source: Caselaw Access Project

author: Me. Presiding Justice

license: Public Domain

text:
    Melissa A. Thomas v. E. A. Morgan.
    1. Statute op Limitations—Not to Be Raised by Demurrer.—When the fact appears on the face of the declaration that the cause of action sued upon is barred by the statute of limitations and no exceptions are alleged to prevent the running of the statute, in order to take advantage of the statute, under the practice in this State, the defendant must plead the matter by special plea.
    2. Pleading—Matters in Discharge or in Confession and Avoidance to be Affirmatively Pleaded.—In all actions of trespass, whether to the person, or to personal or real property, matters in discharge or in confession and avoidance of the action must be specially pleaded.
    3. Same—Statute of Limitations in Trespass to the Person.—The statute of limitations in actions of trespass to persons can not be raised by demurrer but must be specially pleaded.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding.
    Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    C. C. Leforgee and Hutchinson & Lee, attorneys for plaintiff in error.
    B. F. Shipley and I. A. Buckingham, attorneys for defendant in error.
   Me. Presiding Justice

Bueeoughs delivered the opinion of the court.

On February 8, 1898, plaintiff in error brought suit in the Circuit Court of Macon County, Blinois, against defendant in error, in an action of trespass, in which the declaration is as follows :

“Melissa A. Thomas by her attorneys * * * complains of Elijah A. Morgan, the defendant, for that whereas, on, to wit, October 2, A. D. 1894, and prior to that time, he was a practicing physician in the town of Maroe in said county and State. And whereas, the complainant was then and there lying ill at her home in the said town of Maroe, and was then and there the patient of said defendant, who had been waiting upon and administering to her professionally from the 23d day of July, A. D. 1894, until said 2d of October, A. JD. 1894, and whereas, it was his duty then and there to use his skill as a physician to then and there aid in the recovery of the complainant from her illness, yet in violation of said duty, contriving and wickedly intending to injure complainant, he wrongfully, wickedly and cruelly made a brutal assault with force and arms in and upon complainant, and then and there carnally knew her. By means whereof she then and there grew sick and sore and languished for many months thereafter, so that her life was despaired of, and has remained from thence hitherto in a feeble and precarious state of health by means of the shock there received by her from the said defendant in the said brutal and wicked assault upon her. And whereas, she has from the time of the said assault by means thereof suffered great mental anguish and physical and. bodily pain, and has been deprived thereby of the strength she was, before said illness and assault, possessed of to earn her livelihood as she was before that time accustomed to do.
And whereas, she was compelled thereby to change climate and pay out large sums of money, and did necessarily pay out large sums of money for nursing, medicine, physicians and traveling expenses, to wit, the sum of $300, in and about seeking to regain her health of which she had so cruelly and xvickedly been deprived by said defendant—to the damage of the plaintiff of $10,000—and therefore she brings this suit.”

To which the defendant interposed a general and special demurrer, the only special cause stated being, “ that in and by said declaration the supposed cause of action accrued more than two years before the commencement of this suit, as appears on the face of the declaration.” The demurrer being sustained, plaintiff excepted, stood by her declaration, and judgment was given against her for costs.

To effect a reversal of the judgment and obtain a remanding of the case, she prosecutes this writ of error and insists that the court improperly sustained the demurrer to the declaration, and improperly gave judgment against her, when her declaration set forth a good cause of action, which was admitted by the demurrer.

It is insisted by plaintiff that the cause of action disclosed in the declaration is governed by section 15 of our Statute of Limitations, where it is provided that all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrues, while defendant claims that it is governed by section 14 of the statute, which expressly provides that actions for damages for an injury to the person * * * shall be commenced within two years next after the cause of action accrued.”

That the cause of action upon which plaintiff sues in this case is governed by the two years limitation mentioned in section 14, there can be no doubt, for by the declaration she claims damages for an alleged injury to her person, and such claims being provided for by section 14, are not governed by section 15, as insisted by plaintiff in error.

Plaintiff further insists that even if the claim upon which she sues was barred under section 14 when she began her suit, and that appears upon the face of the declaration, yet in order for the defendant to take advantage of the bar of the statute, he was compelled, under the practice in this State, to do so by special plea, and should not have been permitted, as he was by the trial court, to do so by demurrer.

Our statute of limitations has a number of exceptions which prevent a cause of action from being barred, as otherwise therein provided, among which are the following:

“ Section 18; If, when the cause of action accrues against a person he is out of the State, the action may be commenced within the times herein limited, after his coming into or return to the State; and if, after the cause of action accrues, he departs from and resides out of the State, the time of his absence is no part of the time limited for the commencement of the action.”
u Section 21. If the person entitled to bring an action, mentioned in the nine preceding sections, is, at the time the cause of action accrued, within the age of twenty-one years, or if a female, within the age of eighteen years, or insane, or imprisoned on a criminal charge, he .or she may bring the action within two years after the disability is removed.”

Mr. Ohitty, in his admirable work on pleading, states the rule to be, “ in all actions of trespass, whether to the person, personal or real property, matters in discharge or in confession and avoidance of the action must be specially pleaded; as accord and satisfaction, arbitrament, release, former recovery, or to an action for assault, a magistrate’s certificate of acquittal of the assault, or tender of sufficient amends. So the statute of limitations, which in trespass to persons is, that the defendant was not guilty within four years, and to trespass to personal or real property within six years, must be specially pleaded.”

In Gebhart v. Adams, 23 Ill. 397, where the action was debt to recover the statutory penalty for cutting timber, Mr. Justice Breese, in delivering the opinion of the court, said:

“ It is now well settled that the statute of limitations -must be specially pleaded, however contrary, it may be to the original design of the statute, to all actions of a personal nature. It can not, by demurrer to the declaration, be used as a defense. * * * In the case of Johnson v. The United States, 3 McLean, 89, the court held, when there is a bar under the statute, it must be pleaded, and this seems to be the tenor of the decisions of all the courts in modern times.”

And in People v. Herr, 81 Ill., at page 126 of the opinion, the decision in Gebhart v. Adams, 23 Ill. 397, was approvingly referred to.

In Emory v. Keighan, 88 Ill. 482, where the action was ejectment, Mr. Justice Dickey said (p. 486):

“ But it is insisted that the statute of limitations can not avail unless it bé pleaded. The general rule is, that the statute must be pleaded, and the reason of the rule is that al defenses of confession and avoidance must be affirmatively pleaded.”

In People ex rel. v. Boyd, 132 Ill. 60, a quo warranto proceeding, it was held that where the petition or declaration discloses the proper facts, the bar of the statute of limitation ma}*- be interposed by demurrer. Which, we take it, means that where the petition or declaration on its face shows that the time of the statute has run against the cause of action therein stated, and also shows that the case is not within any of the exceptions of the statute applicable to such cause of action, then the bar of the statute may be invoked by demurrer as well as by plea.

In Gunton v. Hughs, 181 Ill. 132, where the action was case for a libel, Mr. Justice Carter said (p. 134):

“In order to avoid the effect of the defendant’s plea of the statute of limitations, which has been filed to the declaration before it was amended, the plaintiff, pursuing the rules governing equity pleading, amended his declaration and undertook to confess and avoid that branch of the defense.
“Ho authority at common law has been cited, and we know of none, which would sustain the method of pleading resorted to in this case. Such a rule prevails in several States under codes, but the practice in this State has always been, as at common law, for the plaintiff to reply specially to matters pleaded as a defense by way of confession and avoidance, and section 32 of the practice act recognizes the propriety of such replications.
“ In Chitty’s Pl., 496, it is said: It was always necessary to plead the statute, of limitations specially.’ In 13 Ency. of Pl. & Pr., 200, the author says : ‘In actions at law, as contradistinguished from actions under the code, it has always been the established rule that if the defendant desires to avail himself of the statute of limitations as a bar to the demand in suit, he must plead the defense. He can not demur to the declaration, even where it appears on its face that the limitation prescribed by the statute has expired, for the principal reason that thereby the plaintiff would be deprived of the opportunity of replying that the case was within some of the exceptions to the statute, or any other matter which would prevent the bar from attaching.’ Such, of course, is the rule; and as the defendant can not, at law, raise the question by demurrer whether the action is barred or not, but must plead the statute if he wishes to avail himself of it, itfollowTs as a logical sequence, that the plaintiff can not avail himself of matter in avoidance of the statute by pleading such matter in his declaration before the statute has been set up as a bar by plea. * * * The distinctions between common law and equity pleadings are well defined and well understood by the legal profession, and can not be ignored. The equity cases cited by counsel show only the rule in equity, not the rule at law. As said in Wisconsin Central Railroad Co. v. Wieczorek, 151 Ill. 579, Deviations from well settled rules of proceeding are always of questionable expediency, and when indulged because of some inconvenience or supposed hardship, have generally introduced confusion, and by becoming precedents, have led to the preservation of an orderly and just administration of the law.’ ”

In the case at bar the declaration on its face shows that when the plaintiff commenced her suit more than two years had elapsed since the cause of action stated therein had accrued, but the declaration fails to state any facts from which it appears that the plaintiff’s case is not within some one or more of the exceptions enumerated in the statute of limitations applicable thereto, and therefore the Circuit Court erroneously permitted the defendant to invoke the bar of the statute by demurrer to the declaration, when under the allegations thereof the aid of the statute could not be obtained except by plea.

