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any manner misled, or that the interests of the defendants were
in any way prejudiced by the instructions given in behalf of the
plaintiff. They found negligence on the part of the defendants.
We have heretofore held that there are certain duties of the
master that are nonassignable. Among said duties are that he
shall exercise reasonable care to see that tools, appliances, and
machinery are reasonably safe, and must use reasonable care that
the place where the servant works is reasonably safe; to inform
the servant of special danger of his situation, and of the machin-
ery and appliances^ with and about which he is employed, whera
he is not informed: Mobile etc. Ry. Co. v. Godfrey, 155 111. 78.

It is also urged as error that the court, on its own motion, sub-
mitted two special findings to the jury. We are unable to see th«



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Oct. Ib96.] NOBTOK V. VOLZK*. 171

impropriety, where special findingB are requested to be aubmitted
to the jury by either party, of the conrt adding or submitting
such other special findings to the jury aa in its judicial discretion
may seem proper. The main object to be attained in all such
cases is that substantial justice may be done between the liti-
gating partiee, and if the submission of such special findings,
proper in form and pertinent to the case, by the ^^^ court on his
own motion, may tend to this, there is no error. The two special
findings submitted by the court in this case were entirely proper
and pertinent, and there was no error in the court submitting
them to the jury on its own motion. The court has the same
right, of its own motion, to submit to a jury special propositions
on which to find, as to give instructions.

The two interrogatories submitted by defendants and refused
by the court were as follows:

'TDid the defendants do anything that ordinarily prudent and
careful persons would have done under the circumstances?

*T)id the defendants do anything that ordinarily prudent and
careful persons would not have done under the circumstances ?**

The jury, by their answer to special finding 5, have answered
that appellants should have placed a guard or cover about the
cogwheels, which is equivalent to answering "yes" to the first
question. Whether the jury had answered "yes" or "no" to the
second question would not have tended to anything decisive in
the case. If the answer had been "no," it still would have re-
mained undetermined as to what had been done by defendants
that ordinarily prudent and careful persons would not have done.
We find no error in the trial court refusing to submit these two
findings.

Perceiving no error in the instructions or in the special find-
ings submitted and refused by the court, we do not find that
there is any sufficient reason in this record why this cause should
again be submitted to another jury, and the judgment of the
appellate court is therefore affirmed.

MASTER AND SERVANT— DUTY OP MASTER TO INSTRUCT
MINOR SERVANT AS TO DANGERS OF EMPLOYMENT.-When
young persons witliout experience are employed to work with danger-
ous machines, it is the duty of the employer to give suitable instruc-
tions as to the manner of using them, and warnings as to the hasard of
carelessness in their use. If an employer neglects this duty, or if he
gives improper instnictions, he is answerable for the injury resalting
from this neglect of duty: Tagg y. McGeorge, 165 Pa. St. 868; 85 Am»
St. Rep. 889, and note, with the oases collected.

MASTER AND SERVANT— DELEGATION OF DUTY BY MAS-
TER — LIABILITY.— The delegation of a dntv which the maeterr owes
to his servant of exercising reasonable and ordinary care and dUigenoe



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172 Babbbtt v. Boddib. [Illinois^

Id providing and keeping in repair reasonably safe machinery and ap-

Elianoes cannot relieve nim from liability to a servant injured by the
lilure to exercise such care and diligence on the part of the sei vaiit ta
whom the duty has been delegated: Chicago etc. K. R. Co. v. Kneiriin,
152 111. 458; 43 Am. St. Bep. 259, and note; Piomer v. Milwaukee etc*
By. Co., 90 Wis. 215; 48 Am. bt. Bep. 905, and note.

NEGLIGENCE — DEGBEE OF CARE BEQUIRED OF CHIL-
DREN.— The degree of care and diligence required from a child of
tender years is not as high as that required from an adult of presumed

Judgment and discretiou: Pierce v. Conuera, 20 Col. 178; 46 Am. St.
tep. 279, and note. Children are required to exercise only such chfo
ana prudence as may be reasonably expected of those who possess only
the intelligence and maturity of judgMieut wiiich they possess: Briiik-
ley Car Co. v. Cooper, 60 Ark. 545; 46 Am. JSt. Kep. 216, and note.
The foregoing doctrine is applied io intant employees in Luelike v.
Berlin Machine Works, 88 Wi.^. 442; 43 Am. St. Uep. 9V6, ami note;
and Greenway V. Oonroy, 160 i*a. St. 185; 40 Am. 8t. Kep. 715, and note*



BaRRKTT V. BODDIH.
[1S8 Illinois, 479,]

LANDLORD AND TENANT.— TO CONSTITUTE EVICTION
there must be something of a grave and permanent character done by
the landlord for the purpose and with the intention of depriving the
tenant of the enjoyment of the leased premises.

