Appeal from appellate court, first district. Action by Peter Poczekai for the use of James G. Weart against the Wight FireProofing Company. Defendant appeals. which was not insisted on at the trial, will not be tied to one of the cross-pieces he notified considered by the supreme court. Lynch to pull up. The latter at this time was standing with the rope on one of the girders this loose girder was resting on, and not more than three or four feet away from it. Lee, who was a witness for appellee, stated in his testimony: "As he [Lynch] hauled away I looked up after the cross-piece, and as the cross-piece got up I seen this girder turn over on its end and drop." This short girder, in falling, struck appellee, and inflicted upon him the injuries to recover damages for which the suit was brought. Wm. Eliot Furness, for appellant. Nelson Monroe, for appellee. not appear from the record that any claim of variance on the ground now indicated was made in the trial court; and if there made, and deemed essential, it could readily have been obviated by amendment. The failure of appellant to there object on the ground of the variance must be regarded as a waiver of the objection. City of Elgin v. Kimball, 90 Ill. 356; Railroad Co. v. Estes, 96 Ill. 470; Society v. Fietsam, 97 Ill. 474. The main ground of alleged error is that when appellee rested his case the superior BAKER, J. Appellee recovered judgment in the superior court of Cook county in case for $2,000, and on appellant's appeal the judgment was affirmed by the appellate court of the first district. Busse & Sturtevant had Several grounds are urged for the reversal the contract for the mason-work on a build- of the judgment. It is claimed there is a ing which the Phoenix Insurance Company variance between the declaration and the eviof Brooklyn was erecting on the south-west dence in respect to the acts of negligence corner of Clark and Jackson streets, in Chi- which caused the injury. The variance sugcago, and appellee was working for them.gested does not seem to be of a very substanOn December 6, 1886, the mason-work was tial character, but, be this as it may, appelfinished, and appellee was employed with lant cannot now avail himself of it. It does others in lowering certain planks, which had been used by the masons for scaffolding, from the attic floor of the unfinished building through an elevator way, by means of a rope, to the floor below. In the performance of this duty and at the time he was injured appellee was using due and ordinary care. Over him, on the frame-work of the roof, some of the servants of the appellant were at work. Appellant had a contract for doing the fire-proofing of the building, and its servants on the frame of the roof composed a gang of three or four men who were pre-court denied the motion of appellant to direct paring the centerings, so called, necessary to be put in place in order to enable the appellant to lay the fire-proof arches between the girders forming the frame of the roof. The centerings were a sort of platform supported from above, built close to and under the girders, on which the tiles of the arches, flat on the under side, were laid, and rested until the mortar with which they were built should harden, and on which the workmen employed in springing the arches stood while working. The appellant had nothing to do with the iron-work of the building, and the girders of the roof had been put in place by a contractor who had done the iron-work. They ran north and south, were some six or seven feet apart, and, as the morning in question was frosty, they were slippery. The centering gang were working over that part of the attic floor where appellee was at work, and Lynch, the foreman of the gang, in stepping around upon the roof girders, stepped on a short iron girder weighing five or six hundred pounds, and loose at both ends, which was no part of the roof, and which was lying east and west across the north and south girders, which were in that place about as far apart as the short girder was long. Lynch called the attention of Lee, another of appellant's workmen, to the fact of the loose girder. A few moments thereafter he ordered Lee to go below to the attic floor, and tie the timber cross-pieces to a rope, by which he (Lynch) would haul them up. This order was obeyed by Lee, and when the rope was the jury to return a verdict for the defendant. The gist of the action was the alleged negligence of the defendant, through its servants, and that such negligence was the proximate cause of the injury to the plaintiff. There was evidence before the jury tending to prove both of these propositions. The foreman of appellant knew the girder was loose, and that it rested upon frosty and slippery iron supports; and whether or not it was culpable negligence, under such circumstances, to stand upon the supporting girder, and in such close proximity to the short and loose girder, and pull up timbers from below with a rope, was a proper question of fact for the determination of the jury. As the cross-piece got up to where Lynch was standing, not more than three or four feet from the girder, the girder was seen to turn on its end and fall. We are unable to say, as matter of law, it was not a legitimate inference and conclusion for a jury from this testimony, taken in connection with the other circumstances in proof, that the timber or rope with which it was hauled came in contact with the girder, and caused one end of it to slide from its support. There was no error in the action of the court in refusing to take the case from the jury. The court sustained objections to two questions asked of the witness Wight, and such refusal is assigned as error. The questions were as follows: "Placing the centering boards in position, what effect would it have as to any mass of plank resting on top of the beams, with reference to its reaching | dent have through their exertions, and at their or falling below?" and, "When the center-own expense, discovered and made available certain assets of the estate, gives such creditors no ing beams are in position, can anything fall preference in the distribution of such assets over from above down below ?" Such ruling was other creditors of the same class. not erroneous, and for two sufficient reasons. 