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should have the restricted meaning of children, and not such an enlarged meaning as to include grandchildren.

3. The trustees, who are appellees herein, assign as a cross error that the court below decreed that the words of survivorship contained in the fourth clause of the will related to the time of the death of the testator. The natural interpretation of the language of this will would appear to be that the survivorship should be referred to the date of the expiration of the intervening estate, or of the period of 21 years. But repeated decisions both in England and this country refer the survivorship, not to the termination of the intermediate estate, but to the testator's death, unless a contrary intention is manifest from the rest of the will. Words of survivorship in a context similar to that in the present will have acquired a technical meaning, differing from the sense in which they are otherwise to be taken, referring the survivorship to the testator's own death. In Moore v. Lyons, 25 Wend. 119, it was said: "The weight of authority both here and in England therefore unquestionably is in favor of applying the term of survivorship upon the devise of a remainder to the death of the testator, instead of the time of the termination of a particular estate, where it is necessary to give effect to the probable intention of the testator in providing for the issue of the objects of his bounty upon the death of their parents before the time appointed for the remainder to vest in possession,-especially where the devise is to the individuals by name, and not to them as a class." Redfield, in his work on Wills (volume 2 [3d Ed.] § 15), says: "Where the gift is to specific persons, and not to a class, and it is provided, upon the death of one of them without issue, the share of such deceased person or persons shall go to the survivor or survivors, it becomes very apparent that, by 'survivor,' the testator must have intended to include the issue of such as predeceased those who died without issue. If this were not so, and those who died without issue died last, there would be no mode of giving effect to the gift over." In Branson v. Hill, 31 Md. 181, it is said: "In this country, however, the weight of authority seems to be in favor of the earlier rule, which refers the words of survivorship to the death of the testator; and this, too, without recognizing any distinction between the real and personal estate." See, also, Austin v. Bristol, 40 Conn. 120. In view of the authorities thus referred to, it would seem to follow that the decree of the court below in this respect was correct.

4. As to the costs, the rule is that, when there is sufficient ambiguity about the language of the testator to justify an application to the court of equity for a construction of the will, the costs of litigation shall be borne by the estate. Ingraham v. Ingraham, 169 Ill. 471, 48 N. E. 561, and 49 N. E.

320. All the costs in this case, except the fee of the guardian ad litem of the minor Sarah Arnold, were charged to the trust fund. By the terms of the decree below, this fee was charged against the fund belonging to the children of Sarah E. Waterman. It should have been charged to the whole fund of the estate, instead of that particular portion of the fund payable to said children. In this respect the decree of the court below is hereby modified, and all the costs, including the fee of said guardian ad litem, are directed to be paid out of the trust fund of the estate. With the modification above stated, the decree of the court below is affirmed. Decree affirmed.

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1. Where a contract has been performed, and nothing remains to be done but to pay the amount due, a recovery may be had thereon under the common counts.

2. Under a contract to furnish heating apparatus, the contractor may waive a provision that the title to the property should not pass until the price was fully paid, and recover the amount due thereon under the common counts. 3. Where no objection is made to the introduction of evidence at the trial, and no instructions are asked in regard to it, its admissibility cannot be questioned on appeal.

4. An instruction which leaves the jury to consider the terms of a contract is harmless error where there was no dispute as to its construction except as to one question, and, whatever view the jury took of that question, it could not injure the complaining party.

5. In an action on a contract to furnish heating apparatus, a recovery may be had if there has been a substantial compliance with the terms of the contract, less the damages requisite to indemnify the other party for failure to fully comply therewith.

6. An instruction containing a provision authorizing the allowance of damages to the defendant as "shown in the evidence and claimed in the declaration," is properly refused where no proof of damages was made, and the pleading mentioned should have been a plea of "setoff."

Appeal from appellate court, First district. Assumpsit by John W. Mills and others against Joseph A. Shepard. From a judgment in favor of plaintiffs, affirmed by the appellate court (70 Ill. App. 72), defendant appeals. Affirmed.