LANDLORD AND TENANT. -NO EVICTION SUCH AS EN-
TITLES a tenant to resist an action to recover rents exists unless
the premises are rendered useless by the positive act of the landlord,
or the tenant has been deprived in whole or in part of the possession or
enjoyment of the premises, actual or constructive, by the landlord.

LANDLORD AND TENANT— WAIVER OF EVICTION,— Pos-
session retained after an aliened constructive eviction is a waiver of the
right of abandonment. Liability for rent therefore continues accord*
Ing to the terms of the lease.

LANDLORD AND TENANT— EVICTION.— The fact that a fine
in a building leased for use as a restaurant becomes filled up with brick
and other materials so that the building can no longer t)e used for
the purposes of the lease, and that the landlord or his agents did not
clear out such flue, does not constitute an eviction where the tenant^
by the terms of the lease, accepts the premises in the condition they
were then in, and agrees that the landlord shall not be liable for any
failure to keep them in repair.

LANDLOl^D AND TENANT— EVICTION — AUTHORITY.— A
landlord cannot be bound by the acts ot his agent amounting to a con-
structive eviction if he was not present when those acts were done, and
neither authorized nor ratified them.

Action against the defendants Barrett & Barrett, as guarantors
of the payment of rent reserved in a lease entered into by the
plaintiff, Boddie, and one Raquet, to recover moneys alleged to
be due for rents according to the terms of a lease. The defendants
resisted the action, on the ground that the premises were rented
for the purposes of a restaurant and saloon, and that a chimney
furnishing flues to the part so rented had become stopped up with



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Oct 1895.] Babbbtt v. Boddis. 173

brick and other material?, so that the part rented became uaeleas
for the purposes for which it was leased. When the flues first
became stopped up, the agents of the plaintiff were called upon
and told that the chimneys must be fixed or the lessee would
abandon the premises, because he could not conduct his busiaesa
therein. The agents promised to attend to the flues, but failed to
do so, and, upon further demand being made upon them, declined
to take any action whatever. The lessee remained in possession,
though not able to do any .business, from the 1st of April until
«ome time in June, 1893. At the latter date, the premises
were abandoned and the keys delivered to the agents of the plain-
tiff of whom the premises had been rented. The lease declared
that the premises had been received in good order and repair,
and that no representations had been made as to their condition
or repair, and that the lessor should not be held liable for any
damages residting from a failure to repair, nor for any damages
arising from the act or negligence of other occupants of the
building or of adjacent and contiguous property. The lessee
covenanted to keep the premises in repair. Some evidence was
offered tending to show a desire on the part of the plaintiff to
get rid of the lease, and that he and those representing him were
therefore willing to have the chimney remain in the condition
in which it was, for the purpose of forcing the defendants to
abandon the premises. The defendants also offered evidence
which they claimed tended to show an eviction of the tenant by
the landlord's agents. The court refused to receive such evi-
dence, unless it was shown either that the landlord himself actu-
ally interfered with the premises, or that he authorized his agents
to do 80, or ratified some act of eviction on their part The
offered evidence was therefore excluded, and the defendants ex-
cepted.

The court instructed the jury in favor of the plaintiff, excluding
the question of constructive eviction, and a verdict was returned
in harmony with the instruction of the court. A motion for a
new trial having been made and denied, the defendants appealed.

Hollett & Tinsman^ for the appellants.

Woolf oik ft Browning, for the appellee.

^^ PHILLIPS, J. The term "eviction'' is applied to every
class of expulsion or amotion. The term is not applicable to a
mere trespass on the tenant's possession by the landlord, but to
constitute eviction there must be something of a grave and per-



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174 Babbbtt v. Boddib. [niinois,

manent character done by the landlord, for the purpose and with
the intention of depriving the tenant of the enjoyment of the
demised premises. The question is therefore one of fact, de-
pendent on the circumstances *** of the particular case, and to
be determined by the jury: Hayner v. Smith, 63 111. 430; 14 Am.
Rep. 124; Lynch v. Baldwin, 69 111. 210; Morris v. Tillson, 81
111. 607.