3. Where, in a contest between an executor In the first place, the rule is that, as to mat-is rendered adverse to the executor as to part of and the creditors of an insolvent estate, a decision ters which do not so far partake of the nature the objections to his report, and afterwards the of a science as to require a course of previous contest is carried on as to other questions, which habit or study in order to an attainment of a are finally decided against the creditors, the executor should pay individually the costs incurred knowledge of them, the opinions of witnesses, up to the decision against him, and the creditors though experts, are not admissible as evi- should pay all subsequent costs. dence. Pennsylvania Co. v. Conlan, 101 Ill. 93, and authorities there cited. Besides this, the negligence here in issue was not in the mere act of placing the centering boards in position, but was in the alleged negligent manner in which the servants of appellant proceeded in getting ready for the peformance of such work. Appeal from appellate court, second district. This is a contest over the accounting of John B. Colton as executor of the estate of E. F. Thomas, deceased. The estate was adjudged insolvent, and Field, Leiter & Co. and Henry W. King & Co., creditors of the estate, opposed the discharge of the executor. By order of the county court, the executor had continued the business of his testator, and in so doing had advanced goods to the value of $21,173.32. The circuit court gave charge; but the appellate court (7 Ill. App. 379) disallowed $3,879.34 of his credits, and sent the case back to the circuit court. Thereupon the circuit court decreed that this sum of $3,879.34 should be paid pro rata to the objectors, and all other creditors whose claims had not been released, and that the executor should pay all the costs personally. The appellate court modified the decree so that the costs should be paid out of the estate, and from that decision of the appellate court the executor appeals. It is not claimed it was error to refuse the last instruction in the series asked by appellant, but it is insisted the modification made therein by the court rendered it erroneous. The modification made was the inser-him credit for this sum, and ordered his distion of the word "sufficient." The conclusion of the instruction, as given to the jury, was as follows: "If the fact of negligence be doubtful from the evidence, the defendant is entitled to the verdict. The fact of an accident having occurred is not of itself sufficient evidence of negligence." It would seem that the fact the girder did fall affords some evidence that it was lying in such condition and position upon the beams as that it was liable to be precipitated below, where appellee and others were at work, if a moving body came in contact with it. The servants of appellant knew it was there, and were fully advised that it was loose, and that the irons which supported it were frosty and slippery, and we see no good reason why the BAKER, J. The words of the written infact it actually fell should have been wholly strument under seal, which seems to have excluded from the jury in the consideration of been signed by all the creditors of the estate the question of the alleged negligence. The of Thomas except three, were: "We do each court told the jury, in substance, that the and every one of us respectively approve the fact it fell did not establish negligence, course of said Colton, as aforesaid, in the but, beyond that, left the question of negli-management of the said estate, and release gence to be determined by the jury upon all the said John B. Colton from further liability the evidence before them. We are unable to as such executor on account of our respective see that appellant has any cause of complaint claims against said estate of E. F. Thomas, in this action of the court. We find no error deceased." These creditors had received only in the record, and the judgment of the appel-463 per cent. of their respective debts, and late court is affirmed. (131 Ill. 398) COLTON v. FIELD et al. 1. Where some of the creditors of an insolvent estate contest the final account of the executor, and the other creditors, in order to assist the executor, sign a writing stating that they approve of his management of the estate, and release him "from further liability as such executor," such release does not affect the rights of those signing it as against the estate. Williams, Lawrence & Bancroft, and W. C. Goudy, for appellant. Frederick A. Willoughby, for appellees. the language used did not necessarily and absolutely imply an intention to release the estate from liability for the residue of such debts. That which they expressed by the terms they employed was not that they released the estate, or released Colton as executor of the estate, but that they released "the said John B. Colton from further liability as such executor." The primary consideration in construing an instrument of writing is to ascertain the intention of the parties. Each clause and provision in the writing is to be read in the light of all the provisions and re citals contained in the instrument. Here the 2. Under Rev. St. Ill. c. 3, §§ 70, 71, 112, which recitals are, in substance, that the executor, provide how, and in what order, claims against the estates of decedents shall be paid, the fact that at the request of creditors representing threecertain creditors of an insolvent estate of a dece-fourths in