For the error indicated the judgment will be reversed and the cause remanded to the Circuit Court of Macon County for further proceedings not inconsistent with the views herein expressed. Beversed and remanded.


author: Mr. Justice Wright

text:
    Chicago & E. I. R. R. Co. v. William M. Lawrence.
    1. Railroads—Maintaining Dangerous Places at Stations—Intoscicated Patrons. —The fact that a person was injured by the negligence of a railroad company in keeping an open and unguarded stairway at the end of its station platform into which such person fell while intoxicated will not excuse the company in maintaining a dangerous place where persons in the exercise of ordinary care would be injured in consequence.
    2. Evidence—Admissibility of Photographs.—In an action against a railroad company for personal injuries, photographs of the place of the accident taken subsequently to the injury are admissible in evidence where the conditions of the place have not changed between the time of the accident and the taking of the photograph.
    3. Bills of Exceptions— To Be Construed Against the Party Presenting Them.—A bill of exceptions is in the nature of a pleading of the party presenting it and is to be construed most strongly against such party, and in the absence of a ruling upon an objection without a reason it will be presumed that the objection was either waived or withdrawn by the party who made it.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. Ferdinand Bookw alter, Judge, presiding.
    Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    H. M. Steely, attorney for appellant; W. H. Lyford, of counsel.
    Mabin & Clark, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

Appellee brought this suit against appellant to recover for injuries received by him in consequence of the alleged negligence of the appellant. A trial by jury ended in a verdict and judgment against appellant for §1,000, to reverse which this appeal is brought.

It is argued the court admitted improper evidence, rejected proper evidence offered by appellant, refused to rule upon objections made by appellant to improper questions asked by the plaintiff of the witnesses, misdirected the jury prejudicially, modified instructions to the jury, and the verdict is contrary to the law and the evidence of the case.

Appellee went to appellant’s station at Rossville to take the 2:30 a. m. train to Danville, and, as he testified, when he heard the train whistle for the station he started to go to the north end of the depot where the train usually stopped to discharge and receive passengers. The night being dark and no lights, he kept close to the side of the building to guide himself, a companion being in company with him. Just as he reached the north end of the building, to give his companion more room, he suddenly side-stepped to the left, and fell into an open and unguarded stairway that led to the basement and heating plant of the station house, and thereby broke his leg. The negligence charged in the declaration was a failure to properly guard the open stairway and in properly lighting the station and platform. The evidence for the defense tended to show that appellee at the time of his injury was drunk, and not in the use of ordinary care, and we are compelled to say that the proof did show he had been drinking freely and was more or less intoxicated, although this was a mere circumstance to be considered, with all the other evidence, by the jury in determining whether he was in the exercise of due care, and whether his injury was the result of such intoxication, or the effect of the alleged négligence of the defendant. The intoxication of appellee would not excuse appellant in maintaining a dangerous place, if from the evidence it did so, where persons in the exercise of ordinary care would be injured in consequence thereof. The court refused to admit in evidence photographs of the building showing the’ stairway and its surroundings, but did admit a blue print plat, fully describing the ground plans of the building, stairway, platform and tracks. It is argued, under the authority of L. E. & W. R. R. Co. v. Wilson, 189 Ill. 89, that it was prejudicial error to reject the photographs from the evidence. We held in the same case, 87 Ill. App. 360, that while the photographs offered may have been admissible, yet it was not seen that they developed anything new or strengthened the proof; that their admission was subject to the discretion of the trial court, in view of other established facts, following in this respect, as we then understood, the previous rulings of the Supreme Court in C., C., C. & St. L. Ry. Co. v. Monaghan, 140 Ill. 474, where it was said the preliminary question of fact as to the verification of the pictures is addressed to the discretion of the trial judge, and his discretion thereon is not subject to exception; citing Blair v. Pelham, 118 Mass. 420; Hollenbeck v. Rowley, 8 Allen, 473; Randall v. Chase, 133 Mass. 210; Locke v. S. C. & P. P. R. Co., 46 Iowa, 109; Ruloff v. People, 45 N. Y. 213. But subsequently, in the Wilson case, the Supreme Court reversed the judgment because the photographs were not admitted; and under the authority of that case we feel compelled to hold that not to have admitted the photographs in evidence was prejudicial error in this case.

The complaints of the instructions to the jury we think are not well founded. The instructions, taken as an entire charge, we think fairly gave the law to the jury, and the modifications were not prejudicial. There were no prejudicial rulings upon the evidence other than already pointed out. The failure of the court to rule upon certain questions is not clear from the record. It may be the appellant, by not insisting upon its objections, waived them. It frequently occurs, as we know, in the trial courts, that in the stress of the examination of a witness, objections are made and hurried over without giving the court time to pass upon them, and the party making the objection, appears to the court as abandoning, by not insisting upon them, and the objection, under the system of shorthand reporters, thus goes upon the record without the attending circumstances. We can not doubt the trial court would rule upon all objections, unless it considered them waived or withdrawn, and this we feel compelled to presume, without an affirmative statement in -the bill of exceptions to the contrary. A bill of exceptions is in the nature of a pleading of the party presenting it, and is therefore most strongly construed against such party (Rogers v. Hall, 3 Scam. 5); and in the absence of a ruling upon an objection without a reason, it will be presumed the objection was either waived or withdrawn by the party who made it.

For the error in refusing to admit the photographs in evidence, the judgment of the Circuit Court is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Burnie Short v. The People, etc.
    1. Intoxicating Liquors—What is Not a Sale to a Minor.—Several persons contributed a sum of money and sent a minor with it for beer, which he got and carried back to them. Held, that if the beer was sold to the minor as the agent of the persons contributing the money to buy it, there could be no conviction of the vendor for selling intoxicating liquors to minors.
    Indictment for Selling Intoxicating Liquors to Minors.—Error to the Circuit Court of Ford County; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Kerr & Findley, attorneys for plaintiff in error; Payson & Kessler, of counsel.
    A. L. Phillips, State’s Attorney, for defendant in error.
   Mr. Justice Wright

delivered the opinion of the court.

This was an indictment against the plaintiff in error for selling intoxicating liquors to Alonzo Phillips, a minor, without the written order of his parent, guardian or family physician. A trial by jury ended in a verdict of guilty upon the first count of the indictment, and the court, having overruled a motion for a new trial, gave judgment against the plaintiff in error for a fine of one hundred dollars and the costs of prosecution, to reverse which this writ of error is prosecuted, and to accomplish such reversal it is argued the verdict is against the law and the evidence of the case.

We think the evidence establishes the fact that twenty-seven bottles of beer were delivered by plaintiff in error to Alonzo Phillips, a minor, as the agent of Rowland and others who had together contributed $2.85, the price of the beer, which sum, at the request of Rowland and others, the boy carried to plaintitf in error, received the beer and conveyed it in a buggy to the village of Melvin, where" it was received by those who contributed the money. It does not appear the boy got or drank any of the beer, or that he had any interest therein. He was hired to convey the beer from plaintiff in error to the purchasers. He had a written order from Rowland for the beer to be purchased for Rowland. The court instructed the jury, both at the request of the people and defendant, that if the beer was sold to Phillips as the agent of others, there could be no conviction. We think such instruction is clearly the law, and besides, having induced the court to instruct the jury that such was the law, the prosecution is in no position to claim in this court that a sale to the minor as the agent of others would be a violation of the statute. It is clear from the evidence the sale was so made, and was in reality a sale to those who furnished the money, and received the beer, the boy being a mere carrier for hire. The judgment of the Circuit Court will be reversed and the cause remanded.


author: Me. Justice Weight

text:
    Charles Diefenthaler v. Wilson S. Hall.
    1. Sureties—Agreements to Become so on Condition that Others Will Become Co-sureties—Promissory Notes.—Where a party signs a promissory note as surety for the principal maker, upon condition that another person will also sign such note as his co-surety, and the payee, with full knowledge of the fact, accepts the note without the signature of such other person, the party signing upon such condition is not liable on the note.
    2. Presumptions—When it is Error to Assume that a Presumption Prevails.—The law only presumes that all men are honest, until the evidence proves the contrary, and in cases where the burden of proof rests upon either party, it is because the presumptions of law or fact are against such party, and it is error to assume that a presumption prevails if there is evidence to rebut it.
    Assumpsit, on a promissory note. Appeal from the Circuit Court of Shelby County; the Hon. William: M. Farmer, Judge, presiding.

      Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Hamlin & Kelley, attorneys for appellant.
    Wm. H. Ceaig and Chapee & Chew, attorneys for appellee.
   Me. Justice Weight

delivered the opinion of the court.

This suit was by appellee upon a note for §592.26, signed by appellant and D. J. Sloan and payable to appellee. To the declaration appellant pleaded specially to the effect that he was surety, and that at the time he signed the note it was agreed that B. S. Sloan and Elijah Bass were also to sign as sureties, and that this was known to appellee. Such pleas were traversed and a trial by jury ended in a verdict and judgment for §683.76, to reverse which this appeal is brought, and it is argued, chiefly to effect such reversal, that the verdict is against the weight of the evidence, the court gave improper instructions and refused proper instructions.