At common law, in the absence of a provision to that effect in
the lease, the destruction of the building from any cause does not
discharge the tenant from his liability to pay rent for the full
term: Smith v. McLean, 123 111. 210. The landlord owes no
duty and is under no obligation to repair in a case where he has
ejcpressly covenanted with the tenant he shall not be liable to make
repairs: Moffatt v. Smith, 4 N. Y. 126; Mumford v. Brown, 6
Cow. 475; 16 Am. Dec. 440; Corey v. Mann, 6 Duer, 679; Ely t.
Ely, 80 111. 532; Wood on Landlord and Tenant, 814.

The contract of the parties is the measure of their duties and
liabilities. The contract is made with reference to the law as it
exists, and the law thus becomes a part of the contract. Unless
the premises are rendered useless to the tenant by the positive act
of the landlord, or unless the tenant has been deprived, in whole
or in part, of the possession or enjoyment of his demised premises,
actually or constructively, by the landlord, no defense exists to a
right to recover rents because of eviction, as none exists, in law
or fact: Keating v. Springer, 146 111. 481; 37 Am. St. Rep. 175.

The eviction sought to be shown by appellant was constructive.
The possession of the premises was retained by the tenant after
the alleged acts of eviction. Possession retained after an alleged
constructive eviction is a waiver of the right of abandonment. No
constructive eviction exists without a surrender of possession.
With retention of possession after constructive eviction, liability
for rent exists, according to the terms of the lease, during oc-
cupancy thereunder: Warren v. Wagner, 75 Ala. 188; 51 Am.
Rep. 446; Dewitt v. Pierson, 112 Mass. 8; 17 Am. Rep. 58; Scott
V. Simons, 54 N. H. 426; Boreel v. Lawton, 90 N. Y. 293; 43
Am. Rep. 170; Keating v. Springer, 146 111. 481; 37 Am. St.
Rep. 175.

^^ By the terms of the lease the tenant accepted the premises as
in good repair, and covenanted to deliver up the same in repair,
etc. He also accepted a covenant that the landlord should not be
liable for failure to keep the premises in repair, nor for damages
arising from the act or neglect of cotenants or occupants of the
same building, nor of owners or occupants of adjacent or contiga-



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Oct. 1895.] Barrett v. Boddib. 176

ous property. He further covenanted that he wonld keep the
premises in repair^ etc. Such being his contract, which is the sub-
ject matter of construction, his proposed proof was of no act on the
part of the landlord or his agents at the time of the letting, nor
■nbsequently, except a failure to repair. No positive act was
proposed to be proven on the part of the landlord or his agents
duly authorized. Eviction necessarily being the result of an
intended, willful, wrongful act, it must be a willful omission of
duty or a conmiission of a wrongful act. Where there is no duty
not complied with, and no wrongful act committed by the land-
lord towards the tenant, no eviction occurs. It was not proposed
to prove any positive act by the landlord, nor an omission of duty
according to the terms 'of his contract, in person or by authorized
agents. An offer to prove matter as a basis of surmise or suspi-
cion is not evidence. Under the lease in evidence the offered proof
was not matter of defense. It was not error to exclude the same.

The terms of the contract of leasing in this case are of that
character it is not necessary to enter upon the discussion of the
question as to whether a different rule exists in relation to the
leasing of an entire building or only apartments therein. How-
ever the rule may be on that question, there is nothing in this
record which presents it for consideration at this time. The ex-
amination of the evidence in this record discloses there is no con-
flict as to the time to which rent had been paid. Appellee's
agents testified rent was paid to April 15th, and the amount due
November 15th was sixteen hundred and twenty-five dollars.
The tenant testifies no rent ^^^ was paid after April 15th. The
lease, by its terms, shows the rent due, according to the tenant^s
testimony, is sixteen hundred and twenty-five dollars. In this
condition of the evidence it was not error to instruct the jury to
find a particular amount for the plaintiff.

The judgment of the appellate court is aflirmed.

LANDLORD AND TENANT— EVICTION— WHAT CONSTITUTES.
Acts by a landlord in interference with hia tenant's possession, to con-
stitute an eviction, must clearly indicate an intention that the tenant
shall no longer continae to hold the premises: Grommes v. St. Paul
Tnist Co., 147 111. 634; 87 Am. St. Rep. 248, and note. Acts of a grave
and permanent character which amount to a clear indication of inten-
tion on the landlord's part to deprive the tenant of the enjoyment of
the demised premises amount to an eviction : Keating v. Springer, 146
III. 481; 37 Am. St. Rep. 175, and note. To the same effect, see Snily
V. Schmitt, 147 N. Y. 248 ; post, p. 659, and note. See, also, the extended
note to Minneapolis Co-operative Co. v. Williamson, 38 Am. St. Rep.
485.