number and amount of the liabil v.22N.E.no.18-35 ities of the estate, procured the order of the | the event the court determined that Colton county court permitting him to continue the was liable for the whole $21,173.32, then that business for the time necessary for the ad- the whole of that amount should be, in the vantageous sale of the goods on hand, and first place, applied to the payment in full of that the goods procured by him were pur- the claims of appellees, and the residue, if chased in accordance with the wish of said any, distributed to the heirs of the estate. creditors; and, further, that he had rendered his final account, which had been approved by the county court, and a final order entered discharging him from further liability thereunder. These recitals were followed by the statement that in consideration of the premises, and of the unusual exertions of said Colton, and of his personal risk of extra trouble and personal loss in acting as he had, they (such creditors) approve of said Colton's management of the estate, "and release the said John B. Colton from further liability as such executor." In the trial courts the appellant made a claim that the instrument of writing in question was an equitable assignment to him personally of the unpaid claims held by the creditors signing it, and the same view is urged here. Taking this claim of appellant. as a basis, appellees insist that, if the creditors who executed the writing intended and attempted thereby to assign their claims to Colton, such assignment would not inure to his benefit, but to that of the estate. The instrument contains no words of conveyance or transfer. Its language is, "We approve of the course of said Colton," and "release the said John B. Colton from further liability." Neither of these expressions is effective to work an assignment of a property right. The word "release" quite frequently imports a conveyance, but never when used in connection with the word "from," and affirmed with reference to the releasee. The creditors did not intend by the writing which they executed to assign to Colton their respective claims against the estate, and enable him to hold and enjoy, as such assignee, any future dividends that might arise from subsequently discovered assets or otherwise. Their sole object was to aid him in securing a release from a personal liability; but their acts were wholly ineffectual to accomplish this, or in any way to either increase or diminish the amount for which he was personally responsible. The claim is also made by appellees that by their diligence, and through their exertions, and at their expense, this fund of $3,879.34 has been discovered, and made available as assets to the creditors of the estate, and that therefore they are entitled to have their claims At the time the instrument was signed, the condition of affairs was this: that appellees, who were two of the creditors of the estate, and whose objections to the report of the executor had been overruled in the county court, had taken an appeal to the circuit court, where the matter of such objections was then pending for a hearing thereon de novo, and appellees were insisting, not only that Colton should be charged with the 10 per cent. profit realized by him from the goods he furnished to the estate store, and with the $147.06 of compensation in excess of the statutory commissions, but also that he should forfeit and lose the whole of the $21,173.32 charged by him for the goods. These circumstances, as well as the recitals in the writing itself, are proper to be considered in arriving at a conclusion in respect to the intent of the parties when they used the language they did. The creditors who used that language were, at the time, standing in an attitude antagonistic to appellees, and were hostile to the accomplishment of the objects they had in view. On the other hand, they approved of the course of Colton; and in consideration of what they regarded his "un-paid in full before there is any distribution usual exertions" in their behalf, and of the made to the other creditors. The rule of "personal risk" and danger of "personal loss" equity upon which this contention is based, he had thereby assumed, they signed the in- does not apply to proceedings in the county strument. It is manifest they did this for court for the settlement of the estates of dethe purpose of assisting him in procuring ceased persons. The act in regard to the adfrom the circuit court an order in affirmance ministration of estates provides for the divisof the order which had already been made in ion of demands against them into classes, the county court approving his final account and that, when the estate is insufficient to and report, and discharging him as executor. pay the whole of the demands, they shall be The object which they had in view was not paid, commencing with the first class, and to release the estate from the residue of the that the demands in any one class shall be indebtedness due them. If that had been paid pro rata; and further provides that, if their intention, they could readily have ex- the assets are "not sufficient to pay the whole pressed it in plain terms in the writing, or of the debts, the moneys aforesaid shall be else have signed receipts in full. Their in-apportioned among the several creditors pro tention was merely to release the said John rata according to their several rights, as esB. Colton from further personal liability in tablished by this act." Rev. St. c. 3, §§ 70, his capacity of executor. It cannot be pre- 71, 112. These statutory provisions are sumed they contemplated the relinquishment mandatory, and binding upon the courts, and of any right that might otherwise accrue to in the distribution of these assets of the esthem from the possible disclosure of after-tate of the deceased there can lawfully be no discovered assets; and