author: Per Curiam:

text:
    John F. Barney et al. v. William A. Giles.

      Filed at Ottawa March 22, 1887.

      1. Building contract—certificate of architect—as a condition precedent to final payment—a contract construed in that regard. A building contract provided for the retention of a certain per cent of the price to be paid, until final completion, and “that upon the architect’s acceptance of the work as complete and finished, the party of the first part will pay to the parties of the second part the balance in full, on the presentation of the architect’s certificate, certifying that the contract has been well and truly performed, and accepted by him, and that all damages or allowances which should be paid or made * * * have been deducted; * * * and also a certificate from the parties of the second part, that all claims and damages for extra work, or otherwise, under or in connection with this contract, have been presented to the architect.” It was held, the making by the architect of the one, and by the contractors of the other, of such certificates, and the presentation of them to the owner, should be regarded a condition precedent to the right to payment for the final balance.

      2. Same—sufficiency of architects certificate. On the completion of the work under such contract, the architect gave the contractors a certificate, as follows: “This is to certify that B. & B., contractors for the mason work oj: your additional stories on the P. block, are entitled to a payment of $1079.73, by the terms of contract. * * * Work has been measured at building:” Held, that the certificate was not such as was required by the contract, and did not entitle the contractors to their final payment.
    3. Condition precedent—rule requiring performance same in equity as at law. In the ease of a condition precedent there must be a compliance therewith, or an excuse for non-compliance shown, as well .in equity as at law.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. Eugene E. Pressing, for the appellants:
    The principle of law applied by the Appellate Court is contrary to the rules of equity jurisprudence, and is not sustained by the decisions of this court.
    The principle announced by the Appellate Court is not the rule in equity cases, but only at common law. The cases cited by the court in its opinion are: Packard v. Van Schoick, 58 Ill. 79, and cases there cited; Coey v. Lehman, 79 id. 173; Downey v. O’Donnell, 86 id. 49; Walsh v. Walsh, 11 Bradw. 199.
    Even when the partial failure or inability to perform, results from the plaintiff’s own default, the contract will still be enforced, if the relief is demanded by equitable principles, as, for example, when the plaintiff has performed substantially, but not with such exactness, in respect to all the terms, that he could maintain an action at law; or where the plaintiff has performed at or within the stipulated times, in cases in which time is not of the essence of the contract. Davis v. Hone, 2 Sch. & Lef. 341; Voorhees v. Meyer, 2 Barr, 37; Cole v. Barney, 1 G. & J. 324; McCorgill v. Brown, 2 S. & M. 167; Shaw v. Livermore, 2 Green, 338.

      Messrs. King & Packard, for the appellee:
    The parties are bound by the agreement they have made. The contract fixes the right in which a recovery may be had, and without obtaining the requisite certificates no recovery can be had. Ely v. Ely, 80 Ill. 540; Packard v. Van Schoich, 58 id. 80; Fowler v. Deaknan, 84 id. 130; Coey v. Lehman, 79 id. 176; Downey v. O’Donnell, 86 id. 49; Walsh v. Walsh, 11 Bradw. 201.
   Per Curiam:

The opinion of the Appellate Court in this case, with its accompanying statement of facts, is as-follows:

“This was a proceeding in the court below, by the defendants in error, Barney & Bodatz, under the Mechanic’s Lien statute, against Giles, the plaintiff in error. The case was heard upon petition, answer, replication and proofs, and a decree passed for $1126.51, in favor of petitioners, which was declared a lien on the premises described in the petition, with the usual order of sale, upon which Giles brings error to this court.
“The action was based upon, and for work and materials done and furnished .under, a written contract between the parties, entered into October 27, 1884, wherein said Giles, the owner of the premises, was described as the party of the first part, and said Barney & Bodatz as the parties of the second part, who "were to furnish the materials and do the work necessary to the- mason work required in the erection and completion of a first-class fifth and sixth-story addition to the Purington block, which was to be erected on the east side of Wabash avenue, in the city of Chicago, according to plans and specifications referred to and made a part of. the agreement, which materials and work should be complete and perfect in every respect, ‘by and at the time hereinafter mentioned, to the full and complete satisfaction of F. B. Schock, architect and superintendent, for the sum of $10.60 per thousand, (wall measurement,) to be paid at the times and in the manner hereinafter set forth.’
“The only provision as to payment by the party of the first part, is in the following clause:
“Fifth—That the party of the first part, in consideration of the undertakings herein contained on the part of the parties of the second part to be performed, do hereby covenant and agree to and with the parties of second part, as follows: That if the parties of the second part shall well and faithfully perform and fulfill this contract, and keep every covenant on their part herein contained, the party of the first part will pay to the parties of the second part the said sum of $10.60 per thousand, in installments, as the work progresses, upon the presentation of the architect’s written certificate, who will reserve fifteen per cent of the value of the materials furnished and worked into the building, until the completion and acceptance of the contract; and upon the architect’s acceptance of the work as complete and finished, the party of the first part will pay to the parties of the second part the balance in full, on the presentation of the architect’s certificate certifying that the contract had been well and truly performed, and accepted by him, and that all damages or allowances which should be paid or made by the parties oC the second part, have been deducted from the amount of the said final certificate ; and also a certificate from the parties of the second part, that all claims and damages for extra work, or otherwise, under or in connection with this contract, have been presented to the architect.
“The time fixed for completing the work was December 15, 1885, weather permitting; and in case of failure, they were to pay damages.
“The petition was for the recovery of a balance as upon the completion of the work. It alleges the making by the architect, and the presentation by petitioners, of a final certificate to Giles, which certificate was as follows:
"$1079.73. Chicago, March 9, 1885.
“To William A. Giles:
“This is to certify that Barney & Rodatz, contractors for the mason work of your additional stories on the Purington block, are entitléd to a payment of $1079.73, by the terms of contract.
“Contract price, $-per thousand.
“Extra work, $-.
“Total amount issued, $-.
“Balance in full, $-.
F. R. Schock, Superintendent.
“Remarks:—Work has been measured at building.
“That upon being presented with this certificate, and the money demanded, Giles refused to pay. No other certificate is referred to in the petition, or shown in the proof, nor was any excuse alleged or shown.
“McAllister, J.: By-the fifth clause of the agreement under which the materials were furnished and the work done, Giles agreed, that upon the architect’s acceptance of the work as complete and finished, he would pay to the petitioner the balance in full, ‘on the presentation of the architect’s certificate, certifying that the contract has been well and truly performed, and accepted by him, and that all damages or allowances which should be paid or made by the parties of the second part, have been deducted from the amount of the said final certificate; and also a certificate from the parties'of the second part, that all claims and damages for extra work, or otherwise, under or in connection with the contract, have been presented to the architect. ’
“The making by the architect of the one, and by the contractors of the other, of said certificates, and the presentation of them, respectively, to Giles, the owner, by or on behalf of said contractors, was a condition precedent to the right to payment for the final balance under the contract. Packard v. Van Schoick, 58 Ill. 79, and cases there cited; Coey v. Leh man, 79 id. 173; Downey v. O’Donnell, 86 id. 49; Walsh v. Walsh, 11 Bradw. 199.
“The petition does not allege, nor the proof show, that the petitioners ever made or presented to Giles any such certificate as is required by Said fifth' clause to be made and presented. Neither does the petition allege^ or the proof show,-the making and presentation of such a certificate by the architect, as is required by that clause. The one described in the petition, and given in evidence, falls substantially short of that required. Nor is there any waiver or excuse alleged or shown in respect to either of said certificates.
“The contract being the foundation of the petitioner’s proceeding, and being in all respects lawful and valid, it can be enforced only as the parties have made it. The court was powerless to dispense with the condition precedent to which we have referred.

The decree must, for the reasons stated, be reversed, and the cause remanded.—Decree reversed.”

On application of appellants to the Appellate Court, the order remanding the case to the Superior Court was annulled.

It is insisted that the Appellate Court erred in its finding that no excuse was alleged or shown in respect to either certificate required by the contract. There certainly is no such excuse alleged in the petition, and all that is claimed as being shown by the evidence, is in the testimony of Schoek, the architect, to the effect that he gave the certificate in evidence as the final certificate, on the final completion of the work; that the contractors requested him to give them a final certificate for the balance due on the contract; that there were no claims for damages made at the time, and that none had been presented to him at all, by either party. It is argued from this, that there were no claims for damages on the part of the defendant for extra work, or otherwise, on the part of the contractors, and that, therefore, no such certificates as required by the contract, could have been given. The evidence does show that no such claims were made known to the architect, but it fails to show that none such did exist. Had the architect sat down to write out a certificate as required by the contract, “that all damages or allowances which should be paid or made by the contractors have been deducted from the amount of the final certificate,” he would presumably have taken pains to ascertain whether any such claim for damages existed, and if so,- have passed upon the same, and not have rested content with the mere non-presentation to him of such a claim. The defendant did, in fact, have a claim for damages, in not completing the work by the time specified, and it formed a matter of serious contest at the hearing.

