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Willard & Driggs and F. J. Loesch, for appellant. Simon P. Douthart, for appellee.

SCOTT, C. J. This suit was brought in the name of Anna Welsh by her next friend, Mary Welsh, against the Chicago, St. Louis & Pittsburgh Railroad Company, and was to recover damages for personal injuries sustained by plaintiff by reason of the negligent conduct of defendant. On the trial in the superior court plaintiff obtained a verdict in her favor, on which judgment was rendered. That judgment was affirmed in the appellate court of the First district, and defendant brings the case to this court on its further appeal.

It is averred in the amended declaration plaintiff was sitting, with her playmate, on the sidewalk on May street, at the time she received the injury complained of. It seems May street runs north and south, and that the main tracks of defendant's road cross it from east to west. One of the side or switch tracks was connected with the main tracks at Ann street, and came down to May street, ending some three or four feet west of May street. This track was used for coal cars. There was no bumper at the end of this track. On the day of the accident to plaintiff three cars loaded with coal were standing on the track; the east end of the last car being some five or six feet from the sidewalk on May street. At the time of the happening of the accident to plaintiff she was seven years and three months old. Her mother resided near where the accident occurred, and sustained herself and family by her daily labor. On that morning she had gone out to service, and left plaintiff and other small children at home. There is evidence tending to prove, and it will be assumed the trial and appellate courts so found, that plaintiff and her playmate were sitting on the sidewalk on May street playing together,-as the plaintiff expresses in her testimony, "slinging stones over our heads." At that point of time a switch-engine, in charge of defendant's servants, sent or pushed in some coal cars from Ann street, which, coming in contact with the cars previously on the switch, pushed them along with such violence they went off the end of the track, into the sidewalk on May street where the children were playing. The car that went off the track into the sidewalk ran upon the plaintiff, by which her leg was so badly injured it had to be amputated,—at first below the knee; and, later, above the knee. Her little companion was instantly killed.

Assuming, then, the facts to be as they were found by the appellate court, as the evidence tends to establish, then the case presents no difficulty. It is obvious plaintiff was too young at the time she was injured to observe any care for her personal safety. It is not suggested her mother was guilty of any negligence that exposed her child to danger, or failed to observe the usual precaution for its safety in the care bestowed upon her that would usually be taken by persons in her position in life. Keeping in view the fact plaintiff was herself too young to exercise care to avoid injury, there was no serious error in modifying the instructions as was done. Really, the only question that could arise on the trial was whether defendant had been guilty of negligent conduct in regard to that which caused the injury to plaintiff. In that view, the modifications made to defendant's instructions, whether entirely accurate or not, could do the defendant no harm. It would be idle to state the doctrine of comparative negligence as applicable to a plaintiff incapable of observing ordinary care for personal security. In such cases the inquiry is whether the injury was caused by the negligence of defendant. If so, a liability exists. The doctrine of the modifications to defendant's instructions are so nearly in accord with this view of the law it is thought they contain nothing really hurtful to the defense.

It is said the second instruction given for plaintiff assumes that defendant was guilty of wrongful acts, and leaves it to the jury whether plaintiff suffered any "permanent injury" therefrom. It is not perceived the instruction is

obnoxious to any such objection. It plainly directs the jury should find every fact material to a recovery from the evidence, and does not assume the existence of any fact. If the instruction did assume the existence of material facts not proved, and without which there could be no recovery, of course it would be within the principle of the cases cited, and would, for that reason, be both erroneous and hurtful. But such is not the fact, as the instruction is read and understood by this court.

The judgment of the appellate court will be affirmed.

(119 Ill. 539)

GAGE V. BAILEY and others.

(Supreme Court of Illinois. November 13, 1886.) APPEAL-PROCEEDINGS BELOW, AFTER REMAND-DISMISSAL OF BILL.