it would be unreason- preference of one creditor over another of the able to suppose it was their intention that, in same class. We think the cross-error is well assigned. | executed by the defendant to her son, WillThe costs that accrued in this proceeding iam E. Hoole, in August, 1877, and by him prior to the time the cause was brought assigned to the plaintiff in November, and back to the county court, after the first judgment of reversal in the appellate court, were occasioned by the attempt of appellant to secure a final discharge without accounting for all the assets with which he was lawfully chargeable, and he should in justice pay the costs of that litigation individually; and it makes no difference in regard thereto that appellees did not sustain all their objections made to his report. The costs that have accrued since the time above mentioned have been caused by the attempt of appellees to absorb all, or the greater portion, of the assets then reported, and should be charged to them. The judgments of the appellate and circuit courts are reversed, and the cause remanded to the circuit court, with directions to enter an order in conformity with the views herein expressed. (116 N. Y. 299) HILL v. HOOLE.1 (Court of Appeals of New York, Second ion. Oct. 8, 1889.) MORTGAGES-DEFENSES. again assigned to him in December of the same year. The trial court found that the defendant received no consideration for the bond and mortgage, other than one dollar, and as conclusion of law that she received no consideration for them, and that the bond and mortgage never had any valid inception. The plaintiff excepted to such finding and conclusions, and to the refusal of the court to find as requested upon that subject. There was some evidence tending to prove that there was a consideration arising out of an undertaking, which it was claimed the mortgagee assumed, in respect to some indorsements the defendant had made of certain notes. The most that can be said of the evidence on that subject is that it was in conflict, and presented a question of fact, which was conclusively disposed of in the court below. No modification of that view is permitted by the fact that the mortgagee had on some former occasion given evidence in that Divis-respect which differed from that given by him upon the trial of this action. The measure of credibility to which his evidence was entitled cannot be considered on this review. The conclusion was warranted that the bond and mortgage were made without consideration; that they were made under a misapprehension that they were such; and therefore that they were not made to enable the mort Defendant gave a mortgage for the purpose of preventing the collection of a deficiency in a foreclosure suit of a mortgage on certain other property, and the mortgagee assigned the same to plaintiff, who sought to foreclose. Held, that defendant was not estopped from pleading want of consideration. Appeal from judgment of the supreme court in the second judicial department, affirming judgment entered on decision of the court against the plaintiff. The action was brought against the respondent and others, to foreclose two mortgages upon land of which she had the legal title. And she alone defended. One of the mortgages was made by James Cook, in April, 1857, to secure the payment of $3,000. To the cause of action upon this the defendant pleaded payment and the statute of limitations. The other one gee to make use of them by assignment. The proposition is well established that the assignee of a mortgage takes it subject to all the defenses, legal and equitable, which the mortgagor has against the enforcement of it by the assignor at the time of the assignAnd she alone ment. Bush v. Lathrop, 22 N. Y. 535; Greene v. Warnick, 64 N. Y. 220; Bennett V. Bates, 94 N. Y. 354, 363. Upon the assumption, therefore, that there was nothing in the way of making available the defense founded upon a want of consideration, the conclusion of the trial court directing judgment for the defendant may be sustained. Briggs v. Langford, 107 N. Y. 680, 14 N. E. Rep. 502. It is. however, urged that defendant having placed this bond and mortgage in the possession of the mortgagee, and enabled him to obtain value from the plaintiff upon them, is estopped from asserting the want of consideration as a defense. There is no finding of the circumstances or consideration of the assignment to the plaintiff. The court found that the plaintiff claimed that the assignment was taken by him as collateral security for a loan of $2,500, BRADLEY, J., (after stating the facts as then made by him to the assignor. The above.) The alleged cause of action upon plaintiff so testified. The court was not rethe Cook mortgage appeared to have been quested to find that precise fact, but was rebarred by the statute of limitations, and re-quested and refused to find that at the time quires no consideration. The main contro- of the assignment of the bond and mortgage versy on the trial had relation to the validity the "plaintiff paid said William E. Hoole of the other bond and mortgage for $4,500, therefor the sum of $2,500, and subsequently was executed by the defendant upon the same premises, in August, 1877, to William E. Hoole, and by its terms appeared to have been made to secure the payment of $4,500, according to the condition of a bond of even date with it, also executed by the defendant, who by way of defense put in issue the allegations that she made and delivered this bond and mortgage, and alleged that it was with out consideration. The plaintiff was assignee of both mortgages. Uriah W. Tompkins, for appellant. Edward G. Black, for respondent. 