It is urged, further, that the principle of law applied by the. Appellate Court in this case, is not the rule in equity cases, in which this proceeding is embraced, but only at common law, and that each of the cases 'cited by the court, in its opinion, except Downey v. O’Donnell, 86 Ill. 49, is a suit at common law. This latter case certainly was, like the present, an equitable proceeding to enforce a mechanic’s lien. The condition precedent which was not complied with there, was one as to the production of proper vouchers showing payment by the contractors to all sub-contractors and material-men, as to which the court- say: “It should have been strictly complied with, or a sufficient excuse have been shown for not complying with it, which we do not think has been done in the evidence before us.” In the case of a condition precedent, we think there must be a compliance therewith, or an excuse for noncompliance shown, as well in equity as at law.

The criticisms made upon the opinion of the Appellate Court do not appear to us to be’well founded. We are satisfied with its correctness, and the judgment of that court will accordingly be affirmed.

Judgment 'affirmed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    Charles D. Hauk v. William J. Brownell et al.

      Filed at Springfield March 23, 1887.

    1. Fraud—false representations as to the cost of an article proposed to be sold. Where, pending negotiations for the sale of property, the vendor and vendee are dealing at arm’s length with each other, the representations of the former as to the cost of his property, even though false, and made with a view to deceive, will furnish no ground of action, nor authorize the vendee to rescind the contract.
    2. This rule, however, does not apply where any fiduciary relation exists between the parties, or where the property in regard to which the vendor makes a false statement has been bought by him on the joint account of himself and his vendee. In such case, a misrepresentation as to the price paid will give a right of action.
    3. Measure of damages—in action to recover bach purchase money obtained by fraud. Where a vendor of an interest in a certain license, falsely represented to another the cost of the license, and thereby induced the latter to make the purchase, under the belief that the license cost as much as repre-
    • sented, it was held, in assumpsit by the purchaser to recover back the money paid under the contract, that he was entitled to recover the whole sum paid by him, with six per cent interest thereon.
    4. Instruction—in respect to the existence of an undisputed fact. In a case where there is no conflict in the testimony, and no room to doubt or hesitate as to a matter of fact in issue, an instruction ought not to assume that it is or may be doubtful. To call upon the jury to decide whether an undisputed fact is or is not proven, is to mislead them by inducing them to suppose that they may find the fact either way, where the evidence warrants but one conclusion.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Messrs. Kerrick, Lucas & Spencer, for the plaintiff in error:
    A mis-statement to the vendee by the vendor of an article, as to the price paid by the vendor, will not support an action. The authorities are all to the same effect on that question.
      Banta v. Palmer, 47 Ill. 99; Noetling v. Wright, 72 id. 390; Tuck v. Downing, 76 id. 71; Plummer v. Rigdon, 78 id. 222; Merwin v. Arbuckle, 81 id. 578; Hemman v. Cooper, 8 Allen, 334; Holbrook v. Connor, 60 Me. 503; Bishop v. Small, 63 id. 12; Benjamin on Sales, sec. 430, note m.
    Even if the fiduciary relation did exist, it gave no -right of rescission of the contract, but only the right to sue and recover from the vendor the excess paid to him. Crater v. Binninger, 33 N. J. L. (4 Vroom,) 513; McMillan v. Arthur, 98 N. Y. 168; Railroad Co. v. Kindred, 3 McCrary, 627.
    Messrs. Fifer & Phillips, and Mr. J. S. Ewing, for the defendants in error:
    It is not error for the court to assume as true, in an instruction, a fact which is not controverted. Wallace v. De Young, 89 Ill. 638; Arundale v. Foreman, 2 Bradw. 572; Sharp v. Parks, 48 Ill. 511; Stein v. Kendall, 1 Bradw. 103; Heartt v. Rhodes, 66 Ill. 351.
    Upon the other hand, it has been repeatedly held to be error for a court to submit a question to the jury, and direct a finding thereon, upon which there is no conflict in the evidence. The following are a few authorities on that question: Russell v. Minteer, 83 Ill. 150; Raihoad Co. v. Bryan, 90 id. 126; Railroad Co. v. Hall, id. 42; Pease v. Catlin, 1 Bradw. 88; Irwin v. Atkins, 8 id. 221; Bradley v. Coolbaugh, 91 Ill. 148.
    There were such fraudulent representations made by the vendor 'in the case at bar, as would enable the vendees to rescind the contract and recover back the purchase money. Hauk v. Brownell, 19 Bradw. 189.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of assumpsit, brought in the circuit court of McLean county by the defendants in error, to recover back $1400, paid by them to plaintiff in error for a one-fifth interest in the “Low Patent Gas Process” for the city of Springfield. The judgment in the trial court was in favor of the defendants in error, and has been affirmed by the Appellate Court. '

The ground, upon which the plaintiffs below sought to recover, was the alleged fraudulent misrepresentation of the defendant, as to the price, paid by him, for the license to make and use gas under said patents in the city of Springfield. Plaintiffs claimed, that' defendant agreed to sell them the one-fifth interest in the license in question for just one-fifth of what such license cost him, and that he represented the cost to have been $7000, whereas the amount, actually paid by him, was much less than that sum. The proof tends to show, that, instead of paying $7000 in cash for the license for Springfield, he paid $7000 in stock of the Citizens’ Gas Company of Bloomington, which was worth only seventy-five cents on the dollar.

The instructions, which the circuit court gave for the plaintiffs, are alleged to be erroneous, because they announce to the jury, in substance, that the mis-statement of the defendant, as to what he paid for the license, was sufficient to justify the plaintiffs in rescinding the contract, and suing for the $1400, which they had paid on it.

Where the vendor and vendee are dealing at arm’s length with each other, the representations of the former as to the cost of his property, even though false and made with a view to deceive, will furnish no ground of action. They are looked upon merely as representations in regard to value, uttered for the purpose of enhancing the price, and any purchaser, who relies upon them, is considered as too careless of his own interests to be entitled to relief. Hemman v. Cooper, 8 Allen, 334; Holbrook v. Connor, 60 Me. 503; Bishop v. Small, 63 id. 12; Noetling v. Wright, 72 Ill. 390; Benjamin on Sales, sec. 430, note m.

This rule, however, does not apply, where any fiduciary relation exists between the vendor and vendee, or where the property, in regard to the cost of which the vendor makes a false statement, has been bought by him upon the joint account of himself and his vendee. In such case, a misrepresentation as to the price paid will give a right of action to the deceived party. Banta v. Palmer, 47 Ill. 99; Tuck v. Downing, 76 id. 71; Plummer v. Rigdon, 78 id. 222; Merwin v. Arbuchle, 81 id. 501.

In the case at bar, plaintiff in error and defendants in error had entered into an arrangement to organize a gas company and erect works for the manufacture and sale of gas in Springfield. They had numerous negotiations with each other upon the subject from early in September, 1883, to late in'January, 1884, and, during this period, made several trips to Springfield, and had consultations with parties there, in relation to the promotion of their joint enterprise. During the progress of these proceedings, plaintiff in error made it known to the defendant in error, Pollock, that it would be necessary to purchase a license from the owner of the Low patent, and undertook himself to effect such purchase. He says he showed Pollock a letter, dated December 1, 1883, from Stevens, t,he owner of the patent, in which the latter proposed to sell the license for Springfield for $7000. He closed the purchase of the license from Stevens on December 27 for $7000 of the Citizens’ Gas Company’s stock, as above stated. About these facts there is no dispute. The proof tends to show, that, on January 24, 1884, when plaintiff in error received from defendants in error $1400 for their one-fifth interest, he concealed from them the fact that he had bought the license for depreciated stock, and gave them to understand, that he had paid the full sum of $7000 for it. In view of the relation, in which he stood to them, his misrepresentation in regard to the cost of the license, entitled them to a right' of action against him.

It is objected to the instructions, that they did not submit to the jury the question whether or not the parties were engaged in any such joint enterprise, as would create confidential relations between them. This was unnecessary, because the fact, that they were so engaged was not in dispute; it was admitted by both parties. Pollock testifies, that he said to plaintiff in error: “If I go in this thing at all, I want it understood between you and me, that I go in exactly on the same terms with you, and no other. ” Plaintiff in error, whose testimony is the only evidence introduced upon his side of the case, says: “Mr. Pollock came down * * * and we talked over matters in regard to the best means of proceeding at Springfield, having in view the putting up of gas works there; * * * he remarked that he had no money to lose; * * * I said I had just as much money at stake; we were all in alike.” Where, as here, there is no conflict in the testimony, and no room to doubt or hesitate as to a matter of fact in issue, an instruction ought not to assume, that it is or may be doubtful. (Thompson on Charging the Jury, sec. 50.) To call upon the jury to decide, whether an undisputed or admitted fact is or is not proven, is to mislead them by inducing them to suppose, that they may find the fact either way, when the evidence warrants but one conclusion. In the case of Banta v. Palmer, supra, the proof did not show clearly the relations between the parties, and, in that respect, it differs materially from the ease at bar.

It is further claimed, that the instructions are erroneous, in not announcing the true measure of damages to be the difference between what the defendants in error paid for their one-fifth interest, and what such interest cost the plaintiff in error. Ordinarily such would be the correct rule to be applied, where the relation between the parties is strictly that of principal and agent. (McMillan v. Arthur, 98 N. Y. 168.) But, under the facts of this case, we think the defendants in error had a right to rescind the contract, and sue for the money paid, with interest. Sedgwick on Damages, marg. page 296.

