in dispute between the parties, from all the evidence in the case, is not an error.
    Appeal from -the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony,- Judge, presiding.
    Mr. Geo. F. Westover, for the appellants:
    The burden of proof was upon appellee to establish the defence of infancy. 2 Greenleaf on Evidence, sec. 362; Borthwick v. Carruthers, 1 T. R. 648; Leader v. Barry, 1 Esp. 253; Jeure v. Ward, 2 Starkie, 326.
    An entry in a family bible is but the declaration of the person making it, and can not be read in evidence if the person who made it is alive, and can be produced. 1 Greenleaf on Evidence, sec. 104, and note; Fosgate v. Herkimer H. and M. Co. 12 Barb. 352; Stein v. Bowman, 13 Pet. 220; Chapman v. Chapman, 2 Conn. 347.
    Even with all proper proof of genuineness, such entries can not be read in evidence, except in cases where the oral declarations of the parties are admissible. 1 Greenleaf on Evidence, secs. 103, 105.
    The testimony of appellee was but hearsay, and should have been excluded, as long as the parents were both living, and at hand.
    The undisputed facts do not show a gambling contract, and a new trial should have been granted. Sanborn v. Benedict, 78 Ill. 309; Follansbee v. Adams, 86 id. 13; Logan v. Musick & Brown, 81 id. 418; Wolcott v. Heath, 78 id. 433; Corbett v. Underwood, 83 id. 330.
    Even gambling contracts are not void at common law, except when they are indecent or immoral,' or tend to a breach of the peace, or are against public policy, and to render a contract void- as a wager contract, it must be brought within the terms of the statute.
    The court, upon the trial of the cause, asked of the appellee Davies, who was a witness, while testifying, an improper question, using language calculated to influence and bias the jury, against appellants.
    Mr. Irus Coy, for the appellee:
    Upon the issue of a ratification of the contract after coming of age, the burden of proof is on the plaintiff. 2 Greenleaf on Evidence, sec. 367.
    That the contract was illegal as a gambling one, see Logan v. Musick & Brown, 81 Ill. 415; Tenney et al. v. Foote, 95 id. 99; Pickering et al. v. Case, 79 id. 330.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of assumpsit, brought by appellants, in the Superior Court of Cook county, against John J. Sherman, to recover the amount of a promissory note which he executed on the 15th day of November, 1876, payable to the order of appellants, on demand, after date. The defendant pleaded to the action, first, that he was a minor when the note was executed; and secondly, that the consideration of the note was a sum of money due and owing upon a gambling contract, under which he purchased options on the board of trade, in violation of the statute. Upon a trial of the cause before a jury, a judgment was rendered in favor of the defendant, which was affirmed in the Appellate Court, and as the amount involved exceeded $1000, the plaintiffs appealed to this court, as they had a right to do, under the statute.

The affirmance of the judgment, however, by the Appellate Court, implies a finding of the facts in the same way they were found in the trial court. In that court, on the evidence introduced, it was found that defendant was a minor when he executed the note, and that the note was given for money lost by defendant in dealing in options on the board of trade. The finding of the jury was based on controverted facts, and that finding, under the statute, can not be reviewed here, as the judgment of the Appellate Court is final, so far as controverted questions of fact are involved. Only questions of law that arise on the record'remain to be considered.

On the trial the family bible, belonging to defendant’s mother, which contained the date defendant was born, was offered and admitted in evidence. Whether this evidence was competent, in the absence of proof that the mother, in whose handwriting the entry was made, was dead, or beyond the reach of the court, so that her evidence could not be produced, it will not be necessary here to determine, as there was other evidence upon this point sufficient to sustain the finding of the jury. The defendant himself testified on the trial that he was a minor when the note was executed. His evidence was in no manner contradicted or impeached, and if thé bible had been ruled out by the court, the result would have been the same. If the court, therefore, erred in admitting the evidence objected to, it was an error that did no harm, and an error which does no injury can not be urged as a ground for reversing a judgment.

During the trial, on the re-direct examination of appellant Davies, the court asked the following questions, which appellants urge were erroneous:

Q. “Was there no understanding between you and Sherman that he was to furnish pork or to furnish grain ?

A. “No understanding at all.

Q. “Now, wasn’t the whole of this transaction, from beginning to end, merely to charge him with the differences that may have grown out of the transactions ?

A. “No, sir.”

We perceive no special objection to the questions, but if they were improper, as no objection was made to the questions at the time, the objection made for the first time here comes too late.

The court modified three of appellants’ instructions, and gave them as modified. This action of the court is relied upon as error. The modification of the instructions consisted merely of a few added lines to each, in which the attention of the jury was called to the fact that it was their duty to determine the nature and character of the transaction between-the parties, from all the evidence in the case. The modifications contain no erroneous propositions of law, and we do not think the jury could have been misled by them.

On the application of appellee the court gave five instructions to the jury, which were excepted to by appellants. We have examined the instructions carefully, and we perceive no substantial objection to them. Indeed, the law involved in the ease seems to have been fairly given to the jury, and, so far as the record discloses, the parties have had a fair and impartial trial, and we perceive no ground whatever for disturbing the judgment of the Appellate Court.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Louisa S. Meserve, Ex’x. v. Henry Delaney.

      Filed at Ottawa November 20, 1882.

    1. County court—in Cook county—divested of probate jurisdiction. The act of 1877, creating probate courts in counties having a population of 100,000 or more, divested the county courts in those counties of all probate jurisdiction.
    2. Appeal—dismissed for refusing to pay cost of transcript, etc. An appeal by an executrix from an order of the county court of Cook county allowing a claim against the estate she represented, was allowed and perfected in 1875, but the appellant failed to file any transcript in the case in the circuit court, and in December, 1881, the party in whose favor the claim was allowed obtained from the clerk of the probate court (to which court the records and papers had been transferred) a transcript of the judgment appealed from, and the papers, properly certified, and filed the same in the circuit court, and after giving'the executrix notice, obtained a rule on her to refund the costs paid for the transcript by a short day named, and that in default thereof her appeal be dismissed. The rule not being complied with the appeal was dismissed. On appeal by the executrix from the order of dismissal, the judgment was affirmed.
    Writ of Error to the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Mr. H. O. McDaid, for the plaintiff in error.
    Mr. John E. Parker, for the defendant in error.
   Mr. Justice Scholfield

delivered the opinion of the Court:

On the 6th of October, 1875, a claim was allowed, by the judgment of the county court of Cook county, in favor of Henry Delaney, against the estate of Curtis C. Meserve, deceased, for the sum of $216.90. An appeal ivas prayed by the executrix from this judgment to the circuit court of Cook county. This was allowed, and the appeal was perfected by filing the necessary bond within the time required. All the probate records, and all the files, books and papers, of every kind, relating to probate matters, including the records, files, etc., of the estate of Curtis C. Meserve, deceased, were transferred from the county court of Cook county to the probate court of that boúhty, pursuant to an act entitled “An act to establish probate courts in all counties having a population of 100,000 or more, to define the jurisdiction thereof and regulate the practice therein, and to fix the time for holding the same,” approved April 27, 1877. Subsequent to this transfer, and on the 16th of December, 1881, Henry Delaney obtained from the clerk of the probate court of Cook county a transcript of the judgment so obtained by him against the estate of Curtis C. Meserve, and the papers properly accompanying a transcript of that character, duly certified by that clerk, and filed the same with the clerk of the circuit court of Cook county,—no transcript in the case having been, at any time previously, filed by the appellant in that office. After-causing a notice to be served upon appellant of the filing of this transcript and accompanying papers, Delaney obtained a rule of the circuit court requiring appellant to refund certain costs paid by him in obtaining the transcript, within a short day, and that in default thereof the appeal be dismissed, and appellant having failed to comply with this rule, the appeal was dismissed by order of that court. The present . appeal is from that order.