The testimony of appellee and B. S; Sloan, if true, proved the allegations of the plea, and this evidence was but negatively disputed by appellee, if at all, as all that he said upon this subject was that he had no recollection of the agreement that the persons named were to be co-sureties with appellant before the note should take effect against him. If the appellee knew that the note was not to be effective until it was signed by Sloan and Bass and he accepted it regardless of these conditions, such acceptance would be at least a legal fraud against the rights of appellant. In this aspect of the case it was, therefore, requisite that the instructions to'the jury should be accurate. Upon this point the fourth instruction for the plaintiff given to the jury has been strenuously objected to. That instruction is as follows:

“ 4. The court instructs the jury that fraud is never presumed but must be affirmatively proven by the party alleging the same; the law presumes that all men are fair and honest, that their dealings are in good faith and without intention to disturb, cheat, hinder, delay or defraud others;' where a transaction called in question is equally capable of two constructions, one. that is fair and honest, and one that is dishonest, then the law is, that the transaction called in question is presumed to be fair and honest.”

The first sentence of the instruction is an accurate statement of the law, but what follows is believed to be a practical nullification of it. Whether it be presumption of law or a presumption of fact that all men are presumed to be fair and honest or not, or whether, when a transaction is called in question equally capable of two constructions, one fair and honest and one that is dishonest, then the law is that the transaction called in question is presumed to be fair and honest, depends upon the evidence of the case. All that follows the first sentence of the instruction is in no manner qualified by it, and seems to be wholly regardless of the evidence. The jury might well infer that while it was necessary to prove fraud affirmatively, still the law is, that notwithstanding this and without regard to the evidence, the presumptions are that men are fair and honest, and the transaction was equally capable of being considered honest or dishonest, and therefore must be deemed honest. The vice of the instruction is that the law only presumes all men honest until the evidence proves the contrary, the qualifying clause having been omitted from the instruction. In every case where the burden of proof rests upon either party, it is because the presumptions either of law or fact are against such party, and it is always error to assume that such presumption prevails if there is evidence to rebut it. This we think the instruction under consideration did, and it was error to give it in the form in which it was given to the jury, lt'is also insisted the court refused to give to the jury proper instructions; but upon examination we believe all that was proper in the refused instructions was contained in those given by the court.

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


author: Mr. Justice Weight

text:
    George Helle v. Deerfield Township.
    1. Road Labor—Liability Under the Statute.—The statute (R. S., Chap. 131, Sec. 83. Hurd’s Ed. 1899, p. 1483) provides that every able-bodied male inhabitant above the age of twenty-one and under the age of fifty years (with certain exceptions), shall be required to labor on the highways in their respective road districts not less than one nor more than three days in each and every year.
    3. Same—Definition of the Term ‘ ‘ Inhabitant. ”—The term ‘ ‘ inhabitant ” is defined in law to be one who has a legal settlement in a town, city or parish, and is synonymous with the word “ resident,” which is more generally used in this country and probably better understood.
    3. Same—Who is a Resident, a Question of Fact.—The question as to whether a person is or is not a resident of a certain road district, so as to be liable to taxation therein, is one of fact for the jury.
    4. Same—Evidence that a Person Voluntarily Submitted to be Taxed in Another District, When Competent.—On the trial of the issue as to whether a person is a resident of a road district so as to be liable to taxation therein for road purposes, it is competent for the jury to consider the fact that such person had voluntarily submitted to be taxed and paid his tax in another township where he claimed a residence with his father.
    Action for a Penalty, for a failure to labor on the highways or pay commutation. Appeal fro'm the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding.
    Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    O. J. Boyer, attorney for appellant.
    Chipeefield & Chieerfield, attorneys for appellee.
   Mr. Justice Weight

delivered the opinion of the court.

This was a suit against appellant to recover the penalties provided by statute for a failure to work upon the roads or commute the same, in District 3, Deerfield Township, Fulton County. The trial by jury resulted in a verdict of guilty, and a penalty of $4 was assessed against appellant, for which the court gave judgment against him, after overruling his motion for a new trial, and to reverse this judgment he prosecutes this appeal to this court.

Appellant was assessed for road labor in District 3, Deer-field Township, where he' had a saw mill. While working at his saw mill, he was unmarried, and lived in a tent a part of the time, and boarded part of the time, but claimed his residence with his father in Cass Township of the same county, and was assessed and paid poll tax in the latter place, which the court, on objection, excluded from the evidence, and held, in the presence and hearing of the jury, the way the proof stands now I will have to hold that the defendant was an inhabitant of Deerfield Township at the time these lists were made up and was not a resident of Cass.” The statute (Chap. 121, Sec. 82) provides that every able-bodied male inhabitant above the age of twenty-one years and under the age of fifty years, with certain exceptions, shall be required to labor on the highways in their respective road districts, not less than one nor more than three days in each and every year; and by a subsequent section (101) it is provided that every person assessed and duly notified, as provided by law, who shall not commute, or who shall refuse or neglect to appear, shall forfeit to the town for every day’s refusal or neglect the sum of two dollars.

The vital issue in this case was of which district appellant was an inhabitant, and which of the districts in question was his district, within the meaning of the statute. The word inhabitant ” is to be given its ordinary significance as used in the statute. Webster defines inhabitant to mean one who dwells or resides permanently in a place, as distinguished from a transient lodger, or visitor; as, an inhabitant of a house, a town, a city,county or state (Law); one who has a legal settlement in a town, city or parish; a permanent resident. We thus see that an inhabitant is synonymous with resident, the latter word being more generally used in this country, and probably the better understood. It was therefore a question of fact to be determined by the jury, from all the evidence in the case, of which district appellant was a resident, and for the purpose of the statute the district of which he was a resident would be his district, as it is not to be understood, unless the meaning was plain to the contrary, that the legislature intended the inhabitant should be assessed in more than one district. It was therefore prejudicial error for the court, as it did by its ruling that we have already noticed, to take this question away from the jury. The question of residence being one of fact to be decided by the jury, it is also largely one of intention of the party concerned, and in this particular it was competent for the jury to consider the fact that appellant had voluntarily submitted to be taxed, and paid the same in Cass Township, where he claimed his residence with his father, and it was error for the court, as it did, to exclude such evidence.

In so far as the rulings of the court upon instructions given or refused are inconsistent with the views herein expressed they were erroneous.

For the errors indicated the judgment of the Circuit Court will be reversed and the cause remanded for a new trial. Reversed and remanded.


author: Mr. Presiding Justice Burroughs

text:
    Jacob F. Traylor et al., Impleaded, etc., v. W. S. Barry, Receiver of the Coffeen Coal & Copper Co., and Duncan McLean.
    1. Miner’s Liens.—Under the Act of 1895.—Under the act of 1895 entitled “ An act to protect laborers and miners for labor performed in developing and working coal mines ” (Laws of 1895, 242), eveiy laborer or miner who performs labor in opening and developing any coal mine, including sinking shafts, constructing slopes or drifts, mining coal and the like, is entitled to have a lien upon all the property, real and personal, of the person, firm or corporation owning, constructing or operating such mine, used in the construction or operation thereof, for tbe value of such labor, upon the same terms, with the same rights, and to be secured and enforced as mechanics’ liens are secured and enforced.
    2. Same—Goal Mines in the Hands of Receivers During the Period of Redemption Under Foreclosure Proceedings.—A receiver, appointed by the court on the petition of a purchaser, at a foreclosure sale, of such mine, during the period of the equity of redemption, has authority to operate and improve the mine in order to preserve it; to employ miners and agree to pay them out of the moneys made from such operating; and in case such moneys are not sufficient for that purpose, the effect will be to bind the mining plant with the lien given by the act of 1895 and make it liable for their services.
    intervening Petition, to enforce a miner’s lien. Appeal from the Circuit Court of Montgomery County; the Hon. Truman E. Ames, Judge, presiding.
    Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Zink, Jett & Kinder and Webb & Webb, attorneys for appellants.
    Miller & Miller and Lane & Cooper, attorneys for appellees.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

The appellants, Jacob F. Traylor and C. F. Edwards, together with a number of others, by leave of court, filed their intervening petition in the Circuit Court of Montgomery County in a certain foreclosure proceeding then pending in that court wherein Isaac M. Jones et al. were complainants, and Coffeen Coal & Copper Company et al. were defendants, and making W. S. Barry, the receiver of said company, and Duncan McLean, the purchaser of the property in volved, in said foreclosure proceedings, defendants thereto.