Plaintiff in error obtained a written assignment under seal from Stevens to himself of the license in question. By the understanding of all the parties, such license was to be transferred to the new gas company, -when that company should be 'organized. It was never organized; the works at Springfield were never erected. Plaintiff in-error made no assignment of the license or any part of it either to the proposed company, or to the defendants in error. The title to it remains in himself. Defendants in error obtained nothing but a right in the license, which this suit estops them from claiming. There was nothing for them to reconvey to the plaintiff in error, as a condition precedent to the institution of their suit.

The judgment of the Appellate Court is affirmed.

■Judgment.affirmed.


author: Mr. Justice Sheldon

text:
    John J. Bonnet et al. v. Henry O. Glattfeldt.

      Filed at Springfield March 23, 1887.

    1. Evidence—cross-examination—of its scope, and limitations. In an action to recover the price and value of labor and materials in rebuilding a foundry that had been injured by-fire, the defence being, that the work was done in an unskillful manner, a brick mason, called by the plaintiff, was, on cross-examination, asked “if all the defective portions of the west wall were taken down before they commenced to rebuild it, ” which question the court disallowed, as not being proper cross-examination: Held, that the question might properly have been allowed, but as the defendants had the right to call the witness in chief, the error worked no substantial injury.
    2. Same—excluding a repetition of a witness’ testimony as to the same fact. There is no material error in refusing to allow a witness to answer a particular question intended to elicit a fact which he has already testified about, when it appears that the party has the benefit of the proposed testimony from the witness’ answers to other questions.
    3. Same—refreshing witness’ memory—as to the use of original entries, or a copy of them. ■ The copy of a writing or account, as well- as the tiriginal, may be referred to by a witness, if his memory, refreshed thereby, enables him to testify from his own recollection of the original facts, independently of his confidence in the accuracy of the copy; but he is not allowed, in such case, to read from the copy. The original entries, if shown to be correctly made, may be read in evidence, but not a copy of them.

      i. In case the witness does not merely speak of the memorandum as being correctly copied from his book, or say he has no recollection except as appears from the paper, but testifies that it is a correct account, this will imply that he testifies from independent recollection. In such case, the extent of his recollection, and how far he depended on the memorandum, may be tested by cross-examination.
    5. Pbactice—recalling witness—discretion of the court. Where it became important to fix, accurately, the date when a witness commenced work on a building, as tending to show when the plaintiff abandoned the work on the same, he was recalled, and asked if he could then state any more accurately than he had done on a preceding day, the time he commenced such work, and if he could, to do so. The court refused to allow the witness to answer: Held, that the court improperly refused the question, but, in view of the large discretion vested in the court, it could not be said the ruling was fatal error.
    6. Action—treating a contract as rescinded—right of action as upon a quantum meruit. Where a party employed to rebuild a foundry which has been injured by fire, performs his contract in part, and is prevented by the owners from completing the same, without cause, then contractor may treat the contract as rescinded by the defendant, and sue for and recover for the work, labor and materials furnished by him.
    7. And although the contract provides that the price for the work and materials is to be paid for on the acceptance of the work, etc.,-by an architect, whose decision is to be final, if, before completion the owner of the premises takes possession of the buildings, and the work and materials furnished by the contractor,' and appropriates the same to his own use, without the consent of the latter, and thereby prevents him from completing his contract, the contractor may treat the entire contract as rescinded, and recover for the work done and materials furnished by him, without procuring the certificate or approval of the architect.
    8. Building conteact—right to follow architect's directions. A contract for the rebuilding of a foundry which had been partially destroyed by fire, provided that the contractor should take down all defective walls, and rebuild them according to the architect’s plans and specifications, etc., and the architect was thereby appointed superintendent of the work and materials, with full power to inspect, accept or reject any work done or materials to be used, whether worked or otherwise, when not in accordance with the plans, specifications and detail drawings, and it was provided that his decision in that matter, and all other matters relating to the building, etc., should be binding and conclusive upon both parties: Held, that the contractor was not bound to take down walls not directed to be taken down by the architect, and was justified in following his instructions in that regard.
    9. Same—contract construed as to ownership of old bricks not used. A contract for the taking down of defective walls of a building, and rebuilding the same, among other things provided that all the old brick on the premises should become the property of the contractor, which might be used in rebuilding the walls: Held, that all the old brick, including those not used in the rebuilding of the walls, became the property of the contractor.
    10. New triaIi—for misconduct of juror. Pending the trial of a cause, and in the evening after the adjournment of the court, one of the jurors asked permission of the plaintiff to ride with him in his wagon, on his way home, to which the plaintiff assented, on being informed by his counsel that there would be no harm in it, if they did not talk about the case, and they rode together to near the juror’s residence. It appeared from the affidavits of the plaintiff and the juror, that nothing was said about the case, or any allusion made to it, and the latter deposed that he was in nowise influenced by such association with the plaintiff: Held, that while the act of the plaintiff was improper and reprehensible, yet it was not of so grave a character as to require the setting aside of the verdict in his favor.
    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.
    This was an action of assumpsit, brought by Henry 0. Glattfeldt, against John J. Bonnet and Richard W. Nance, to recover for work and materials done and furnished by the former to the latter, in doing the brick and cut stone work in the repair and part rebuilding of a foundry which .bad. been partially destroyed by fire. The fire occurred in November, 1882, burning out most of the wood work and injuring a portion of the brick walls. . There was an agreement in writing between the parties, on the subject, of the date of February 12,1883, by the terms of which, and the specifications therein referred to, plaintiff agreed to furnish all material and labor necessary in rebuilding and completing the brick and cut stone work of the foundry building, and do the same according to plans, specifications and detail drawings, as furnished by.Frank R. Tubbesing, architect, and complete the same on or before the 10th day of March, 1883; and that he would do the same in a good and workmanlike manner; and that. in doing the same, he would take down all the defective parts of the brick, walls of the building, and rebuild the same in the same manner they formerly were; and that he would be responsible for the work until the same should be done, completed, and accepted in writing by said architect. - In consideration of which, it was agreed by defendants that they would pay to plaintiff the sum of $1050, upon the written certificates issued by the architect, as follows: Seventy-five per cent of the same during the progress of the work, and the remaining twenty-five per cent in or within thirty days from the completion of the job, if the same should be done and completed according to agreement, and accepted, in writing, by the architect; and further, that all the old brick on the premises would become the property of the brick contractor, which might be used in rebuilding the walls. The architect was appointed superintendent, with full power to inspect, accept or reject any work done or material to be used, whether worked or otherwise, when the same should not be in accordance with the plans, specifications and detail drawings; and that his decision in that matter, and all other matters relating to said building and other work referred to in the agreement, should be binding and conclusive upon both parties alike. Defendants pleaded the general issue, and filed a plea of set-off, claiming damages for breaches, by plaintiff, of the agreement, in that plaintiff did not, by the time agreed, furnish the material and labor agreed to be furnished, but furnished only a part of the same, and neglected and refused to furnish the residue; and that of the work performed by him, a great part of the same was done in so bad and unworkmanlike a manner, that a large amount of brick work laid up by him in the walls of the building in an improper and unworkmanlike manner, necessarily had to be and was taken down and rebuilt at the expense of defendants. There was a verdict and judgment for plaintiff for $511.95. On appeal, the judgment was affirmed. by the Appellate Court for the Third District, and the defendants appeal to this court.
    Mr. A. Wheat, and Mr. William W. Berry, for the appellants :
    A witness is not permitted to refresh his memory by extracts made from other writings, (1 Greenleaf on Evidence,, sec. 437,) nor by a copy of a writing made by. the witness. Starkie on Evidence, 182, 183.
    The witness must be able to say, “This was the paper made or verified by me, as a true record of the events.” It is not proper that the copy should be appealed to for the purpose of refreshing the memory, while the original can be produced. 1 Wharton on Evidence, secs. 521, 522.
    When a party voluntarily enters into a contract that a third person shall pass upon the quality of the work done under such contract, with power to condemn and reject such work as does not conform to the terms of the contract, he can not evade or disregard the contract, unless the action of such third person is clearly proven to be wrongful or fraudulent. Snell v. Brown, 71 Ill. 133; Glacius v. Black, 50 N. Y. 145.

      Methodist Church v. Brose, 104 Ill. 206, is a case in which the alleged and clearly proven action of such third party was wrongful, and a recovery was had by the party injured.
    When, by the terms of a written agreement, a contractor binds himself to do work in a good and workmanlike manner, and an architect is appointed with power to accept or reject the work, this does not authorize the architect to accept work not done according to the contract. Glacius v. Black, 50 N. Y. 145; Bird v. Smith, 64 E. C. L. R. 785.
    The clause in the contract, “all the old brick on the premises will become the property of the brick contractor, which may be used in rebuilding the walls, ” does not pass the title to brick not so used.