The case comes directly to this court, because the sole question discussed is the constitutionality of that portion of the statute of April 27, 1877, supra, pursuant to which the probate records and files of the county court of Cook county were transferred to the probate court of that county. This court held in Knickerbocker v. The People, 102 Ill. 218, that so much of the act above referred to as created the probate court was constitutional, and this was subsequently reiterated in Klokke v. Dodge, 103 Ill. 125.

But the contention of counsel for appellant is, that the constitution did not authorize the divesting of the county court of probate jurisdiction, although conceding it did authorize the creation of the probate court, but that after the creation of the probate court, that court and the county court had concurrent jurisdiction in matters of probate, in Cook county. The able and learned printed argument of counsel upon this point has been carefully considered, and a majority of the court are still of the opinion announced in Klokke v. Dodge, supra,—that the creation -of the probate court divested the county court of all probate jurisdiction. Mr. Chief Justice Scott, Mr. Justice Walker, and the writer hereof, did not concur in what was said in that regard in Klokke v. Dodge, supra, and they now dissent from the judgment here rendered.

The judgment below, for the reason expressed in Klokke v. Dodge, supra, is affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Christina Buchanan et al. v. Barbara McLennan et al.

      Filed at Ottawa November 20, 1882.

    1. "Wii-ii—validity determined from all the evidence on both sides. On a bill to contest the validity of a will, the defendants read in evidence the proofs made by the attesting witnesses in the probate court, and examined one of such witnesses, and rested, whereupon the complainants introduced evidence to sustain their bill, and after which defendants gave rebutting evidence, without objection: Held, that this court must consider the weight of all the evidence introduced by both parties, on the question of a new trial.
    2. New trial—on the evidence. Where the evidence is voluminous, and conflicting as to questions of fact, it is the province of the jury to consider, weigh, and reconcile the same as far as they can, and where they are unable to reconcile the same, to reject such portions as they may believe not entitled to credence; and in such case this court will not grant a new trial where the evidence is such as to justify a verdict either way.
    Appeal from the Circuit Court of Stark county; the Hon. N. M. Laws, Judge, presiding.
    Mr. C. C. Wilson, for the appellants:
    When a bill is filed to set aside a will, the burden of sustaining. the will is cast upon those averring its validity, and the question is tried de novo. Tate v. Tate, 89 Ill. 42; Carpenter et al. v. Calvert, 83 id. 62.
    It being a trial de novo, it -was obligatory upon the proponents of the will to establish its validity in every particular. The attestation must be proved, the same as if on appeal from the county court. Crowley v. Crowley, 80 Ill. 473.
    The party supporting the will must prove, by at least two witnesses, that the will was executed by the testator in their presence, or that he acknowledged the execution to be his act and deed, and that the testator was at the time of sound mind and memory,—and when this is done a prima facie case is made, and not' before; and then the party assuming the want of validity must establish the opposite with reasonable certainty,—or, in other words, if the complainants can show, by a preponderance of evidence, the want of any one of the necessary elements which make a valid will, the will must fall. Jarman on Wills, (5th Am. ed.) 104; Redfield on Wills, 30-50; Perkins v. Perkins, 39 N. H. 163; Brooks v. Barrett, 7 Peck, 94; Turner v. Cook, 36 Ind. 129; Dickey v. Carter, 42 Ill. 376; Crowley v. Crowley, 80 id. 473; Carpenter v. Calvert, 83 id. 71.
    Mr. James H. Miller, and Mr. Miles A. Fuller, for the appellees;
    It is not necessary on the trial of the issues in such a case as this, to prove by the subscribing witnesses the execution of the will, or that the testator was of sound mind, or free from undue influence; but the facts may be proved by any other witnesses as well, and even against the evidence of the subscribing witnesses. Rigg et al. v. Wilton, 13 Ill. 19.
    It is not necessary that witnesses be present when the will is signed by the testator. All that is necessary is, that he shall acknowledge it to be his will. Holloway v. Galloway, 51 Ill. 162.
    Appellants’ solicitor puts a wrong construction upon the question of proof of the issues in this cause; when he relies upon the case of Crowley v. Crowley, 80 Ill. 472. There, neither of the witnesses could identify the instrument of writing as the one they had attested, nor could they testify that the testator was of sound mind. This being an issue in chancery, we made a prima facie case by the certificate of the evidence of probate of the will. Holloway v. Galloway, 51 Ill. 161.
   Mr. Justice Walker

delivered the opinion of the Court:

A bill was filed by appellants to vacate and set aside the last will of John McLennan, deceased, on the ground of his mental incapacity, and of the undue influence of his son John K., in the disposition of his property by the will. By it the testator devised and bequeathed his property to the various members of his family. To" his son Finley, and to the heirs of his body lawfully begotten, a tract of 80 acres of land; to his son John K., 180 acres; to his son Duncan, 260 acres, embracing the homestead, but subject to an annuity of $200 to be paid to the widow of the testator. To his daughters he bequeathed to each sums of money ranging from $500 to $1200. To his widow, $200, to be paid annually, and charged on the land devised to Duncan. He, by the will, appointed his son John K. his executor. It was, after his death, duly filed and probated in the proper office. The will bore date the 31st day of August, 1872, and the testator died on the 20th of the following September, and the will was probated on the 30th of the latter month. Afterward, his widow renounced the provisions of the will, and took her dower and share under the statute, and the executor settled the affairs of the estate. About six years after the testator’s death, his son John K. died, and by will he devised the land devised to him by his father, to his brother Duncan. In October, 1880, Duncan died intestate, leaving Margaret McLennan, his widow, and an infant son, surviving him, and on the 2d day of March, 1881, this bill was filed. Margaret McLennan answered, denying the allegations of the bill, and a guardian ad litem answered for John McLennan, the infant heir. The other defendants did not answer. Issues of fact were made and submitted to the jury:

First—Is the writing purporting to be the last will of John McLennan, deceased, his last will and testament, or not.

Second—Was he at the time of the execution of the instrument, purporting to be his last will, of sound mind and memory.

Third—Was he at the time of the execution and attestation of the writing purporting to be his last will, unduly influenced in relation thereto by John K. McLennan.

On these issues of fact a trial was had, resulting in a verdict that the instrument was the last will of the testator, and complainants bring the record to this court and assign errors, and ask a reversal of the decree rendered on the verdict.

It is first insisted that defendants, by producing and reading in evidence the proof made by the attesting witnesses in the probate court, and the testimony of one of the attesting witnesses, did not make a prima facie case, so as to shift the burthen of proof to the complainants to prove the invalidity of the will, as alleged in the bill. This was held to be such evidence in the ease of Holloway v. Galloway, 51 Ill. 159. But if this were not so, when defendants had made this proof and rested their case, appellants accepted the burthen of proving the truth of the allegations of their bill, and introduced their proof, and after they had closed their evidence, appellees, without objection, introduced rebutting evidence; so we must consider the weight of all the evidence introduced by both parties. The evidence is voluminous, and is conflicting, and portions seem irreconcilable. The jury had before them and saw the witnesses. They had every and superior means to ours to weigh, compare and properly estimate the value of the evidence. They could judge, by the intelligence and demeanor, as to the proper weight- to be given to the testimony of all the witnesses. Of these means we are deprived. The judge who tried the ease was satisfied with and acted upon the verdict. Had it not been satisfactory to him, the plain requirement of duty would have compelled him to set it aside, but failing to do so, we must presume he was satisfied with the finding. Nor does a careful consideration of the evidence show -that the finding is clearly against its weight. It is clear, beyond dispute, that had appellees’ testimony been alone before the jury, they could have found no verdict different from that which they did; and the same is equally true of the evidence introduced ■'by appellants, had it been unopposed. In this conflict it was within the province of the jury to fully consider, weigh and reconcile it, so far as that could be done, and where they were unable to do so, then to reject such portions as they believed were not entitled to credence. We must presume that in the discharge of their duty they did this, and under well and long established rules of practice we are unable to interfere.