The petition, in effect, was: That Isaac M. Jones et al. filed their bills against said Coffeen Coal & Copper Co., for foreclosure of a mortgage against the property of said company; that a decree of sale was entered December 2, 1898; that on the 9th day of January, 1899, the property was sold under said decree to one Duncan McLean for the sum of $17,000; that on the 1st day of February, 1899, the report of the sale was approved by the court and a certificate of purchase issued by the master to said Duncan McLean; that on the last named day said Duncan McLean filed his intervening petition in said court, setting up that during the period of redemption the property should be operated as a coal mine in order that it might be preserved and protected, and prayed the court to appoint a? suitable person receiver of 'said property with power to operate the same and to pay the operating expenses thereof, and to bring the money realized over and above such operating expenses into court, to abide the further order of the court; that upon a hearing of said petition, on the 1st day of February, 1899, W. S. Barry was appointed receiver; that he qualified as such receiver and took possession of said property, and operated the same as such receiver until about May 10, 1900; that from about the last named date said receiver abandoned the mine and refused and failed to protect and preserve the same until the same became flooded with water and the entries and roadways caved in and otherwise obstructed, rendering it necessary in order to preserve said mine to pump the water therefrom and to clean up and reopen the entries and roadways; that on the 11th day of September, 1900, the said receiver determined to re-open, develop and operate the said coal mine, and to that end engaged the petitioners, who went upon and into the said coal mine premises, which are fully described and set out in the petition, and rendered services to said receiver, cleaning up and removing the fallen slate, coal dirt and other obstructions from said entries and roadways, establishing air courses, making cross-cuts, and otherwise bestowing labor and work, opening and developing said mine, all of which was necessary for the purpose of resuming the operation thereof by said receiver, and that the receiver is indebted to the petitioners as follows: To Ed. Bunton, $13.35. (Here follows about one hundred and eighty names with sums following each name, varying in amounts. Among those names appears the following: “Edwards & Traidor, $48.50.”)

The petition further states that the mine had become wrecked and rendered almost valueless, and that the labor rendered by the petitioners materially enhanced the value thereof and permanently improved the same, and thus preserved the property from absolute ruin and destruction; that said receiver promised to pay the petitioners for their services according to the scale of wages adopted at" Springfield, Illinois, March 10, 1900, at the convention of the coal operators of Illinois, and the" United Mine Workers of America, on the first and fifteenth of every month, and that the said sums of money are the balances accruing from the 11th day of September, A.' D. 1900, to the present time, and are now due and unpaid; that no part of said sums of money have been paid, though often demanded of said receiver; that said indebtedness was necessarily incurred in the re-opening and developing of said mine and by said receiver in carrying out said decree and order of the said Circuit Court made upon the petition of the said Duncan McLean, and by and with the consent of all the other parties in said cause; that the said property and the interest of the said Duncan McLean and of all the parties to this cause, as well as the proceeds arising from the operation thereof, are in equity and good conscience liable and bound for the payment of all of said indebtedness due to these said intervenors; and that under the statute of the State of Illinois, the petitioners have now a lien upon all of said coal mining property, as in and by such statutes provided, and that if the said sums of money are not paid, the petitioners are entitled to-haveall of said coal mining property sold under a decree and order of the court for the purpose of satisfying the petitioners’ said liens and discharging the amounts so due them.

The prayer of the petition is that the court order the receiver to pay the petitioners the amounts of their several claims, if he has assets sufficient therefor, and in the event that said receiver can not so pay the petitioners, then the court order an account to be taken in this behalf under the direction of the court.

That the petitioners may be decreed to have a lien, as before stated, upon the said premises, and that the said Duncan McLean may be decreed to pay unto the petitioners the amount due them by a short day to be fixed by the court, and that in default of such payments the said premises may be sold, by the further direction of the court, to satisfy such amounts and costs; that in case of sale and failure to redeem, the said Duncan McLean and all other persons may be forever barred and foreclosed.

W. S. Barry, as receiver, filed his answer to' said petition, in which he admits the foreclosure of the Jones mortgage; that the property was sold to Duncan McLean; that he was appointed receiver on the petition of Duncan McLean, and took charge of and operated said mine; but denies that on tlie 10th of May, 1900, he abandoned and refused to care for said mine, and that the roadways caved in, and became obstructed, and the air courses destroyed, or that it was necessary to use pumps constantly to prevent an overflow; be further denies that he determined to re-open said mine on or about September 11, 1900, and denies that he engaged any person to work, operate or run said mine, or that anybody did so by his directions or request, and denies that the petitioners were engaged by him from the 11th of September, 1900, to operate or work said mine, as stated in the petition, or that he requested any or either of the petitioners to do any work or labor on said mine, and denies that the receiver is indebted to the said petitioners, or either of them, for any work or labor, as stated in the petition, or that they, or either of them, have any claim against the receiver for any work or labor, as mentioned in said petition, or have any claim whatever, by lien or otherwise, on the property of said mine. The receiver further denies that said mine has been wrecked and rendered valueless or incapable of being operated, and denies that he agreed to pay for the services of any of the petitioners, according to the scale of wages adopted at Springfield or anywhere else, as set out in said petition.

The receiver further denies that if the petitioners have rendered any services in said mine it was not done by the direction or order of this court, and that said property is not liable in equity for the payment of the same.

Duncan McLean adopts the answer of W. S. Barry, receiver, as his answer, and denies any liability or indebtedness to any or either of the petitioners.

Upon the petition, those answers, and the evidence taken in open court, the proceeding was heard, and the court found for the defendants and entered a decree dismissing the petition, with costs to the petitioners.

From that decree appellees Jacob F. Traylor and 0. F. Edwards alone have prosecuted an appeal to this court, and urge that it be reversed and the proceeding remanded for another hearing, upon the alleged grounds that the finding and decree are contrary to the evidence in the case and the equities of the parties.

The evidence shows that appellee W. S. Barry was appointed receiver of the Golfeen Coal & Copper Company’s property under the circumstances and for the purposes stated in the petition, and that the petitioners, appellees among the rest, performed the services substantially for the purposes therein stated; that the receiver and Duncan McLean, the purchaser of said property at said foreclosure sale, consented and requested that such services be rendered for the purposes stated in the petition, and that there was due each of the petitioners the sums of money claimed by them respectively.

The claim made by appellants is that, the evidence having sustained the allegations of their petition, the court should have found for them and entered a decree in accordance with the prayer of their petition, because they had a lien upon the property in the hands of the receiver, under the act of 1895, protecting laborers and miners for labor performed in developing and working in coal mines, which is as follows:

“ That every laborer or miner who shall perform labor in opening ancl developing any coal mine, including sinking shafts, constructing slopes, or drifts, mining coal and the like, shall have a lien upon all the property of the person, firm, or corporation owning, constructing or operating such mine, used in the construction or operation thereof, including real estate, buildings, engines, cars, mules, scales, and all other personal property, for the value of such labor for the full amount thereof, upon the same terms, with the same rights, and to be secured and enforced as mechanics’ liens are secured and enforced.”

And appellees contend that the property in question, being in the custody of the law, appellants could not obtain a lien upon it under said act in the absence of an y order of court directing the receiver to have the work done for which appellants are claiming pay, and that the evidence fails to show that the receiver or the purchaser, Duncan McLean, employed appellants to perform such work or promised to pay them therefor.

The record of said foreclosure proceedings shows that Duncan McLean, on February 1, 1899, filed a petition therein as follows:

“Tour petitioner, Duncan McLean, respectfully repre- . sents unto your honor that at the sale of the premises (the coal mine and property of said coal and copper company), made on the 9th day of January, 1899, under the decree of foreclosure in the above proceedings, your petitioner became the purchaser of said premises for the sum of $17,000, which sum your petitioner has paid to the master in chancery of said counter; that your petitioner now holds a certificate of purchase to said premises from said master calling for a deed to the same at the expiration of fifteen months from the day of sale if the same are not redeemed as provided by law.
“Tour petitioner further represents that said premises are mining premises, for the purpose of mining and hoisting coal for market; that to protect the interest of your petitioner, as well as all other parties in interest, the same should be operated during the period of redemption; that if the same is not operated nor cared for the same will deteriorate and go to destruction and loss, and at the end of the redemption period, the mine below would practically be worthless; that to keep the property in condition so that it would be of value at the end of the redemption period, would cost about $300 per month if the mine was not operated and coal mined; that the company is wholly insolvent and can not redeem the same; that there are judgment creditors of said company, but whether they will redeem the same your petitioner is not advised.
“ That it would be to the best interest of said company and of said judgment creditors, as well as your petitioner, to have said mine and property operated by a receiver appointed by this honorable court during the period of redemption, as the profits arising from said operation of said mine would more than pay the expenses of keeping said mine in good condition for all parties in interest.
“ Tour petitioner therefore prays that your honor will appoint some suitable person receiver for said property with power to operate said mine, and with directions, after paying the operating expenses, that he will bring the money arising from operating the same, into court, to be hereafter distributed under the order and directions oí the court, as the court may deem just and equitable, and your petitioners will ever pray, etc.”

And that under said petition the court, on said 1st day of February, 1899, entered an order appointing said W. S. Barry such receiver, and directing him to take possession of all the property of said coal and copper company, and that he run and operate said mining plant, and in so doing, to exercise all the franchises of said company in this regard; that he employ all necessary agents, attorneys, servants and employes to properly run, operate and manage said mining plant and its affairs; that he report to the court on or before February 7, 1899, the names and number of employes necessary to operate said mine, together with the monthly wages paid to each, and from time to time pay out on proper vouchers, any money that may come to his hands as such receiver from the earnings of said property or otherwise, for any of the purposes specified in this order; and that said receiver will from time to time, as he may have any net earnings in his hands, bring the same into court, that the same may be ordered paid according to the equities of the parties interested.

Under the authority of that order, made under the petition of Duncan McLean, the purchaser of the mine, we entertain no doubt but that the receiver and purchaser together had the authority to employ appellants, as the evidence shows they did, to operate and improve the mine in order to preserve it, and to agree to pay them therefor, as the evidence also shows they did, out of the moneys made from such operating, and in case it was not sufficient, then the effect would be to bind the mining plant with the lien given therefor by said act of 1895; for the receiver and the purchaser, under the law and said order of court, had all the necessary interest in the plant to enable them to employ appellants and make it liable for their services.