      It is a general rule, that all unfair' management, trick, fraud and artifice, in the course of a trial, and especially attempts to tamper with or influence or labor the jury, will vitiate the verdict. Graham & Waterman on New Trials, 48.
    Every one ought to know, that for any, even the least, intermeddling with jurors, a verdict will, always be set aside. Graham & Waterman on New Trials, 50; Blaine v. Chambers, 1 Serg. & Rawle, 169.
    The holding of. conversations with jurors after they are sworn, is a practice against which the court should set its face resolutely, and put it down at once. Ritchie v. Holbrooke, 7 Serg. & Rawle, 458; Cottle v. Cottle, 6 Greenlf. 140.
    The appearance of evil should be as much avoided as evil itself. Bradbury v. Coney, 62 Maine, 223; Ryan v. Harrow, 27 Iowa, 494; Stafford v. City of Oskaloosa, 57 id. 748; Pool v. Railroad Co. 6 Fed. Rep. 844.
    Messrs. Carter & Govert, for the appellee:
    When one party to a special contract prevents the other from performing, the latter may abandon the contract, and recover for the labor and materials furnished by him. Wilson v. Bauman, 80 Ill. 493; Selby v. Huchinson, 4 Gilm. 319; Webster, v. Enfield, 5 id. 300; Butts v. Huntley, 1 Scam. 410; Herrington v. Hubbard, id. 569; Reed v. Phillips, 4 id. 40; Bannister v. Reed, 1 Gilm. 100; Linmydale v. Livingston, 10 Johns. 36; Dubois v. Canal Co. 4 Wend. 290; Britton v. Turner, 6 N. H. 481.
    A provision that payments shall be made on the certificates of an architect, may be waived. Methodist Church v. Brose, 104 Ill. 207.
    Even if appellee had not done his work in the manner required by the contract, appellants could not, without his consent,, and without notice to him, take the job away from him and do the work themselves, and charge him with the cost of it. Sanford v. Emory, 34 Ill. 458; Reynolds v. Nelson, 6 Wend. 20; Selby v. Hutchinson, 4 Gilm. 319.

      A witness may use a memorandum to refresh his memory. (Dunlap v. Berry, 4 Scam. 372.) And a witness may use a copy of the original memorandum; and the using of a copy would go rather to the weight of his testimony than to its competency. Railroad Co. v. Adler, 56 Ill. 344; 1 Greenleaf on Evidence, sees. 436, 438, and notes.
    In Abbott’s Trial Evidence, secs. 320, 321, it is laid down that “copies or abstracts made by him (the witness) from his inspection of such (the original) memoranda) may be referred to by him while on the stand, if his memory, refreshed by them, enables him to testify from recollection of the original facts, independent of his confidence in the accuracy of the memoranda.” Wilde v. Hexter, 50 Barb. 448; Howland v. Willetts, 5 Sandf. 221; Adams v. People, 3 Hun, 654; Shear v. Van Dyke, 10 id. 528; Sturm v. Insurance Co. 38 J. & S. 286; McCormick v. Railroad Co. 49 N. Y. 316.
    In such a case, the witness having knowledge and recollection outside of the memorandum, his memory is merely refreshed as to details, and he testifies from recollection. The copy could not be admitted in evidence, as the original may often be. The accuracy of his recollection, and the extent in which he depends on the memorandum, may be tested by cross-examination, and in that way the weight to be given to his testimony determined.
    The fact that the juror Gronert rode in a wagon with the plaintiff, is no ground for a new trial. No improper conduct or conversation was shown. On the contrary,, it is shown by affidavits that no allusion was made to the case, and that the juror was in no way influenced. Nance v. State, 66 Texas, 000.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Peter H. Genteman, a witness on behalf of the plaintiff, and a brick mason, upon cross-examination, was asked “if all the defective portions of the west wall were taken down before they commenced to rebuild it.” The question was objected to by counsel for plaintiff, as not being proper cross-examination, and the objection was sustained. It is insisted there was error in this. We think a rather strict rule was applied, and that the question might well enough have been permitted, but we do not perceive that there was any harmful error. The exclusion of the question was not absolute, but only as being improper upon cross-examination. This left it free for the defendants, when they entered upon their defence, to call the witness and renew the question to him. No other ill-effect appears than such postponement of the witness’ examination.

The plaintiff, who was a witness on his own behalf, proposed to refresh his memory by using a copy or memorandum of entries in his books of account. The defendants objected. The court overruled the objection, saying-the witness had a right to make a memorandum from his books, to refresh his memory by. The witness then testified: “I made this account from my books. It is a correct account of the labor and material furnished. The prices were reasonable. For the work I did, and the extra work, I charged $1329.60. This includes everything except the 40,000 old brick.” It is claimed there was error in this ruling and admission of evidence. We think the only legal question which arises in this regard, is as to reading from the copy. The original entries, if shewn to have been correctly made, might have been read in evidence, but not the copy of them. The latter might be used only to refresh the memory. The copy of a writing, as well as the original, may be referred to by a witness, if his memory, refreshed thereby, enables him to testify from his own recollection of the original facts, independent of his confidence in the accuracy of the copy. But he is not, in such case, to read from the copy. (Abbott’s Trial Evidence, 320, 321; Marcly v. Shults, 29 N. Y. 346; 1 Wharton on Evidence, sec. 522, and note.) It would rather appear, here, that the copy of the entries was used by the witness but to refresh recollection. That was the avowed purpose of its use. The witness did not merely speak of the memorandum as being correctly copied from his book, or say that he had no recollection except as appeared upon the paper; but he testified that it was a correct account of the labor and material furnished,—implying that he spoke from independent recollection. The extent of his recollection, and how far he depended on the memorandum, might have been tested by cross-examination ; but nothing in this way was attempted, thus leaving his testimony standing, in all its force, as given.

Exception was taken to the exclusion of two further questions. One was to á recalled witness, whether, on Monday morning, he could state any more accurately than he did on Saturday before, the time when lie", commenced work upon the building after the plaintiff had ceased working on it, and if he could, to do so. It was of importance to fix this exact date, as the question of plaintiff’s abandonment of the work very much turned upon it, and we think it was an improper exercise of the court’s discretion in refusing the question. But still, the suffering a witness to be recalled and reexamined, rests so much in discretion, we can not say there was here fatal error.

The other question to a witness was-: “On what line would it be necessary to take a sprung wall down before commencing to rebuild it in a good and workmanlike manner?” This witness had stated that he had examined the building for the purpose of figuring upon it, and had stated what portions' of the walls he thought it was necessary to take down, so that it seems to us that the'defendants lost nothing substantial by the exclusion of the answer to this question from the jury,— that they essentially had all the benefit of it from answers which the witness had given.

Objection is taken to the giving of the second, "fourth and ninth instructions, at the instance of the plaintiff. The second instruction was, that if “plaintiff entered upon the performance of the contract on his part, and performed a part of the work and furnished a part of the materials in accordance with the terms of said contract, and was then and there ready to complete the same in accordance with said contract, but that the defendants, by themselves or through their employes, took possession of said foundry building, and the work and materials so furnished by the plaintiff, and took down a portion of plaintiff’s said work, and appropriated and used plaintiff’s materials, and rebuilt the work so taken down by them, and completed the work on said building without the consent of the plaintiff, then the court instructs the jury that the plaintiff had the right to treat the said contract as rescinded by the defendants, and to sue and recover in this case for the work, labor and materials so furnished by him, at their reasonable market value at the time they were so furnished. ”

It is objected to this instruction, that it recognizes the right of recovery, entirely independent of the approval of the architect. Under the circumstances supposed in the instruction, no doubt the plaintiff had the right to treat the contract as rescinded, and sue for and recover for the labor and materials furnished. (Selby v. Hutchinson, 4 Gilm. 319; Wilson v. Bauman, 80 id. 493.) In such case,'that part of the contract requiring an acceptance by the architect, of the work, would not be in force, and defendants could not claim the benefit of it. The defendants, under the hypothesis of the instruction, would have prevented plaintiff from finishing the job, and thus have prevented him from doing that which was necessary to be done before he could procure the acceptance, or a certificate of the architect. The criticism which is made upon the instruction is not well founded.

No point is made in the case as to whether the recovery should be for the market value of the work "and materials, or the contract price should govern, and the accuracy of the last clause of the instruction in this respect is in no way involved. The same objection is made to the fourth and ninth instructions, and we do not consider that they require any further remark.

The sixth instruction for the plaintiff is objected to, because there was no evidence upon which to base it. We think there is evidence in the record on which to base the instruction.

Complaint is made of the refusal of the court to give the third, fourth, eighth, fifteenth and sixteenth instructions asked for by the defendants. The third was as follows:

“The court instructs the jury, that under the agreement signed by the plaintiff, and in evidence in this case, it was the duty of the plaintiff to take down all the defective walls of the building, to which that agreement refers, and to rebuild them in a good and workmanlike manner, and that no instructions of the superintendent could relieve the plaintiff from this duty imposed upon him by that agreement. ”

The court had already instructed, that, under the agreement, it was the duty of the plaintiff to take down all the defective walls of the building, and rebuild the same in a good and workmanlike manner. There might well have been, here, difference of opinion as to how far the walls of the building were defective, and how much of them should be taken down. We think, under the agreement, the architect was constituted the judge in this respect, whose decision was to be binding and conclusive on both parties; and if he determined to what extent the walls were defective, and directed what portions of them should be taken down, that the plaintiff would have been justified in following the directions of the architect.

The ease of Glacius v. Black, 50 N. Y. 145, cited by appellant, affords some countenance to the instruction. There, the work was, by the contract, subject to the acceptance or rejection of the architect, and all to be in strict accordance with the plans and specifications; and the architect had power to reject any particular work and materials, and in such case the builders were to remedy the defects. This being all the authority the architect had under the contract, it was held that the acceptance of the work by the architect did not relieve the contractors from their agreement to perform the work according to the plans and specifications. In the present case, Tubbesing was not only the architect, but he was, by the agreement, appointed superintendent, with full power to inspect, accept or reject any work or material when the same was not in accordance with the plans and specifications ; and in addition, it was provided that his decision in that matter, and all other matters relating to the building, and other work referred to in the agreement, should be binding and conclusive in regard to the same, upon both parties alike. Under this larger authority which is given to the architect in this ease, we do not regard the case cited as an authority to control here.