It is insisted that the jury were misled by some of the instructions given for appellees. As a series they present the law of the case fairly, and we think the jury could not have been misled by them. Some criticism is made by appellants to a number of them, but we think the objections urged are rather refined. Had the objections pointed out not been removed by others in the series, we are not prepared to say that they would, even in a case like this, have required a reversal. Had the verdict been either way, we should not have been inclined to reverse.

Being unable to say that error has been shown on this record, we must affirm the decree.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    J. V. Farwell & Co. v. Clarence V. Shove.

      Filed at Ottawa November 20, 1882.

      Practice—in trial by court—question of law, how presented. If, on a trial by the court, without a jury, a party desires to raise the question whether a contract offered in evidence is fraudulent in law, or to preserve in the record the ruling of the court as to the law of the case, so as to have the same reviewed, he should require the trial court to give its holding in an appropriate proposition for that purpose, otherwise this court can not know that the court erred as to the law of the case.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Bassett & Wharton, and Messrs. Martin, Murphy & Lynch, for the appellants.
    Mr. J. C. Pepper, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

J. Y. Farwell & Co. sued out of the Mercer county circuit court a writ of attachment, against the estate of Clarence Y. Shove, returnable to the November term, 1881, of said court. The affidavit upon which the writ of attachment was issued, after setting forth the nature and amount of the defendant’s indebtedness in the usual form, proceeds in these words: “That the said Clarence Y. Shove has, within two years preceding the filing of this affidavit, fraudulently conveyed and assigned his effects, or a part thereof, so as to hinder and delay his creditors; that the said Clarence Y. Shove has, within two years preceding the filing of this affidavit, fraudulently concealed and disposed of his property, so as to hinder and delay his creditors, and that the said Clarence V. Shove is about fraudulently to conceal, assign, or otherwise‘dispose of his property or effects, so as to hinder or delay his creditors.” The defendant filed a plea in abatement, in due form, traversing the allegations of the affidavit, and upon the issues thus made up the cause was submitted to and tried by the court, without a jury, resulting in a finding and judgment for the defendant, which, on appeal, was affirmed by the Appellate Court for the Second District, and the appellants bring the case here for review.

An examination of the record fails to disclose any grounds which would authorize a reversal of the judgment of the Appellate Court. The case was heard and determined in th'e trial court upon issues of fact only. No question of law has been preserved in or presented by the record, in such a manner as would authorize .us to consider it. A reversal is asked mainly on the ground that a certain contract offered in evidence was fraudulent in law. If counsel so regarded it, the proper course would have been to have [required the trial court to so hold in an appropriate proposition, framed for that purpose.

In giving a construction to the provisions of the statute on this subject, we have held so often that mere qxxestions of law like this must be raised and -preserved in the record by some appropriate method, which the law has provided for that purpose, before this court will be authorized to consider them, that it would seem there ought to be no misapprehension on the subject. But even if we were permitted to consider this question, we would have no hesitancy in holding the contract in.question is not fraudulent per se.

The judgment will be affirmed.

Judgment affirmed.


text:
    Chicago West Division Railway Company v. Phœbe R. Mills.

      Filed at Ottawa November 20, 1882.

    1. Pleading and evidence—only material allegations need be proved,. If the whole of an averment in the declaration may be stricken out without destroying the plaintiff’s right of action, it is not necessary to prove such averment.
    2. Same—as to surplusage. A party is not bound to prove matters alleged which are merely surplusage. If the proof does not correspond with such matters, the variance is immaterial.
    3. In an action to recover for personal injuries, where the plaintiff was injured while alighting from a street car, by the negligent starting of the car while the plaintiff was in the act of getting off, it is of no consequence whether the car was stopped at the instance of the plaintiff or not, or whether the plaintiff asked or obtained permission to alight; and such matters, if alleged in the declaration, are surplusage, and need not be proved, the gist of the action being negligence in starting the car while the plaintiff was in the act of alighting.
    4. Negligence—starting street car as passenger is getting off. If a street car is stopped for any cause at a place where passengers are in the habit of getting off, a passenger will have the right to alight without making any request or obtaining any permission; and if the driver of the car knew, or by the exercise of due care would have known it, it will be negligence to start the car before a passenger in the act of leaving the car has had a reasonable time in which to alight.
    5. Although the driver of a street car may have reason to believe that a . passenger does not intend to get off at a certain place of stopping, or even if he is expressly so notified by the passenger, it is still the duty of the driver to wait at such place until persons in the act of getting off have had a reasonable time to do so, before starting; and if he knows that such passenger is in the act of getting off, or might have known such fact by proper care and diligence, and does not give proper time, but starts, whereby the passenger is injured, he will be guilty of such negligence as to render the company whose servant he is, liable.
    6. Practice—directing the jury as to the character of their finding. "Where there is evidence tending to prove a cause of action, it is an invasion of the province of the jury to instruct them that the plaintiff can not recover.
    7. Instruction—as having evidence for its support. If there is any evidence tending to establish the facts submitted in an instruction, it can not be said to have no evidence on which to rest. It is not necessary that the facts submitted should appear by a preponderance of the evidence. Such an instruction is proper, though the preponderance of the evidence is the other way.
    8. Same—construed with reference to the evidence. An instruction must be construed with reference to the facts in evidence before the jury. So where an instruction stated the facts upon which the jury might find for the plaintiff, unless they should find, from the evidence, that a release was executed by the plaintiff under an agreement which he, at the time of making the same, was capable of understanding and intelligently consenting to, and the evidence showed the plaintiff was, at the time of executing the alleged release, temporarily under the influence of opiates, it was held, that the instruction must have been understood as referring to a want of intelligence caused by the influence of the opiates, and not as a simple lack of intelligence, especially when any pernicious effect of the instruction was fully counteracted by one of the instructions on-the other side.
    9. Appeals—reviewing controverted questions of fact. In an action to recover damages based upon negligence, 'where the judgment below has been affirmed by the Appellate Court, this court is precluded from examining any controverted questions of fact.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    On the 4th of May, 1876, appellee sued appellant, in the Cook circuit court, in an action on the case, for negligence. The general issue, and also special pleas of accord and satisfaction, and a special plea of release, were pleaded. The similiter was added to the general issue. To the plea of accord and satisfaction it was replied, that plaintiff, at the time she received said payment, etc., was unconscious, and wholly incapable of understanding the meaning and effect of what she did, etc., and to the special plea of release, non est factum was replied. Subsequently, the parties stipulated, in writing, that the plaintiff, under her replication of non est factum, might show any fact or facts, or any defence which it would be competent for her to prove under any special replication well pleaded to the pleas of reléase, and that the defendant might meet such facts or defence in the same manner and with like effect as they could do under any rejoinder legally interposed. At the May term, 1877, of that court, trial was had, resulting in a judgment for the plaintiff. The defendant appealed to" this court, and the judgment of the circuit court was, at our September term, 1878, reversed, and the cause remanded for a trial de novo. The case is reported as Chicago West Division Ry. Co. v. Mills, 91 Ill. 39, to which reference is made for a full statement of the facts. After the remanding of the cause, and at the January term, 1882, of the Cook circuit court, another trial was had, resulting, as the first, in a judgment in favor of the plaintiff. From that judgment appeal was prosecuted to the Appellate Court for the First District, and that court, at its March term, 1882, affirmed the judgment of the circuit court. This appeal is from that judgment. The errors assigned raise the questions discussed in the opinion.
    Mr. Feancis H. Kales, for the appellant:
    The plaintiff having failed to give any evidence tending to prove certain material allegations in her declaration, could not recover. The court, therefore, erred in not instructing the jury “that upon the evidence in this case the plaintiff can not recover. ”
    The court erred in giving the plaintiff’s first instruction, for the reason the evidence did not show the facts upon which it was predicated. The conduct of the plaintiff plainly indicated to the driver that she intended, after coming down on the cars and not alighting at the end of the route, to make the return trip on the same car. She gave no signal of any change of purpose, or of a desire to alight, so that the driver, on starting, had no notice she was getting off. The driver was not bound to stop, or wait, unless he knew, or might have known by due care, that a passenger wished to get off the car. Chicago and Northwestern Ry. Co. v. Dimmick, 96 Ill. 42; Chicago, Burlington and Quincy R. R. Co. v. Johnson, 103 id. 512; Illinois Central R. R. Co. v. Green, 81 id. 19; Railroad Co. v. Delaney, 82 id. 98; Schmidt v. Railroad Co. 83 id. 405.
    That part of plaintiff’s first instruction, to the effect that the ¡ilaintiff’s release, to be valid, must have been “executed by the plaintiff under an agreement which she was, at the time of making it, capable of understanding and intelligently consenting to,” is erroneous. The disability pointed out as a guide to the jury was not that of a temporary impairment, however caused, of her mental faculties, but was made to depend upon the quantum of capacity and general intelligence which she possessed.
    Mr. S. K. Dow, for the appellee:
    The evidence sustained the material allegations of the declaration. The gravamen of the action is not negligence in not stopping the car on request, but that the defendant having stopped the car for passengers to alight therefrom, among whom was the plaintiff, it suddenly and violently started its car, without having waited a reasonable time for appellee to alight. Hence the court properly refused to instruct the jury to find for the defendant on the evidence.
    As to the negligence of the parties, the trial court found, from the evidence, the material and principal fact that the plaintiff was injured through the negligence of the defendant, and the Appellate Court having confirmed this finding, the decision of the Appellate Court as to the facts is final and conclusive. Wrought Iron Bridge Co. v. Commissioners of Highways, 101 Ill. 518.
    The allusion in the instruction to the plaintiff’s state of mind at the time of executing the release, could not be understood as an ordinary want of intelligence, and was no doubt understood in reference to her state of mind at the particular time, arising from the use of opiates, etc. As to mental capacity to contract, see Yore v. McCord, 74 Ill. 33; 1 Redfield on Wills, 123, 124.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The several alleged errors in the rulings below will he passed upon in the order of their discussion in the argument on behalf of appellant.