We are satisfied, therefore, that under the evidence and the equities of the parties in this proceeding, the Circuit Court erred in finding for the receiver and the purchaser, and in dismissing the petition, and for that reason we will reverse its decree herein, and remand the cause to that court for such further proceedings as are consistent with the views herein expressed, and as to equity and justice shall appertain. Reversed and remanded.


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    Mattoon Gas Light and Coke Co. v. Timothy Dolan.
    1. Instructions—Must be Accurate Where the Questions at Issue arc Close.—In an action for personal injuries, where the question at issue is close, an instruction that if the jury believe from the evidence that the defendant’s manager directed the plaintiff to clean out a certain appliance in a gas machine called a ‘ ‘ scrubber,” as alleged in the declaration, that the work was dangerous, and that the manager had knowledge of the danger, or in the exercise of ordinary care would have had such knowledge, and the plaintiff did not know of the danger and had no equal means of knowledge with the manager, and that in cleaning out the “ scrubber ” as directed he was injured as alleged in the declaration, their verdict should be for the plaintiff, is erroneous, as failing to require the jury to find that the plaintiff was at the time of his injury in the exercise of ordinary care for his own safety, notwithstanding the jury were told in other instructions that the plaintiff must prove that he exercised ordinary care for his own safety before he could recover.
    Trespass on the Case.—Appeal from the City Court of Mattoon; the Hon. Jambs F. Hughes, Judge, presiding.
    Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Alexander Clark, attorney for appellant; Clark & Clark, of counsel.
    John F. Voigt, Jr., and Andrews & Vause, attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

This was an action on the case, brought by appellee in the City Court of Mattoon, Illinois, against appellant, to recover $5,000 damages for alleged injuries 'which appellee claims he received while employed by appellant, by reason of the negligence of its manager.

The case was tried by jury and resulted in a verdict and judgment in favor of appellee for the amount sued for. Appellant moved for a new trial, which being denied, it excepted, and to secure a reversal of the judgment, brings the case to this court, and assigns and argues for error, that the City Court improperly refused to direct a verdict for appellant at the close of the evidence, gave improper instructions at the instance of appellee, and that the verdict is against the evidence.

The declaration as amended, has four counts. The first alleges that on October 24, 1900, appellee owned and operated a plant in the city of Mattoon for the manufacture of fuel and illuminating gas, and then and there had appellant in its employ under the directions of its manager in charge of the men working at the plant; that it was the duty of appellant to provide appellee proper means and conveniences to safely pursue his employment, and not to subject him to risks not necessarily incident to the business in which he was engaged; yet appellant, not regarding its duty in that behalf, did then and there, by its said manager, negligently direct appellee to enter and clean out a machine known as a “ scrubber,” which was then and there known to appellee to be filled with substances from which arose, in dangerous quantities, poisonous gases, but which fact was unknown to appellee; that appellant’s said manager falsely assured him there was no danger in his obeying the direction; that he, relying upon said assurance, in pursuance of the direction, a,nd exercising all due care and caution for his own safety, entered said “ scrubber,” and while cleaning out the same, was overcome by the poisonous gases and permanently injured thereby, for which he claims $5,000 damages.

The second, after alleging the ownership and operation of the gas plant, the same as the first, then alleges that appellee was engaged as a laborer therein, and was inexperienced in the use and management of the machinery thereof, which was well known to appellant’s manager in charge thereof, yet the latter then and there carelessly ordered appellee to enter and clean out a machine called the “ scrubber,” which the manager knew to be filled with noxious gases, but which was unknown to appellee; that said “ scrubber ” was a cylinder five feet in diameter and about twelve feet high, having near the bottom an opening about eighteen inches in diameter, and about five feet above this opening another opening about eighteen inches in diameter, and on top thereof another opening about eighteen inches in diameter, all of which openings were kept closed while the “ scrubbing ” was in operation; that it was the duty of appellant to have removed the covers from these openings a sufficient length of time to have allowed said gases to escape before ordering appellee to enter the scrubber ” and clean it out; that appellee, in pursuance of said order from said manager, and while exercising all due care and caution for his own safety, entered the “ scrubber,” and while cleaning it out, was overcome by said poisonous gases and greatly injured in health by reason of breathing the same.

The third avers ownership and operation of said plant, and the employment of appellee, as does the others, and then alleges that appellant negligently allowed the “ scrubber” to become filled with noxious substances, from which arose, in large and dangerous quantities, poisonous gases, and to so remain a long space of time, and that appellee was in the employ of appellant and it was its duty to afford him proper means and conveniences to safely pursue his employment, and not to subject him to risks not necessarily incident to the business in which he was engaged; yet appellant, not regarding its duty in that behalf, and while the “ scrubber ” was so filled with said substances, from which arose in large and dangerous quantities said poisonous gases, which fact was unknown to appellee, carelessly and negligently ordered and directed him to enter and clean out the “ scrubber;” and falsely assured him that there was no danger of injury in obeying said order; and he, relying upon said assurance and in pursuance of the order, while exercising all due care for his own safety, entered the “ scrubber,” and while cleaning out the same, was then and there overcome by the poisonous gases and injured as aforesaid.

The fourth alleges ownership and operation of the plant and the employment of appellee as the others, and then alleges that there were in use at said plant, various pieces of machinery which are extra hazardous and dangerous for persons to operate who are unacquainted with their use; that appellant well knew that appellee was inexperienced in the use and management of said machinery; that it was the duty of appellant to inform and notify its employes upon entering upon their duties in and about said plant, of such pieces of machinery before sending them to work therewith, and to inform them of the nature and character of such extra hazards and dangers; that appellant, on October 24, 1900, was negligently and carelessly ordered by appellee to enter and clean out a machine known as a “ scrubber,” which contained dangerous quantities of poisonous gases, which was unknown to appellee; that the work of cleaning out the “ scrubber ” was extra hazardous and dangerous by reason of such gases, and appellee, relying upon the duty of appellant to notify him of the pieces of machinery which were extra hazardous and dangerous, entered the scrubber,” and while cleaning out the same and in the exercise of all due care and caution for his own safety, was overcome by the poisonous gases and injured, for which he claims damages in the sum of $5,000.

Appellant pleaded the general issue, and upon the trial, the evidence showed that it was engaged in manufacturing and selling water gas at Mattoon.

Prior to October 22, 1900, an explosion occurred at appellant’s gas plant, and a portion of its brick buildings were torn down thereby, and upon that day Mr. Dixon, the manager of the plant, employed appellee and several others and set them to work cleaning away the debris in order to rebuild. Two days thereafter, while appellee was engaged in cleaning off the bricks of the fallen buildings, Mr. Dixon directed him. and another employe named Senteney, to clean out a machine used in purifying gas, called a “ scrubber,” which is made of sheet steel, is about five feet in diameter and some fourteen feet high, with a grate near the bottom, and when in use, is filled with coke. Gas, after leaving the retorts, passes through this “ scrubber,” and the coke absorbs the tar and other impurities from it. There are three manholes about twelve by thirteen inches each, one near the bottom, one near the middle, and one near the top of the “ scrubber,” which are kept closed when the machine is in use, but can be opened when desired.

The top of the “scrubber” is fastened on by some seventy screw bolts which can be taken out with a wrench and the top can then be removed. When appellee and Senteney were directed to clean out the “ scrubber,” they proceeded to obey, and had succeeded in getting the coke about half way out, w'hen it became necessary for one of them, to go into it in order to finish cleaning it out. Both hesitated, however, about going into it, because, as they said, “it smelled pretty strong in there,” and they asked Mr. Gaddis, an old employe of appellant, if they could not take the top off, and he told them “ All right.”

While they were proceeding to do so, appellant’s manager appeared, and learning their object, said, “It is not necessary to remove the top;” and putting his head into the manhole, further said that “ it was not dangerous to go into it, and if he had his working clothes on, he would go in and clean it out himself.” The top was not taken off and appellee went inside and proceeded to throw coke out. Feeling badly soon, he put his head out of the manhole for a shoi’t time to get some fresh air and then resumed work. In a short time he was again obliged to put his head out and obtained a drink of water from Senteney. Returning to work, he soon began getting dizzy, and attempted to come out, but becoming unconscious, was unable to do so except with the assistance of Senteney. By means of his arms being -worked by others after he was- out, he was revived and breathing restored thereby.

In a short time he was able to work at cleaning brick but complained of dizziness. He continued working around the plant at cleaning brick and other work for two days more, but in that time, his dizziness having grown no better, he became so weak that he had to quit, and since that time has not only been unable to do any work of much consequence, but is suffering with tuberculosis of the lungs, which, in the opinion of one of the physicians who testified, may have been caused from breathing the gas while in the “ scrubber.”

Appellee was twenty-five years old when he began working for appellant, and up to that time had never had much sickness of any kind, nor had his lungs been affected with tuberculosis _ before then. He was earning one dollar and fifty cents a day when he was suffocated. He testified that while he discovered there was a strong smell of gas in the scrubber ” before he went into it, he did not then know the gas was poisonous or that it would suffocate him as it did, and that owing to the bad smell of the gas, he would not have gone into the scrubber” without taking the top off if Mr. Dixon had not told him it was not dangerous to go into it with the top on.