The fourth refused instruction was substantially the same as the third. The eighth refused instruction was:

“The court instructs the jury, that although the contract in evidence provided that ‘all the old brick on the premises will become the property of the brick contractor, which may be used in rebuilding the walls,’ yet, under this contract, the plaintiff had no right to any of the old brick except for the purpose of using them in rebuilding the wall, and whatever remained of such old brick was the property of the defendants. ”

It is contended the construction of this clause of the contract should be as if it read thus: “All the old brick on the premises, which may be used in rebuilding the walls, shall be the property of the brick contractor. If any are left, they shall be the property of the owners of the building.” This may have been what the parties intended, but it is not what they expressed in the contract. The plain reading of that seems to be, that all the old brick on the premises should be the property of the brick contractor. We are not at liberty to adopt a conjectural meaning, but must take the meaning of the parties as it is expressed by the language they have used.

As to the fourteenth and fifteenth refused instructions, we regard the subject matter of thetn as embraced substantially in instructions which had been given for the defendants, and that on this ground, if no other, they might properly have been refused.

The final reason urged for a reversal of the judgment, is the alleged “misconduct of a juror in consorting with the plaintiff during the trial of this cause. ” What appears in this respect is, that pending the trial, and in the evening after the adjournment of the court, one of the jurymen was seen near the court house, alone with the plaintiff, riding in the direction of the homes of both, which were about a mile away from where- they were seen. The explanation shown by the affidavits of the juror and plaintiff is, that they both lived in the city of Quincy, in this State, and the juror having to go home in the same general direction as the plaintiff, asked permission of the latter to ride with him in his wagon, and plaintiff consented, after being informed by one of his counsel that there would be no harm in it if they did not talk about the case, and they rode together to near the juror’s residence; that nothing was said between them concerning the suit, nor any allusion made to the same-. The juror says he was in nowise influenced by the ride, either for or against the plaintiff. The counsel confirmed this' statement, so far as it respected himself.

There was clear impropriety in this association of the party with the juror. Such appearance is calculated to impair public confidence in the proper administration of the law, which it is so desirable to have prevail, and should always be avoided. In Stafford v. City of Oskaloosa, 57 Iowa, 748, there was reversal of a judgment solely because of mere association, during the time of the trial, of the counsel of the prevailing party with one of the jurors, where there had been nothing said respecting the case, and the court was satisfied that nothing wrongful was designed or attempted. It was well said in Bradbury v. Coney, 62 Me. 223, in speaking upon the subject of the interference by a party, with jurymen, while a cause is pending: “In the trial of a cause, the appearance of evil should be as much avoided as evil itself.” It was the appearance alone which induced the court’s action in the Iowa case. But the conduct appearing there was much more open to objection, and reprehensible, than that in the present case. Whilst what took place here meets with our strong disapprobation, we hardly feel that we should go so far as to visit it with the penalty of a reversal of the judgment.

The judgment will be affirmed.

Judgment affirmed.


text:
    Martin Gallagher et al. v. The People of the State of Illinois.

      Filed at Springfield March 23, 1887.

      1. Criminal law—prosecutions in the county court—by information. Under the statute, all offences cognizable in the county court must be prosecuted by information of the State’s attorney, Attorney General, or other person.
    2. Same—indorsement of probable cause, by county judge—and herein, when an information is that of the State’s attorney. Where an information is presented by any person other than the State’s attorney or Attorney General, the county judge must indorse thereon that there is probable cause for filing the same.
    3. Where an information is filed by the State’s attorney in his name, and it is signed by him, the fact that it is accompanied by an affidavit of a private person that the matters therein stated are true, will not render the information that of the latter, so as to require the indorsement thereon of probable cause, by the county judge.

      4. Evidence—os to proof of the habit of becoming intoxicated. In a prosecution for selling intoxicating liquor to a person in the habit of becoming intoxicated, there is no error in allowing witnesses to testify to the habit of such person as to becoming intoxicated, when they are able to speak from their own personal observation, and have had opportunities of knowing such person’s habits in the respect named.
    5. Same—of opinions or conclusions of witnesses as direct evidence. As a general rule, it is not proper to admit in evidence the opinions or conclusions of witnesses; but whether a person possesses a certain habit, is lather a question of fact, than of opinion or conclusion. It respects a person’s condition, as to which witnesses are often allowed to speak without being confined to a narration of the particulars which go to constitute the condition.
    6. Under proper circumstances, a common witness may testify directly as to sanity, solvency or insolvency; as to a person being sick or in pain; or whether, a pel'son was drunk or sober; or whether a horse is a safe and kind animal.
    7. Instruction—as to what proof will establish the fact of habitual intoxication. On a prosecution for selling intoxicating liquor to a person in the habit of becoming intoxicated, it is a question for the jury to say whether the evidence shows such a habit in such person; and an instruction that it is not sufficient to show that such person has been frequently intoxicated, or to intimate therein that five occasions of intoxication will not justify the finding of habitual intoxication, is properly refused.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the County Court of Schuyler county; the Hon. E. J. Pemberton, Judge, presiding.
    Mr. H. W. Masters, and Mr. Oscar A. De Leuw, for the plaintiffs in error:
    That it was error to allow witnesses to testify to the fact óf a person’s' habits of intoxication, instead of testifying to the facts, see Bliss v. Wilbraham, 8 Allen, 564; Montgomery v. Scott, 34 Wis. 345; Kelly v. Fond du Lac, 31 id. 179; Vearhusen v. Railway Co. 53 id. 689; Enright v. Railroad Co. 33 Cal. 230; Sowers v. Dukes, 8 Minn. 23; Crane v. Northfield, 23 Vt. 126.

      If opinions are founded on legal evidence, that evidence ought to be laid before the jury, whom the law presumes to be at least as capable as the witnesses of drawing from them any inferences that justice may require. 2 Best on Evidence, 364, et seq., Railroad Co. v. Moffit, 75 Ill. 529; City of Chicago v. McGiven, 78 id. 349.
    The information should have been quashed, because filed by a private person, without the indorsement of the judge. Myers v. People, 67 Ill. 510; Carrow v. People, 113 id. 550.
    The defendants had the right to have the jury fully and fairly instructed as to the law of the case; and this court has put a construction upon the meaning of the statute as to who is a person in the habit of getting intoxicated. Murphy v. People, 90 Ill. 59.
    Mr. W. M. Vandeventer, State’s attorney, and Messrs. Gray & Waggoner, for the People:
    The information was by the State’s attorney, and required no indorsement of the county judge. Rev. Stat. (Starr & Curtis’ ed.) chap. 37, sec. 117; Myers v. People, 67 Ill. 503.
    Whether a person possesses a certain habit, is a question of fact, to which any person knowing may testify. Abbott’s Trial Evidence, 778; Stanley v. State, 26 Ala. 26; Elam v. State, 25 id. 56; Spear v. Drainage Comrs. 113 Ill. 634; Bank v. Rutland, 4 Shaw, (Vt.) 414; Sydleham v. Beckwith, 43 Conn. 13; People v. Eastwood, 14 N. Y. 566; Dahneer v. State, 56 Miss. 789; Mapes v. People, 69 Ill. 530.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This writ of error is prosecuted from a judgment of the Appellate Court for the Third District, affirming a conviction, of the plaintiffs in error, in the county court of Schuyler county, of the offence of selling intoxicating liquor to persons in the habit of getting intoxicated.

The proceeding was by information. A motion was made in the trial court to strike the information from the files, which the court overruled. • It is insisted there was error in this. Under the statute, all offences cognizable in the county court must be prosecuted by information of the State’s attorney, Attorney General, or some.other person. (Rev. Stat. p. 343, see. 182.) And it provides, that where the information is presented by any person other than the State’s attorney or Attorney General, the county ■ judge shall indorse thereon that there is probable cause for filing the same. It is contended that the information is that of one Charles S. Phelps, because his affidavit is thereto appended that the matters and things set out in it are true, and so, that the information was improperly filed, not having the required indorsement thereon of the county judge. There is nothing in'the point. The information is presented by the State’s attorney. It so states in the beginning, -and is signed by him. The affidavit would seem to have been in accordance with an observation which was made in Myers v. The People, 67 Ill. 510, that no warrant should be issued upon an information without affidavit. But the affidavit does not make the paper the information of Phelps.

It is also insisted, the court erred in permitting the question, and answers of witnesses, that individuals charged to be persons in the habit of getting intoxicated, were in such habit. The general rule, it is true, forbids the opinions or conclusions of witnesses from being given in evidence; but whether or not a person possesses a certain habit, is rather a question of fact than of opinion or conclusion. It respects a person’s condition, as to which witnesses are often allowed to speak without being confined to a narration of the particulars which go to constitute the condition. Thus, under proper circumstances, a common witness may testify directly as to sanity, solvency or insolvency; as to a person being sick or in pain; and, as in The People v. Eastwood, 14 N. Y. 566, whether a person was drunk or sober; whether a horse was a safe and kind horse. Sydleman v. Beckwith, 43 Conn. 13, where is quite a collection of instances where common observers, not experts, may give their opinions. In Stanley v. State, 26 Ala. 26, and Elam v. State, 25 id. -56, the allowance of this precise direct evidence of intemperate habits was sustained. The testimony here objected to was all given from the witnesses’ own personal observation, showing they .had opportunities of knowing the habits in respect to intemperance of which they testified. We find no error in the admission of the evidence.

