author: Mr. Justice Sheldon

text:
    Thomas S. Ridgeway v. George H. Potter.

      Filed at Mt. Vernon September 25, 1885.

    1. Pbincipad and stjbety—right of the latter to require indemnity or further security from the former. A surety of a trustee can not maintain a bill in equity to require his principal to give other and additional securities upon his bond given to secure the cestuis que trust, or counter security, and on his failure to give such security, have him removed.

      2. The contract created by law between a principal and surety is, that the former shall refund to the latter whatever the surety has to pay for him. The principal is under no legal duty to a surety to keep his co-sureties in equal solvency as they were when they first became such, or to keep any co-sureties to share in the liability.
    3. Courts of equity, in relief of sureties under apprehension of loss or injury, have gone to the extent to allow the surety, after the debt has become due, to file a bill to compel the principal to discharge the debt for which the surety is responsible; and it has been said that a surety, when the debt has become due, may come into equity and compel the creditor to sue for and ■collect the debt from the principal.
    4. Trustee—who may require an accounting by him—right of a surety. •On bill by a surety on the bond of a trustee, against the trustee, to compel him to render to the court a report of his acts, including his receipts and disbursements, or his debits and credits, where the cestuis que trust are not made parties, there is no error in the court refusing to pass upon the report ■and state the account, as such a statement of the account would not conclude them.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Gallatin county; the Hon. Thomas S. Casey, Judge, presiding.
    Mr. A. D. Duff, and Messrs. Green & Gilbert, for the appellant.
    Mr. E. D. Youngblood, and Mr. James M. Gregg, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The bill in equity in this case, filed by Thomas S. Ridgeway, eomplainant, to the September term, 1882, of the Gallatin circuit court, sets out that by a certain instrument in writing, bearing date November 2, 1871, signed by the proper parties, one-half of the estate of one Orval Pool, then lately deceased, was created a trust fund, the interest and other increase of which were for the benefit'of certain persons therein named, ■during their natural lives, and at their death the remainder was to vest'absolutely in their respective heirs; that this instrument provided for the appointment of a trustee to receive this trust fund and manage the same, and execute and carry •out the provisions of -said trust, and that the trustee should -enter into a good and sufficient bond, to be approved by the judge of the circuit court of Gallatin county, for the faithful performance of his duty as such trustee; that on December 26, 1871, George H. Potter, the defendant, was, as provided in said instrument, appointed such trustee by the judge of the circuit court of Gallatin county, and on May 15, 1872, the trustee made his bond as such, in the penal sum of $400,-000, with H. O. Docker, David Reid, Robert Reid, J. McKee Peeples, J. McKee Peeples, Jr., and Thomas S. Ridgeway, complainant, sureties, alj of whom were then solvent, which bond was approved by such judge; that defendant, since the execution of said bond, has received as such trustee over $100,000, but has never rendered any account thereof to any court or person, nor made any report showing the amount so received •or the disposition and management thereof by him; that on December 22, 1879, J. McKee Peeples, Sr., departed this life testate; that his estate is nearly all distributed among his devisees and legatees, and is in process of final settlement End closing up; that all of the surviving sureties on the bond, except complainant, are now wholly insolvent, and that the trustee himself is in limited circumstances as to pecuniary means. The bill asks that the trustee be required, under ■oath, to answer, and render a full and complete report and .account of his actings and doings as such trustee, and if it shall appear that there has been improper management of the trust fund, that the trustee be removed from his trusteeship, and another person be appointed in his stead; and also that if the trustee retains his position, he be required to give •other and additional securities upon said bond, or an addi-

tional bond, and on failure to do so, that the trustee be removed, and another one appointed in his place, with a prayer for general relief. Defendant filed his answer under oath, as required by the bill, making a full report as trustee, an. exhibit, and part of the answer. No exception was taken to-the answer. The cause was referred to the master to take-proofs, who only took tw'o depositions as to the insolvency of the sureties. Upon hearing on the foregoing, alone, the court dismissed the bill. On appeal to the Appellate Court for the Fourth District, the decree was affirmed, and the complainant appealed to this court.

It is insisted that it was error in the circuit court not to pass upon the report of the trustee, and approve or disapprove it; but to what end, and for what use, should the court have done so ? The beneficiaries of the trust were not before the court, and they would not be bound by any action 'of the-court on the report. The parties to this suit, the surety of the trustee and the trustee, were interested together, on one side of the account, that it should be in favor of the trustee, and an ex parte proceeding between them, in the absence of the parties interested on the other side of the account, to-take and state the trustee’s account, would seem to be idle. Were the persons beneficially interested in the trust property before the court, so that they would be bound by the result, of the accounting, and it be conclusive against them and in favor of the surety in any action by the former upon the trustee’s bond, then the propriety of this complainant, who is but a mere surety for the trustee, asking for a settlement of the account before the court, might with more reason be urged.

As respects the other relief asked, the giving of additional security, abundant authority is cited to the effect that courts of equity always exercise control over trustees in the administration of their trusts; that if trust funds become endangered by the financial failure of the trustee, a court of equity will protect them, and will always see that trust estates are not exposed to danger or loss; and it is said, that by the express, terms of the instrument creating this trust fund, the trustee is required to execute a good and sufficient bond, which means that during the time he acts as trustee he shall keep and maintain a good and sufficient bond. All this is very well, and would be quite apposite were the beneficiaries of this trust fund the parties here complaining; but the persons for whose benefit this bond was given make no complaint that it is not good and sufficient, but, for aught that appears, are content therewith as it is. The bond was not given for the benefit of the complainant, and he has no cause of complaint that it is not good and sufficient for the protection of the trust estate. He has no interst in the property the bond was given to protect. There is no pretence, from any allegation in the bill, that the bond is not now amply good and sufficient. The complainant is making demand for further security in his own interest, in order that he'may have others to share with him his responsibility on the bond, or that he may get relieved from further liability. He is entitled to complain only in respect of some duty which is owing to himself, and not for any failure of duty toward others,—the beneficiaries of this trust fund.

The contract which arose between the trustee and complainant, from the relation of principal and surety, was, that the former would refund to the latter whatever the surety had to pay for the principal; but the principal came under no such duty that he would keep the co-sureties on the bond in equal solvency as they were at the time they executed the bond, or that he would keep any co-sureties on the bond to share with complainant his suretyship. Courts of equity, in relief of sureties under apprehension of loss or injury, have gone to the extent to allow the surety, after the debt has become due, to file a bill to compel the debtor to discharge the debt for which the surety is responsible. And it has been said that a surety, when the debt has become due, may come into equity and compel the creditor to sue for and collect the debt from the principal. (1 Story’s Eq. Jur. sec. 327.) But we have been referred to no precedent for the maintenance by a surety of a bill of like character with the present, and -we know of no principle of equity under which such a bill is to-be sustained. Our statutes have to a certain extent provided for the release of sureties upon bonds which they have executed,—as, when a surety upon the official bond of a public-officer desires to be released from such bond, after the taking of certain steps on the surety’s part to that end, if the officer fails to give a new bond, his office is. made vacant. (Rev. Stat. 1874, p. 720, sec. 10.) Arid so there is provision that-any surety on the bond of any guardian, conservator of any idiot or insane person, or the trustee of any fund or property, appointed by any court, may, ,by petition, in court, compel such guardian, conservator or trustee to appear and settle-his accounts, and file a new bond. (Laws 1877, p. 142.) Rut it has been decided that this statute did not embrace-the case of this particular bond. Potter v. Peeples et al. 92 Ill. 430.

We can see that it is a hardship for the complainant to-stand as the sole solvent surety on such a bond, where there is no express requirement for any accounting and settlement, of accounts, subject to an unknown and indefinite, liability, and that it would be very desirable on his part to have afforded to him the relief provided by this latter statute, and as asked for by his present bill; but we do not see how it can be done',, aside from the aid of any statutory provision in such behalf..

The decree of the Appellate Court must be affirmed.

Decree affirmed.

Mr. Chief Justice Mulkey took no part in the consideration of this case.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    The Covenant Mutual Benefit Association of Illinois v. Margaret Spies et al.

      Filed at Mt. Vernon September 25, 1885.

    1. ' Life insurance—mutual benefit association—tender of annual and special assessments—-notice. The certificate of membership in a mutual benefit association required the holder to pay an annual assessment of three dollars on or before a certain day in each year, and in and by which the-member agreed to pay, on the death of every member, an assessment, never to exceed one dollar and twenty cents, and provided- further, that if the said annual and special assessments, etc., should not be received by the association within thirty days from date of the notice, the certificate should be null and void: Held, in the absence of a notice, no tender of the amount of such assessments was necessary in order to prevent a forfeiture of membership. Under such certificate, the holder of the certificate would be entitled to notice of the annual assessment before he could be in default for its non-payment.
    2. Same—proof of death before suit brought—waiver in respect thereto. In a suit upon a certificate of membership providing for the payment of a given sum to the widow and heirs of the member upon his death, the association issuing the same may waive proof of the death before suit brought.
    3. So where a by-law of a mutual benefit association provided that upon receipt of notice of the death of a member the secretary should immediately forward to the representatives of the deceased the proper blanks, and full instructions how to make proofs of death, and the association, upon notice of the death of a member, with a request to send the blanks and instructions as to the required proof, failed to send the same, on the claim that the deceased had forfeited his rights and his certificate had been cancelled, and refused payment of the sum named therein on that ground alone, it was held, that this was a waiver of the preliminary proof of death.
    4. Same—by-laws of the association, as entering into the contract of insurance. The by-laws of an association for mutual benefit, in the nature-of life insurance, are binding upon it and all its members, and its contract for the payment of money to the widow and heirs of a deceased member is to be considered and construed with reference to its powers and duties as fixed by its charter, and by-laws pursuant thereto; and such widow and heir-shave the right to rely on the performance of such by-laws.
    5. Evidence—when its admission no error. There is no error in permitting a party to prove a fact not disputed, or to prove the same fact twice, where it works the other party no injury.