The “ scrubber ” with the coke in it, which appellee was attempting to clean out, had been in use for about one year, and it was the practice of appellant to have it cleaned out about once a year.

At the close of all the evidence, appellant requested the court to direct a verdict in its favor, claiming that the evidence did not sustain any actionable charge made in the declaration, but the court refused, and it is urged that in that, the court committed reversible error.

But in view of the charge in the amended declaration to the effect that appellant knew the gas arising from the coke in the “ scrubber” was poisonous or dangerous, while appellee was ignorant thereof, and that appellant’s manager nevertheless negligent^ ordered appellee to go into the “ scrubber ” and clean the coke out, at the same time assuring him that it was not dangerous to do so, and that appellee, relying upon the assurance, obeyed the order and was thereby injured, and the evidence introduced tended to sustain that charge, we are of opinion that the court properly-refused to direct a verdict for appellant.

At the request of appellee, the court gave an instruction as follows:

The court instructs the jury that if you believe from the evidence that Timothy Dolan was employed as a laborer by the defendant at Mattoon, that the defendant’s manager directed Timothy Dolan to clean out a certain scrubb.er as alleged in the declaration, and that such work was danger-' ous, that defendant’s manager had knowledge of the danger of such work, or in the exercise of ordinary care would have had knowledge of it, that plaintiff did not know of the danger, and had no equal means of knowledge with the manager, and that in cleaning out said scrubber as directed, plaintiff was injured, as alleged in the declaration, then your verdict should be for the plaintiff.”

Counsel for appellant insists that it was prejudicial error to give it, for the reason that it told the jury to find a verdict for appellee upon their finding the facts enumerated therein, and yet failed to require them to find that appellee, at the time in question, was exercising ordinary care for his own safety, when the. evidence was close on that material question, which was directly in issue under the pleadings; while counsel for appellee contend that that omission from the instruction is obviated by other instructions which were given.

And it is true, the jury were told in other given instructions, that appellee must prove that he exercised ordinary care for his oxvn safety at the time in question before he could recover; yet in view of the exddence showing that appellee knew the gas arising from the coke in the “ scrubber ” smelt bad before he went into it, and that after going in, he soon discovered that it made him feel badly, and yet he remained until it o\rercame him, made it a close question whether he had exercised ordinary care in remaining so long .as he did, and therefore said omission from the instruction ivas not obviated by the other conflicting instructions on the question of whether appellee had exercised such ordinary care as was required. Illinois Linen Co. v. Hough, 91 Ill. 63; Quinn v. Donovan, 85 Ill. 194; and Partridge v. Cutler, 168 Ill. 504.

Counsellor appellant further insist that two of appellee’s other instructions were improper and it was prejudicial error to give them, but we have examined them and fail to discover wherein they contain such error.

A careful consideration of all the evidence fails to convince us that the verdict is so manifestly against the weight of the evidence as to compel us to reverse the judgment for that reason, but we think we should, and we will reverse it for the error above indicated in giving the instruction quoted above. Reversed and remanded.


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    Robert Hall v. Robert H. Mann et al.
    1. Mandamus—giince the Act of 1874.—By the act of 1874 (R. S. Ch. 87, Hurd’s Ed. 1899, p. 1136), and by section 10 of the practice act (R. S., Hurd’s Ed. 1899, p. 1285), when a petition for a writ of mandamus is filed, it is no longer necessary to set out the cause of action in the writ, but it is sufficient to summon the defendant in the usual form of actions at law to answer the plaintiff in an action of mandamus, and the issues are to be made by his demurring, answering or pleading to the petition as in other cases at law.
    2. Practice—In Mandamus Cases.—Since the passage of the act of 1874, the petition in mandamus cases takes the place of the alternative writ under the former practice and becomes the foundation of all subsequent proceedings, and is to be governed by the same rules of pleadings applicable to pleadings in other cases at law.
    3. Same—Should the Petition he Sworn to 1—The court can find no law requiring the petition in an action of mandamus under the act of 1874 and section 10 of the practice act, to be sworn to. The statute does not require it nor do the rules of practice governing declarations in other cases at law.
    4. Parties—Private Persons as Parties to Actions for Mandamus. —The weight of American authority favors the doctrine that private persons may prosecute an action for mandamus to enforce a public duty, not due to the government as such, without the intervention of the government law officer.
    5. Same—Proceedings hy Mandamus to Disconnect Territory.—The owner of lands upon the border and within the boundary of an incorporated city or village may prosecute an action for mandamus to enf orea the performance by the proper authorities of their duty in the matter of the disconnection of his lands, without the intervention of the people or their law officer, since the performance or non-performance of that duty does not concern the State as such.
    Mandamus, to disconnect territory. Appeal from the Circuit Court of Cass County; the Hon. Thomas N. Meham, Judge, presiding.
    Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    R. W. Mills, attorney for appellant; Edward Clifford, of counsel.
    F. A. Snyder, City Attorney, and Chas. A. Gridley, attorneys for appellees.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

Appellant, as owner, representing a majority of the area of certain land or territory upon the border and within the boundary of the corporate limits of the city of Virginia, in Cass county, Illinois (which land or territory had never been laid out into city lots or blocks), presented his petition to the Circuit Court of said county for a writ of mandamus against appellees, as the mayor and the members of the city council of said city, compelling them to disconnect said land or territory from said city.

The petition averred that appellant had fully complied with the provisions of paragraph 206 of chapter 24 of our statutes (Hurd’s Ill. Rev. Statutes 1897, p. 9, 206), to entitle him to have said territory disconnected, and the refusal of appellees to disconnect same, but it was not presented in the name or by the authority of the people of the State, nor was it sworn to. Appellant moved to dismiss it upon the grounds that it was not in the name or by the authority of the people, and that it was not sworn to, and the court sustained the motion, and entered judgment in bar of the action and for costs.

Appellant brings the cause to this court and to effect a reversal of the judgment, has assigned and' argues for error that the court improperly sustained appellees’ motion to dismiss the petition, and improperly entered judgment in bar of the action when the petition showed a good cause of action, and was in every respect in proper form.

Counsel for appellees contend that mandamus is regarded by the courts as a prerogative writ, and the petition therefor must be prosecuted in the name and by the authority of the sovereignty by which it has been authorized, and must be sworn to; and that the petition for the writ in the case at bar, not being in the name or by the authority of the people of the State, nor being sworn to, the court properly sustained the motion to dismiss same for both reasons. While counsel for appellant insists that since the act of 1874, revising the law in relation to mandamus, it has become an action at law, and the petition for the writ takes the place of a declaration in other actions at law, and neither the statute nor the rules applicable to common law actions require that it should be sworn to; and that appellant, by his petition, is merely seeking to compel appellees to perform a public duty, not due to the government as such, but to him as a private person, and therefore he should be permitted to move in the matter without the intervention of the government officer.

We are satisfied that by the act of 1874, mandamus is made an action at law; and that by section 10 of our practice act, when a petition for a writ of mandamus is fil ed under it, it is no longer necessary to set out the cause of action in the writ, but it is sufficient to summon the defendant therein in the usual form of law actions to answer the plaintiff therein in an action of mandamus, and the issues are required to be made up by the defendant demurring, answering or pleading to the petition as in other law cases. And since the passage of the mandamus act of 1874, and section 10 of the practice act, the petition in cases of mandamus takes the place of the alternative writ under the former practice, becoming the foundation of all subsequent proceedings, and must be governed' consequently by the same rules of pleadings applicable to declarations in other cases. The People v. Glann, 70 Ill. 232; Dement et al. v. Rokker et al., 126 Ill. 174; The People v. Pavey, 151 Ill. 101; The People v. Crabb, 156 Ill. 155; and Chicago Great Western Ry. Co. v. The People, 179 Ill. 441.

Counsel for appellees have given no reason, nor can we find any, for requiring the petition in an action of mandamus under the statute of 1874, and section 10 of the practice act, to be sworn to, for the statute does not require it, nor do the rules of practice governing declarations in the other law cases.

The weight of American authority favors the doctrine that private persons may move for a mandamus to enforce a public duty not due to the government as such, without the intervention of the government law officer. Union Pacific Railroad Co. v. Hall et al., 91 U. S. 313, and cases cited; Dement et al. v. Rokker et al., 126 Ill. 174, and Chicago & Alton Railroad Co. v. Suffern et al., 129 Ill. 274.

The principal reasons urged against the doctrine are, that the writ is prerogative in its nature—a reason which is of no force in this country and no longer in England— and that it exposes a defendant to be harassed with many suits. An answer to the latter objection is, that granting the writ is discretionary with the court, and it may well be assumed that it will not be unnecessarily granted.” Union Pacific Railroad Co. v. Hall et al., supra.

And in The People v. Board of Supervisors, 185 Ill. 288, it was expressly held that granting the writ of mandamus is discretionary with the court in this State.

In the case at bar, appellant, by his action of mandamus, merely seeks to compel appellees to disconnect his land from the territorial limits of the city of Virginia, a public duty which appellees, as officers of that city, should perform in his interest, if what he alleges in his petition is true, under the express holding in Young v. Carey. 184 Ill. 613, and we see no reason why he should not be permitted to move for a mandamus to enforce the performance of that duty by appellees without the intervention of the people or their law officer, since the performance or non-performance of that duty does not concern the State as such.

