The judgment as to the seven plaintiffs in error above named will be reversed. As to the other plaintiffs in error, all of whom appeared, it will be affirmed, and the cause will be remanded.

(119 Ill. 259)

BARTALOTT v. INTERNATIONAL BANK OF CHICAGO.

(Supreme Court of Illinois. January 25, 1887.)

1. TRIAL-MOTION TO EXCLUDE EVIDENCE AND DIRECT VERDICT.

While motions to exclude evidence and direct verdict are in the nature of demurrers to evidence, and admit all that the evidence tends to prove, they may be informally made before or after the opposing evidence is heard, or by instruction. 2. EVIDENCE-BURDEN OF PROOF REPLICATION OF CONCEALMENT TO PLEA OF STATUTE OF LIMITATIONS.

Where the plaintiff replies to a plea of the statute of limitations, specifically alleging the existence of a cause of action, and concealment thereof, he has the burden of proof on both points.

SCOTT, C. J., dissenting.

Appeal from First district.

W. E. Hughes, (Leaming & Thompson, of counsel,) for appellant. Rosenthal & Pence, for appellee.

SCHOLFIELD, J. The appellate court held that since there is conclusive evidence showing that on the eleventh day of September, A. D. 1873, at the time that Samuel J. Walker paid the appellee the $20,000 in satisfaction and discharge of the principal notes for which the two $15,000 notes secured by the trust deed were held as collateral security, Samuel J. Walker was indebted to the appellee to the further amount of nearly or quite $200,000, on a large amount of which it held no specific security, the appellee was entitled to still retain the two $15,000 notes, and trust deed securing them, as collateral security for such further indebtedness, by virtue of the agreement made and reduced to writing between the appellee and Samuel J. Walker on the seventh day of July, A. D. 1869, unless the appellant has proved that at the time that Walker made such payment, there was a special arrangement or agreement between said Walker and appellee to the effect that the payment of the principal notes in this instance operated as a redemption of the collateral; that there is no evidence in the record tending to prove such arrangement or agreement; and that, therefore, the circuit court properly directed the jury to find in favor of the appellee.

The questions presented for our consideration, by the arguments before us, are-First. Even assuming that the circuit court did not misjudge as to the character and effect of the evidence, was it competent for that court to instruct the jury to find in favor of the appellee, after evidence had been introduced by appellee to sustain the defense? Second. If it was competent to so instruct the jury, then upon whom was the burden of proof on the question of whether it was agreed and intended by the parties that the payment of the $20,000 notes by Walker should discharge the two $15,000 collateral notes, and release the trust deed securing them? Third. If the burden was on appellant, then was there any evidence proper for the consideration of the jury, tending to prove such agreement and intention?

1. Although we have said that motions to exclude the entire evidence from the jury, and motions to instruct the jury to find for the defendants, are in the nature of demurrers to evidence, yet this relates rather to the mode of viewing the evidence than to the time or mode of interposing such motions. They are in the nature of demurrers to evidence, in that they admit, not only all that the testimony of the plaintiff proves, but also all that it tends to prove. Frazer v. Howe, 106 Ill. 573. But none of the technical particularity is required in making such motions that is required in demurrers to evidence, and no judgment is rendered against the defendant in disallowing the motion.

They are usually informal, and most frequently made by simply presenting to the court an instruction to be given or refused, instructing the jury that the evidence is excluded, or that they should find for the defendant, or, it may be, both. It would certainly be proper, and, where the motion can rightly be sustained, most convenient, to present the motion at the conclusion of the plaintiff's evidence, so as to at once terminate the trial, but we know of no reason or authority why it may not be made after evidence is heard on behalf of the defendant. At most, so far as is now perceived, delaying the motion until after the introduction of defendant's evidence could only affect the question of costs incident to the examination of the defendant's witnesses; and this obviously would appeal only to the discretion of the court on a motion to retax costs, as in case of the examination of unnecessary witnesses. In the following cases the practice seems to have been to entertain the motion after hearing the evidence of the defendant: Reed v. Inhabitants of Deerfield, 8 Allen, 524; Improvement & R. Co. v. Munson, 14 Wall. 442; Randall v. Baltimore & O. R. Co., 109 U. S. 478; S. C. 3 Sup. Ct. Rep. 322; and Herbert v. Butler, 97 U. S. 318. And that practice is recommended by this court in City of Mattoon v. Fallin, 113 Ill. 249.