      Appeal from the Appellate Court for the Fourth. District; —heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Geobge W. Wall, Judge, presiding.
    Messrs. McKenzie & Calkins, for the appellant:
    No one can recover Under a contract by which he is required to do any act, until he has performed or offered to perform. Schwartz v. Saunders, 46 Ill. 18; Dehler v. Held, 50 id. 491; Taylor v. Beek, 13 id. 376; Baird v. Evans, 20 id. 29; Lyon v. Culbertson, 83 id. 33; Moore on Civil Justice, sec. 244.
    A covenant or promise is dependent upon all those covenants or promises to be performed in point of time. Dunne v. Moore, 16 Ill. 152; Davis v. Wiley, 3 S. C. 234; Hoy v. Hoy, 44 Ill. 469.
    Demand is unnecessary when the party owing the debt or duty has means of knowing when it becomes due, as well as the opposite party. Morford v. Mastin, 6 T. B. Mon. 609.
    The annual dues for expenses were by contract—not by notice. No notice is necessary to be given to defendant of the happening of a contingency, if by the contract he has provided himself with the means of ascertaining the fact. Kies v. Powell, 2 A. K. Marsh. 254; McKee v. Beall, 3 Litt. 190.
    The court erred in admitting the by-laws in evidence. The by-laws are not referred to either in the application or certificate. In order to have them taken and considered as part "of the contract, they must be referred .to, and by terms made a part thereof,—and this is the rule even though they be printed upon the back of the policy. Philbrook v. Fire Ins. Co. 37 Me. 137; Marshall v. Fire Ins. Co. 27 N. H. 157; Mutual Benefit Association v. Miller, 39 Ind. 475; Life Ins. Co. v. Robertson, 59 Ill. 126.
    It was incompetent because it had nothing to do with the contract.

      Mr. William C. Kueffner, for the appellees:
    A member of a mutual society can not be expelled except upon charges, and notice, so as to have an opportunity to be heard. Commonwealth v. Benefit Association, 24 How. Pr. 221; People v. Benefit Society, 6 Thomp. & Cook, 88; Palferd v. Fire Department, 31 Mich. 461; Fritz v. Much, 62 How. Pr. 74; Wood, v. Wood, Exch. L. R. 198; Blissett v. Daniel, 10 How. 538.
    A tender is waived by acts or declarations of a party showing it would not be received, or by denying liability. Mattocks v. Young, 66 Me. 459; Hanna v. Ratikin, 43 Ill. 464; Wyncoop v. Cowing, 21 id. 588.
    The conduct of appellant was a waiver of proof of death. Refusal to pay was placed on other grounds. May on Insurance, sec. 469; Bliss on Life Insurance, sec. 267.
    When a party takes out a policy in a mutual life insurance company, he is bound by its rules. Life Ins. Co. v. Foote, 79 Ill. 362.
    Proof of loss must be made in accordance with the by-laws. Woodfin v. Asheville Co. 6 Jones, (N. C.) 558.
    The by-laws of a company are binding upon its members and officers. Wash v. Johnson, 95 Ill. 248; Angell & Ames on Corp. 359.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was assumpsit, brought in the circuit court of St. Clair county, by the widow and children of Charles Spies, deceased, on a certificate of membership in the Covenant Mutual Benefit Association of Illinois, whereby that association promised to pay them $5000 upon the death of Charles Spies, subject to certain stipulated conditions. The defence interposed upon the trial in the circuit court was, that the certificate of membership was cancelled by the association on the 5th day of December, 1882, because of the violation by the said Charles of a clause therein, whereby it was provided that if he should, at any time after the certificate was issued, use alcoholic stimulants so as to seriously impair his health, the certificate should become null and void. The jurf found the issues for the plaintiffs, and assessed their damages at the amount named in the certificate. The court, after overruling a motion for a new trial, rendered judgment Upon the verdict, and that judgment was affirmed, on appeal, by the Appellate Court for the Fourth District.

The principal controversy in the circuit and Appellate courts was on the question of fact, and that being finally settled against appellant, there are left for our determination but three questions, neither of which is of difficult solution, nor demands extended discussion.

First—It is contended that the court erred in refusing to' give the ninth instruction asked by the defendants, which was as follows:

“You are further instructed, that if you shall be satisfied, from the evidence, that the contract sued on required the annual payment of three dollars, membership fee, on or before September of each year, and that Charles Spies knew of the requirement, then, if the jury shall believe, from a preponderance of the evidence, that Spies did not pay the membership fee for 1883, and made no tender of the money to defendant, or, having made tender of it, failed to keep the tender good by bringing the money into court, then the want of such payment or tender would not continue him a member of the defendant’s association.”

The certificate of membership contains a clause, marked “1,” requiring the payment of an annual assessment of three dollars on or before the first day of September, and whereby the assured “further agrees to pay, on the death of every member of this association, an assessment, never to exceed one dollar and twenty cents, ” etc. And the next clause in the certificate, which is numbered 2, is as follows: “The holder of this certificate further agrees, that if the said annual or special assessments and collection of costs are not received by the association within thirty days from date of notice, then this certificate of membership shall be null and void, and of no effect. ” Very clearly, the effect of this was to entitle the holder of the certificate to notice of the annual assessment before a default would occur for its non-payment. It was competent for the contracting parties to fix their own terms in this respect, and, having fixed them, they must abide by them. Thirty days after the date of the notice, but not until then, the parties have contracted, if the money is not paid, the certificate shall be void. There was, therefore, no obligation to make a tender, in the absence of a notice, for the purpose of preventing a forfeiture, and the instruction was properly refused.

Counsel for appellant, in their argument, concede that the non-payment of the three dollars did not render the certificate void, but they insist that the payment is a condition precedent, which Spies or his legal representatives, or those claiming rights under his contract, were bound to perform or-to offer to perform before he or they could ask performance upon the part of the appellant. This is a concession that the court properly refused the ninth instruction as asked. The proposition contended for was not ruled upon by the court, and it is for that reason impossible that any error can be assigned in regard to it. It is not before us, and we do not express any opinion upon it. Evidence in regard to a tender of this three dollars was before the jury, and no specific erroneous ruling of law in that respect being pointed out, we can not presume error.

Second—An objection is urged that the circuit court erred in permitting appellees’ counsel to call appellant’s secretary to the witness stand on two different occasions, and to be interrogated as to whether he had specially sent Spies notice of his annual dues. Inasmuch as it is not pretended that such notice was sent, and that we hold, in the absence of such notice, the certificate could not be annulled for the nonpayment of the amount, it is evident appellant was not prejudiced by this ruling. Proving the same thing twice, when the first proof is complete and distinctly understood, is a useless waste of time; but it is not perceived, nor satisfactorily shown, how such useless proof could improperly affect some other question.

Third—The only other objection raising a question of law is, that the court erred in admitting in evidence a by-law of appellant, as follows: “Upon receipt of notice of the death of a member of the association, the secretary shall immediately forward, to the representatives of the deceased the proper blanks; and full instructions how to make proofs of death. ” The objection assumes that the question of the death of Spies was contested, and the onus of proof on appellees. Primarily, the burden is, undoubtedly, on the plaintiffs, in such cases, to prove the death; but that proof may be ivaived. The record here shows that appellant was notified of the death of Spies, and requested to send instructions as to the proof required of that fact, and that appellant thereupon, instead of sending the requested instructions, set up the claim that Spies was not a member of the association at the time of his death, and that the certificate had been cancelled,—and this claim has ever since been consistently adhered to throughout the litigation. This was a waiver of the proof of death. Grattan v. Metropolitan Life Ins. Co. 80 N. Y. 281; May on. Insurance, sec. 469.

We incline to the opinion that the evidence, if proof, of that which it was introduced to establish had not been waived, was admissible. Spies' was a member of the association. The by-laws were binding upon the association and all its members, and the contract was made with reference to the powers and duties of the association, as fixed by its charter, and its by-laws pursuant thereto. The widow and children of Spies had a right to assume and rely on the performance of the by-law. See Protection Life Ins. Co. v. Foote, 79 Ill. 362; Woodfin v. Asheville, etc. Co. 6 Jones, (N. C.) 558.

Perceiving no error of law in the rulings below, the judgment must be affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    Bernard A. Eckhart et al. v. Agnes F. Irons et al.

      Filed at Ottawa September 22, 1885.

      Appeal—whether a freehold is involved. A bill in chancery to enjoin an owner of a city lot from erecting a building upon a strip of ground along the front of the lot, reserved in the deed by the grantor as an easement, involves no question of freehold, and no appeal lies directly to this court from the final decree of the circuit court. Such a strip amounts, at most, only to an easement.
    Appeal from the Circuit Court of Cook county; the Hon. M. F-. Tuley, Judge, presiding.
    This was a bill in chancery, brought by Bernard A. Eckhart and others, against Agnes F. Irons and others, to enjoin her from erecting tenement buildings upon a strip of land along the lot, reserved and set apart as a court-yard, they claiming that such strip is an easement. The court, on the hearing, dismissed the bill, and complainants prosecuted an appeal directly to this court.
    Messrs. Holden & Farson, and Messrs. Abbott, Oliver & Showalter, for the appellants.
    Mr. H. F. White, for the appellees.
   Per Curiam :

This appeal must he dismissed. It comes directly from the circuit court of Goolc county to this court, upon the hypothesis, we presume, that it involves a freehold. This is a misapprehension. Conceding all that appellants claim in respect to the strip of land in question, it amounts to an easement, only, and we have repeatedly held this does not constitute a freehold.