F. W. Becker, for appellant. Carl R. Latham and Robert N. Holt, for appellees.

CARTER, J. Appellees recovered a judgment in the superior court of Cook county against appellant for the balance claimed to be due on a special contract, under which they had put into the building of appellant a heating apparatus. This judgment has been affirmed by the appellate court, and a certificate of importance granted. The action was assumpsit on

1 Rehearing denied June 10, 1898.

the common counts, and it is urged that a recovery could not legally be had without declaring specially upon the contract. The law is well settled that, where the contract has been performed, and nothing remains to be done but to pay the amount due under it, a recovery may be had under the common counts. As said in Adlard v. Muldoon, 45 Ill. 193: "If a contract has been performed, and it only remains to pay the contract price for the labor or property, indebitatus assumpsit will lie for its recovery, and the agreement may be read in evidence for the purpose of showing its terms, and to measure the damages." And, as there said, whether the contract has been performed or not is a question for the jury. See, also, Lane v. Adams, 19 Ill. 167, and Association v. Weidenmann, 139 Ill. 67, 28 N. E. 834. It is said, however, that the contract provided that the title to the heating apparatus should not pass, but should remain in appellees until the contract price should have been fully paid, and that in default of payment appellees had the right reserved by the contract to take possession, and remove the apparatus from the building; and the argument is that, as there was default in payment of one-half of the contract price, there was no delivery, the title did not pass, and therefore there could be no recovery except for a breach of the contract properly alleged in a special count. We do not agree to this view of the case.

The provision

in question was for the benefit of appellees to secure the payment of the purchase money, and they had the clear right to waive it,-to treat the title as having passed, and rely on their action at law to recover the balance, if any, due them. Cooper v. Cleghorn, 50 Wis. 113, 6 N. W. 491. It will be noticed that this provision of the contract is based upon the default of appellant in making payment. He would not be in default for withholding payment, when authorized to do so for nonper formance on the part of appellees. But appellant cannot be heard to say that he was in default in payment, and for that reason the title did not pass, and that, therefore, he cannot be compelled to respond under the common counts on a contract performed by the other party. This provision of the contract was for the benefit of appellees alone, and it was waived by bringing this action in a form which treated the contract as having been fully performed, and the title to the heating apparatus as having passed to appellant. The cases cited by appellant-Burnham v. Roberts, 70 Ill. 19; Clause v. Press Co., 118 Ill. 612, 9 N. E. 201; Brand v. Henderson, 107 Ill. 141; and others do not support his contention. Whether appellees had performed the contract or not was, under proper rulings of the court on the admission of evidence and instructions to the jury and the construction of the contract itself, a question of fact only, which we cannot review. The fact of performance has been finally settled in favor of appellees.

But it is assigned as error that the trial court

admitted in evidence, and permitted counsel for appellees to read to the jury, a part of appellant's plea of set-off. The words read to the jury were, "Nor after said apparatus had been accepted by said defendant." Presumably it was supposed this plea tended to prove that the apparatus had been accepted by the defendant. We need not further consider the question sought to be raised on this assignment of error, for the reason that appellant made no objection whatever when the plea was offered in evidence, and asked no instruction in respect to it.

In addition to the general issue the defendant had filed two pleas of set-off, claiming damages growing out of the alleged nonperformance of the contract on the part of appellees. One of his pleas set up the contract according to its legal effect, and alleged the defendant's damages for its breach; and the other was in the form of the consolidated common counts. There was much conflicting evidence as to whether the contract had been performed or not, and as to whether its alleged failure to heat the building, or the parts of it, as provided in the contract, was or was not the fault of appellant. These questions were decided against him, and he made no proof whatever as to his alleged damages. Under this state of the pleadings and proofs, the court, at the request of the plaintiffs, gave to the jury this instruction: "The jury are instructed that if they believe, from the evidence, that the plaintiffs erected and put in a heating plant in the defendant's building in accordance with the terms and specifications of the contract introduced in evidence, and that said heating plant heated the rooms and apartments specified to be heated in the contract to the required degree of temperature, and that the plaintiffs in all substantial respects carried out and performed their part and side of said contract, then the plaintiffs are entitled to recover the balance due under the contract, with interest of five per cent. per annum from the date of the completion of said plant, less what, if anything, the jury may believe, from the evidence, to be due from the plaintiffs to the defendant for and as damage under his plea of set-off." While it was a question of law for the court, and not of fact for the jury, to construe the contract, there was no dispute as to its requirements, except in respect to the question whether it provided for the heating of the second and third floors of the building as well as the first and fourth, or only for the heating of the first and fourth, with sufficient capacity to heat also the second and third when the defendant should see proper to put in the radiators on those floors. We think it clear that the latter construction of the contract was the correct one, and that appellant was not injured, no matter which view the jury may have taken of that branch of the case. The real controversy was one of fact over the alleged insufficiency and failure of the plant to heat the fourth floor, where appellant's workmen were employed.