Where, upon appeal, the decree of the trial court is reversed, and the cause remanded, with specific directions, the court below has no discretion, but must pursue the mandate of the upper court; and where the upper court passes upon the merits and finds that a bill is without equity, and remands the cause for proceedings not inconsistent with the opinion, there is nothing left but to dismiss the bill.

Appeal from Cook.

Augustus N. Gage, for appellant. Peckham & Brown and John P. Altgeld, for appellees.

CRAIG, J. This was a bill brought by appellees against appellant, Portia Gage, to set aside a tax deed under which she claims title to the premises in dispute, and to vacate and remove appellant's title as a cloud upon the title of appellees. Appellant put in an answer to the bill, in which she set up that the various steps required to be taken by the revenue law, in order to constitute a valid sale of land for non-payment of taxes, had been complied with and fully observed, and that the title to the property had passed by the tax deed under which she claimed. To the answer a replication was filed, and on the hearing, upon the pleadings and evidence, a decree was rendered substantially as prayed for in the bill. The defendant prosecuted an appeal, and at the March term, 1882, of this court, the decree of the circuit court was reversed, and the case remanded. See Gage v. Bailey, 102 Ill. 11. In June, 1883, the order of this court was filed in the circuit court, and on the ninth day of July, 1883, the cause was redocketed. The complainants then, under leave of the court, filed an amended bill, in which they alleged that appellant's tax title was defective on account of certain errors in the school tax, which formed a part of the taxes for which the premises were sold. No order was taken requiring the defendant to answer the amended bill, and no answer was ever filed. Indeed, no steps seem to have been taken in the cause until March 18, 1886, when, on motion of appellees, the bill was dismissed, at complainant's costs. On the day this order was entered the appellant appeared in court, and entered her motion to vacate the order of dismissal. This motion was heard and overruled. The appellant then prayed an appeal, which was granted.

This appeal presents but one question, and that is whether the circuit court erred in allowing the complainants to dismiss their bill. Where no cross-bill has been filed, as a general rule, a complainant may dismiss his bill at any time he may desire, before a final decree has been entered in the cause. But we do not regard this as a case which will fall within the general rule referred to, or one to be governed by it. When the case was here before, several objections were urged against the validity of the tax sale under which appellant claimed title. These objections were taken up and considered by the court, and each and all were held to be without merit. The opinion of the court, after disposing of the objections to the tax title, concluded as follows: "The decree of the circuit court will be reversed, and the cause remanded for fur

ther proceedings not inconsistent with this opinion." The opinion had disposed of the whole case made by the pleadings and the evidence, and, when the remanding order should be filed in the circuit court, it would seem that nothing remained for the circuit court to do except to enter an order dismissing the bill. No other order or proceeding would be consistent with the opinion filed. If the order had been merely reversing and remanding, without any directions, doubtless the court might allow amendments to the pleadings, and might permit the introduction of other evidence; but such was not the character of the order. The opinion, as will appear from an examination of it, had settled every question involved in the case; and, when the circuit court was directed to proceed not inconsistent with the opinion, no action could properly be taken except to enter a decree dismissing the complainant's bill for want of equity.

The rule on this subject seems to be well stated in Chickering v. Foiles, 29 Ill. 301, as follows: "Where the decree is affirmed in all its parts, the controversy is at an end. In such a case the circuit court has no power to allow amendments of the pleadings, or to alter or change the decree. It can only proceed to have it enforced according to its terms and conditions. Where the decree is reversed, and the cause is remanded, with specific directions, the court below has no discretion, but must pursue the mandate of the appellate court." Here the cause was remanded, with direction to proceed not inconsistent to the opinion, which had settled all questions in the case adverse to the complainants.

In Hook v. Richeson, 115 Ill. 431, S. C. 5 N. E. Rep. 98, the question arose in regard to the construction of a remanding order, where a cause had been remanded for further proceedings in conformity with the opinion, but the opinion contained a statement that the cause might be open to the parties to take further proof, if desired, as to a certain matter named. It was held that the cause was not open for any other purpose, and the introduction of new matters by amendment and proof was not permissible. Here no question was left open. Every question involved in the record had been settled and determined by the decision rendered in the cause, and a remanding order was made in order that the court might make a final disposition of the case, as indicated in the opinion.