The appeal will he dismissed, with leave to appellants to withdraw the record, abstracts and briefs, if they shall desire to do so.

Appeal dismissed.


author: Mr. Justice Scott

text:
    John Utter et al. v. E. S. Jaffray & Co.

      Filed at Mt. Vernon September 25, 1885.

    1. Practice—how to avail of error in the ruling of the trial court—• by exception, motion in arrest, or for a new trial. Where the ad damnum laid in the original declaration was $3000, but in the amended declaration it was laid at $1000, and the affidavit to hold to bail stated the indebtedness to be $2578.75, for which sum the court assessed the plaintiff’s damages and rendered judgment, there being no exception taken, and no motion made in arrest or for a new trial, it was held, that as the error might have- been obviated by amendment, if pointed out and insisted upon in the trial court, it afforded no ground of reversal.
    2. Where a cause is tried by the court without a jury, if the court assesses the plaintiff’s damages in excess of the ad damnum in the declaration, the defendant must except to the finding, or take advantage of the error by motion in. arrest or for a new trial in the trial court, before he can make the objection in an appellate court.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.

      This was an action on the case, commenced in the circuit court of Fayette county, by the firm of E. S. J affray & Co., against John Utter and George W. Utter. The damages laid in the orginal declaration were $3000. In the amended declaration they were laid at $1000. On the pleas filed by the defendants, a trial was had before the court, without a jury. The court found the defendants guilty as charged in the second count of the amended declaration, and assessed the plaintiff’s damages at the sum of $2578.75, and rendered judgment against the defendants for that sum. That judgment was affirmed in the Appellate Court for the Fourth District, and the defendants bring the cause to this court on error.
    Messrs. Bell & Green, for the plaintiffs in error:
    The principle is elementary that a plaintiff can recover no greater amount of damages than the amount stated in the ad damnum of his declaration; and where the judgment is for more damages than are laid in the ad damnum, it will be reversed on writ of error. Oakes v. Ward, 19 Ill. 46; Kelley v. National Bank, 64 id. 541; Brown v. Smith, 24 id. 196; Altes v. Hinckler, 36 id. 275 ; Walcott v. Holcomb, 24 id. 331; Rives v. Kumler, 27 id. 291; Linder v. Monroe, 33 id. 388; Pierson v. Finney, 37 id. 29.
    After the close of the term at which a judgment is rendered, the record can only be amended in matters of form and not in matters of substance. O’Conner v. Mullen, 11 Ill. 57; Coughran v. Gutchens, 18 id. 390; Cook v. Wood, 24 id. 295; Goucher v. Patterson, 94 id. 525.
    The amendment allowed by the Appellate Court was in matter of substance, and not of form. Brown v. Smith, 24 Ill. 196.
    The rule in regard to amendments announced in the above cases, has not been changed by any statutory provision, as section 23, chapter 110, of the Revised Statutes, only provides for amendments before final judgment.

      Messrs. Ashcraft & Stillman, for the defendants in error:
    Where an objection is such as to be obviated by amendment, if seasonably made in the court below, and is not urged below, it can not be taken advantage of for the first time in this court. Bowden v. Bowden, 75 Ill. 111; Railroad Co. v. Estes, 96 id. 473; Tug Boat v. Waldron, 62 id. 221; Zeigler v. Cox, 63 id. 48; Thompson v. Hoagland, 65 id. 310; Pugh v. Galloway, 10 Ohio St. 488; Rivereau v. St. Ament, 3 Iowa, 118; Crosson v. White, 19 id. 109; Hayeshill v. Cronin, 4 Allen, 141; Robinson v. English, 34 Pa St. 324.
    In Parsons v. Evans, 17 Ill. 338, a case tried by the court, this court said: “The statute gives the right in such case to assign error only where the decision assigned for error was excepted to, and we have no right to dispense with this requisition. ” To the same effect are Duncan v. Chandler, 5 Bradw. 499; Eire Ins. Co. v. City of Paris, 8 id. 181; Sherman v. Skinner, 83 Ill. 584; Manufacturing Co. v. Horton, 74 id. 310; Dickhut v. Durrell, 11 id. 72; Gibbons v. Johnson, 3 Scam. 63; Richwald v. Gaylord, 73 Ill. 503.
    The rule announced by the decisions cited by counsel for plaintiffs in error has been materially modified by subsequent legislative enactments and later decisions of our courts. Thompson v. Sornberger, 78 Ill. 353; Tomlinson v. Earnshaw, 112 id. 311.
   Mr. Justice Scott

delivered the opinion of - the Court:

Only two errors are assigned on the record in this cause: First, the Appellate Court erred in sustaining the motion to amend the declaration; and second, in affirming the judgment of the circuit court.

As" respects the first error assigned, it is sufficient to say, as the record shows was the fact, the Appellate Court did not sustain the motion to amend the declaration, but refused it.

In support of the second error assigned, it is suggested the judgment in the circuit court was for a larger sum than the ad damnum in the amended declaration filed by plaintiffs, on leave given by the circuit court for that purpose,—and that, it is said, was error, for which the Appellate Court should have reversed the judgment of the circuit court. A certified copy of the original declaration filed, on leave given, in the Appellate Court, shows the ad damnum was $3000. That is a sum larger than the judgment rendered. It further appears in the affidavit filed for a capias, plaintiffs claimed defendants were indebted to them in the sum of $2578.75, and in the writ issued, the sheriff, on arresting defendants, was directed to take bail in the sum of $3000, with sureties. In that way defendants were put on notice of what plaintiffs claimed, and for that reason could not be, and were not, taken by surprise when the court rendered judgment against them for the sum it did. But waiving this view, it is fatal to the position now insisted upon by defendants, that they took no exceptions in the trial court to the judgment rendered against them. No motion for a new trial or in arrest of judgment was made, nor did defendants save any exception to the decision of the court. Had they done so by motion for a new trial, or in arrest of judgment, or by any exception to the decision of the court, stating that the finding of the damages was in excess of the ad damnum in the amended declaration, the error could have been, and no doubt would have been, corrected at once, under the statute, on such terms' as the court might have deemed equitable and just. But nothing of the kind was done. In Parsons v. Evans, 17 Ill. 238, it was held, unless the decision was excepted to, and that exception saved by a bill of exceptions, error could not be assigned on the finding of the court on the evidence. The doctrine of that case has been followed in many subsequent eases, and in the recent case of James v. Dexter, 112 Ill. 489, where the cases are cited.

This view is conclusive as to the questions made, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholeield Mr. Justice Sheldon :

text:
    John B. Bowman v. The People of the State of Illinois.

      Filed at Mt. Vernon September 25, 1885.

    1. Pleading—of the declaration—in personal action to recover taxes. In an action of debt, to recover taxes due upon lands forfeited to the State, it is essential that the declaration allege the fact, not only that the defendant was the owner of the real estate against which the delinquent taxes are charged, but also the- further substantive fact that he was' such owner at the time such taxes became a charge against the real estate. A failure to allege these facts affords grounds for arresting the judgment.
    2. Amendments and jeofails—defects in pleading cured after verdict. If a declaration omits to allege any substantive fact which is essential to a right of action, and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect.
    Writ of Error to the Circuit Court • of St. Clair county; the Hon. George W. Wall, Judge, presiding.
    Mr. Frank B. Bowman, for the plaintiff in error:
    The declaration discloses no cause of action, and for that the judgment can not stand.
    The statute which authorizes the bringing of a suit as that at bar, provides, among other things, that “the owner of property on the first day of May in any year shall be liable for the taxes of that year. ” This proviso by implication excludes the idea of a personal action against any person other than such owner. Biggins v. People, 96 Ill. 383.
    The right to have and maintain an action under the statute is limited to such owners, and if the declaration omits to allege that the defendant was the qwner on May 1, etc., it totally fails to set out a cause of action. People v. Winkelman, 95 Ill. 412; Biggins v. People, 96 id. 383; Williams v. Hingham, 4 Pick. 341.