The next objection to the instruction is that it authorized a recovery if the jury should find "that the plaintiffs, in all substantial respects, carried out and performed their part and side of the contract." This is not a correct interpretation of the instruction, for, preceding the clause complained of, the instruction required, as a condition of recovery, that the jury should find that the "plaintiffs erected and put in a heating plant in the defendant's building in accordance with the terms and specifications of the contract introduced in evidence, and that said heating plant heated the rooms and apartments specified to be heated in the contract to the required degree of temperature." There were many details of minor importance to be complied with by appellees to carry out the contract, but it could not, in reason, be contended that no recovery could be had unless there was a literal compliance with the contract in respect to them. The rule is correctly laid down in Keeler v. Herr, 157 Ill. 57, 41 N. E. 750, that a literal compliance with such contracts is not necessary to a recovery, but it will be sufficient that there has been an honest and faithful performance of the contract in all its material and substantial particulars, and no omission in essential points, or willful departure from the contract; and mere technical or unimportant omissions will not defeat a recovery of the contract price, less any damages, however, requisite to indemnify the

owner.

Two instructions were asked by the defendant and refused by the court, but they contained provisions authorizing the allowance of damages to the defendant as "shown in the evidence and claimed in the declaration," when, as before said, no proof of damages sustained by the defendant was made. Besides, the pleading mentioned should have been the "plea of set-off," and not the "declaration." There was no error in refusing these instructions. Finding no error of law, the judgment of the appellate court must be affirmed. Judgment affirmed.

GALL V. BECKSTEIN.1 (Supreme Court of Illinois. April 21, 1898.) APPEAL-OBJECTIONS-INJURed Employe-Fellow

SERVANTS.

1. The appellate court may consider a refusal to instruct that the verdict must be for defendant, who offered no evidence.

2. Plaintiff and F. were lifting a barrel of salt from a wagon before the door of defendant's factory. The barrel slipped, and plaintiff was injured. Plaintiff was a common laborer, and F. was a foreman in the factory, but his duties did not require him to assist in unloading barrels. Held, that they were fellow servants.

Error to appellate court, First district. Action by John Gall against Augustus C. Beckstein. Judgment for plaintiff, and defendant appealed to the appellate court, which reversed the judgment (69 Ill. App. 616), and

1 Rehearing denied June 10, 1898.

plaintiff brings error to the supreme court. Affirmed.

This was an action brought by John Gall against Augustus C. Beckstein to recover for an injury received while in the service of the defendant in unloading a truck load of salt. For several years before the accident, the defendant, Beckstein, had been engaged in the business of preparing sausage casings in Chicago. John Gall, the plaintiff, had been working for the defendant for about two years. John Freichl was employed as foreman in the factory. On the day of the accident, November 18, 1890, a truck load of salt, in barrels, was driven to the door of the factory, and plaintiff, Gall, was directed to unload the same. Gall commenced unloading the salt, and, after two or three barrels had been taken off the wagon, Freichl, finding that the work was not progressing as fast as he desired, went to the wagon to assist Gall in unloading the barrels. The barrels were open at the top. Gall took a position at the rear of the wagon on one side, while Freich was standing opposite him at the other side; and, as the teamster rolled a barrel to the rear end of the wagon, the two took hold of it, and lifted it to the ground. After unloading three barrels in this manner, the fourth one in some manner slipped out of their hands, and fell on plaintiff's leg, producing the injury complained of. On a trial before a jury, the plaintiff recovered; but, on appeal to the appellate court the judgment was reversed, on the ground that the court erred in refusing to instruct the jury to find for the defendant. To reverse that judgment, plaintiff, Gall, sued out this writ of error.

William A. Doyle and James D. Andrews, for plaintiff in error. Walker & Eddy, for defendant in error.

CRAIG, J. (after stating the facts). It is claimed in the argument that the appellate court had no right, under the authority of Peirce v. Walters, 164 Ill. 560, 45 N. E. 1068, to consider the instruction of the defendant directing the jury to find for the defendant. We do not concur in that view. The defendant introduced no evidence, but, at the close of plaintiff's evidence, moved the court to find for the defendant. This motion the court denied, and defendant excepted. The defendant, in addition to the motion, asked the following instruction: (1) "The court instructs you that the evidence is insufficient to support the plaintiff's case as charged in the declaration. Therefore your verdict must be for the defendant." This instruction the court refused to give, to which refusal of the court defendant, by his counsel, then and there duly excepted. From the foregoing it is apparent that the ruling of the trial court in refusing to direct the jury to find for the defendant was properly before the appellate court. Moreover, the

sufficiency of the evidence to support the action was a proper subject for the consideration of the appellate court; and, if that court found the evidence was not sufficient to authorize the judgment, it was the duty of the court to reverse on that ground, even if the circuit court had not been requested to instruct to find for the defendant.