We are oí opinion that the petition for the writ in the case at bar, is sufficient to require appellees to demur, answer or plead to same; notwithstanding it is not in the name of the people or by their authority, and is not sworn to; and therefore the Circuit Court erred in sustaining appellees’ motion to dismiss same, and in entering a judgment against appellant in bar of the action and for costs; for which errors we will reverse its judgment and remand the case for further proceedings not inconsistent with the views herein expressed. Ee versed and remanded.


author: Mb. Presiding Justice Bubboughs

text:
    Suffern, Hunt & Co. v. A. W. Treat & Co.

    1. Instructions—Delivery of Bills of Lading.—S. H. & Co. purchased three cars of corn of T. & Co. upon the track, which T. & Co. agreed to ship to Mobile, to the order of S. H. & Co., and send drafts, with the bills of lading therefor, to a bank at Decatur for payment. It was also agreed that T. & Co. should guarantee the weight and grade of the corn at Mobile. The com was shipped and billed by T. & Co. and drafts attached to the bills of lading sent to the bank, where S. H. & Co. paid them, and obtained the bills of lading. When the com arrived at Mobile it was weighed and found to be short to an extent sufficient to make, at the contract price, $66.95 which S. H. & Co. had overpaid in paying the drafts. S. H. & Co. informed T. & Co. and requested them to refund the amount overpaid, which they refused, and a suit for the amount followed. At the trial of the case, the court instructed the jury at the instance of T. & Co., in effect that upon the delivery of the bills of lading the title of the corn passed to S. H. & Co., and thatT. & Co. were not liable for any loss on the corn while in transit. Held, reversible error.
    Assumpsit, for money overpaid, etc. Appeal from the Circuit Court of Moultrie County; the Hon. William G. Cochrane, Judge, presiding.
    Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Albert G. Webber, attorney for appellant.
    Frank Spitler and John E. Jennings, attorneys for appellees.
   Mb. Presiding Justice Bubboughs

delivered the opinion of the court.

Appellant, a corporation, sued appellees, a copartnership, before a justice of the peace in Moultrie county, to recover the sum of $66.95, which appellant claims was overpaid to appellees upon three cars of corn which appellant purchased of and paid appellees for, and which fell short in weight to that extent.

Appellant recovered a judgment before the justice, and the case was taken by appellees to the Circuit Court by appeal, there tried by jury, and resulted in a verdict and judgment in favor of appellees. Appellant brings the case to this court and urges a reversal of the latter judgment upon the alleged grounds that the court gave improper instructions to the jury at the instance of appellees, and that the verdict is against the evidence.

Appellant mills and ships grain at Decatur, Illinois; appellees buy and sell grain at Gays, in Moultrie county, Illinois. Appellant purchased three cars of corn from appellees upon track at Gays, which appellees agreed'to ship to Mobile, Alabama, to the order of appellant, and send the bills of lading therefor to the bank at Decatur, with drafts attached, and appellant should pay the drafts and obtain the bills of lading. It was also agreed between appellant and appellees, when the corn was purchased, that appellees were to guarantee the weight and grade of the corn at Mobile, and that the drafts should be drawn for an amount so as to leave a reasonable margin to protect such weights and grades.

The corn was shipped and billed by appellees according to the agreement, and three drafts for $230 each, were attached to the three bills of lading, and all sent to the bank at Decatur, where appellant paid the drafts and obtained the bills of lading.

At the time appellees sent the bills of lading to the bank, they wrote to appellant by mail that the first car had 800 bushels of corn in it; the second, 813 bushels; and the third, 818 bushels.

When the three cars of corn arrived at Mobile, the corn in them was weighed and found to be short to an extent sufficient to make, at the contract price, $66.95 that appellant had overpaid appellees by paying the three drafts. Appellant informed appellees of such shortage and requested them to refund the $66.95, which they declined to do, and this suit followed.

There was evidence tending to show that appellees loaded enough corn into the three cars at Gays to satisfy the drafts.

The court, at the instance of appellees, instructed the jury to the effect that upon the delivery of the bills of lading for the three cars of corn to appellant by appellees, the title of the corn passed to appellant, and that appellees were not liable for any loss on the corn while in transit.

There was no dispute between appellant and appellees in the trial court concerning the terms of the purchase, nor that appellees agreed to guarantee the weight of the corn at Mobile; so that it was prejudicial to appellant for the court to instruct the jury, as it did, that appellees were not liable for any loss on the corn while in transit.

And for such prejudicial error in so instructing the jury, we will reverse the judgment of the Circuit Court and remand the case for a new trial not inconsistent with the views herein expressed. Reversed and remanded.


author: Mr. Presiding J ustice Burroughs

text:
    Henry C. Agnew v. The Macomb B. and L. Association et al.
    1. Building and Loan Associations—Borrowing Members, When Not Entitled to Unapportioned Profits upon Withdrawal.—A borrowing member of a building and loan association who withdraws his shares is entitled to have the withdrawal value of such shares applied in satisfaction of his loan; but until the board of directors have apportioned to all the shares of stock the proportion of profits which have been actually earned, a borrowing member who voluntarily withdraws his shares of stock is not entitled to have such profits applied in satisfaction of his loan.

      Bill to Compel the Cancellation of a Mortgage.—Error to the Circuit Court of McDonough County; theHon. John A. Cray, Judge, presiding.
    Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    E. I. Hampton, attorney for plaintiff in error.
    Sherman, Tunnicliff & Gumbart, attorneys for defendants in error.
   Mr. Presiding J ustice Burroughs

delivered the opinion of the court.

This was a bill in chancery filed in the Circuit Court of McDonough County by the plaintiff in error, Henry C. Agnew, against the defendants in error, Macomb Building and Loan Association, Charles V. Chandler and John M. Keefer (the latter two trustees named in the deed of trust in question), to obtain a decree compelling a cancellation and satisfaction of record of a certain deed of trust which plaintiff in error gave to the association upon certain of his real estate, and which he claims he has paid, and charges that the defendants in error refused to cancel and satisfy same, although he requested them to do so before the bill was filed.

A demurrer having been sustained to the bill as amended by the trial court, plaintiff in error excepted, and standing by it, a decree was entered dismissing it at his costs; and he brings the case to this court, insisting that the decree ought to be reversed and the case remanded because the court improperly sustained the demurrer, and improperly entered the decree dismissing the amended bill at his costs.

The bill was filed November 22, 1900, and as amended, sets up that the Macomb Building and Loan Association is a corporation organized in 1882 under the laws of Illinois, for the purpose of raising funds to be loaned only among its members, with its principal office at the city of Macomb, in McDonough county, Illinois; that a copy of its by-laws is attached to the bill, marked “ Exhibit A,” and made a part thereof.

That April 15,1898, plaintiff in error was a member of the association, owned twenty-eight shares of its capital stock, upon which he borrowed from it on that day $2,800, and gave it a written obligation to repay same, and secured it by a deed of trust executed by himself and wife, which conveyed to said Chandler and Keefer certain of his real estate in trust to secure the payment of said loan, which deed was duly recorded in the recorder’s office of said county, and a copy thereof attached to this bill, marked “ Exhibit B,” and made a part thereof.

That from the time plaintiff in error became the owner of said shares and obtained said loan, until November 3, 1900, he paid all dues, interest and premiums provided by said deed of trust and said by-laws, and in all things complied with all the rules, regulations and requirements of the association and said deed of trust.

That by reason of the interest and premiums paid by plaintiff in error and other parties who borrowed money from the association, all the shares of its capital stock increased in value and became entitled to certain credits as a portion of the net profits of the association, so that on November 3, 1900, the shares owned by plaintiff in error were entitled to a credit of'$122, in addition to the then withdrawal value thereof.

That on July 31st of each year since the association was incorporated, its secretary credited upon its account books to all the shares of stock thereof, the portion of said net profits to which each of said shares were at the time respectively entitled, and made report thereof in writing to its stockholders at their regular meetings in August of each year, and they received and approved his reports and directed the same spread upon its records, which has been done each year.

That on July 31, 1900, the credits to which the said stock belonging to plaintiff in error was entitled on account of such net profits were $122 in addition to the withdrawal value of same, and on that day said secretary credited said stock upon the account books of the association with said sum of $122, it being the portion of said net profits to which said stock was entitled.

That said secretary made report in writing, verified by his affidavit, to the stockholders of the association at their regular annual meeting held in August, 1900, of the value of all the shares of stock of the association, and of all credits returnable on account thereof, said report showing that the said shares owned by plaintiff in error were then entitled to a credit equal to the withdrawal value thereof and said $122 in addition thereto, being the sum credited upon said account books to said stock by said secretary on July 31, 1900.

That the board of directors of the association, at their regular meeting held on the second Monday in July, 1900, appointed five of its stockholders, .none of whom were directors, as a board of auditors to examine and audit the accounts of the association; that said auditors did examine and audit said accounts after July 31, 1900, and after said secretary had credited said stock of plaintiff in error in said accounts, with said $122 in addition to the withdrawal value thereof, they made report in writing to the stockholders of the association at their regular annual meeting held in August, 1900,stating that said accounts were correct.