      An omission to state or disclose a cause of action in the declaration is not cured by a verdict. Insurance Co. v. Bank, 61 Ill. 482; Coal Co. v. Long, 91 id. 921; King v. Sea, 6 Bradw. 191; Bartlett v. Crozier, 17 Johns. 439; Williams v. Hingham, 4 Pick. 341.
    If a declaration does not disclose a cause of action, that error may be taken advantage of on a motion in arrest, or on error. Wilson v. Myrick, 26 Ill. 35; Haynes v. Lucas, 50 id. 439; Kipp v. Lichtenstein, 79 id. 361.
    Mr. George Hunt, Attorney General, and Mr. R. E. Holder, for the People:
    Plaintiff in error in his brief makes no distinction between a declaration in which a cause of action is defectively stated, and one which discloses no cause of action.
    Section 230 of the Bevenue act, under which this suit was brought, does not limit the action to any particular class of persons. It is only necessary, in bringing a suit under that section, to allege that the defendant is the owner of the property taxed. This the declaration in the case at bar does. The limitation of a personal liability for taxes on real estate is contained in another section, viz., section 59, which limits the liability to the owner on the first day of May, etc.; and applying the rule of law laid down in the above ease of Williams v. Hingham, we must conclude that when the plaintiff, as in the case at bar, has alleged ownership in the defendant, the onus is upon the defendant to plead any limitation to his liability.
    In the case of King v. Lea, 6 Bradw. 191, the declaration disclosed on its face, facts which were subversive of the cause of action. In his opinion in said case, Judge McAllister says : “The principle on which such intendments, in some cases, will be regarded as curing, defects in the declaration after verdict, is this: Where there is any defect, imperfection or omission in any pleading, in substance or form, which would have been a fatal defect upon demurrer, yet if the issue joined be such as is necessarily required at the trial, proof of the facts so defectively stated or omitted, and without'which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cured by the verdict.” 1 Chitty’s Pleading, 673.
    The statute on amendments and jeofails, (Rev. Stat. 1874, chap. 7, sec. 6,) provides that judgment shall not be arrested or stayed after verdict, etc., (clause 5,) for any mispleading, insufficient pleading, etc. “For the want of any allegation or averment on account of which omission a special demurrer could have been maintained.” (Clause 9.)
   Mr. Justice Scholeield

delivered the opinion of the Court:

This is an action of. debt. The declaration contains but one count, of which the following is a copy:

“For that the said defendant heretofore, to-wit, on the 15th day of December, A. D. 1879, was and still is indebted to the plaintiff in the sum of $2307.90, for and on account of divers amounts of taxes, interest, penalties and costs due and unpaid, against divers tracts, pieces, parcels and lots of land of said defendant, situated in said county, and before said day forfeited to the State of Illinois, for non-payment of said taxes, interest, penalties and costs, which said real estate, together with the amounts for which the same was forfeited, as aforesaid, is as follows, to-wit: (Here the property is described.) Wherefore, and by force of the statute in such case made and provided, an action hath accrued to the plaintiff to have and demand of and from the said defendant the said several amounts of money, the same being; in the aggregate, the said sum of $2307.90, first above mentioned; yet the defendant, though requested, hath not paid the said several sums of money, nor any nor either of them, nor any part thereof, but fails and refuses so to do, to the damage of plaintiff of $2307.90, wherefore they sue,” etc.

The defendant pleaded nil debet. By agreement of parties the cause was tried by the court, without the intervention of a jury. The court found that the defendant was indebted to the plaintiff in the sum of $2016.59. Motions for a new trial and in arrest of judgment were made by the defendant, and overruled by the court, and the court thereupon rendered judgment for the sum so found to be due.

The rule is, if the declaration" omits to allege any substantial fact which is essential to a right of action, and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect. (Gould’s Pleading, chap. 10, sec. 22.) Chitty, in,his work on Pleadings, (vol. 1, 7th Am. ed. 712, *713,) says: “The expression, cured by verdict, signifies that the court will, after a verdict, presume or intend that the particular thing which appears to be defectively or imperfectly stated or omitted in the pleadings, was duly proved at the trial. And such intendment must arise, not merely from the verdict, but from the united effect of the verdict, and the issue upon which such verdict was given. On the one hand, the particular thing which is presumed to have been proved must always be such as can be implied from the allegations in the record, by fair and reasonable intendment; and on the other hand, a verdict for the party in whose favor such intendment is made is indispensably necessary,” etc. It was essential to allege in the declaration the substantial fact not only that the defendant was the owner of the real estate against which the delinquent taxes are charged, but also the further substantial fact that he was such owner at the date such taxes became a charge against the real estate. (People v. Winkelman, 95 Ill. 412; Biggins v. People, 96 id. 383.) It can not be implied that the defendant was the owner of these lands at the time the taxes alleged became a charge against them, since they were at all times liable to be transferred by alienation, pursuant to voluntary and forced sales, and, therefore, title may have many times changed since that occurred. The mere fact of ownership creates no personal liability for the taxes due on the property, by the rules of the common law; and the statutory liability can not be extended to cases beyond its plain letter and spirit. The liability imposed by statute is not because of present ownership, but because of the failure of the individual to perform a statutory duty,—that of paying taxes on property owned by him on the first day of May. People v. Davis, 112 Ill. 272.

We think the declaration was clearly bad, and that its defect was not cured by the verdict, and, consequently, we must hold, as we do, that the court below erred in not arresting the judgment.

The judgment below is reversed, and the cause remanded to the circuit court, with direction to that court to arrest the judgment.

Judgment reversed.

Mr. Justice Sheldon :

The declaration was doubtless bad upon demurrer, but after pleading the general issue and consenting to go into a trial upon the merits under such a declaration, I do not think the defendant should now be heard to object to the sufficiency of the declaration, but that the verdict should be allowed to stand.


author: Mr. Justice Tunnicliff

text:
    The City of Chicago v. Fred S. James.

      Filed at Ottawa September 21, 1885.

    1. Foreign insurance companies—tax or license by cities and villayes—under acts of 1872 and 1879. Section 110 of the act 1872, in relation to cities and villages, requiring foreign insurance companies to pay to the treasurer of the city or village two dollars on the $100 of the net receipts of their' agency in such city or village, is repealed by section 30 of chapter 73, passed in 1879, and no action lies against such companies or their agent under the act of 1872.
    2. The tax or license mentioned in the proviso to section 30 of chapter 73, passed in 1879, requires affirmative action by the city or village that may be entitled to it, in fixing the rate, which must not exceed two per cent of the gross instead of the net receipts of 'the agency.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Julius S. Grinnell, for the appellant.
    Messrs. Paddock & Aldis, and Mr. George C. Ide, for the appellee.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

The city of Chicago, in 1875, organized under the act of 1S72, in relation to the incorporation of cities, etc., (Eev. Stat. chap. 24,) and brought this action in debt, against appellee, to recover the two per cent upon the net receipts of several foreign insurance companies doing business through him, as their agent, in Chicago, as provided for in section 110 of that act. The declaration was demurred to, and the demurrer was sustained by the circuit court, and the city electing to abide by the declaration, appealed the case to the Appellate Court for the First District, where the judgment below was affirmed, and to reverse which it has further appealed to this court.

Said section 110 enacts, in terms, t'hat “all corporations, companies or associations not incorporated under the laws of this State, engaged in any city in effecting fire insurance, shall pay to the treasurer the sum of two dollars upon the $100 of the net receipts by their agency in such city, and at that rate upon the amount of all premiums which, during the half year ending on every first day of July and January, shall have been received for any insurance effected or agreed to be effected in the city or village hy or with such corporations, companies or associations, respectively.” The section required reports to be made, on or before the 15th day of July and January of each year, of the amounts so received, and that the agents of the companies should, at the time of making the reports, pay to the city treasurer the amount of rates to which it was entitled; prohibited the companies from doing business if default was made in these payments, and authorized suit to be brought to recover the amount coming to it, in the name of the city, against the company or its agent, and contained a provision that the section should only apply to such cities and villages as have an organized fire department, or maintain some organization for the prevention of fires. The only question involved in the case is, whether this section had been repealed by the legislature prior to the bringing of this suit.

In 1879 an act was passed,—now forming section 30, of chapter 73, of the Revised Statutes,—relating to insurance, which reads as follows: “Every agent of an insurance company incorporated by the authority of any other State or government, shall return to the proper officer of the county, town or municipality in which the agency is established, in the month of May, annually, the amount of the net receipts of such agency for the preceding year, which shall be entered on the tax lists of the county, town and municipality, and subject to the same rate of taxation, for all purposes,—State, county, town and municipal,—that other personal property is subject to at the place where located, said tax to be in lieu of all town and municipal licenses; and all laws and parts of laws inconsistent herewith are hereby repealed: Provided, that the provisions of this section shall not be construed to prohibit cities having an organized fire department from levying a tax or license fee, not exceeding two per cent, in accordance with the provisions of their respective charters, on the gross receipts of such agency, to be applied exclusively to the support of the fire department of such city. ”

That these two sections are radically inconsistent with each other is very apparent. By section 110, of chapter 24, the city was entitled to a fixed rate of two per cent of the net receipts of the agency, and upon the amount of all premiums upon all insurance effected, or agreed to be effected, during the year; but under the act of 1879 the amount of the receipts was to be entered upon the tax lists, and the rate of taxation is to be the same as other personal property, for all purposes,— State, county, town and municipal,—at the place where the company’s agency was located, which, of course, would vary in different years, and might some times be more and some times less than the two per cent. The two per cent fixed by section 110 was in reality a license fee. It was so held in the case of The People v. Thurber, 13 Ill. 554, in construing sections 22 and 23, of chapter 64, of the Revised Statutes of 1845, which require foreign insurance companies to pay to the county commissioners’ clerk of the several counties in which they established agencies, three per cent on the amount of premiums charged by such companies. Section 30, of chapter 73, (the act of 1879,) by requiring the amount of these receipts to be listed, and subjecting them to taxation the same as other property, made the amount to be derived therefrom a tax, and gave every county, town or municipality where such insurance company should have an agency, the benefit of this tax, whether it had an organized fire department, or maintained an organization for the prevention of fires, or not. Section 110, of chapter 24, however, applied only to such cities and villages as did have such fire department, or maintained an organization for the prevention of fires. That said section 30 of the act of 1879 was intended to and did repeal and take the place of said section 110 of the act of 1872, is-clearly manifest by the reading of section 30 itself, wherein it expressly declares that the tax directed to be levied upon the net receipts of these insurance companies as upon other-personal property, is “to be in lieu of all town and municipal licenses, and all laws and parts of laws inconsistent herewith are hereby repealed. ” No doubt could arise as to what is. referred to by “municipal licenses, ” when read in the light of the case of The People v. Thurber, supra. It as plainly-meant the two per cent fund required to be paid to the municipalities mentioned in section 110, of chapter 24, as though it had said so in so many words. That said section 30 of' the act of 1879 should be held to repeal section 110 of the-act of 1872, we entertain no doubt.