It is, however, contended that there was sufficient evidence upon which a recovery might be had, and the appellate court erred in holding that the circuit court erred in refusing to instruct the jury to find for the defendant. It will not be necessary to refer to the evidence in detail. We will, however, refer to enough of the facts to show the situ ation of the parties, and their relative rights and duties. Beckstein, the defendant, owned the factory, and was the master. The plaintiff and Freichl were both employés in the service of the defendant, Freichl acting in the capacity of foreman. The two employés undertook to unload a truck load of salt, which was in barrels. The method adopted was, as appears from the evidence, the ordinary and usual method; and, if handled with care, there was no danger likely to result from the manner the barrels were lifted from the truck. After three barrels had been unloaded, in taking off the fourth it in some manner slipped out of the hands of the two parties, and fell on plaintiff; whether from the fault of the one or the other of the parties does not appear. Plaintiff made no complaint about doing the work with Freichl, nor did he find any fault in regard to the manner in which the work was done. A barrel of salt weighs only 350 pounds, and it is not pretended that more than two men were required to lift one of the barrels from the truck to the ground. The plaintiff's ordinary work in the factory was making sausage casings, but, when called upon to unload the salt, he voluntarily, without any objection whatever, undertook the performance of that labor, and such labor may therefore be regarded within the scope of his employment. The evidence shows that Freichl was acting as foreman, but whether he had authority to employ or discharge men, or what authority he did have, does not appear. It does not appear whether the barrel which fell on plaintiff's leg was dropped through the negligent act of plaintiff, or Freichl, his co-laborer at the time; but, conceding that it was through the negligence of Freichl, the question presented is whether plaintiff was entitled to recover.

It is contended by defendant that, in unloading the salt, plaintiff and Freichl were fellow servants; and, occupying that position, defendant is not liable for an injury resulting from the negligent act of either. The law is well settled that the master is not liable to one servant for an injury inflicted by another servant in the same common service, unless he can be charged with some degree of fault or negligence in their employ

ment or retention. Wood, Mast. & S. § 416. The question then resolves itself into this: Were plaintiff and Freichl, in unloading the truck of salt, fellow servants? It is sometimes a difficult question to determine whether two persons employed by a common master are fellow servants. In this case, Freichl was called a "foreman" in the factory, while plaintiff was employed therein as a laborer. But the fact that the two were not equal in station or authority was not material. In the discussion of a similar question in Railroad Co. v. May, 108 Ill. 288, it was said (page 298): "The mere fact that one of a number of servants who are in the habit of working together in the same line of employment for a common master has power to control and direct the actions of the others with respect to such employment will not of itself render the master liable for the negligence of the governing servant resulting in an injury to one of the others, without regard to other circumstances. On the other hand, the mere fact that the servant exercising such authority sometimes or generally labors with the others as a common hand will not of itself exonerate the master from liability for the former's negligence in the exercise of his authority over the others. Every case, in this respect, must depend upon its own circumstances. If the negligence complained of consists of some act done or omitted by one having such authority which relates to his duties as a co-laborer with those under his control, and which might just as readily have happened with one of them having no such authority, the common master will not be liable. For instance, if the section boss of a railway company, while working with his squad of men on the company's road, should negligently strike or otherwise injure one of them, causing his death, the company would not be liable; but when the negligent act complained of arises out of, and is the direct result of, the exercise of the authority conferred upon him by the master over his co-laborers, the master will be liable." The same doctrine was announced in Abend v. Railroad Co., 111 Ill. 202. Under the rule announced in the cases cited, we think it clear that, at the time the accident happened, Freich was a fellow servant of the plaintiff. They were employed by a common master, and were working together at the same kind of labor in the same line of employment. It may be true that the acts of Freichl, while acting in the capacity of foreman of the defendant, in the employment or discharge of men, or in the selection of machinery, tools, or other appliances for the factory, might be regarded as the acts of the master; but when he laid aside his position as foreman, and assumed the character of a colaborer with plaintiff, and he and plaintiff commenced, as common laborers, to unload the truck, they at once became fellow servants. Wood, Mast. & S. § 451. The act of negligence complained of here consisted of

an act done by Freichl, not while in the discharge of any duty as foreman, but while he was acting as a co-laborer with plaintiff,while he and plaintiff were fellow servants. The plaintiff and Freichl being fellow servants, defendant was not liable for an injury received by one through the negligence of the other. The judgment of the appellate court will be affirmed. Judgment affirmed.