LANDLORD AND TENANT— EVICTION— WAIVER.— If the ten-
ant makes no surrender of the possession of the demised premises, but



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176 Wilson v. Wilson. [lUinoiSi

continues to occupy them after the commission of acts on the landlord's
part which would have Justified him in abandoning them, he will be
deemed to have waived his right to abandon: Keating v. Springer, 146
111. 481 ; 37 Am. 8t. Rep 175; but see Minneapolis Oo-operative Oot v.
Williamson, 51 Minn. 53; 88 Am. 8t. Rep. 473.

LANDLORD AND TENANT— EVICTION.— WHEN A DEFENSB
TO A CLAIM FOR RENT: See the notes to Giles v. Comstock, 68
Am. Deo. 878, and Keating v. Springer, 146 liL 481; 87 Anu St. Bep.
175.



Wilson v. Wilson.

[168 iLXJIfOD, 507.]

WITNESSES AS AGAINST DECEDENT. — Defendants are not
competent witnesses on their own belialf, by the law of Illinois, to tes-
tify to facts occurring in the lifetime of the ancestor of the plaintiffs
who are suing to recover lands which they claim to have descended
tolbem, but which the defendants claim were conveyed to them by
such ancestor.

DEED— DELIVEliY.— THE MERE PLACING OF A DEED
IN THE HANDS OF ONE OF THE GRANTEES does not neces-
sarily constitute a delivi.Ty.

DEEDS— DEL EVE ti Y.— The placing of a deed in the hands of one
of the grantees with the understand ng that it shall be returned to the
grantor it he sliuuld call for it, l)ut if not it was to be placed upon rec-
ord upon his death, does not constitute a delivery.

DEED.— TO CONSTITUTE THE DELIVERY OF A DEED it
must appear that it was the intention of the grantor that the deed
should pass title at the time, ani that he should lose control of it.

A CONVEYANC^E NOT TO TAKE EFFECT UNTIL THE
DEATH OF THE GHANTOR is an attempt to make a testamentary
disposition without complying with the statute of wills, and is void*

Agnew & Vose, for the appellants.

Sherman & TunniclifTs, for the appellees.

»7i BAKER, J. William Wilson and others filed their bill,
and afterwards their amended bill, against Samuel Wilson and
others, to set aside a deed to and for partition of certain lands
described in the bill, derived from a common ancestor, Samuel
Wilson, who is referred to in the record as "Col. Wilson." The
bill named one 0. F. Piper, also, as a party defendant. The de-
fendants answered, Piper filing a separate answer, claiming liens
on the land in controversy represented by two different mort-
gages. He also filed his crossbill praying foreclosure of the same.
Upon a hearing had before the clianccllor, upon the amended
and crossbills, answers, replications, exhibits, and proofs, a de-
cree was entered dismissing the complainants* *^* bill and
amendment thoreto for want of equity, and ordering foreclosure
of the inert irnirc's in acconhinco with the prayer of the crossbill.
To reverse that decree the complainants prosecute this appeftL



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Nov. 1896.] Wilson v. Wilson. 177

No question is made of the justice of that part of the decree
foreclosing the mortgages held by 0. F. Piper. The complaint
is that the court below erred in not decreeing partition of the
lands in controversy in accordance with the prayer of the orig-
inal and amended bills^ and the ^^one of contention^' is a deed
made by Col. Wilson, purporting to convey said lands to three of
his children, Lizzie Elson, Ed, and Samuel Wilson, defendants
herein, and claimed by them to have been delivered. Complain*
ants deny that the deed was ever delivered, and upon the que»«
tion of delivery rests the decision of this case.

The undisputed facts in the case are, that on September 2,
1889, Col. Wilson was the owner of a large farm situated in Mc-
Donough county; that on said day he made and acknowledged
a deed, purporting to be an absolute and unconditional convey-
ance of said land, to the defendants Lizzie, Ed, and Samuel, and
shortly thereafter handed the same to said Lizzie, in whose pos-
session it has remained ever since; that said deed was never
recorded imtil the day following the death of the grantor, whe
died intestate November 30, 1893, and left surviving him the com*
plainants, and the defendants, Lizzie, Ed, and Samuel, his only
heirs at law.