That the stockholders of the association at said annual meeting received said report of the secretary and the report of said auditors, approved both of them, and ordered that each be spread upon the records of the association, and the same was done by its secretary.

That the profits of the various shares of stock of the association have never been apportioned to said shares by it in any manner other than as above stated; that said profits have never been apportioned by its board of directors by resolution or otherwise, except that when the shares of stock attained their full value by reason of the payment of dues and addition of profits apportioned in the manner herein stated, the board of directors would declare such stock fully matured.

That thirty days before November 3, 1900, plaintiff in error gave the association notice in writing of his intention and desire to repay said loan, the full amount of which was then $2,800, there being no arrearages due thereon or on the shares of stock pledged to.pay same or upon the security appertaining thereto; and that the withdrawal value of said shares of stock held by plaintiff in error, was then $907.86, which, with said $122 of profits apportioned thereto by the association, amounted to $1,029.86, which plaintiff in error was entitled to be allowed in making settlement with the association for said loan, and which being deducted from the amount thereof, left a balance due it of $1,770.14,' which plaintiff in error paid it, and which was all that was due it upon said loan.

That the association is willing to make settlement with plaintiff in error by crediting his stock with said sum of $907.86, being the withdrawal value thereof, but claims that he is not entitled to an allowance of said sum of $122 in such settlement, and refused him such credit, and has transferred the credit of said $122 from his stock on its account books, to the unearned profits of the association, claiming that its other shareholders are entitled to said profits instead of him.

That the association claims that plaintiff in error is still indebted to it in said sum of $122 upon his shares of stock, and refused to cancel his said written obligation and deed of trust, and surrender the same to him; that said deed of trust as the same now appears unsatisfied, is a cloud upon the title to his said real estate; that he is entitled to have same released of record; that upon his paying said $1,770.14 to the association as hereinbefore stated, it was the duty of said Chandler and Keefer, as such trustees, to release same of record; that on November 10, 1900, he requested said Chandler and Keefer to release said deed of trust of record, and both refused so to do; and that the association has, by its officers, instructed them not to release said deed of trust, and insists that they have no right to do so.

And prays that the trustees be required to release the trust deed of record, and that the association be required to cancel the evidences of said loan, and for general relief.

“ Exhibit A ” shows that the constitution of the association contains the following:

“ Article 6, Sec. 7. A borrower may repay a loan at any time, but shall, at the time of repayment, withdraw the shares upon which the loan was made.”
“ Article 8. Any stockholder may withdraw from the association upon giving thirty days’ notice of his or her intention so to do, when he or she shall be entitled to receive the amount paid in by him.”

And shows that among its by-laws is the following:

“ Article 6. Any stockholder withdrawing from the association shall be entitled to receive the amount paid in by him or her, with five per cent interest per annum, less proper fines and charges, provided no interest shall be paid until six months’ payment shall have been made.”

The constitution and by-laws of the association, being authorized by the statute under which it was created, entered into and became a part of the contract which it made with the plaintiff in error, one of its members, which is the subject of inquiry in this case, and under them it seems plain to us that he is not entitled to have the $122 (alleged profits) credited to his loan, in addition to the withdrawal value of his shares of stock, upon the settlement of his loan and the voluntary withdrawal of his stock before it matured, according to the plan of the association where members continue to hold their stock until it matures in the ordinary way.

Plaintiff in error, however, claims he is entitled to said $122, under paragraph 83b, section 6c, of chapter 32 of our statute, which is as follows:

“ Any member who shall have obtained a loan or advance on his shares and who shall have given real estate as security, may, at any time, upon giving thirty days’ previous-notice in'writing, repay the same. On settlement such member shall be charged with the full amount of such loan or advance, together with any and all arrearages due thereon, or on the shares pledged, or appertaining to the security given, and shall thereupon be allowed as a credit the withdrawal value of the shares pledged as security, together with such other credits as may be returnable on account thereof, and the balance shall be received by the association in full settlement and discharge of such loan or advance.” * * *

But we think that that section must be construed in connection with preceding section 6b of the same act, which is as follows:

“ Any member desiring to withdraw installment shares from any association doing business in this State, shall have power to do so by giving thirty days’ notice of such intention to withdraw, when such member shall be entitled to receive the full amount of dues paid in on the shares sought to be withdrawn, and such interest thereon as fixed in the by-laws, and in addition thereto such proportion of the profits apportioned thereto,' as the board of directors may, from time to time, by resolution determine, less such charges of the character enumerated in this act, as may be due thereon: Provided, that the amount of such interest or profits paid on withdrawals shall not exceed the actual rate of earnings of the association.” * * *

And with paragraph 82, section 5 of the same chapter, which confers the corporate powers of such associations upon its board of directors. And when effect is given to all, the conclusion naturally to be drawn therefrom is that until the board of directors shall, from time to time, by resolution, apportion to all the shares of stock the proportion of profits which have been actually earned, those members who voluntarily withdraw theirs, are not entitled to any of such profits, for they are only entitled to such under the statute after the directors have so declared.

Under our statute, homestead loan associations are organized to enable their members to borrow money from them upon their shares of stock and real estate security, and to repay it in premiums, dues and interest, to be paid in small installments, which in time may make profits which amount to enough to cancel the loan; then the stock is declared matured and the loan canceled. But the statute makes provision by which a member may voluntarily withdraw his stock and pay off his loan before the stock matures in the ordinary way, and in that case it provides that such withdrawing member shall be charged with the full amount of his loan, together with all arrearages due thereon, or on the shares pledged, or appertaining to the security given, and shall thereupon be allowed as a credit, the withdrawal value of the shares pledged as security, “ together with such credits as may be returnable on account thereof, and the balance shall be received by the association in full settlement and discharge of such loan.”

And in order to understand what is meant by the words such other credits as may be returnable on account thereof,” we must look to the statute itself, and looking there, we find section 6 b declares that the shares of voluntary withdrawing members are entitled to “ such proportion of the profits apportioned thereto, as the board of directors may, from time to time, by resolution determine.”

This construction of the statute, in our opinion, is not only fair to the members who withdraw, but does justice to those who remain until their shares are matured, and to whom the profits, if any, justly belong; for they must bear all losses which may and do occur; and also gives to the language used by the legislature the meaning which it fairly conveys when interpreted to effect the purposes for which such associations are organized; and it recognizes that the management of their corporate powers is with the board of directors, where the statute expressly places it.

The bill as amended, was doubtless drawn in order to have the court declare that the action of the secretary of the association, approved by the stockholders upon the report of its board of auditors, that the shares of stock which plaintiff in error held were on July 31, 1900, entitled to a credit of $122 for their portion of the net profits which the association had earned while he held them, should have the same effect as if the board of directors had, by resolution, so determined; but to so hold would be to declare that the secretary and stockholders could exercise the corporate powers of the association when the statute expressly confers them only upon the board of directors.

The amended bill on its face showed that plaintiff in error still owed $122 upon the loan he had made from the association, and for that reason he was not entitled to have the deed of trust securing it canceled and satisfied of record, and therefore the Circuit Court properly sustained the demurrer thereto, and as he stood by it, the decree dismissing it at his costs was proper also, and will be affirmed.


text:
    N. S. Monroe v. David Landes.
    1. Verdicts—When Not to be Disturbed by an Appellate Tribunal. —Where the evidence is conflicting, and that of either side, standing alone, is sufficient to support the verdict, and there are no prejudicial rulings of the court upon the evidence or the instructions, an appellate tribunal will not disturb the finding on the ground that it is not supported by the evidence.
    Assumpsit, upon a warranty. Appeal from the County Court of Moultrie County; the Hon. John D. Purvis, Judge, presiding.
    Heard in this court at the May term, 1901.
    Affirmed..
    Opinion filed September 11, 1901.
    Whitaker & Thompson and Marion Watson, attorneys for appellant.
    Eden, Martin & Edwards, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This suit was brought by appellee against appellant upon a contract of warranty of a hay baler, manufactured by appellant, to the effect that it was well made, would bale a 100-pound bale per minute, and other points. The trial resulted in a verdict and judgment against appellant for $200, to reverse which he brings this appeal. There is a little controversy that with proper management the baler would not do the work it was warranted to do, and for this reason it was returned to appellant. The principal contro ver sy, however, was over the question whether the sale and warranty was made by appellant or Hays. Upon this point the evidence was irreconcilably conflicting, and we can justify the verdict that was returned by the jury only on the belief that the jury believed appellee and his witnesses, and from all the evidence in the case we can not say they were unwarranted in this. Had the jurv believed appellant and his witnesses the verdict doubtless would have been in his favor, and we know of no reason why it could not have been sustained. Where the evidence is conflicting, and that of either side, standing alone in the record, would support a verdict for the side to which it might be returned, and there are no prejudicial rulings of the court upon the evidence or the instructions, an appellate tribunal will not disturb the verdict on the ground that it is unsupported by the evidence. There were no prejudicial rulings upon the evidence.

It is also insisted there is no evidence that appellee relied upon the warranty, but we think that inference necessarily follows, if the contract was made with Monroe, and the jury have said by their verdict that it was so made.

Much complaint is made of the instructions to the jury, but upon examination of the instructions on both sides we think the jury were fairly instructed and there is no just ground of complaint in that respect. The instructions were also based upon the evidence. The judgment will be affirmed.