PENNSYLVANIA CO. v. MCCAFFREY.1 (Supreme Court of Illinois. April 21, 1898.) CARRIERS-INJURY TO PASSENGER-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY-DILIGENCE REQUIRED-Evidence.

1. Where it was the custom-known and consented to by the railroad company-of passengers to alight, at a place other than the depot, on the side of the train where the company operated a parallel track, the mere act of a passenger alighting on such side was not, as matter of law, negligence, but the question is solely for the jury to determine.

2. Where it was customary for passengers to alight on the side of the train where the company operated a parallel track, the question whether the company was negligent in allowing another train to move on such track when passengers were alighting is solely for the jury.

3. A railroad company must exercise the highest degree of care and skill reasonably practicable, in providing passengers with a safe means of alighting from trains.

4. In an action for injuries in alighting from a train, evidence to show a custom-known and consented to by the company-of passengers to alight at places other than the depot is admissible.

5. An instruction that certain specified facts constitute negligence of a railroad company is erroneous, as the jury is the sole judge, from all the evidence, of such question.

6. Where it is the custom-known and consented to by the railroad company-of passengers to alight from a train on the side where the company operated a parallel track, a passenger so alighting need not stop to look and listen for approaching trains.

7. An instruction that, if a train was in motion when a passenger alighted, he was guilty of contributory negligence, being favorable to the railroad company, cannot be complained of by it, though, as applied to the facts, it may have been erroneous.

8. An entry in a police book, made some time after a railroad accident, of reports by policemen of what they had heard others say about it, is incompetent evidence of the facts; being mere hearsay, and not a part of the res gestæ. Phillips, J., dissenting.

Appeal from appellate court, First district. Action by Daniel J. McCaffrey against the Pennsylvania Company. From a judgment for plaintiff, defendant appealed to the appellate court, which affirmed the judgment (68 Ill. App. 635), and defendant again appeals. Affirmed.

This is an action on the case, brought by the appellee against the appellant company, to recover damages for injuries received by him on December 11, 1894. The appellant company had a double-track line of railroad, running north and south along what is

1 Rehearing denied June 10, 1898.

known as Stewart avenue, in Chicago, and across Archer avenue and Twenty-Second street, in that city. On December 11, 1894, appellee was a passenger on one of appellant's in-bound passenger trains, going north from Roby on its east main track. The station of the appellant is a small building near Archer avenue, on the east side of the tracks. The next street north of Archer avenue is Twenty-Second street. On the day in question, the passenger train on which appellee was a passenger consisted of 10 or 11 cars. Appellee was in the third car from the front. When the train stopped, the forward end of the third car stood about in the middle of Twenty-Second street, and a portion of the rear cars stood south of said station, across Archer avenue. There was a track belonging to the appellant west of the east track, on which the train was. Upon the arrival of the train, appellee went forward to the front platform of the third car in which he was riding, and alighted from the car on the west side thereof. His intention was to proceed westerly on Twenty-Second street to his home. There was a space of about seven feet between the east track, on which was the train from which he alighted, and the west track. As he left the car and stepped upon the west track, an engine thereon, bound south, struck him, and threw him in such a way that his left foot was crushed and mangled by the engine wheels so that amputation of the same became necessary; and his right leg was also seriously injured. Upon the trial of the case below, the jury returned a verdict in favor of appellee. Motion for new trial was overruled, and judgment rendered upon the verdict. This judgment has been affirmed by the appellate court, and the present appeal is prosecuted from such judgment of affirmance.

Geo. Willard, for appellant. Duncan & Gilbert, for appellee.

MAGRUDER, J. (after stating the facts). The first error assigned is that the trial court refused to give the first instruction asked by the appellant. That instruction was as follows: "The court instructs the jury that, the pleadings and all the evidence considered, your verdict should be for the defendant." The contention of the appellant is that it had provided a station and depot grounds on the east side of the east track, on which the passenger train stopped; that it was the duty of the appellee, when he alighted from the train, to alight upon the east side thereof, where there was no track; and that by alighting upon the west side, where there was a track, he was guilty of what amounts in law to negligence per se, and on this account is not entitled to recover. The declaration consists of three counts, and three additional counts filed by leave of court. These counts alleged, in substance, that it was the duty of the company so to

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