Wadhams v. Gay, 83 Ill. 250, is a case which we regard in point. There, as here, the case was decided on the merits, and the decree reversed, and the cause remanded. There the language of the remanding order is, "For further proceedings in conformity to the opinion;" here the terms of the order is, "For further proceedings not inconsistent with the opinion." In the Wadhams Case we held that it was the duty of the circuit court, upon the remanding order being filed, to dismiss the bill for the want of equity. Should not the same rule prevail here? What difference is there between the two orders? If the court proceeds not inconsistent with the opinion, it proceeds in conformity, and, proceeding in conformity to the opinion, is not inconsistent with the opinion. The substance of the one is the same as the other, and we think the case cited is conclusive of the one under consideration. It was therefore the duty of the court, after the cause was redocketed, to look into the opinion, and dismiss the bill for want of equity.

The judgment of the circuit court will be reversed, and the cause remanded, with directions to dismiss the bill for want of equity.

(118 Ill. 612)

CLAUSE v. BULLOCK PRINTING-PRESS Co.

(Supreme Court of Illinois. November 13, 1886.)

1. SET-OFF AND COUNTER-CLAIM-UNLIQUIDATED DAMAGES-SPECIAL PLEA-GERMANE TO SUIT.

Unliquidated damages for breach of contract, when relied on by the defendant as a set-off or counter-claim, cannot be proved under the common counts, but only under a special plea; and cannot be shown as set-off, even under such plea, where unconnected with the subject-matter of the plaintiff's suit.

2. SAME CONSOLIDATION OF CLAIMS-DISMISSAL IN PART.

Where several suits have been consolidated, and afterwards the plaintiff, by leave of court, dismisses as to certain counts and claims, the defendant cannot afterwards plead a set-off germane to such dismissed claim, but not germane to the suit which is continued.

Appeal from appellate court, First district.

F. J. Smith and Mr. Helmer, for appellant. Follansbee & O'Connor, for appellee.

SHELDON, J. The appeal here is taken from a judgment of the appellate court for the First district, affirming a judgment of the superior court of Cook county rendered, where, on the trial, three separate causes then pending in the court were consolidated and tried as one cause.

The first suit was one in assumpsit, brought by the Bullock Printing-press Company against John J. Clause in said superior court, on July 2, 1884, claiming damages for the non-performance of a contract (or non-fulfillment of orders accepted under a contract) between the parties, dated May 19, 1882. This contract related to the construction of folding-machines by the defendant, to be used in connection with the printing-presses to be made by the plaintiff. The declaration consisted of special and the common counts. The first three special counts charge that the plaintiff ordered, and defendant agreed to build, a folding-machine for the Boston Herald, under the contract of May 19th, to be used in connection with a Bullock printing-press, and that defendant did not construct the machine properly. The fourth, fifth, and sixth special counts charge that plaintiff ordered, and defendant agreed to build, under the same contract of May 19th, a folding-machine for the Philadelphia Press Company, and charging defendant with improper construction of the machine. The seventh and eighth special counts set out an order for a cylinder for a folding-machine for the Boston Advertiser, and alleging a failure on defendant's part in the construction of such cylinder.

On August 2, 1884, the plaintiff brought another suit in assumpsit against the defendant in said superior court upon a note as follows:

"$1,000.

CHICAGO, December 15, 1882. "Four months after date I promise to pay to the order of James G. Knap, treasurer, one thousand dollars, with 6 per cent interest, value received, amounts becoming due to me on account with Bullock Printing-press Co. to be indorsed as they become due. JOHN J. CLAUSE.'