The case of Van Inwagen v. City of Chicago, 61 Ill. 31, seems also to be decisive of this question. From that case-it appears that section 5 of the old charter of Chicago, approved in 1863, was identical with section 110, of chapter 24, under which this suit is brought, so far as relates to the payment of the two per cent, and there, as here, an action of' debt was brought to recover the amount which the two percent rate would come to, and there, as here, it was objected against the recovery that that section of the charter was repealed by section 30 of a law concerning insurance that had been passed in 1869, which section, so far as relates to the; question we are considering, is precisely the same as section .30, of chapter 73, of the act of 1879, and in that case it was held that said section 30 of the law of 1869 repealed section 5-of the charter of 1863. This law of 1869 appears to have been afterwards repealed, and reenacted again in 1879.

The proviso contained in section 30 of the act of 1879 is not now before us for consideration, so far as plaintiff’s supposed present right of action is concerned, this suit not having been brought to recover any tax or license levied under or with reference to that proviso. It is proper to observe, however, that the tax or license mentioned in this proviso requires affirmative action by the city that may be entitled to it, in fixing the rate, which may be less, but must not exceed, two per cent, and is to be upon the gross, instead of the net, receipts of the agency, which, of itself, is so widely different from the license fee established by section 110, of chapter 24, as to repeal the latter.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    The National Bank of America v. The Indiana Banking Company.

      Filed at Ottawa September 21, 1885.

    1. Gaenishment—form of judgment. A judgment against a garnishee should be rendered in favor of the attachment or judgment debtor, for the benefit of the attachment or judgment creditor, who is treated as the real plaintiff, against his own debtor. Such judgment must, in form at least, be for the whole amount due from the garnishee, and whatever surplus there may be after paying the creditors entitled under the statute to share in the distribution to be made, belongs to the debtor in whose name the suit is prosecuted.
    2. Same—surplus after paying creditors—adjustment as between the attachment debtor and garnishee. After the creditors entitled to share in the distribution of the property attached or funds garnisheed, have been paid, if equities exist between the garnishee and the attachment debtor as to the surplus, the court, no doubt, may adjust them, and thus avoid any hardships that may arise.

      3. Same—what creditors preferred, and in respect to what fund. Under section 37 of the Attachment act, property, real and personal, attached, and funds in the hands of a garnishee, are placed on the same footing, and are held, from the time of the levy and service of the writ, for the benefit of all the creditors of the attachment debtor who shall obtain judgments against him within the time and in the manner specified in the statute; and such fund can not be appropriated to the payment of any other creditors until those so entitled to share in the same have been ascertained and paid.

      4. Same—transfer of the fund by bank check d/rawn before and after service on the bank. Where a depositor in a bank, before the service of process upon the bank as garnishee, at the suit of a creditor of the depositor, drew a check in favor of another, which was forwarded to the bank, and was by it paid in due course of business after the service of the writ, and charged to the account of the depositor, it was held, that the bank, as garnishee, was entitled to credit for the amount of the check so paid.
    5. But if a bank pays checks drawn on it after it is served with garnishee process, it can not be allowed credit therefor as against the rights of creditors of the depositor entitled to share in the funds garnisheed.
    ‘ 6. Same—applying the fund to payment of obligation of the depositor to the bank. Where a depositor indorsed a promissory note of a third person, made payable to his order, and discounted the same in a bank where he had funds to his credit, it was held, that a payment of the amount due on such note by the indorser, to the bank, out of his funds on deposit, after the service of garnishee process upon the bank at the suit of a creditor of such indorser, could not be allowed the bank as a set-off, the indorser’s liability to the bank being that, only, of a surety, and contingent.
    ' 7. Bank check— as a transfer of money deposited, pro tanto. If a depositor draws a check upon his banker who has funds to an amount equal or greater, it operates to transfer the sum named in the check to the payee, who may sue for and recover the same in his own name.
    8. Same—check in favor of cashier, whether evidence of fraud. The fact that a check is drawn by a depositor of funds in a bank, in favor of the cashier of such bank, just previous to the service upon the bank of garnishee process, is not of itself evidence of fraud or want of good faith. It is as lawful for an attachment debtor to draw his check in favor of the garnishee as in favor of any one else, if done in good faith before the service of process, and the garnishee will be entitled to credit for the amount named in the check, in the absence of evidence impeaching the transaction for fraud.
    9. Same—by what law governed, when d/rawn in one State and payable m another. A check drawn by a depositor in the State of Indiana, on his banker, payable in this State, will be construed by the laws of this State, and operate to transfer the sum named therein in accordance with the laws of this State, notwithstanding a different rule obtains in the other State.

      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.
    Messrs. Jewett, Norton & Darned, and Mr. W. C. Goudy, for the appellant:
    The statute does not direct any judgment against a garnishee for more than the amount of the plaintiff’s judgment against the defendant, and costs. Garnishment is in the nature of process to obtain satisfaction of a judgment. Gibbon v. Bryan, 3 Bradw. 298; Chanute v. Martin, 25 Ill. 63.
    The only interest of the attaching creditor is in the collection of his debt. As against the garnishee, no rights or privileges should be given to the attaching creditor, which he is.not clearly entitled to demand. Railroad, Co. v. Weaver, 54 Ill. 319 ; Haywood v. Collins, 60 id. 328; 12 Bradw. 450.
    Sections 6 and 8 of the Attachment act direct the levy upon property, credits, etc., of sufficient value to satisfy the plaintiff’s claim, and costs of suit; and the bond to release the levy, etc., is to be conditioned only for the payment of the plantiff’s claim, and costs.
    It is laid down in Drake on Attachments, (5th ed.) sec. 663, that “whatever the amount of the garnishee’s indebtedness to the defendant, or of the defendant’s effects in his hands over and above that of plaintiff’s judgment against the latter, no judgment can be taken against him for more than sufficient to cover plaintiff’s claim against the defendant, and costs.”
    The effect of the checks was to transfer to the holder the sums named therein. Brown v. Leckie, 43 Ill. 497; Union National Bank v. Oceana County Bank, 80 id. 212.
    The law of the place of performance governs. Andrews v. Pond, 13 Pet. 65.
    The garnishee • was entitled to credit for the A. S. White note. It was to demand of the garnishee, and was a set-off, whether due or not. Attachment act, sec. iff.

      Mr. A. B. Jenics, Messrs. Peckham & Brown, and Messrs. Stabr & Ehrlich, for various creditors for whose use the judgment was taken:
    The defendant, for the uses stated in the judgment, was entitled to judgment for the full amount in the hands of the garnishee at the time- of the service of the plaintiff’s writ, to-wit, August 10, 1883. Hitchcock v. Watson, 18 Ill. 289; Stahl v. Webster, 11 id. 611; Gillilan v. Nixon, 26 id. 50; Farrell v. Pearson, id. 463; Rankin v. Simonds, 27 id. 352; Cariker v. Anderson, id. 358; Walsh v. Horine, 36 id. 238; Chittenden v. Rogers, 42 id. 95; Towner v. George, 53 id. 168; Webster v. Steele, 75 id. 544; Warne v. Kendall, 78 id. 598; Fire Ins. Co. v. Gunning, 81 id. 236; Haines v. O’Conner, 5 Bradw. 213; Railroad Co. v. Mason, 11 id. 525.
    A garnishee is liable for moneys coming to his hands after service of process on him. Young v. First Nat. Bank, 51 Ill. 73; Wilcus v. Kling, 87 id. 107; Wheeler v. Emerson, 45 N. H. 546.
    The garnishee was not entitled to credits for the amounts paid by it for the use of the defendant after service of process. Wilder v. Whitehead, 32 Vt. 765; Parker v. Parker, 2 Hill’s Eq. 35; Smith v. Clinton Bridge Co. 13 Bradw. 572.
    The checks being drawn and delivered in Indiana, are governed by the laws of that State. By the Indiana law,'the drawing and delivery of a check is not an assignment of so much of the fund. National Bank v. Second National Bank, 69 Ind. 479.
   Mr. Justice Scott

delivered the opinion of the Court:

The record in this case shows that on the 10th day of August, 1883, the Metropolitan Grain and Stock Exchange commenced a suit in the Superior Court of Cook county, by attachment, against the Indiana Banking Company,—a corporation existing under the laws of Indiana, and having its •office for the transaction of its business in that State,—for an alleged indebtedness, as stated in the affidavit, of $1563.63. The usual bond, as the statute requires, was filed, and a writ of attachment was issued, in which the National Bank of America was named as garnishee, and which was served upon such garnishee on the 10th day of August, 1883. A declaration was filed, and also the usual interrogatories in such cases, and as the defendant in attachment was a foreign corporation, publication was made as to it, as is authorized to be done by the statute, and such further proceedings were had that afterwards, on the 2d day of October, 1883, the plaintiff recovered a judgment against the attachment debtor for the sum alleged in the affidavit to be due. On the same day, the garnishee, the National Bank of America, answered the' interrogatories that had been filed in court, and afterwards, by leave of court, it filed a supplemental answer, in which the items of credits which it was insisted the garnishee would be entitled to as against the rights of the attaching creditors, were more definitely stated. It appears from its answer, that on the 10th day of August, 1883, (that being the date of the service of the writ,) the garnishee had on its books, to the credit of the attachment debtor, the sum of $13,878.61, and that afterwards, on the 10th and 11th days of the same month, further sums were received, making the aggregate amount received prior to the filing of such answer, to the credit of the Indiana Banking Company, $16,288.24. By its answer the garnishee claims credit for •certain sums paid after the service of the writ upon it, on account of the attachment debtor, which will be noticed in the sequel. Most, if not all, of the items claimed by the garnishee as against, the rights of the attaching creditors, were disallowed by the trial court, and judgment was rendered against the garnishee for the sum of $16,000, for the “use of the Metropolitan Grain and Stock Exchange, and for the use of such other attaching creditors as are by law entitled to share in the proceeds of this judgment.” That judgment was affirmed in the Appellate Court for the First District, and the garnishee brings the case to this court on its further appeal.