2. The declaration contained the common counts only. The plea of the statute of limitations affirmed, generally, that any cause of action that the plaintiff might have under those counts was barred. The replication set out specific facts constituting a cause of action, and that knowledge of such facts was concealed from appellant. This was traversed by the rejoinder. The burden was then upon the appellant to prove his plea. If a thing alleged as a fact never existed, it would seem clear that knowledge of it could not have been concealed; and so, in order to sustain his plea, it was incumbent on him to prove, first, the existence, and, then, the concealment, of the alleged facts. It was incumbent on appellant to thus particularly reply, (Beatty v. Nickerson, 73 Ill. 605;) and the same necessity exists for specific proof as for specific allegation, (Watt v. Kirby, 15 Ill. 200.)

But, apart from this, the defendant pleaded to the original declaration that it, "together with said Barthold Lowenthal, did not undertake and promise, in manner and form," etc. This plea was not sworn to, and therefor could but amount to the general issue. When a nolle prosequi was entered as to Lowenthal, so much of the plea as alleged that, "together with said Barthold Lowenthal," became surplusage. It may be that, when the amended declaration was filed, appellant might have required a new and more specific plea; but he did not do so. He neither demurred to this plea, nor asked that appellant replead. Three trials were had in the circuit court, and the cause was three times passed upon by the appellate court, without any objection ever being urged in either court to the sufficiency of this plea. The appellate court in 11 Bradw. 620, and again in 14 Bradw. 158, expressly characterize it as the general issue. Even if we thought that characterization inaccurate, which we do not, it is now too late to raise any question upon it. The plea sufficiently put in issue the allegations of the declaration, and imposed the burden upon appellant of proving them. If deemed obnoxious to a demurrer, appellant should have demurred to it. If deemed inapplicable to the amended declaration, he should have moved to strike it from the files.

3. We said in Frazer v. Howe, supra, and that ruling has been since approved in Simmons v. Chicago & T. R. Co., 110 Ill. 340, and other cases, that the function of the judge on such a motion "is limited strictly to determining whether there is or is not evidence legally tending to prove the fact affirmed, i. e., evidence from which, if credited, it may reasonably be inferred, in legal contemplation, the fact affirmed exists, laying entirely out of view the effect of all modifying or countervailing evidence." In Simmons v. Chicago & T. R. Co., supra, this language was used: "We think the more reasonable rule, which has now come to be established by the better authority,

is that, when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant." And this language was referred to with approval in Lake Shore & M. S. Ry. Co. v. O'Connor, 115 Ill. 261; S. C. 3 N. E. Rep. 501. In Doane v. Lockwood, 115 Ill. 494, S. C. 4 N. E. Rep. 500, it was said: "Instructing the jury to find the issues for defendant is, in effect, the same thing as sustaining a demurrer to the evidence. In either case the court holds that, admitting all the evidence tends to prove, it is not sufficient in law to sustain the action." Since it was not intended in this case to overrule Simmons v. Chicago & T. R. Co., supra, it is apparent that "evidence tending to prove" means more than a mere scintilla of evidence, but evidence upon which the jury could, without acting unreasonably in the eye of the law, decide in favor of the plaintiff, or the party producing it.

It is not intended, by this practice, that the function of the jury to pass upon questions of fact is to be invaded, any more than it is intended that such function is to be invaded by a motion to set aside a verdict, and for a new trial, upon the ground of the want of evidence to sustain the verdict. In neither case is the court authorized to weigh the evidence, and decide where the preponderance is. Hil. New Trials, 339, § 9 et seq.; Johnson v. Moulton, 1 Scam. 532; Lowry v. Orr, 1 Gilman, 70; Morgan v. Ryerson, 20 Ill. 344.