On the back of the note were the following indorsements: "This note is given in lieu of another note for same amount dated June 12, 1882. Recd. on this note, December 20, 1882, the sum of three hundred and fifty-one 29-100dollars ($351.29.) JAS. G. KNAP, Treas." "Pay to the order of the Bullock Printing-press Co. JAS. G. KNAP, Treas."

The special count, after describing the note, avers "that no amount or amounts have ever become due to said defendant on account with said plaintiff."

The third suit of the same plaintiff against the same defendant was commenced August 9, 1884, upon a note precisely like the one above shown, excepting that it fell due four months after date, instead of three, and there

were the same indorsements on the back, except there was no indorsement of any payment on the last. The plea of the general issue alone was filed in each case.

Shortly after the causes were at issue a stipulation for their consolidation was entered into. The plaintiff proceeded to take the evidence of non-resident witnesses in support of its claims; the evidence going almost entirely to support the item in the first suit for damages sustained by reason of the failure of the defendant to furnish such a folding-machine for the Boston Herald as he had contracted to furnish. When the cause was reached for trial, on motion of the defendant it was continued. Subsequently testimony was taken by deposition by both parties, all having reference only to the amount of the damages claimed in the above-named item. In November, 1885, the suits having been pending about a year and a quarter, the cause was again reached for trial, and was upon the trial-call, when an application was made by the defendant for leave to file a plea of set-off, which plea should consist of the consolidated common counts. The court refused such leave. The cause afterwards coming on for trial, the plaintiff entered a nolle prosequi as to all of the counts in the declaration in the first cause except those relating to the Boston Herald folding-machine, on which abandoned counts plaintiff had taken no proof, and as to which no account sued on had ever been filed. Whereupon defendant renewed his motion to file a plea of set-off, consisting, as before, of the consolidated common counts, which application the court again refused. The amount of the verdict rendered by the jury, and of the judgment, was $1,935.48, the amount due upon the two notes sued upon.

The following reasons are urged why the judgment should be reversed: That the court erred in refusing leave to file the plea of set-off; in not admitting evidence on the part of the defendant of a counter-claim against the plaintiff under the plea of the general issue; and in giving and refusing instructions.

The

We are not prepared to say that the court erred in refusing leave, at that stage of the cause, to file a plea of set-off. But, conceding there to have been error in this, it was an error that worked no injury to the defendant. leave asked was to file the "consolidated common counts." It appears that it was a claim for damages which the defendant had sustained by reason of plaintiff's failure to take the Philadelphia Press folder, which was sought to be availed of under the plea of set-off. The evidence shows that the plaintiff ordered a three-fold single folder for a new press for the Philadelphia Press on November 22, 1882, the price for which was fixed by the contract of May 19th; that its construction was entered upon, but, before it was completed, the plaintiff wrote to the defendant saying that he should decline to take it. To this letter the defendant replied: "As to the Philadelphia folder, I shall hold it subject to your order when I have made a thorough test of it in my shop, demonstrating, before good witnesses, that it does all I claim for it." By the terms of the contract of May 19th, under which the folder was ordered, it was to be paid for one-half in cash when shipped from Chicago, and the balance when it was attached to the press for which it was built and running satisfactorily. Under these circumstances the defendant could only recover damages for breach of contract, and which recovery could not have been had under the consolidated common counts, but only under a special plea. Brand v. Henderson, 107 Ill. 141; Hosmer v. Wilson, 7 Mich. 294; Danforth v. Walker, 37 Vt. 239. Further unliquidated damages arising out of a contract unconnected with a subject-matter of the plaintiffs' suit are not the subject of setoff. Hawks v. Lands, 3 Gilman, 227; Sargeant v. Kellogg, 5 Gilman, 273; De Forrest v. Oder, 42 Ill. 500; Robison v. Hibbs, 48 Ill. 408. We do not see, then, what benefit it would have been to the defendant to have filed this proposed plea of set-off, as defendant could not have introduced his evidence under it. What is complained of as the exclusion of evidence of a counter

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