First—The point is made that it is alleged in the declaration that it became the duty of the defendant, upon the plaintiff’s request, to slacken speed, so as to enable her, in the exercise of due care, to alight from the car without injury; that it neglected to do so, but on the contrary, on the request of the plaintiff, the defendant caused its car to he stopped, and the plaintiff, with the defendant’s consent and permission, attempted to alight from the car, and while so attempting the defendant carelessly, etc., caused the car to be suddenly and violently started, etc., whereby, etc.,—whereas there is no evidence in the record tending to prove that the plaintiff requested the defendant to stop for her to alight, or that it did so, or that she obtained the defendant’s consent or permission to alight when she attempted to do so, or that the defendant or its servants knew she was attempting to alight when she undertook to do so, and that therefore the circuit • court should have given, as asked, the defendant’s fourth instruction, namely, that “upon the evidence in this case the plaintiff can not recover.”

A party is not hound to prove matters which are merely surplusage. If the proof does not correspond with such matters, the variance is immaterial. (Pennsylvania Co. v. Conlan, 101 Ill. 93.) If the whole of an averment may be stricken out without destroying the plaintiff’s right of action, it is not necessary to prove it. (Williamson v. Allinson, 2 East, 446; Maxwell v. Maxwell, 31 Maine, 184.) The gist of the present action is the negligence of the defendant in starting the car while the plaintiff was in the act of alighting. It was of no consequence whether the car was stopped at the instance of the plaintiff or not, since the act of stopping was productive of no injury, and is in no respect complained of. It is sufficient while the car was stopped parties were getting off, and the plaintiff, while attempting also to do so, with due care, was injured by reason of the negligent starting of the car by the defendant’s servant. Nor could it be material to determine whether plaintiff asked or obtained permission of the defendant or its servants to alight. The car being stopped, from whatever cause, at a place where passengers were in the habit of alighting, she had the undoubted right to alight without making any request or obtaining any permission in that regard, and if the defendant’s servants knew, or by the exercise of due care would have known of it, it was negligence on their part to start the car before she had a reasonable time in which to alight. So it would seem clear, if the allegation that counsel insists there is no evidence tending to prove, were stricken from the declaration, it would still be substantially good. Where there is evidence tending to prove a cause of action, it is an invasion of the province of the jury to instruct them that the plaintiff can not recover. Guerdon v. Corbett et al. 87 Ill. 272; Hubner v. Feige, 90 id. 208; Peoria Ins. Co. v. Frost, 37 id. 333.

There was some evidence tending to prove that the plaintiff was injured while attempting to alight with due care, by reason of the negligence of the defendant’s servant in starting .the car. It follows, in our opinion, there was no error in refusing to give the instruction.

Second—The first instruction, given at the instance of the plaintiff, is as follows :

“The court instructs the jury, as matter of law applicable to this case, that it was the duty of the defendant, as a common carrier of persons at Chicago for hire, when it stopped its cars, whether in consequence of a signal from some pas.senger on the car or not, not to start the same again while 'its passengers are in the act of getting off the car, if the fact that its passengers are in the act of alighting is known to the person having charge of the same, or would be known to such person by the exercise of due care and caution in the discharge of his duties, and as a common carrier of passengers defendant should give its passengers a reasonable opportunity to alight from its cars before starting the same, when the fact _ that its passengers desire to alight is known, or by the exercise of due care and diligence would be known to the person in charge of the car; and if the jury believe, from the evidence and the circumstances proven in this case, that on the 13th day of May, A. D. 1875, the plaintiff was a passenger upon one of the street cars of the defendant operated by it on Madison and State streets, within the city of Chicago, and that while such car of defendant in which plaintiff and others were being conveyed as passengers, was driven along State street, north of Randolph street, it was stopped for the purpose of allowing its passengers, among which was the plaintiff, to get off, or had stopped for any other purpose, with or without a signal to stop, and when so stopped the passengers were in the act of getting off said car, with the knowledge of the driver of said car; and if you further find, from the evidence, that the plaintiff, at this time and place, the said car being stopped and not in motion, (if you find, from the evidence, that such was the fact,) in the exercise of due care and diligence on her part, was also in the act of alighting from said car, and that the defendant, by its driver, started the said car while plaintiff was so getting off, and. before she had a reasonable time to do so, and thereby threw • the plaintiff down upon the street,, and by reason thereof the neck of her thigh-bone was broken or injured, without negligence or fault ón her part, and by reason of negligence or carelessness on the part of the driver of the car, (if you find, from the evidence, he was guilty of carelessness or negligence in starting the car,) then the defendant would be liable for the damages thereby sustained by plaintiff, and the verdict' should be for the plaintiff, unless the jury further find, from the evidence, that the release read in evidence was executed by plaintiff under an agreement which she was, at the time of making it, capable of understanding and intelligently consenting to, or that, after being fully informed thereof, she ratified it or failed to return the consideration paid to her, (if the jury believe, from the evidence, any was paid to her,) and thereby avoid said release. ”