What, then, is the effect of the evidence? We have held that this identical contract between Samuel J. Walker and the appellee, of July 7, 1869, authorized appellee to hold all collaterals pledged for particular loans then made, for the payment of all notes held by the appellee against said Walker, regardless of the manner in which they were secured. Buchanan v. International Bank, 78 Ill. 500; Walker v. Abt, 83 Ill. 226. If this contract was subsequently conceded, it devolved upon appellant to prove it. It is not pretended that there is any evidence in that respect. When Walker made payment of the $20,000 notes on the eleventh of September, A. D. 1873, he did not take up the two $15,000 collateral notes and trust deed securing them. They are produced by the appellee uncanceled, and if there was any agreement between Walker and appellee that, by paying the $20,000, these two $15,000 notes were also to be canceled, and the trust deed released, it devolved upon appellant to prove it. There is absolutely no proof to this effect in the record. What Walker may have intended in this respect is obviously unimportant, in the absence of proof showing that such intention was shown by appellee.

An attempt was made to use a deposition of Lowenthal, taken in a case between appellee and another party, as original evidence in this case. Without conceding that it would have afforded material proof on the question we are considering here, if admissible as original evidence, we content ourselves with saying that Lowenthal is not a party to this suit, and that therefore his statements in a deposition in another suit could only be admissible in this suit for the purpose of contradicting him, a sufficient foundation having first been laid for that purpose. It cannot be used as original affirmative evidence in this case. And this is so apparent that it can need no discussion. Walker is the only other person whose testimony was taken who could have had any knowledge of such an agreement if made, and his testimony proves nothing in that respect. Mere suspicions or conjectures are inadequate to sustain a legal judgment.

We concur with the reasoning of the appellate court, and affirm its judgment.

SCOTT, C. J.. dissenting.

(119 Ill. 307)

VILLAGE OF SHERIDAN v. HIBBARD. (Supreme Court of Illinois. January 25, 1887.) MUNICIPAL CORPORATIONS-ACTION AGAINST-DEFECTIVE SIDEWALKS-INSTRUCTIONS. Where, in an action against a city to recover damages for personal injuries caused by a defective sidewalk, the court has instructed the jury as to the care which must have been exercised by the plaintiff to entitle him to a recovery, an instruction, the sole purpose of which is to tell the jury what the elements of damage are and which should be taken into consideration by them in the event of finding the city guilty of negligence, is not objectionable for failing to contain an hypothesis of due care on the part of the plaintiff.

Appeal from appellate court, Second district. Blake & Moloney, for appellee, Hibbard. mer, for appellant, Village of Sheridan.

D. B. Snow and Mayo & Wid

MULKEY, J. The appellee, Timothy Hibbard, recovered a judgment of $3,500 in the circuit court of La Salle county against the village of Sheridan, for alleged negligence in suffering one of its sidewalks to become out of repairs, by reason whereof the plaintiff was caused to stumble and fall thereon, whereby he was seriously injured. This judgment was affirmed by the appellate court for the Second district, and the defendant appealed to this court. All the alleged errors relied on for reversal, which this court is permitted to consider, arise on the plaintiff's fifth instruction, which is as follows: "(5) If the jury find the defendant guilty, then they should assess the plaintiff's damages. If the jury find the defendant guilty, the plaintiff will be entitled to recover for any pain and anguish which he has suffered, or will hereafter suffer, in consequence of said injury; for any and all damages to his person, permanent or otherwise, occasioned by said injury; for loss of time, if any be proved, occasioned by said injury; for expenses incurred in a reasonable effort to effect the cure of said injury, provided the jury believe from the evidence that the plaintiff has been damaged in the regards aforesaid; and, generally, the plaintiff will, if the jury find the defendant guilty, be entitled to recover all damages alleged in the declaration which they may believe from the evidence he has sustained by reason of said injury.'