The refusal of the second and third instructions asked by the defendants is assigned for error. The court had instructed the jury, at the instance of the defendants, that the persons named in the information must have been in the habit of getting intoxicated at the time of the sale, and that whether they were in such habit, was a question for the jury. It would have been inconsistent therewith, and improper, to have told the jury, as asked by the second refused instruction, that it was not sufficient to show that the persons had been frequently intoxicated, or to have given the court’s intimation, conveyed by the third refused instruction, that five occasions of intoxication would not justify the finding of habitual intoxication. These instructions were properly refused.

We see no reason for interference with the verdict, as not being sustained by the evidence.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Robert C. Greer v. George Young.

      Filed at Ottawa March 22, 1887.

    1. Service oe process—privilege or exemption of persons while attending upon legal proceedings, etc. A non-resident was served with civil process in this State, under the following circumstances, as stated in an0 affidavit in support of a motion to quash the service and dismiss the suit: Both the plaintiff and defendant were residents of the State of Missouri. There was a prior action pending in Missouri, at the suit of the same plaintiff, for the same cause of action. In defending the suit so pending in Missouri, it became necessary to take depositions in this State, and, under instructions from his attorneys,' the defendant came into this State for the sole purpose of assisting his said attorneys in taking said depositions. The depositions were taken before a notary. Shortly after they were taken, and while in the office of his said attorneys, consulting with them in respect to the depositions, the sheriff made service upon the defendant, of the summons in the present case, by reading. The defendant claimed that, considering the purpose for which he came into this State—the attendance upon the taking of depositions—he was privileged from being served with civil process while here. But it was held the service was good.
    2. The rule at common law which extends to parties and witnesses in a lawsuit the privilege or exemption from arrest on civil process, while coming to, attending upon and returning from the court, has no application in a case where the service is simply by reading.
    3. And although the word “court,” as used in that connection, has been construed to extend to the taking of depositions before a master, magistrate or other person, under an order of court, it would not extend to the taking of depositions before a notary public in one State, to be used in a suit pending in another, as in such case the notary would not be regarded as the instrument or agency of the court in which the suit was pending, or in any way amenable to it.
    4. Practice—time to interpose dilatory defences—presumption. A defence of a dilatory nature must be made at the earliest opportunity; but whether it is so interposed is a question of fact, that may be materially affected by the rules of the court. Therefore, when such a defence is allowed, it will, in the absence of anything showing to the contrary, be presumed to have been presented in apt time.
    5. Same—how to avail of defect in writ or service—-whether by motion or plea. "Where process is defective on its face, or the return of service is, of itself, insufficient, the defect may be takeh advantage of by motion to quash or dismiss; but where the objection to the writ or service does not appear upon the face of the proceedings, but has to be shown by matters dehorn the record, the objection must be made by plea in abatement.
    6. Abatement—pendency of suit for same cause in another State. The pendency of an action in another State can not' be pleaded in abatement of a suit brought in this State on the same cause of action.
    7. But even when the pendency of a suit in another State can be made available as a defence at all, it must be formally pleaded in abatement.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. R. S. Williamson, Judge, presiding.
    Messrs. Dent, Black & Cratty Bros., for the plaintiff in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Bobert C. Greer, on the 23d of July, 1884, commenced an action of assumpsit" in the Superior Court of Cook county, against George Young. A summons in the usual form, returnable on the first Monday of the following month, was served on the defendant, and due return thereof made by the sheriff of Cook county, on the same day. On the 4th of August, 1884, the plaintiff filed in the cause a declaration in the usual form; containing the common counts only. On the 18th of the same month, the defendant-, filed, by his attorneys, a special appearance in the case, “for the purpose, only, of moving to quash the writ of summons, and dismiss the suit. ” On the 19th of the same month the defendant filed a written motion in the cause, “to quash the service of the writ of summons, ” for the reason, as is alleged in the motion, “that the defendant is a non-resident of the State of Illinois, and at the time of said service was within the jurisdiction of this court for the purpose of attending legal proceedings, and for no other purpose. ” This motion was supported by an affidavit of the defendant, showing, in substance, that both the plaintiff and the defendant were residents of Missouri; that the plaintiff, prior to the commencement of the present suit, had brought an action against the defendant, in the circuit court of Lafayette county, in the State of Missouri, “for the identical cause of action for which this suit is brought, ” and that said former suit was still pending and undetermined in the State of Missouri; that in defending said last mentioned suit, it became necessary to take depositions in Chicago, and that, under the instructions of his attorneys, he went to Chicago for the sole purpose of assisting his said attorneys in taking said depositions ; that shortly after the taking of the same, and while in the office of his attorneys, consulting with them as to the probable effect of the depositions, the sheriff made service of the summons upon him in the present case.

Upon consideration of' the facts set forth in the affidavit, the Superior Court sustained the motion to quash the service, and entered an order dismissing the suit, which was affirmed by the Appellate Court for the First District. The case is brought here by plaintiff in error on a certificate of the Appellate Court, and a reversal of the judgment of affirmance is asked on a number of grounds.

It is first contended, that as the defence was of a dilatory character, it should have been made at the very earliest opportunity, which it is claimed was not done. Of the correctness of the rule of law suggested there can be no question; but whether the motion was made at the earliest opportunity, is a question of fact, that may be materially affected by the rules of the court where the action was pending, of which this court can not take judicial notice, and as all presumptions are to be indulged in favor of the correctness of the rulings, of that court, in the absence of anything to the contrary, we are not fully prepared to say that the motion was not made in time, though it must be confessed the objection is not without force. However this may be, we prefer to place our decision upon other grounds.

.The most important question in the case, is whether the circumstances shown, even if properly pleaded in due time, warranted the court in setting aside the service of the process and dismissing the suit. There is clearly no ground for the claim that the plaintiff or his counsel had any agency in inducing the defendant to leave. Missouri and go to Chicago, for the purpose of having process served on him in the latter place,—in other words, it is not claimed, nor is there "any ground for the claim; that service of process upon the defendant was obtained by any artifice, trick or fraud, on the part of the plaintiff, his counsel, or any one else acting in his interest. The question then arises, can one who voluntarily leaves" his own State, and comes "to this, for the purpose of taking depositions before a notary, be lawfully served, by reading, with civil process, while here on such business ?

The fact that the plaintiff had sued the defendant in Missouri, on the same cause of action, we do not regard as having any bearing on the question, as it is the settled law in this State, that the pendéncy of a suit in another State can not be pleaded in abatement of a suit brought here on the same cause of action. (McJilton v. Love, 13 Ill. 486; Allen v. Watt, 69 id. 655.) But even where the pendency of a suit in a sister State can be made available as a defence at all, it must, by all the authorities, be formally pleaded in abatement, which was not done here. The right of the plaintiff, then, to sue the defendant here, was the same as that of any one else having á claim against him. The ruling of the court, therefore, must be rested entirely -upon the privilege or immunity which the common law has, from a very early period, extended to parties and witnesses in a lawsuit while attending court, including going and coming." This rule is found in all the text books, and, in most of the cases we have examined, is expressly liniited to cases of arrest on civil process. 1 Tidd,' (1st Am. ed.) 174; 3 Blackstone, side page 289; 1 Greenleaf on Evidenee, sees. 316, 317; 2 Bouvier’s Law Dic. 284.

The rule as laid down in the above works, is fully sustained by an almost unbroken current of authority, as is fully shown by the following eases: Meckius v. Smith, 1 H. Blac. 635; Kinder v. Williams, 4 Term Rep. 378; Arding v. Flower, 8 id. 534; Spence v. Bert, 3 East, 89; More v. Booth, 3 Ves. 350; Ex parte Hawkins, 4 id. 691; Ex parte King, 7 id. 313; Sidgier v. Birch, 9 id. 69; Ex parte Jackson, 15 id. 117.

The above authorities are also valuable ,as throwing light upon the procedure or practice in cases of this kind. The arrest of a party to a suit, by civil process, being regarded as a breach of the defendant’s privilege, the usual course was to appear in the cause in which the arrest was made, and procure a rule against the plaintiff and his attorney to show cause why the defendant should not be discharged out of custody by reason of his alleged privilege, upon his filing common hail. The rule to show cause was always supported by affidavit setting up the fact, of the arrest, and attendant circumstances. On the hearing, the rule, depending upon the proofs, was either made absolute or discharged. If the former, the defendant, upon filing common or nominal bail, was discharged, and if he had given special bail, the bail bond was ordered to be surrendered and cancelled. Nevertheless, the defendant was in court, and was bound to answer the action.