At the hearing a large nimiber of witnesses were examined,
most of whom were put upon the stand for the purpose of dis-
proving, on the one side, and on the other of establishing, the
fact of delivery of the deed in controversy. Lizzie Elson and
Samuel Wilson were permitted to testify, over the objection of
complainants. This was error. Complainants sue as the heira
of their deceased father, whose title is here disputed, and the de-
fendants, seeking to disprove such title, were therefore *^* not
competent witnesses: Hayes v. Boylan, 141 111. 400; 33 Am. St
Eep. 326; Comer v. Comer, 119 111. 170.

Disregarding such of the testimony as was incompetent, a clear
preponderance of the evidence shows that Col. Wilson always
treated the land in question as his own, as well subsequently as
prior to the alleged delivery of the said deed. The land remained
on record as his until after his death, up to which time he paid the
taxes thereon with his own money. At different times subse-
quent to said alleged delivery he made repairs on the premises,
leased the land to tenants, collected the rents for his own use,
advertised the land for sale in a public newspaper, and on March
1, 1890, made and delivered to 0. F. Piper a mortgage deed there-
on to secure a loan of five himdred dollars. All of those acta
were done with the knowledge and acquiescence of the defend*

AM. 81. BMP^ VOU XL1X.-12



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178 Wilson v. Wilbon. [Illinois^

ants. The evidence further shows that one of said leases was
drawn np by defendant Samupl Wilson, and signed by him aa
agent for his father, who was named therein as owner and
lessor. The defendants always spoke of the land as their
father's, and so treated it. In a replevin suit wherein Col.
Wilson was plaintiff, tried in September, 1891, Samuel Wilson
swore that this land belonged to his father, and that he and hia
brother Ed were their father's tenants. There also appears in
evidence the following letter written by defendant Lizzie Elson^
and mailed by her to complainant Alice M. Tuck:

"Peoria, 111., Feb. 28, 1894.

'T)ear Alice: Your letter was received to-day noon

I have had that deed in my possession for some time. Father
gave it to me, and told me to keep it, and if he never called for it^
which he never did, that at his death I must have it put on record*
He saw the deed shortly before he went down to Jim's. He was
well then, and it was still his desire that I should keep the deed.

It is not likely he would change his mind in so short a time

Lizzie.*'

^^ Such a state of facts is not at all consistent with the claim
that Col. Wilson delivered this deed to the defendants. The mere
placing of the deed in the hands of one of the grantees did not,,
of itself, necessarily constitute a delivery. In such a case the in-
quiry is. What was the intention of the parties at the time? — and
that intention, when ascertained, must govern: Jordan v. Davis,
108 111. 336; Bovee v. Hinde, 135 111. 137; Ohver v. Oliver, 149
111. 542. It seems clear that this deed was placed by her father in
the hands of Lizzie Elson with the mutual understanding that if
he, at any time, desired to withdraw it she should return it to him^
but that "if he never called for it" she shoidd at his death, have it
recorded. In other words, there was no intention at the time, to
convey a present absolute title to the defendants, but the inten-
tion was that the deed should take effect at the grantor's death
and vest the title in the defendants, provided he died without
having recalled the deed. This was in no sense an attempt to
deliver to the grantees in escrow, as contended by counsel for the
defendants, but was merely a transfer of the possession of the deed
to one of the grantees, the grantor at the time, however, reserv-
ing a future control over it. To constitute delivery of a deed, it
must clearly appear that it was the intention of the grantor that
the deed should pass the title at the time, and that he should lose
all control over it. A deed for an interest in land must take ef*



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Kov. 1895.] Wilson v. Wil8<J»- 179

feet upon its execution and delivery, or not at all: Bovee t.
Hinde, 136 IlL 137; Cline v. Jones, 111 lU, 563; Stinson v.
Anderson, 96 111. 373.

We think the mortgaging of the land by Col. Wilson subse-
quently to his placing the deed in the custody of Lizzie Elson,
his offering the land for sale, and exercising the other acta of
ownership over it heretofore mentioned, were sufficient to consti-
tute a withdrawal of the deed: Stinson v. Anderson, 96 111. 373.
But even if they were not, the deed is nevertheless void, for it
was not to take effect until the death of the grantor. That was
an attempt ^"^ to make a testamentary disposition of property
without complying with the statute of wills: Cline v. Jones, 111
111. 563.

The circuit court erred in dismissing the complainants* orig-
inal and amended bills. The decree is therefore reversed and the
cause remanded to that court, with directions to enter a decree in
accordance with the prayer of said bills.

DEEDS TO TAKE EFFECT AFTER DEATH OF GRANTOR.— A
dee(\ duly executed and recorded which "conveys anil warrants" certain
land, ana then provides that it shall be of no effect until after the death



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 20 of 121)