Three objections are taken by counsel to this instruction:

1. It is insisted the evidence does not show that the defendant was in any manner negligent, and that therefore there was nothing in the evidence upon which to rest the instruction. It may be that if the question of the preponderance of the evidence upon the question of negligence were submitted to us as an original question, we would be of opinion that the decided preponderance is with the defendant. Still, that could not be of the slightest moment in respect of the duty now incumbent upon us. The question is, simply, did the evidence tend to establish the point submitted ? If it did, then it was properly left to the jury. We have already said that, in our opinion, there was evidence tending to establish negligence in the servants of the defendant, and that was sufficient. The question was, then, proper to be submitted to the jury.

2. It is again insisted that the plaintiff, by her conduct, plainly told the driver of the car that she intended, after coming down on the car and not alighting at the end of the route, to make the return trip on the same car, and that hence so much of the instruction as declared the duty of the defendant to be not to start the ears while its passengers are in the act of getting off, was erroneous, because inapplicable. It can not with accuracy be said all the evidence shows, and none tends to the contrary, as here insisted by counsel for the defendant. Mrs. Camp testified, among other things: “People were getting off the cars, and we (i. ¿., plaintiff and witness,) finally concluded we also would get off. I got off. I noticed she arose and followed immediately. ” Again she said: “One reason why we thought we would get off, was because others were getting off. Others arose a little before, and we arose as others. * * * They were in the act of rising and getting out as we did. My recollection is there were several that seemed to be rising and leaving the car. The car was standing still, and others were getting off. ” Plaintiff, among other things, testified: “Mrs. Camp got off. Others got off, and I attempted to get off. The car started while one of my feet was on the side platform of the summer car and the other foot was stepping down, and threw me down. The car must have been started suddenly. I felt a jerk, and seemed to feel a whirl, and fell. * * * When we were getting off, the car was standing still. Had not been standing still many minutes. People were getting off. We commenced to get off as soon as it stopped. There were other ladies. They got off the same side as we did. I saw Mrs. Camp get off. The ear stopped to let passengers off, as I took it. I do not think I rang the bell—could not tell who did ring the bell. It is my impression that it was rung. Am certain this car was standing still. Did not attempt to get off while the car was moving. It was an open summer car, and he (the driver) could have seen me. There was no obstruction to prevent him knowing whether the passengers were getting off. ” The driver of the car testified, on cross-examination : “The accident occurred on State street, between fifty and one hundred feet from Randolph street. The car was an open summer car. The fact that I saw the lady fall from the side of the car refreshes my recollection. * * * There were no obstructions to prevent my seeing this lady as she was stepping down from the car. I could see her distinctly, and she could see me. * * * There are lots of passengers that ride either way on this part of State street, north of Randolph. There was no provision against it. * * * Anybody could get on or off between Bandolph and Lake streets, if they chose. There was no provision against it.” If the driver of the car knew that passengers were getting off, as it would seem from this evidence he did, it was his duty not to start the car until they had sufficient time to get off. So, also, where a driver stops a car at a place where passengers are in the habit of getting off, he must not start it again until he knows he can do so in safety to his passengers. There is nothing in the evidence from which it is pretended the driver was authorized to infer plaintiff did not intend to get off, except the fact she rode to the end of the track, and did not get off. But it can not be said that any legal inference results from this. People may get off when and where they please, provided the car is stopped .when they attempt to do so. But even if the driver had been expressly notified by plaintiff that she did not intend to get off, when he saw passengers getting off it was still his duty to wait until they had reasonable time to leave the car, before starting.

3. It is insisted that the instruction in respect of the release submits an improper test,—that although she may not have been under any mental impairment, still, under this instruction, if she did not have sufficient intelligence she would not be bound by it. This instruction must be construed with reference to the facts in evidence before the jury, and being so construed, it must have been understood that the want of intelligence was caused by her being temporarily under the influence of opiates, etc.; and any pernicious effect that this instruction might possibly have otherwise had, was fully counteracted by the defendant’s third instruction, supplementing and explaining all that is here omitted.

We think, on the whole, the instruction is free of legal objection.

Third—We are precluded, in cases like the present, from going into any controverted question of fact. The language of the amended Practice act of June 2, 1877, is explicit, that “no assignment of error shall be allowed which shall call in question the determination of the inferior appellate court upon controverted questions of fact.” Comment can not make this more plain.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    The City of Chicago v. The Chicago and Western Indiana Railroad Company.

      Filed at Ottawa November 20, 1882.

    1. Contracts—condition subsequent. Where the act on which an estate or right depends does not necessarily precede the vesting of the estate oi right, but may accompany or follow it, the condition is a condition subsequent,—not a conditional.limitation.
    2. Same—when performance prevented—right becomes absolute. The rule at law is, that if a condition subsequent is possible at the time of making it, and becomes afterwards impossible, by the act of God, or the law, or the grantor, the estate having once vested is not thereby divested, but becomes absolute. It is said, however, that equity will not apply the principle to the extent of the last particular, to make the estate absolute.
    3. Same—application of the rule. So where a city granted a license to a railway company to construct its road across the streets, upon an express condition that the tracks authorized should be constructed within one year from the time of the grant, and the company was prevented from completing its track within the year from injunctions, and also by the police officers of the city, acting under the direction of the mayor, it was held, the right of the company under the grant was not lost, and the city might be enjoined from interfering with the laying of the track after the expiration of the year, when it is apparent that the same would have been completed within the time limited had it not been prevented by operation of law and the acts of the city authorities.
    4. Municipal corporation—when bound by acts of its officers. The unauthorized acts of municipal officers are regarded as the acts of the corporation, when they are performed by that branch of the municipal government which is invested with jurisdiction to act for the corporation upon the subject to which the particular act relates.