Of the questions discussed as arising on this record, most, if not all of them, excepting those relating to the items of credits claimed by the garnishee, have been settled by previous decisions of this court. The cases on this subject are numerous and consistent, and it would be unwise to permit the definitiveness of these decisions to be further challenged, or to discuss the questio'n decided, anew. No necessity appears for so doing. It has been uniformly held, since the decision in Stahl v. Webster, 11 Ill. 511, that by the practice which obtains in this State, the judgment against the garnishee must be rendered in favor of the attachment or judgment debtor, for the benefit of the attachment or judgment creditor, who is treated as the real plaintiff, against his own debtor. This, it is claimed, is according to the analogies of the law, for in all actions at law the suit must be in the name of the party in whom is the legal interest of the subject matter. It is equally well settled the judgment must, in form at least, be for the whole amount due from the ■ garnishee, and whatever surplus there may be after paying the creditors entitled under the statute to share in the distribution to be made, belongs to the debtor in whose name the suit is prosecuted. That is necessary in order to hold the funds in the hands of the garnishee for whomsoever shall appear, under the 37th section of the statute, to be entitled to' share in the proceeds of the property or funds attached. The principle is, the judgment against the garnishee in favor of the debtor in the attachment cause stands as security or as-a fund, in which the other attachment creditors may participate. Of course, when these respective claimants are paid the attaching creditors can have no further interest in the collection of the judgment against the garnishee, if it is in excess of the aggregate amount of their several claims. After the creditors have been paid, if equities exist between the garnishee and the attachment debtor as to any surplus, no doubt the court would adjust them, and thus avoid any hardships that might arise. That the 37th section of the Attachment act applies to purely garnishee proceedings, has also been frequently held by this court. Stahl v. Webster, supra; Gillilan v. Nixon, 26 Ill. 50; Farrell v. Pearson, id. 463; Rankin v. Simonds, 27 id. 352; Gariker v. Anderson, 27 id. 358; Towner v. George, 53 id. 168; Webster v. Steele, 75 id. 544; Warne v. Kendall, 78 id. 598; Imperial Fire Ins. Co. v. Gunning, 81 id. 236. Other cases in this court might be cited announcing the same doctrine.

But the practice in such cases has been so long settled it does not admit of further discussion. The principles of the former decisions have been recently restated by this court in the case of Reeve v. Smith, 113 Ill. 47, where it was said, in construing the 37th section of the Attachment act, (Rev. Stat. 1874,) that property, real and personal, attached, and funds in the hands of the garnishee, are placed on the same footing, —that is, when attached, such property or funds are appropriated from that time to the payment of a certain class of judgment creditors specifically enumerated. From the time of the levy or the service of the writ, the property or funds are held, by virtue of the statute, for the benefit of all the creditors of the attachment debtor who shall obtain judgments against him within the time and in the manner specified in the statute. It is the whole property or funds attached, and not any specific part or portion, that is held, until it shall be ascertained who or what creditors are entitled to share in the proceeds. Creditors who do not choose to put their claims in judgment, by attachment or otherwise, within the time limited by the statute, are not permitted to share in the proceeds of the property or funds attached,—certainly not until the claims of such attachment or judgment creditors have been satisfied. 'Creditors of the attachment debtor ought not to be permitted to obtain an inequitable advantage in a fund appropriated by law for a specific purpose, by taking an assignment .of it'before the time shall arrive for-distribution. That would contravene the positive provisions of the statute, which will not he sanctioned. The trial court followed closely the practice as indicated in the former decisions of this court, in rendering the decision in this case, and its judgment in that respect is approved.

It only remains to be considered whether there are any items of credits which ought to have been allowed to the garnishee against'the attaching creditors, by the trial court. It is thought there is error in the record in this respect. It seems the case was submitted to the court, by agreement of -the plaintiff in attachment, and the garnishee, for trial as to the liability of the garnishee on the facts as stated in its answer. There can, therefore, be no controverted questions ■of fact in the case,—otherwise the finding of the trial and Appellate courts, as to the amount due from the garnishee to the attachment debtor, would be conclusix^e on this court. The amount of funds in.the hands of the garnishee at the date ■and subsequent to the service of the writ, is admitted, and it is purely a question of law xvhat deductions and set-offs the .garnishee is entitled to on the facts stated in his answer, as against the funds in his hands, on account of payments made ■on orders of the attachment debtor, or otherwise.

Section 13 of the Garnishment act provides: “Every gar•nishee shall be allowed to retain or deduct out of the property, effects or credits in his hands, all demands against the plaintiff, and all demands against the defendant, of which he could have availed himself if he had not been summoned as garnishee, whether the same at the time are due or not; ■* * * and he shall be liable for the balance only after all mutual demands between himself and plaintiff and defendant are adjusted, not including unliquidated damages for wrongs and injuries.” It appears from the answer, the garnishee, after the service of the writ upon it, paid two checks—one for $4.50, dated at Indianapolis, August 7, 1883, payable to the order of Henry Frommeyér, and one dated at the same place August 9, 1883, for $6400, payable to the order, of E. B. Lathrop, cashier. Both checks arrived- in due course -of mail, and were paid in the ordinary course of business on ■the 11th day of August, 1883. Another item of indebtedness paid on the same day was a note of A. S. Wright & Go., made payable to the order of the attachment debtor, and by it indorsed, and which had been, previous to the service of the writ, discounted by the garnishee for the attachment debtor. ■On the 11th day of August, 1883, the attachment debtor directed this note should be paid out of funds to its credit on the books of the garnishee, which was done. It appears the note was still in the hands of the garnishee, and on receiving orders to do so, the sum of $4916.39 was charged to the attachment debtor as a credit on the fund in the hands of the garnishee, in payment of the note. It also appears that on the 13th, 14th and 15th of August, the garnishee paid several small drafts drawn on it by the attachment debtor. All of these payments were made after the service of the writ upon the garnishee, and it is insisted they were made in fraud of the rights of the attachment creditor.

As respects the check for $4.50 and the one for $6400, both of which it seems were drawn by the depositor on the fund on deposit with the garnishee before the service of the writ, and which were paid in due course of business, although paid after the service of process, the garnishee should have been allowed a credit for the amount of such checks on the funds in its bank, as against the attaching creditors. It was held in this court, in Brown v. Leckie, 43 Ill. 497, that when a depositor draws a check on his banker who has funds to ■an equal or greater amount, it operates to transfer the sum named in the check to the payee, who might sue for and recover the same from the depositary. The transfer of the check, it was said, carried with it the amount named in the-check to each successive holder. The same doctrine was restated in Union National Bank v. Oceana County Bank, 80 Ill. 212, and it was further held, in the latter case, that after such check had passed into the hands of a bona fide holder, it was not in the power of the drawer to countermand the order of payment. The two checks first named,—the one for $4.50, and the one for $6400,—come within the operation of the-rule stated. Both of them were drawn by the depositor on its banker prior to the service of process, and at a time when there were funds on deposit more than sufficient to pay them. The drawing of the checks, under the decisions of this court, operated precisely as if the money had, in fact, been drawn out of the bank before the issuing and service of the process of garnishment. It is the undeniable right of the depositor at any time to withdraw his funds on deposit, and if it is done before the rights of third parties attached, there can be no ground for complaint. That he may do by drawing his check upon such depositary, in the usual course of business, as lawfully as in any other way. That was done in this ease. The legal effect of drawing these two checks was the reduction or drawing out of the bank the amounts therein specified, and lessen the fund to that extent that was subject to attachment, although not presented for payment until after process was served upon the garnishee. It is suggested the check for $6400 may not have been drawn in good faith, and in the usual course of business. How that may be there is nothing in this record to show. That which is said to impeach the transaction is, the fact the check is made payable to “E. B. Lathrop, cashier. ” Who “E. B. Lathrop, cashier, ” is, does, not appear from anything in the answer; but it is said the. appeal bond in this case is signed by “E. B. Lathrop, cashier, ”■ and it is therefore concluded he is the cashier of the defendant bank. Be that as it may, the transaction may still be consistent with commercial dealings. It would be as lawful for the attachment debtor to draw its check in favor of the garnishee as in favor of any one else, and if done in good faith, it was just as rightful. If the check was not bona fide, as is suggested, and after the money was transferred to the debtor bank it still belonged to the attachment debtor, of course it would be liable to the attachment. That is a matter of defence which does not appear in the present record.