While, as we have just seen, the exemption, by the general current of authority, applies only to arrests, yet in some of the States, notably New York, it has been extended to cases of service by summons, merely, particularly where the defendant is a non-resident. (Person v. Grier, 66 N. Y. 124; Mathews v. Tufts, 87 id. 568.) No sufficient reason is perceived for departing from'the general current of authority on this subject, merely because some two or three of the States have, through perhaps a spirit of comity, more than anything else, seen proper to do so. The mere service of a summons upon a non-resident, when in another State for the purpose of taking depositions to be used in an action to which he is a party in his own State, imposes no greater hardship upon him than to be served with process out of his own State when attending to any other kind of business. In either case, he is usually afforded ample time to prepare his defence, if he has any. Parties thus circumstanced have no difficulty in getting a temporary postponement or continuance of the causes, when necessary to the attainment of justice, or to avert any serious loss or inconvenience. It is clear -that such a case does not come within the reasons of the rule as laid down in the authorities above cited.

But outside of this consideration, it is essential that the party invoking the protection of the rule should come prepared to show that he is clearly within it. The rule, as well as the principle on which it is founded, is thus expressed by Tidd, supra: “The parties to a suit, and their witnesses, are, for the sake of public justice, protected from arrest in coming to, attending upon and returning from the court,—or, as it is usually termed, eundo morando et redeundo.” The term “court,” within the meaning of the rule, has received a very liberal construction. Greenleaf, in section 317, above referred to, thus summarizes the result of the authorities on this subject : “This privilege is granted in all cases where the attendance of the party or witness is given in any matter pending before a lawful tribunal having jurisdiction of the cause. Thus, it has been extended to a party attending on an arbitration under a rule of court; or on the execution of a writ of inquiry ; to a bankrupt and witnesses attending before the commissioners, on notice; and to a witness attending before a magistrate to give his deposition, under an order of court. ”

To the last instance given by the author may be added the case of a party, or his witnesses, appearing before a master to give or take testimony, which would fall within the same principle. Where a master, magistrate or other person takes evidence in a cause, under an order of the court wherein the cause is pending, such officer or other person is the mere instrument of the court, and is subject to its orders. In legal effect, such evidence is taken before the court. But a notary public, when taking depositions in one State to be used in a suit pending in another, can in no sense be regarded as an instrument or agency of the court wherein such suit is pending. Neither the notary, nor any of the parties appearing before him, are answerable to the court for anything said or done while there, the whole matter being outside of its jurisdiction. Not so with a master, magistrate or other person taking evidence under an order of the court within its jurisdiction. In such case, all parties appearing before him for such purpose, if willfully guilty of any improper conduct, might summarily be attached, brought before the court, and punished as for a contempt in its presence. In taking the depositions, the notary performed purely ministerial functions. He could decide no questions or determine any matter affecting the rights of the parties to the suit, nor was he, as we have just seen, connected with any court or other tribunal having the power to do so. Hence he could in no sense, in the language of Greenleaf, be said to have “jurisdiction of the cause, ” and therefore he does not fall within the category of any of the tribunals contemplated by the rule in question.

Looking at the action of the trial court from another point of view, we do not think it in harmony with the decisions of this court. The case was disposed of upon a'simple motion to quash the service. The writ, the service and return, as they appear of record, were in strict conformity with law, but it was sought to assail the validity of the service on account of certain matters alleged to exist dehors the record, and set forth by way of affidavit. This we do not think can be done. Had the defendant been arrested, and it was desired to raise the question of privilege for the purpose of obtaining his discharge, then, in conformity with the well settled practice in such cases, a rule nisi should have been taken against the plaintiff, as heretofore indicated, and the question .would then properly have been heard on affidavit, as was done in this case. But no such a case as the one suggested was before the court. There was simply an attack upon the service, founded upon extrinsic facts. Whatever may be the practice in States where the code system prevails, it is clear the course pursued was not proper. Here, the common law practice prevails generally, except in so far as it has been modified by legislative enactment, or perhaps, in some instances, by long and uniform custom; but we are aware of no change in the practice, by legislation or otherwise, so far as the procedure in cases of this kind is concerned. The rule, as recognized here in repeated decisions, and which is in strict accord with the common law practice, isf'that any defect in the writ, its service or return, which is apparent from an inspection of the record, may properly be taken advantage of by motion, but where the objection is founded upon extrinsic facts the matter must be pleaded in abatement, so that an issue may be made thereon, and tried, if desired, by a jury, like any other issue of fact./ If the plaintiff is successful upon such issue, the judgment is quocl recuperet. It is therefore to him a valuable right to have the issue thus made up and tried. To permit the defendant to try an issue of this kind on affidavit, as was done, gives him a decided advantage, for if he fails, his motion would be simply overruled, and he would still have a right to a trial on the merits. To permit a party to thus speculate on the chance of succeeding on a purely technical ground, without incurring any risk, and without any compensation to the plaintiff in case of failure, is contrary to the spirit of the common law, and is in direct conflict with the decisions of this court. Holloway v. Freeman, 22 Ill. 197; McNab v. Bennett, 66 id. 157; Union National Bank v. First National Bank, 90 id. 56; Rubel v. Beaver Falls Cutlery Co. 22 Fed. Rep. 282; Holton v. Daly, 106 Ill. 131; Hearsay v. Bradbury, 9 Mass. 96; Bean v. Parker, 17 id. 601; Guild v. Richardson, 6 Pick. 368; Charlotte v. Webb, 7 Vt. 48; Lillard v. Lillard, 5 B. Mon. 340.

For the reasons stated, the judgments of the courts below are reversed, and the cause remanded to the Superior- Court of Cook county, for further proceedings in conformity with the views here expressed.

Judgment reversed.


text:
    William A. Boley v. Bernard Barutio.

      Filed at Springfield March 23, 1887.

    1. Tenants in common—liability of one to another for use and occupation. Where tenants in common of premises make a parol agreement, whereby one is to use one particular portion and the other another portion thereof, and the property continues to be so used by the parties for several years, after which one of them appropriates the use of the entire building to himself, being notified by the other that he will charge rent for his half, the latter may recover of the former for the use and occupation of the same.
    2. In order, however, to render one tenant in common liable to his co-tenant for rent, or use and occupation, there must be something more than mere occupancy of the estate by one, and a forbearance to occupy by the other. But the one may become liable to the other for rent, without an express agreement for its payment. Such an agreement may be implied from the conduct and the relations of the parties, although the relation of landlord and tenant will not be so readily inferred as if the parties were strangers in estate.
    3. Same—remedies as among themselves. If the conduct of co-tenants toward each other in relation to the occupancy of the premises has been such as that an agreement to use, each a particular part of the premises, can reasonably be implied, then either one being disturbed in his occupancy by the other, is entitled to the same remedies as though no relation of co-tenancy existed.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Tazewell county; the Hon. N. W. Green, Judge, presiding.

      Mr. B. S. Prettyman, and Mr. Wm. Don Maus, for the appellant:
    There can be no recovery at law by one tenant in common against his co-tenant, who merely occupied the premises which both are entitled to possess. Tenants in common must join in an action for rent, 4 Kent’s Com. (9th ed.) 409.
    A tenant in common in possession can not be held liable in trover to his co-tenant, for his portion of the crop grown on the land. Keisel v. Earnest, 21 Pa. St. 90.
    The mere occupancy of the premises by one tenant in common would not, of itself, at common law, have entitled his co-tenant to call him to an account. Coke on Litt. 200 b.
    The possession of one co-tenant is the possession of the others, and the taking of the whole profits by one, does not amount to an ouster of his companion. But if one actually ousts the other, or affords, by his acts, sufficient grounds for a jury to presume an ouster, the one that is ousted will be driven to his action of ejectment. 4 Kent’s Com. 410, 411, note c.
    There must be something more than the occupancy of the estate by one, and. a forbearance by the other to occupy. 1 Washburn on Real Prop. (2d ed.) 436; Chapin v. Foss, 75 Ill. 280; Sconce v. Sconce, 15 Bradw. 169; Sargeant v. Parsons, 12 Mass. 149; Calhoun v. Curtis, 4 Metc. 413.
    The cases in regard to the liability of a co-tenant who enjoys the whole, or more than his share, of the common property, but receives nothing from third persons on its account, under the rule of construction of the Statute of Anne, prevailing in England, are to the effect that the co-tenant so occupying is not liable to account; and that rule of construction has been adopted in the majority of instances in which it has been called in question in the United States. Freeman on Co-tenancy and Partition, 295.
    Parol partition, to be valid and binding on the parties, must be followed by several possessions. Vasey v. Board of

      Trustees, 59 Ill. 188; Manly v. Pelter, 38 id. 128; Nichols v. Padfield, 77 id. 253; Shepherd v. Rinks, 78 id. 188.
    Mr. T. N. Green, for the appellee:
    The law will, in a proper case, imply an agreement between tenants in common to pay rent. Chapin v. Foss, 75 Ill. 280.
    Where one occupies the premises of another, after being notified that if he does so he will be expected to pay rent, he will be bound to pay rent. Railroad Co. v. Thompson, 110 Ill. 159.
   Mr. Justice Magruder

delivered the opinion of the Court r

This is assumpsit by appellee against appellant for the use and occupation of the south half of an ice-house in Pekin, built, in 1874, by appellant and appellee, at their joint expense, upon certain lots, of which each owned an undivided one-lialf. There ivas a trial before a jury in the circuit court of Tazewell county, resulting in verdict and judgment for appellee, which judgment has been affirmed by the Appellate Court.