      5. Decree—construed. A decree enjoining a city from interfering with the construction and operation of a railway through certain streets, can not be construed to prevent the city from the exercise of any legal remedies to prevent the laying of the railroad track across school lots without acquiring the right of way over the same.
    6. Ordinance—construed, as to leasing railroad to other companies. An ordinance giving a railroad company license to construct its track across and along the streets and alleys of a city, upon the condition it shall permit any other companies, not exceeding two in number, to use its main track, upon such fair and equitable terms as may be agreed upon, will not be construed as prohibiting the company from leasing the use of its track in the city to more than two other companies. Such provision is a limitation, not upon the right of the company to admit other companies to a joint use of its track, but upon the exclusive enjoyment of the estate granted by the city.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. Francis Adams, and Mr. J. L. High, for the appellant:
    The time granted within which to complete the road was not a condition subsequent, but a conditional limitation, self executing, under which the license terminated absolutely upon the happening of the event named. 2 Washburn on Real Prop. 20, 24; 4 Kent’s Commentaries, 127; 2 Blackstone’s Commentaries, 155; Mills on Eminent Domain, sec. 58; N. Y., H. and N. R. R. Co. v. B. H. and E. R. R. Co. 36 Conn. 196; In re B. W. and N. R. R. Co. 72 N. Y. 245; 75 id. 335; Brooklyn S. T. Co. v. City of Brooklyn, 78 id. 524; Green v. Green, 34 Ill. 320; Chicago City Ry. Co. v. People, 73 id. 541; Oakland R. R. Co. v. Oakland B. and F. V. R. R. Co. 45 Cal. 365; Morris and Essex R. R. Co. v. Central R. R. Co. 2 Vroom, 205; Regina v. London and N. W. R. R. Co. 6 Eng. L. & Eq. 220; Glamorganshire Canal Co. v. Blackmore, 1 C. & F. 262; Peavey v. Calais R. R. Co. 30 Maine, 498.
    A party is not relieved from the obligation of his conduct either by inevitable accident, by the act of the law, or by the action of third parties. Paradine v. Jane, Aleyn, 26;
      Atkinson v. Ritchie, 10 East, 530; Brecknock and A. C. N. Co. v. Pritchard, 6 T. R. 750; Hadley v. Clark, 8 id. 259; Shubrick v. Salmund, 3 Burr. 1637; Barret v. Dutton, 4 Camp. 333; Parker v. Hodgson, 3 M. & S. 265; Storer v. Gordon, id. 308; Bacon v. Cobb, 45 Ill. 47; Steele v. Buck, 61 id. 343; Bunn v. Prather, 21 id. 217; Kitzinger v. Sanborn, 70 id. 146; Walker v. Tucker, id. 527; Cobb v. Harmon, 23 N. Y. 148; Beebe v. Johnson, 19 Wend. 500; Tompkins v. Dudley, 25 N. Y. 272; Adams v. Nichols, 19 Pick. 275.
    Injunctions obtained at the suit of third persons do not suspend or extend the period of limitation. Wilkinson v. First National Fire Ins. Co. 72 N. Y. 499; Barker v. Milard, 16 Wend. 572.
    If the temporary stoppage caused by the mayor and police had been wholly unwarranted and illegal, they would, at the most, have been acts ultra vires, for which the city is not bound. Dillon on Municipal Corp. secs. 772, 968, 974; Board of Trustees v. Schrœder, 58 Ill. 353; City of Chicago v. McGraw, 75 id. 566; City of Chicago v. Turner, 80 id. 419; Western College v. Cleveland, 12 Ohio St. 375; Buttrick v. City of Lowell, 1 Allen, 172; Thayer v. City of Boston, 19 Pick. 511.
    The school lots are exempt from taxation, and not subject to condemnation, the right of eminent domain being limited to private property. City of Chicago v. People, 80 Ill. 384; St. Louis, J. and C. R. R. Co. v. Trustees of the Blind Institution, 43 id. 303; Const. art. 2, sec. 13; Eminent Domain act, chap. 47, sec. 1.
    By accepting the grant of the license, the company contracted not to lease its road to more than two other companies, and the city is entitled to an injunction on its cross-bill. Seymour v. McDonald, 4 Sandf. Ch. 502; Hills v. Miller, 3 Paige, 254; Trustees v. Cowen, 4 id. 510; Clark v. Martin, 49 Pa. St. 289; Mann v. Stephens, 15 Sim. 377.

      Messrs. Lawrence, Campbell & Lawrence, for the appellee:
    A court of equity will not lend its aid to divest an estate for the breach of a condition subsequent, or enforce a forfeiture or penalty. 4 Kent’s Commentaries, 130; 2 Story’s Eq. Jur. sec. 1319; Livingston v. Tompkins, 4 Johns. Ch. 431; 1 Washburn on Real Prop. chap. 14, sec. 21; Warner v. Bennett, 31 Conn. 478; White v. Port Huron and Milwaukee R. R. Co. 13 Mich. 360; Hall v. Delaplaine, 5 Wis. 215.
    The non-performance of a condition precedent is excused, and a forfeiture prevented, when the non-performance is caused by the act of the grantor making the condition, or by the act of God, or by the law. Nicoll v. New York and Erie R. R. Co. 12 N. Y. 130; Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co. 32 Barb. 366; Davis v. Gray, 16 Wall. 230; Hotham v. East India Co. 1 T. R. 645; Moakley v. Riggs, 19 Johns. 71.
    He who prevents a thing from being done can not" avail himself of the non-performance; and this applies as well to conditions precedent. Fleming v. Gilbert, 3 Johns. 528; Mayor v. Butler, 1 Barb. 337; Clarke v. Crandall, 27 id. 97; Davis v. Gray, 16 Wall. 230; Jones v. Walker, 13 B. Mon. 165; Potter v. Dennison, 5 Gilm. 590; Town of Mt. Vernon v. Patton, 94 Ill. 66; Risinger v. Cheney, 2 Gilm. 90; Stewart v. Kiteltas, 36 N. Y. 388; Parker Co. v. O'Hern, 8 Md. 197; McKee v. Miller, 4 Blackf. 222; Borden v. Borden, 5 Mass. 67; Wheatley v. Covington, 11 Bush, 18; Rawson v. Clark, 70 Ill. 656; Smith v. Cedar Rapids, 43 Iowa, 239; Shaw v. Hurd, 3 Bibb, 372.
    The unauthorized acts of municipal officers are regarded as the acts of the corporation, when they are performed by that branch of the municipal government which is invested with jurisdiction to act for the corporation on the subject to which the particular act relates. Buffalo and Hamburgh Turnpike Co. v. City of Buffalo, 58 N. Y. 639; Thayer v. City

      of Boston, 19 Pick. 511; Allen v. City of Decatur, 23 Ill. 334; Wolf et al. v. Boettcher, 64 id. 316.
    Mr. Chas. M. Osbobn, also for the appellee, filed a brief and argument, making various points, some of which are embraced in the preceding brief.
   Mr. Justice Sheldon

delivered the opinion of the Court:

On the 15th day of September, 1879, the city of Chicago passed an ordinance granting to the Chicago and Western Indiana Railroad Company a license to enter the city from its southern boundary, and lay the track of its road as far north as Van Burén street, giving specific permission to cross any and all intervening streets and alleys, subject to the direction of the city authorities as to the manner of construction and keeping in repair of the streets, alleys and crossings occupied. The ordinance contained this section:

“See. 8. The privilege and authority hereby granted are so granted upon the further express condition that the tracks authorized by this ordinance shall he laid down and Constructed within one year from the passage of this ordinance, and if not so constructed and in operation, all the rights and privileges granted by this ordinance to such company shall cease, and be null and void. ”

On September 15, 1880, the railroad company filed its bill in this case in the Superior Court of Cook county, to enjoin the city and its officers from preventing the laying of the tracks of the complainant across Twelfth street, and other streets in the city of Chicago lying between Twelfth and Van Burén streets, and a preliminary injunction was granted on that day. The city answered, denying the rights claimed by the company, and also filed a cross-bill, claiming that by virtue of the expiration of a year from the passage of the ordinance without completing and operating the road, the company had lost all the rights granted by the ordinance of September 15, 1879, and praying an injunction in that respect. Upon the final hearing the preliminary injunction was made perpetual, and the cross-bill of the city dismissed for want of equity. On appeal to .the Appellate Court for the First District the decree was affirmed, and the'city appealed to this court.