It is made a point against the allowance of these checks as credits or reductions from the funds in the hands of the garnishee, that by the laws of Indiana the drawing of checks by a depositor on his banker does not operate to transfer the sums named in them to the payee, as is the rule in this State, and for that reason they are not proper credits for the garnishee. It is a sufficient answer to the position taken, the law of the place of the performance of a contract must govern. The checks, although drawn in the State of Indiana, were made payable in this State, and hence the law of this State is applicable, and must control. It will be noticed the check on which a recovery was allowed in National Bank v. Oceana County Bank, supra, was drawn in another State on a bank in this State. The principle of that case is conclusive of the same point in the case being considered. That being so, under the laws of this State, by the act of drawing these two checks, the amount of the same was transferred from the depositor to the holder, and the garnishee will therefore be entitled to a credit for the sums specified in them, unless it shall be made to appear the check for $6400 was not drawn in good faith, and that the money, after it was transferred to the garnishee, was still the money of the attachment debtor.

The other checks paid by the garnishee do not appear to have been drawn before the service of the writ, and as they were paid after the service of process, that brings them within the operation of the rule stated in Reeve v. Smith, supra, which forbids any assignment or transfer of the funds attached after the service of the writ and before the time for distribution, and as to them no credits or reductions should be allowed to the garnishee, as the payments of them were made in fraud of the rights of the attaching creditors. Nor should any credit or deduction or set-off be allowed to the garnishee on account of the amount charged to the attachment debtor, in lieu of the note of A. L. Wright & Co., held by the debtor bank at the time of the service of the writ of attachment. It was not a debt or demand due either from the plaintiff or defendant to the garnishee, and it was not an item for which a deduction or set-off might be allowed under the statute. It was simply the debt of A. L. Wright & Co., as to which the attachment debtor was a mere surety or indorser in case default should be made in its payment by the principals. That might never occur. What was done was equivalent to an attempt to buy back the note by the attachment debtor, and in that way withdraw the amount paid from the fund attached. This the law will not permit after the service of the writ upon the garnishee.

On account of the errors indicated in this opinion, the judgment of the Appellate Court will be reversed, and the cause remanded to the Superior Court.

Judgment reversed.


author: Mr. Chief Justice Mulkey

text:
    John Schmidt v. J. Louis Pfau, Jr.

      Filed at Springfield September 23, 1885.

    1. Evidence—relevancy—in suit to recover for services in the management of a business—mismanagement on the pari of the agent as a defence. In a suit to recover compensation for services as manager of a foundry and machine shop, in which the defence sought to recoup damages resulting from, the alleged neglect of duty and mismanagement of the business on the part of plaintiff, producing a failure in the business, the plaintiff, in his testimony, incidentally stated as his opinion that the business was terminated because of his refusal to work for $300 a year. On cross-examination he was asked, if the true reason of the closing of the business was not because the firm bad lost money from the beginning-to the end, which the court, on objection, refused to allow: Held, no error in refusing to allow the question to be answered, as the subject matter of the inquiry could not have had any legitimate bearing upon the real issue in the case.
    2. Same—as to the manner of showing mismanagement by the agent in. such case. On an issue as to the plaintiff’s right to recover for services as general manager of defendants’ business in the carrying on of a foundry and machine shop, in which damages are sought to be recouped for mismanagement and neglect of duty on the part of the plaintiff, the burden of proof to establish the defence is upon the defendants, and. the particular acts of misconduct or omissions of duty should be specifically pointed out, so as to-enable the plaintiff to meet the same by direct proof. Evidence of the reputation of the work done is not admissible to establish such defence, as it might arise from other causes not attributable to the plaintiff.
    3. Same—opinions of witnesses on that subject. On an issue as to the-improper or unskillful management of the business of a firm by an employe suing for his services, it is not proper to allow one of the defendants, as a witness, to give his opinion as to the effects of the plaintiff’s management upon the profits and losses of the firm during the time he controlled its affairs.

      i. Same—improper keeping of boohs of account—how to be shown. For the purpose of showing that a plaintiff suing for wages had improperly-kept defendants’ books, they produced an exhibit made by the plaintiff of the partnership accounts, and asked an accountant who had examined the books, this question: “Mr. S., I place in your hands a statement, and I will ask you how that statement corresponds with the result of your examination of the books as to the indebtedness, or the amount of money these partners of the ¿Etna Iron Works put in the business:’’ Held, that the question was improper, both in form and substance. The proper mode of proving an improper keeping of the books of a firm by its book-keeper, is to ask the witness whether, upon his examination of the same, he found any errors, 'and if so, to state what they were.
    5. Same—availing of statements that are favorable, and rejecting such as are not. A party may rely on admissions made by the other party, in his testimony, against his interest, without being concluded by other statements made in exoneration of his liability, or in his favor. The statements of a party made against his interest may be accepted and acted upon by the jury as true, while others made in his favor, though at the same time and as part of the same conversation, may be rejected.
    6. Same—cross-examination as to matter not germain to evidence in chief. In an action against a firm for services as manager and book-keeper, the plaintiff’s father, who was a member of the firm, in testifying on behalf of the plaintiff, stated that the latter spent most of his time in the employment of the firm. On cross-examination the witness was asked if he thought during the year 1877 his and his son’s profits in another business distinct from that of the defendant firm, or the witness’ share of the profits therein, amounted to $2000, the object being to show that the business of the witness, in which the plaintiff had an interest, was profitable, while that of the defendants was not,—leaving the jury to infer that the plaintiff fostered the business of himself and father to the neglect of that of the defendants: Held, that the question was not proper on cross-examination, and if allowable at all, was matter in chief.
    7. Agent—whether liable to his principal for errors of judgment in the management of the business of the latter. Where an agent or manager of another is clothed with a general discretion in the management of the business intrusted to him, he will not be held responsible for an honest mistake in its exercise, provided he acts with reasonable skill and ordinary diligence. In such case there is no implied guaranty of the success of the business on the part of the agent, and if losses occur, the principal must bear them.
    8. Limitation—when the statute begins to run—service by the year. Where services are performed by one for another by the year, without any agreement as to the time for their payment, the law will presume them as payable at the end of each year, and the Statute of Limitations will not run against the first year’s services until the end of that year.
    9. Same—admission of indebtedness as taking case out of the staUite. An admission of a party that he owes another for services rendered, within five years before action brought, will take the case out of the Statute of Limitations, although the amount to be paid for such services may not have been fixed.
    10. Instetjotions—of a proper reference to the evidence. An instruction based upon admitted facts or facts not disputed, is not erroneous merely from the fact it fails to contain the words, “if you believe, from the evidence, ” such facts. Such reference to the evidence is necessary only when the facts hypothetically stated are controverted.
    Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    Mr. W. W. Beery, for the appellant.
    Messrs. Carter & Govert, for the appellee.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

J. Louis Pfau, Jr., the appellee, brought an action of assumpsit to the March term, 1883, of the Adams county circuit court, against John Schmidt, (the appellant,) John L. Pfau, Sr., and Theodore Brittenberger, as partners, lately doing business under the firm name of “¿Etna Iron Works, ” to recover for work and services claimed to have been rendered by him as general manager of the company, from the 25th day of February, 1877, to the 25th day of February, 1880. There was no service on Brittenberger. Defendant Pfau admitted the justness of plaintiff’s claim, and consented that judgment might be rendered against him. Pleas of the general issue, Statute of Limitations, and set-off, were filed by Schmidt, and the cause was tried before the court and a jury, resulting in a verdict and judgment in favor of plaintiff, for $3600, which Avas affirmed by the Appellate Court for the Third District, and Schmidt alone appealed to this court.

The partnership in question was formed in 1875, for the purpose of carrying on a foundry and machine shop at Quincy, Illinois. At that time appellant was engaged in the practice of medicine, and Pfau, Sr., was carrying on other branches of business on his own account, namely, the manufacture of hot-air furnaces, and the galvanized iron and tin and stove business, and the evidence tends to show that these two members of the firm,—particularly the latter,—were expected to give but little, if any, of their personal attention to the business of the company. The understanding seems to have been, that in discharging their share of the labor and duties pertaining to the business, they were to be respectively represented by their sons, the appellee, and Albert Schmidt, a young man then about eighteen years of age, under the general supervision of Brittenberger, who was t'o give his personal attention to the affairs of the concern. Under this arrangement neither of the sons was to receive from the company any compensation for his services. The business of the partnership was continued under this arrangement until the latter part of 1875, when Brittenberger abandoned the concern, and its management thereafter devolved mainly upon appellee,, without any other or, different understanding,- and it so continued until the 25th of February, 1877, when, as claimed by appellee, it was mutually agreed between himself, his father and appellant, that young Schmidt should retire from the business, and that appellee should take charge of it as chief manager, and give, to it his undivided time and attention.