1Affirming 41 Hun, 643, mem. advanced him other sums of money." If that fact may be deemed material for any purpose, the court was not required upon the clear that such fact, if it had been found,. evidence to find it. The interest of the plain- would have been of any avail against the detiff in the controversy presented a question fense. As held in Westfall v. Jones, 23 of credibility as to that given by him, and Barb. 9, it would not. There it was deterwhat the evidence of the assignor, given in mined that a defense, under like circumanother case, was, did not necessarily estab- stances, came within the rule that a mortlish any fact in this one. There is no find-gage is taken by an assignee subject to all ing that the plaintiff was an assignee in good the defenses existing as between the original faith. This situation presented by the record may not have any essential importance in the consideration of the question presented, although the basis of the proposition as urged is that the plaintiff was a bona fide assignee of the mortgage. than that which is now here. parties to it. So far as observed, that case does not appear to have been questioned by any later adjudicated case. And for the purposes of the present one it is unnecessary to give the question any further consideration. There are some other exceptions taken to refusals to find, and to conclusions of fact and law as found by the trial court, but the view taken upon the question renders their consideration unnecessary. The judgment should be affirmed. All concur, except BROWN, J., not sitting. (116 N. Y. 294). ELFERS V. WOOLLEY. Court of Appeals of New York, Second Divis ion. Oct. 8, 1889.) TIONS. The doctrine of the cases upon which the plaintiff's counsel seems to rely to support his proposition that the want of consideration cannot be available as a defense is not applicable to the present case. The disability, within the rule referred to, arises out of the fact that the party so estopped has vested the apparent title to property in another, who has transferred it or given a mortgage upon it to a party taking it upon the faith of such apparent title. In such case the mortgagee, or his or any assignee, is not required to ex- ASSAULT AND BATTERY-EVIDENCE-INSTRUCtend his inquiry back beyond the mortgagor to ascertain whether the security is valid inversation had between plaintiff and defendant on 1. In an action for assault and battery, a conits inception. Simpson v. Del Hoyo, 94 N. the night before the alleged assault is competent, Y. 189; Zoeller v. Riley, 100 N. Y. 102, 2 N. as tending to show the motive for the assault. E. Rep. 388; Murphy v. Briggs, 89 N. Y. 2. Where defendant has not attempted to com446. If the defendant in the case at bar had the evidence showing that he had asked him to do pel plaintiff to submit to a medical examination, conveyed the land to her son, and he had so, and been refused, it is proper to refuse to made a mortgage upon it to the plaintiff, a charge, on defendant's motion, in an action for asdifferent question would have been presented sault and battery, that there was no method by which defendant could compel plaintiff to submit to such an examination, since it would have been The defendant is the mortgagor, and the charging an abstract proposition of law that was assignment of the mortgage was taken by not involved in the case. POTTER, J., dissenting. 3. Defendant asked the court to charge the juthe plaintiff subject to all the equities exist-ry that they had a right to infer from the fact that ing between her and the mortgagee. The plaintiff had not submitted to a medical examinatrial court found that the bond and mortgage tion that such examination would not have diswere obtained by the mortgagee for the pur-court refused to so charge, but replied that the jury closed any fact favorable to the plaintiff. The pose of preventing a party named "from col- might give it such weight as they thought it ought lecting an expected deficiency in a foreclos- to have, etc. Held no error, since the charge was ure suit of a mortgage on certain other prop- as favorable to defendant as it should have been. erty." In view of this fact, it is contended Appeal from city court of Brooklyn, genthat the want of consideration is not any deeral term. fense in behalf of the defendant for the reason that the defendant's mortgage was made with a fraudulent design. It may be assumed that it was so made, and that neither HAIGHT, J. This action was brought to party to it could obtain affirmative relief recover the damages sustained by reason of upon or from it. That situation does not an assault and battery committed by the de deny to the mortgagor the right to establish fendant upon the person of the plaintiff. its invalidity by way of defense, especially as Upon the trial the plaintiff testified that the against any other than a bona fide assignee. night before the assault the defendant sent Nellis v. Clark, 20 Wend. 24, 4 Hill, 424; for him and had a conversation with him. Moseley v. Moseley, 15 N. Y. 335, Niver v. He was then asked for the conversation. Best, 10 Barb. 369; Briggs v. Merrill, 58 This was objected to by the defendant. The Barb. 389. If the question of the good faith objection was overruled, and the witness anof the plaintiff as assignee and for value swered: "He said: Here, old man, I want would have been of any aid to him in sup-you to give up the lease. I will pay you for port of his action, it was for him to show what you have done and a few dollars besuch relation in such manner as to cause or sides. You shall give up the store. The require a finding by the court to that effect. Chinaman wants the store. You are a poor Starin v. Kelly, 88 N. Y. 418. As before man. The Chinaman is rich."" It is now suggested, no such fact is found, and no contended that this evidence was improperquestion of law is presented in that respect ly received, and for that reason the judgupon this review. But it is by no means ment should be reversed. After the evi G. B. Stoddart, for appellant. G. H. Fisher and H. D. Birdsall, for respondent. |