We do not think any of the objections taken to this instruction are well founded. The chief objection, expressed in a few words, as we understand it, is that it does not contain the hypothesis of due care on the part of the plaintiff at the time the injury occurred, or in his subsequent conduct, with a view to a recovery. Counsel in their criticism seem, as not unfrequently happens, to lose sight of the object and purpose of the instruction. It is an error to suppose that every instruction asked by a plaintiff must, without regard to the office or purpose it is intended to subserve, have embodied in it every fact or element essential to sustain the plaintiff's action; nor is it necessary to negative matters of mere defense. It is manifest the instruction in question was not intended, nor does it assume, to enlighten the jury upon the facts necessary to be proved by the plaintiff in order to recover. An instruction asked for such purposes should, of course, include the hypothesis of ordinary care to avoid the injury complained of. The sole purpose of the instruction was to tell the jury what the elements of damage were, and which should be taken into consideration by them in the event they found the defendant guilty; and for this purpose, we think, the instruction was substantially correct. So far as the duty of the plaintiff to exercise due care and prudence in his efforts to be cured of the injuries received by him is concerned, that was purely a matter tending to mitigate the damages only, and, if the defendants desired instructions on that question, it should have asked them. It is further urged that the instruction is erroneous because it authorizes the jury to assess and allow the plaintiff all such damages as were occasioned or sustained by reason of the injury. It is, in effect, complained that the jury

would be authorized, under such a charge, to allow the plaintiff damages on account of the injury, although the plaintiff himself had failed to exercise ordinary care. This claim is not well founded. Indeed, there is really no force in it. By the very terms of the instruction, the jury are not authorized to make any application of it at all, unless they found the defendant guilty; and this they could not do under the other instructions given them without first finding, as a fact, that the plaintiff was exercising due care when the injury was received. This is fully shown by the following paragraph in plaintiff's first instruction, which was given to the jury: "Ordinary care, which both plaintiff and defendant were bound to exercise in this case, is such care as reasonably prudent men would generally exercise under like circumstances; and the want of such care is negligence." If the defendant wanted anything more explicit on the subject given to the jury, it was its duty to ask the court for additional instructions.

The judgment of the appellate court is affirmed.

(109 Ind. 214)

:

SIMS and others v. BURK.

(Supreme Court of Indiana. January 8, 1887.)

EQUITY RESCISSION-COURT HAVING JURISDICTION SHOULD ADJUST ALL EQUITIES BETWEEN PARTIES.

Appellee was induced to make a warranty deed to land which he neither owned, nor claimed to own, upon the faith of an agreement by appellant S. to pay a mortgage from appellee to M., the owner, and the balance of the purchase price; M. agreeing to convey to appellee. S. refused to carry out his agreement, and M., in consequence, refused to convey to appellee. Held, that appellee, having offered to place the parties as they were before, was himself entitled to a rescission and cancellation of his deed to S., and to be placed in statu quo, unless upon a cross-bill M. chose to compel the performance of his contract with S., and that the court, sitting as a court of equity, should have ordered the filing of such a cross-bill, and determined the rights of all the parties..

Appeal from circuit court, Montgomery county.

W. H. Thompson and Jere West, for appellants. E. C. Snyder and Ristine & Ristine, for appellee.

MITCHELL, J. Burk brought suit against Sims and wife to procure the cancellation of a deed made by the plaintiff below to Mrs. Sims. Mason was made a party defendant. The complaint discloses the following facts: In September, 1884, Burk owned a certain 14-acre tract of land in Montgomery county. He contracted to sell that land to Sims for $420. Mason at the same time owned a six-acre tract adjoining that owned by Burk. He, in like manner, sold his tract to Sims for the agreed price of $300. Burk, having previously owned the six-acre tract, held an unpaid purchase-money mortgage on this tract to secure a debt from Mason to him for $180. It was mutually agreed between all the parties that Burk should convey both the fourteen and six-acre tracts to Mrs. Sims; Mason agreeing that he would convey the six-acre tract owned by him to Burk. Sims agreed to pay the latter $600, which was to liquidate the purchase price of the 14 acres, and the $180 mortgage due from Mason to Burk. Sims also agreed to pay Mason $120, the balance of the purchase price of the six-acre tract, after paying off and releasing the Burk mortgage. Pursuant to this arrangement, Burk made a warranty deed to Mrs. Sims for the 20 acres. Sims paid and secured to Burk $600, as agreed, but failing to receive the $120 due him from Sims under the arrangement above stated, Mason refused to deliver the deed to Burk for the six-acre tract. Thereupon Burk tendered back what he had received from Sims, and brought this suit to rescind the contract, and cancel his conveyance to Mrs. Sims. The court overruled a demurrer to the complaint.

Sims and wife answered to the effect that Burk agreed to purchase and pay