That appellee did serve as manager of the concern for three years, from the 25th of February, 1877, is conceded. But it is claimed by appellant, that appellee’s compensation was fixed at $300 and traveling expenses for the first year, and that by a subsequent agreement he was to receive after the first year, in lieu of a fixed salary, a commission on sales—ten per cent on small jobs and three on large ones. This alleged agreement, so far as it relates to compensation, is positively denied by appellee, the latter claiming that that matter was left open and unsettled. It is also claimed by appellant that appellee did not give to the, business his entire time and attention, as he had agreed to do, and that by reason of its neglect, and his unskillfulness and bad management, the company sustained heavy losses, and the business proved a failure. These several' claims of the appellant are distinctly denied by appellee, and the evidence relating to the subject is conflicting and wholly irreconcilable. Such being the case, it is hardly necessary to add that the issues thus raised must be regarded as conclusively settled in favor of appellee by the judgment of affirmance in the Appellate Court. The errors relied on for a reversal, here, question the correctness of the ruling of the trial court upon the admissibility of evidence, and in the giving, refusing and modification of instructions. It appears that on the 25th of February, 1880, the parties met at their business office for the purpose of a general settlement, at which it was determined to stop and wind up the business. Appellee, in speaking of this meeting in his testimony, incidentally stated as his opinion that the partnership business .was thus suddenly terminated because.he told appellant he would not work for $300 a year. Upon his cross-examination he was asked this question: “Was not the true reason of this firm quitting business that it had lost money from beginning to the end ?” The court, upon "objection, held the question improper, and this is assigned for error. The ruling of the court in this respect affords no ground for reversal. The answer to the inquiry, let it have been the one way or the other, would have had no bearing upon the merits of the controversy or the issues submitted to the jury. The main question for their determination was, what, if anything, did the defendants owe the plaintiff on account of his services prior to their stopping business. The answer of the witness, .if responsive to the question, would, at most, have been but the expression of an opinion upon a mere collateral matter, and on this ground, the question, to say the least of it, was of doubtful propriety, and, consequently, within the discretion of the court to allow it or not, as it thought proper. The -parties had a clear right to stop business at the time they did, without regard to the motives or reasons that induced them to do so, and hence any evidence on that subject would more than likely have diverted the attention of the jury from the real issues involved. In any view, we perceive no error in disallowing the question.

It is also claimed that the court erred in refusing to permit Pfau, Sr., to answer, on cross-examination, the following question: “Do you think during 1877 the profits of yourself and Louis, or your share of the profits, amounted to $2000 ?” The object of this inquiry was to show that the business of Pfau, Sr., in a' part of which appellee had an interest, was successful, while that of the ¿Etna Iron Works was unprofitable, leaving it to be inferred by the jury, that appellee had fostered the business, of himself and father to the neglect of that of the firm. Waiving the competency of the evidence offered, which, to say the least of it, is extremely doubtful, we do not think it was proper on cross-examination. It was not germain to anything called out on the direct examination, and if admissible at all, it was clearly matter in chief. The court therefore ruled correctly in holding it improper. The only pretence for asking it is the witness’ statement, on redirect examination, that appellee “spent pretty much all his time” in the employment of the firm. Upon what principle this statement would authorize appellant to go into a general inquiry as to what profits the witness, or the witness and his son, were realizing in a wholly different business, and one in which the appellant had no concern, is not perceived. There is clearly no merit in the objection.

It is further objected, the court erred in not permitting appellant to prove the general reputation of the work done at the ¿Etna Iron Works during the years covered by appellee’s service. We are aware of no precedent for the admission of such evidence under like circumstances, and are satisfied that the general principles upon which it is admissible at all, have no application to the case in hand. The issues in it are very simple. The plaintiff sued to recover for three years’ services as business manager of the defendants. One of the defendants admits the justness of the claim, and the other denies it. The appellant says, “True, you worked for us that period of time, but you neglected our business, and did not do your work properly, by reason of which we have sustained damages, which we seek to recoup in this action.” Upon the issue thus tendered by appellant, the burden was upon him, and it could not be established by evidence of the character offered. If, as claimed, the plaintiff neglected the business of the firm or did their work improperly, that was a fact susceptible of direct proof, and as a matter of justice to him, the particular acts of improper conduct or omissions of duty on his part should have been specifically pointed out, so as to have enabled him to meet the charge in an equally direct and specific way. Suppose it be conceded the reputation of the products of the establishment for the period in question was bad, it does not necessarily follow that it resulted from the plaintiff’s neglect of duty. Moreover, the bad reputation of the work may have been undeserving, or it may have been caused by the original improper construction of the establishment, or the character of the machinery put into it. This bare suggestion shows the impropriety and danger of admitting such evidence, even if it were not objectionable on the ground already stated. The probable effect of admitting such testimony, would be to incumber the case with numerous collateral issues but remotely bearing upon the real merits of the controversy.

At the settlement of the 25th of February, 1880, appellee made a statement in writing, showing the state of the partnership account between appellant and Pfau, Sr., which is annexed to his testimony as “Exhibit A, ” one item of which, as already seen, was placed there by appellee under protest. Counsel for appellant, referring to this statement, asked the witness Schanz, who had also prepared a statement relating to the condition of the partnership accounts, the following question: “Mr. Schanz, I place in your hands a statement, and I will ask you how that statement corresponds with the result of your examination of the books as to the indebtedness, or the amount of money these partners of the iEtna Iron Works put in business.” The court, on objection, held the question improper, and its ruling in this respect is assigned for error. We do not think the point is well taken. On the contrary, we regard the question improper, both in form and substance. If appellee committed any errors in keeping the partnership books, by which appellant sustained loss, it would have been permissible to show that fact; but the proper course in such case ivould have been to ask the witness whether, upon his examination of the books, he found any errors, and if so, to state what they were.. Yet, even if the court had erred in disallowing this question, the appellant was not prejudiced by it, for this witness seems to have testified fully as to the condition in which he found the books, and as to appellee’s method of keeping them, and the whole matter was before the jury.

Again, it is objected the court erred because it would not permit appellant to give his opinion as to the effects of appellee’s management upon the profits and losses of the concern during the three years he controlled its affairs. The court clearly ruled properly on this question. As already indicated, if appellee had been guilty of any improper conduct in the management of the company’s affairs, it was a matter susceptible of proof, and the evidence should have been directed to that issue. Perilous, indeed, would be the position of a general manager, if he could be held personally responsible for a failure of the business, upon the mere opinions of witnesses as to the character of his management, based largely, perhaps, upon the very fact of the failure itself. Where one is clothed with a general discretion in the management of the business of another, as was the case here, he will not be held responsible for an honest mistake in its exercise, provided he has acted with reasonable skill and ordinary diligence. In such case there is no implied guaranty of the success of the business on the part of the agent, and if losses occur, the principal must bear them.

In respect to the remaining exceptions not specially noticed, it is sufficient to say, in general terms, we do not regard any of them well taken. They are, in many respects, much like those considered, and the general observations already submitted apply with equal force to them.

At the instance of the plaintiff, the court gave to the jury the following instruction:

“In respect to the Statute of Limitations, set up by the defendant John Schmidt, the jury are instructed that if the plaintiff performed the labor and services for which the suit is brought, by the year, at the request of the defendants John Schmidt and John L. Pfau, as two of the partners in the ¿Etna Iron Works, and no time was fixed as to when such labor and services were to be paid for, the law would presume that they were to be paid for at the end of the year; and if the first year ended any time after the 21st day of February, A. D. 1878, then no part of such labor and services would be barred by the Statute of Limitations, and the jury should find that issue for the plaintiff. ”

The instruction is objected to on two grounds: First, it is said by counsel, “it does not connect itself with the evidence anywhere or by any terms, but simply states that if the plaintiff performed the labor and services for which the suit is brought, by the year, at the request of the defendants, then the law is so and so, ”—or, more shortly put, as we understand this branch of the objection, the instruction does not'contain the usual formula, “if the jury find, from the evidence,” etc. The omission of these words, under the circumstances, we regard as Avholly unimportant. It was a conceded fact that appellee worked for the company three years, and that there had been no settlement, or attempt at settlement, between the parties, on account of his services, until he stopped work altogether on the 25th of February, 1880, and appellant himself swears that it was the original agreement to pay appellee $300 a year. Assuming this to be true, there was no ground whatever for interposing the Statute of Limitations, for the five years did not commence running as to the first year’s sendee until the 25th of February, 1878, and the suit ivas commenced on the 21st of February, 1883. Where an instruction, based upon a fact conceded by the party against whom it is given, properly declares the law, upon the hypothesis that the admitted fact is true, it will be no objection to the instruction that it does not contain the words, “if you believe, frovi the evidence.” The same rule applies in any case where an instruction sets forth a state of facts hypothetically, about which there is no controversy in the evidence. It is only where the facts, hypothetically stated, are controverted by the party against whom the instruction is given, that the formula, “if you believe, from the evidence,” etc., becomes important.

It is claimed, in the second place, there is no evidence in the record upon which to base this instruction. This claim is clearly without any foundation, as is fully shown by what we have already said. In addition to this, it is an undeniable fact that at the meeting of the parties on the 25tli of February, 1880, the claim of appellee for his services was conceded by all of them as an existing indebtedness, and the only controversy was as to the amount. The appellant on that occasion, according to the testimony of appellee, in referring to this claim, said: “This matter of salary has not been settled yet,—we oive you for three years’ salary,”—and we fail to find any denial in the record of the statement thus attributed to appellant, and it is hardly necessary to add, this admission of appellant clearly took the case out of the statute, even if his salary had been payable monthly. The answer of appellant to-this is to the effect that if his téstimony is looked to for the purpose of proving any particular fact, it must be accepted as a whole, and for all purposes. This view of the law is clearly unsound, and finds no support from English or American authority. It is a familiar principle of the. law of evidence, as it obtains in this country and in England, that the statements of a party made against his own interest may be accepted and acted upon by the jury as true, while others made in his favor, though at the same time and as part of the same conversation, -may be rejected as unworthy of belief. In such case, all that the witness has said relating to the particular matter in question goes to the jury for their consideration, but when considered, they may believe such parts of the statement as seem reasonable and probable, and reject the balance. 2 Best on Evidence, sec. 520.

There are other exceptions to the rulings of the court upon the instructions discussed in appellant’s brief, but we do not regard any of them as well taken, and as the present opinion is already extended beyond desirable limits, we do not deem them of sufficient importance to discuss them in detail.

The judgment will be affirmed.

Judgment affirmed.