It is claimed' by the city that the limitation of one year, fixed by the ordinance, for the construction of the road, was not a condition subsequent, but a conditional limitation, self operating by its terms, under which the license granted absolutely terminated, ipso facto, upon the happening of the event named. The condition here we regard as a condition subsequent. Where the act on which the estate depends does not necessarily precede the vesting of the estate, but may accompany or follow it, the condition is subsequent. (3 Pet. 374.) It was evidently the design of the-parties here that the license should vest at once, so that the company might proceed immediately to perform the condition by laying its tracks across the streets, and the license would be liable to be defeated by failure, witho.ut excuse, to perform the condition. We need but to refer to the following authorities upon the subject: Nicoll v. New York and Erie R. R. Co. 2 Kern. 121; Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co. 32 Barb. 366; Davis v. Gray, 16 Wall. 230. These were cases of grants to a railway company, upon condition that the road should be constructed within a limited time, and the conditions were held to be conditions subsequent. In the case last cited it was said: “The rule at law is, that if a condition subsequent be possible at the time of making it, and becomes afterwards impossible to be complied with, by the act of God, or the law, or the grantor, the estate having once vested is not thereby divested, but becomes absolute.” It is there said, however, that equity will not apply the principle to the extent of the last particular, to make the estate absolute. The above rule is too familiar to need the citation of any authorities in its support. We refer, however,- to the following: Hotham v. East India Company, 1 Term Rep. 645; Moakley v. Riggs, 19 Johns. 71; Fleming v. Gilbert, 3 id. 528; The Mayor of New York v. Butler, 1 Barb. 337; Jones v. Walker, 13 B. Monroe, 165; Potter v. Dennison, 5 Gilm. 590; Risinger v. Cheney, 2 id. 90. In most of these cases even the non-performance of a condition precedent was held excused, when caused by the party imposing the condition. In Fleming v. Gilbert, supra, it was said: “It is a sound principle that he who prevents a thing being done shall not avail himself of the non-performance he has occasioned. ”

As we conceive, it is not a question of any practical importance whether we call this a grant of a license with a condition subsequent, or a conditional limitation, as appellant’s counsel term it, for we consider the effect of non-performance, when caused by the act of the city, would be the same in either case. By the admission of appellant’s counsel the principal distinction between estates upon condition subsequent and conditional limitations is, that in the former case the condition becomes operative only by some affirmative act of the grantor or his heirs in resuming the estate granted, but that in the latter case no such act is required.

The railroad company claims that it has two distinct excuses for the non-performance of the condition in the ordinance : First, the performance of the condition was prevented by the act of the city; second, the performance was also prevented by the act of the law, through various injunctions restraining the company from the construction of its road.

The evidence shows that before the passage of the ordinance the company had acquired a portion of its right of way, and after such passage proceeded to acquire other portions, by purchase and condemnation, and it appears to have been diligent in its efforts to secure its right of way, and early in 1880 had its track laid north as far as Archer avenue, where it had a temporary .passenger de_pot, and to and from which trains arrived and departed daily. Before September 15, 1880, the company had a continuous line in operation as far north as Sixteenth street, a small part of the way being over a track leased from the Chicago and Alton Railroad Company, and north of Sixteenth street had jrarchased large amounts ,of property, had erected various buildings for freight houses and other purposes, had laid down tracks from a short distance north of Sixteenth street to Twelfth street, upon which a construction engine was running, and but for opposition by the Lake Shore road at the point of crossing its line it would have been running trains regularly to Twelfth street some time prior to September 15, 1880. Commencing early in April, 1880, there were quite a number of injunctions issued in suits brought by different parties against the company, enjoining the crossing or condemning of various pieces of property along the line, which injunctions were not dissolved until some time after September 15, 1880. These injunctions form the excuse of prevention by the act of the law. As none of these injunctions were obtained by the city, we shall not consider the question of their .sufficiency as an excuse under this head, as we do not find it to be necessary for our determination of this case.

As respects prevention of performance by the city, the evidence shows that there were many stojipages by the police officers of the city of the crossing by the company of various streets from Thirty-fifth street north, occasioning in all a considerable delay of the work. The justification offered for these stoppages is, they were on the account of a permit not having been obtained from the department of public works for the proposed crossing, and notification given, so that there might be an officer jiresent for the supervision of the work. The evidence is not satisfying that this was t.he real cause, but it tends to show that the action was rather under what has somewhat the appearance of a systematic jiolicy on the part of city officials to obstruct the progress of the work.

On the 23cl of March, 1880, there was rendered in the Appellate Court for the First District, a decision in what is known as the Hickey ease, pronouncing the ordinance in question void. The president of the railway company testifies, that “after the decision of the Appellate Court in the Hickey case I had several interviews with the mayor, who said that he must regard that decision as the law, and forbid our laying tracks until the decision was passed upon by a higher court; he should stop us if we undertook to cross any streets. ” The mayor in his testimony somewhat qualifies the above, but he does say: “In all my conversations with Mr. Brown, the president of the company, (probably I had half a dozen after the decision of the Appellate Court holding the ordinance void,) I told him I would not object to his crossing any streets in his line, provided individual property owners offered no objection,—that I would consider the ordinance as a law to me, but when property owners objected I would have to listen to them, and on that I forbade their crossing Fourteenth street.” This does not vary the prohibition substantially from that as testified to by the president of the company,— whenever a street was to be crossed there would be objection, of course, by property holders, as there ever had been.

After the interview with the mayor, the company gave orders to its superintendent of construction not to lay any more tracks, and none were attempted to be laid until July 16, 1880. On that day the company recommenced the laying of their tracks, and laid them, in fact, across Fourteenth street. As soon as this came to the knowledge of the city authorities, the superintendent of streets, acting under orders from the mayor, as he stated, proceeded to Fourteenth street with a body of police, and caused them to tear up the rails already down, and remove them, together with the ties, off the street. The company then suspended further action until September 4, 1880, when this court rendered a decision in the Dunbar case, overruling the decision of the Appellate Court in the Hickey case, and holding the ordinance valid. The company then proceeded with the construction of its road, and without opposition, so far as concerned the streets south of Twelfth street. The tracks across Twelfth, Taylor, Polk and Harrison streets remained to be laid, and by the loth of September, 1880, the company had made its preparations for laying such tracks, and had bought the adjacent lots upon each street at the place of the proposed crossings. On the morning of September 15, 1880, the company applied to the Superior Court for an injunction against the city and its officers, to restrain them from interference with the railroad company in the laying of its tracks across the above named streets. This bill was the original bill in the present case. The injunction was awarded, and duly served, and after such service the company commenced the laying of its tracks across each of said streets at the same time. But before the day was over, the superintendent of streets, heading a force of police, appeared at each of the street crossings, tore up the rails and ties which had been laid entirely across Twelfth and Polk streets, and partially across Taylor and Harrison streets, and the ties were piled together on vacant lots near the respective crossings, and the mob which had gathered set them on fire, and laid the rails across the burning ties. The next day an attachment was issued '’’against the city officers for contempt of the injunction, and the superintendent of streets was found guilty of contempt, and punished. Soon after the termination of the contempt proceedings, the rails were relaid across these streets, where they have since remained.