The proof tends to show, that, in 1875, a partition was put in the building, running from east to west, and dividing it into two equal parts; that, thereafter, for seven years, appellant occupied and used the north half, and appellee the south half, the whole building being filled, each season, with ice, and appellant taking the ice in the north half, and appellee the ice in the south half; that, in the years 1883, 1884 and 1885, appellant occupied the whole building, taking the ice out of the south half, as well as the north half; that, in 18S3, appellee notified appellant in writing, that he would charge him rent for the south half.

It is true, that, in order to render one tenant in common liable to another for rent, or use and occupation, there must be something more than occupancy of the estate by one, and a forbearance to occupy by the other. But one co-tenant may be liable to another for rent without an express agreement by the one to pay rent to the other. An agreement to pay for use and occupation may be implied, as well where the parties are tenants in common, as in any other case, the only difference being that the relation of landlord and tenant will not be so readily inferred from occupation in the case of a co-tenant, as in the case of a stranger. If the conduct of the co-tenants towards each other, in relation to the occupancy of the premises, has been such, that an agreement to use, each a particular part of the premises, can be reasonably implied, then either, on being disturbed in his occupation by the other, is entitled to the same remedies, as though no relation of co-tenancy existed. 4 Kent’s Com. 370; Freeman on Co-tenancy and Partition, sec. 268; Illinois Cent. Railroad Co. v. Thompson, 116 Ill. 159; Oakes v. Oakes, 16 id. 106; Chapin v. Foss, 75 id. 280.

The jury were instructed by the trial court, that, if they found the facts above recited to be established by the evidence, plaintiff was entitled to recover what the use and occupation of the south half of the ice-house for the three years in question was reasonably worth. We find no error in the instruction so given, nor in the refusal of those, not given. There was evidence in the record upon the questions, to which the attention of the jury was directed by the instructions. Whether plaintiff and defendant made a parol partition of the premises, and, in pursuance thereof, took exclusive possession of their respective parts by mutual agreement, and whether thereafter defendant went into possession of the part, assigned to plaintiff, and occupied it, were questions of fact, upon which the decision of the Appellate Court is final.

The judgment of the Appellate Court is, therefore, affirmed.

Juclgment affirmed.


author: Mr. Justice Scholfield

text:
    F. H. Wemple et al. v. St. Louis, Jerseyville and Springfield Railroad Company.

      Filed at Springfield March 23, 1887.

    Contract op subscription lo stock, as distinguished from a purchase of shares—and ivhen a right of action accrues. A party gave his promissory note to a railway company for $500, payable on January 1, 1882, with interest, containing a condition that if a certain line of railroad should be constructed so that cars might be run between certain points on or before January 1, 1882, it should be paid, and five shares of the capital stock of the company should be issued to the maker, otherwise the note should be void: Held, that this was only a contract of subscription to the capital stock of the company, and not one for the purchase of shares, and that a tender of the stock was not a condition precedent to a right of action on the note.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Morrison & Whitlock, for the appellants :
    The contract to pay the money, and the contract to deliver the shares of stock, are mutual and dependent undertakings, to he performed at one and the same time. Tipton v. Feltner, 20 N. Y. 423; Withers v. Reynolds, 2 Barn. & Adol. 882.
    Wemple Bros, were not in default till the railroad company had offered to perform in apt time. Baird V. Evans, 20 Ill. 29; Bishop v. Norton, id. 175.
    If no time is fixed for payment for an article purchased, it is payable on delivery of the article sold. Bank of Columbia v. Hagner, 1 Pet. 665.
    At. law, a party must perform upon the day fixed by the special agreement, or; the other party may elect to treat the contract as at an end. Tyler v. Young, 2 Scam. 444; Morgan v. Herrick, 21 Ill. 495; Steel v. Riggs, 22 id. 654; Conway v. Case, 22 id. 275; Smith v. Newton, 28 id. 235; Bank

      of Columbia v. Hagner, 1 Pet. 665; Papin v. Goodrich, 103 Ill. 86; Howe v. Hutchison, 105 id. 50l.
    Messrs. Brown & Kirby, for the appellee:
    . The contracts executed by Wemple Bros, were not executory contracts to purchase and pay for stocks to be delivered on a day fixed. They were subscriptions to aid in building the road. People v. Barnett, 91 Ill. 433; Railway Co. v. Black, 79 id. 262; Stowell v. Stowell, 45 Mich. 864; Hays v. Railway Co. 61 id. 422.
    The contracts being but subscriptions to the capital stock, to aid in building the road, it was not necessary to a recovery that the certificates should be tendered on any particular day. 1 Rorer on Railroads, 103, 104; Chandler v. Railroad Co. 18 Ill. 190; Railway Co. v. Barnett, 85 id. 313.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Two questions are presented upon this record for our decision : First, does the instrument on which suit is brought, require that the certificates of five shares in the capital stock of the railroad company shall be issued and tendered to the appellants on the 1st day of January, A. D. 1882? second, was it in compliance with the agreement expressed in .the condition in that instrument, that the railroad was so constructed that cars could be and ivere safely run over its track, upon the line, and within the time prescribed, as the court instructed the jury?

First—The instrument reads as follows:

“$500. Waverly, III., January 12, 1881.
“On the 1st day of January, 1882,1 promise to pay to the-order of the St. Louis, Jerseyville and Springfield Bailroad Company the sum of $500, with interest from maturity, at the rate of eight per cent per annum, payable at the office of Wemple Brothers, Waverly, Illinois. The condition of this note is such, that, whereas, the St. Louis, Jerseyville and Springfield Eailroad Company, duly incorporated according to the laws, of the State of Illinois, agrees to construct, or cause to be constructed, a railroad from a point on the Mississippi river at or near Grafton, or Jersey Landing, in Jersey county, Illinois, via Jerseyville, to or near Medora, to or near Chesterfield, to or near Palmyra, all in Macoupin county, Illinois, and to or near Waverly, in Morgan county, Illinois, thence to Springfield, Illinois, or with a railroad connection w'itli Springfield, Illinois. Now, if said railroad shall be so constructed that cars may be run over the same, between the points named above, on or before the 1st day of January, A. D. 1882, then this note shall be well and truly paid, and five shares of the capital, stock of said railroad, amounting to the sum of $500, shall be issued to the maker hereof, otherwise this note to be null and void. Unless said railroad shall be built within a half mile of the centre of the public square, in the city of Waverly, this note to be absolutely null and void.
Wemple Brothebs. ”

It will be observed the first undertaking is an unqualified promise by appellants to pay to the order of appellee, $500 on the 1st day of January, A. D. 1882, with interest, etc.; but after this comes the condition,—that is, the agreement that they shall not be obliged to perform this promise unless appellee shall perform the" second undertaking, which is, to construct or cause to be constructed a railroad, etc., “so that cars may be run over the same, between the points named above, on or before the 1st day of January, A. D. 1882.” And if this shall be done, it is expressly said, the “note shall be well and truly paid, ”—the liability will then be absolute; and it is afterwards added, “and five shares of the capital stock of said railroad, amounting to the sum of $500, shall be issued to the maker hereof. ” This can, in our opinion, in the connection that it occurs, only mean that the stock shall issue after payment is made. The limitation of time plainly applies only to the construction of the railroad. When it was constructed on the line, and within the time stipulated, the condition, which alone prevented the undertaking from being absolute, was discharged, and the instrument then, in legal contemplation, was to be read with the condition eliminated, as thus: “On the 1st day of January, A. D. 1882, I promise to pay to the order of the St. Louis, Jerseyville and Springfield Bailroad Company the sum of $500, with interest after maturity, at the rate of eight per cent per annum, payable at the office of Wemple Brothers, Waverly, Illinois; and five shares of the capital stock of said railroad, amounting to the sum of $500, shall be issued to the maker hereof.”

The contract is a subscription to the capital stock, and not a purchase of shares. (Ottawa, Oswego and Fox River Valley Railroad Co. v. Black, 79 Ill. 262; Wellensburg v. West N. P. Railroad Co. 12 Md. 476.) And see, also, P. D. ancl Co. of G. and M. T. Co. v. Hurtin, 9 Johns. 217. The rule is, where no formalities are prescribed, any agreement by which a person shows an intention to become a shareholder upon the terms set forth in the company’s charter, is sufficient to constitute a contract of subscription. (Morawetz on Private Corp. sec. 269.) Payment of the subscription makes the subscriber a stockholder. The certificates of the shares are but the evidence of the fact. 1 Rorer on Railroads, 103; Morawetz on Private Corp. sec. 258 ; Angell & Ames on Corp. (5th ed.) sec. 565; Chandler v. Northern Cross Railroad Co. 18 Ill. 190; N. and S. Railroad Co. v. McCormick, 10 Ind. 499; Miller v. Gravel Road Co. 52 id. 57. And no tender of the certificates of shares was, therefore, necessary, in order to enable the appellee to recover on the subscription. Morawetz on Private Corp. sec. 282, and authorities cited in note 3.

Second—The condition specifies only that the road shall be “so constructed that cars may be run over the same.” The instruction of the court followed this language substantially. Clearly, no greater degree of completeness or perfection of the road was intended, or it would have been specified. We think the court did not err in its construction of the condition in this respect. The question of fact was for the jury, and the. finding of the Appellate Court relieves -us of any inquiry in that respect.

We think the judgment of the Appellate Court was right, and it must therefore he affirmed.

Judgment affirmed.