As against the claim of the city to have forfeited the right given by the ordinance to construct the road across streets, because of non-compliance with the condition that the road should be completed within one year, is the railroad company entitled to say that it was prevented from such compliance by the act of the city ? We think it is. It is true that this act of prevention of September 15, of itself, was not the cause of the non-completion of the road within the year, as it would not have been completed within that time if there had not been this act of interference. ’It was intended to lay the tracks on that day only across the streets, and not through the intervening blocks; and, indeed, this latter could not have been done, as the entire right of way between Twelfth and Van Burén streets had not been obtained,—and this is made a point against the company, that it had not acquired the right of way, and from that cause was unable to complete the road within the time limited. But we think the company is entitled to say that it was prevented from the construction of its road for a period of at least five months, dating back to the time of the mayor’s forbidding any further laying of the tracks. During such time of prevention it could not be expected the company would incur the expenditure of large sums of money in acquiring the right of way, so long as there was this uncertainty whether it would be permitted by the city to cross the streets. Had there not been such obstruction by the city, the company might have acquired the entire right of way previous to September 15, and it may well say that it would have done so, and the city should not be admitted to gainsay it. There should be all reasonable construction against the city, in order that it may not have a chance of advantage from its own wrong.

As to how much of prevention of performance there was, the executive head of the city government, under a decision of court that the ordinance was void, had, some five months before the expiration of the year, forbidden the further construction of the road across any streets. In the two instances of attempt to lay the tracks afterwards, there was actual prevention by force. The occurrences of July 16, at Fourteenth street, and of September 15, at the streets north of Twelfth, demonstrate what was the meaning of the interdict of the mayor, and what potency it had. They show that it was tantamount to prevention by physical force, and that the company had the right to so take it, and to yield to it as such. Even an injunction of court was powerless to withstand the carrying of it into effect. In these two instances of attempts to lay the tracks in the face of the mayor’s prohibition, there was actual prevention by force. It is a fair conclusion that the same result would have attended such an attempt on any other day whilst this prohibition hung over the railroad company. After September 4 (the time this court decided the ordinance to be valid) the prohibition was relaxed so far as to permit the laying of tracks south of Twelfth street, but north of Twelfth street the prohibition continued in force, as shown by the events of September 15.

It is objected that there had been no location of the line of the road north of Twelfth street. It was certainly located across the streets when the tracks across. them were laid down. There does not appear to have been any resolution of the board of directors making a location of the line, but it appears that in July, 1879, the directors, acting among themselves, individually, selected this route, and marked it upon a map; that the map was taken to New York, and there exhibited, and with the line thus designated a loan was negotiated, and upon the president’s return he reported to the board of directors that he had in New York submitted the plan of the company to further extend its line into the city, and to acquire the necessary ground for the erection of a union passenger depot on Van Burén street, etc., and that he had effected the loan, and thereupon a resolution was passed approving the negotiations as thus reported. But whether a location or not, there was no provision in the condition for the location of the road specifically. The location was a matter pertaining to the construction of the road, and if there was excuse for the non-construction of the road within the year, there would, likewise be such for not having located it. Had there been no prevention by the city, as before said, the road might have been located and constructed within the year, and the company may well say, against the city, it would have been.

The further ground is taken by appellant, that although the completion of the railroad within a year was prevented by the city officers, yet in so doing they were acting without any authority of the common council of the city, and their action therefore is not binding upon the city as its act. We recognize the doctrine to be, that the unauthorized acts of municipal officers are regarded as the acts of the corporation, provided the acts are performed by that branch of the municipal government which is invested with jurisdiction to act for the corporation upon the subject to which the particular act relates. (Thayer v. City of Boston, 19 Pick. 511; Buffalo and Hamburgh Turnpike Co. v. City of Buffalo, 58 N. Y. 639; Chicago v. McGraw, 75 Ill. 570; Dillon on Municipal Corp. see. 764.) In the present case, the mayor, the superintendent of streets, and the superintendent of police, were engaged in doing the acts which prevented the railroad company from constructing its road. The mayor is the general executive officer of the city. He, and other officers under his control, are the executive department; and we can not doubt that the city should here be held liable for these wrongful acts done by the officers of the executive department, within the sphere of their authority, though not authorized by the common council to do them, as being its (the city’s) own acts.

There is one objection taken by aj>pellant’s counsel which we think is founded upon a misconstruction of the decree. It is said the decree enjoins the city from interfering with the construction and operation of appellee’s road upon its route as located,—that the location claimed is directly through and across the lots owned and used by the city for public school purposes, lying immediately north of Twelfth street, and extending from Third to Fourth avenue,. It is said that under the decree, as it stands, the railway comjiany may construct its tracks through this school' property, and the city will be powerless to interfere, even though the company shall not have acquired title to the land, by purchase or condemnation. The preliminary injunction is confined solely to streets, except the concluding words, as follows: “or from interfering' with the Chicago and Western Indiana Bailroad Company in the operation of its railroad;” and the final decree, after making the preliminary injunction perpetual, reiterates the injunction confining it entirely to streets, except in these concluding words: “and from interfering with the company in the operation of its road under such ordinance. ” This surely can not be construed to prevent the exercise of any legal remedies at the instance of the city, or to give to the company the right to enter upon and lay its tracks across these school lots without having first acquired the property, by purchase or otherwise. No tracks have been laid down north of Twelfth street, except across streets.

In connection with this school property, another point in respect of location of route is made. It is said that the location of the route of the road was an essential condition precedent to the construction of the track; that if the location of the line has been made across this school property, the property can not be condemned, being public, and not private, property, and it does not appear that the right of way across it can be acquired by purchase; that this being true, the track can not be constructed across the property, and the location, therefore, claimed by the company, is an impracticable one. There is no evidence tending to show that this property may not be acquired by purchase, and it is not to be assumed that it can not be. There is nothing', then, to show that the location of the route through this school property, as a continuous line of railroad from Twelfth street to Van Burén street, is an impossible or impracticable one.

It is objected that as regards blocks 32 and 33, lying just north of Sixteenth and east of Clark streets, over which appellee has laid its tracks, it has never yet acquired title; that its only interest in those premises is under an agreement, of August 25, 1880, with the Chicago and Northwestern Eailroad Company and the Chicago, Burlington and Quincy Eailroad Company, each owning an undivided one-sixth of the premises, the remaining four-sixths belonging to the Lake Shore and Michigan Southern Eailroad Company; that the true construction of section 8 of the ordinance requiring the completion of the road within one year, is, that it shall be legally completed by properly acquiring title to the premises crossed. We do not so construe it that it is essential to acquire full title to premises crossed. It is enough, we consider, that the road is lawfully constructed and in operation over the premises.

It is also an object of the city’s cross-bill to enjoin the railroad company from leasing to or permitting the use of its tracks within the city by any other railroad companies, exceeding two in number. The right to this relief is predicated upon that portion of section 7 of the ordinance which reads as follows: “That the privileges authorized herein are granted upon the express condition that the Chicago and Western Indiana Eailroad Company shall permit any other railroad, company, not exceeding two in number, which have not at present any right of entrance into the city of Chicago under any existing ordinance, to use the said main railroad tracks herein authorized to be laid, jointly with the said Chicago and Western Indiana Eailroad Company, upon such fair and equitable terms as may be agreed upon by said companies.” It is contended that the true construction of this provision is, that it is a limitation or restriction upon the right of the company to lease the use of its lines within the city to more than two other companies,—that while, by the general Eailroad act, the company might lease its lines regardless of any such limitation, by accepting the grant, coupled with this limitation, it contracts with the city that it will not lease its lines to more than two other companies. The object of this provision manifestly was, to provide for additional railroad facilities to the city of Chicago or the public, and to require the company to admit at least two companies upon the same right of way. It was an agreement on the part of the company that it should lease to other companies the right of user, the obligation, however, not to extend to more than two companies. The provision was a limitation, not upon the right of the company to admit other companies to a joint use of its tracks, but upon the exclusive enjoyment of the estate granted by the city. This was the view taken of that provision in Chicago and Western Indiana R. R. Co. v. Dunbar, 100 Ill. 137.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.