Angle v. Hanna.

was easier to drive them than to pitch off, and defendant got on the machine to pitch off; defendant complained that plaintiff did not drive fast enough, so that the machine would clear itself, and requested him to drive faster; plaintiff did not drive fast enough so that the machine would clear, and then the defendant got on the horses and drove, and the plaintiff got on the machine to pitch off; and after going once round the field, plaintiff got off the machine and stuck his fork into the ground, and declared that he would not pitch off any more; it was too hard work for him, and he would not pitch off; defendant drove the horses fast, when plaintiff said he would not pitch off; defendant then told plaintiff if he would not pitch off, he would have to get some one else, and after some few words between the parties, the plaintiff left the defendant and went away; plaintiff did not say that defendant told him to leave; plaintiff stated no other cause for having left except as above stated.

The testimony further shows that the appellee was well treated and that he made no complaint of bad treatment while working for appellant.

The cause being submitted to the jury, they returned a verdict in favor of the appellee, for $46.80; and thereupon the appellant moved for a new trial, for the reason that the verdict was against the evidence, and the court overruled said motion; to which decision of the court, overruling said motion, the appellant, by his counsel, excepted, and judgment was entered for the appellee.

MEACHAM & BAILEY, for Appellant.

J. H. GOODHUE, and R. S. BLACKWELL, for Appellee.

WALKER, J. The principle is well established and fully recognized, that a party who engages to labor for a specified period, has no right to recover unless he performs his contract, or is excused by the employer, or is in some manner justified in quitting before the expiration of the time. If the employee is prevented from performing his contract by the employer, or is discharged from his employment, or is from ill usage compelled to abandon his service, he may then recover on a quantum meruit. But, unless he is thus excused or prevented, he has no such right. In this case, the engagement was to labor four months, at eighteen dollars per month, or from the 14th of May until the first of October, 1857. After entering upon the performance of the contract, appellee quit work for the appellant about the 6th or 7th of August, 1857. There is no evidence in this record showing that the appellant discharged or in any manner excused the

Angle v. Hanna.

appellee from completing the performance of the contract. And it fails to show ill usage, but on the contrary it appears that he was well treated, and that he at no time complained of his treatment, of his board or of his lodgings. And the only excuse which he made, after leaving, was that cutting flax with a maIchine was too hard work. And from his statement and other evidence, the appellant was engaged with him at the same labor. He was employed on the farm in the performance of labor incident to that occupation, and he had no right to insist upon the right to perform only the lighter portions of it, and an exemption from the more onerous portions. If he had not been willing to perform such labor as is usual and customary on a farm, he should have stipulated in his contract for an exemption from its performance.

It was urged that the appellant had no right, under the general contract for labor as a farm hand, to require him to carry brick, which was worth more than ordinary farm labor. It does not appear that appellee was only employed as a farm hand. The evidence shows that he was employed to labor for the period stipulated, without any kind of labor being specified, and it may have been that carrying brick was a part of the labor contemplated by both parties, when he was employed. And if it were not, the presumption is, that he would at the time have objected to its performance. But where it does not appear that such labor was not contemplated by the parties when the contract was made, and no objection was made at the time of its performance, we must conclude that it was a portion of the labor intended by the parties when the contract was made. And even if it was not, we cannot say it was not embraced in the contract.

The appellee has wholly failed to show a right of recovery; he having violated his part of the agreement, without any legal excuse, the finding of the jury was wrong, and unsustained by the evidence. The court below erred in not granting a new trial. The judgment must be reversed, and the cause remanded.

Judgment reversed.

Speer v. Craig.

THOMAS SPEER, Plaintiff in Error, v. R. SOLON CRAIG, Defendant in Error.

ERROR TO COOK COUNTY COURT OF COMMON PLEAS.

Where a declaration only sets out an indorsement in substance, there is not any variance if the declaration calls the indorsee R. Solon Craig, and the indorsement R. S. Craig.

ASSUMPSIT upon a promissory note, made October 10, 1857, by Samuel A. Hatch and Thomas Speer, for $813.48, payable to John Craig. Indorsed to R. S. Craig. The declaration is filed in the name of R. Solon Craig. Plea non-assumpsit, and sworn to. In the descriptive allegation relating to the indorsement, it is simply stated that John Craig indorsed the note to the plaintiff.

Errors assigned:

The court erred in admitting the note and indorsement in evidence.

The court erred in not excluding the note and indorsement from the jury.

R. S. BLACKWELL, for Plaintiff in Error.

C. BECKWITH, for Defendant in Error.

CATON, C. J. The declaration in this case is by R. Solon Craig as plaintiff against Hatch and Speer. Speer alone was served with process and pleaded non-assumpsit. The declaration avers that the defendants made their note, giving date and amount and when payable, by which they promised to pay to the order of John Craig, etc., and that afterwards the payee indorsed the note to the plaintiff. Upon the trial, the note as described was introduced in evidence and the indorsement by the payee, as follows: "For value received I transfer the within note to R. S. Craig," and it is objected that this was a variance from the indorsement described in the declaration. The declaration pretends to set out nothing but the substance of the indorsement, without pretending to give a description of the form. It does not pretend to say by what name, description, addition or designation, the order to pay to the plaintiff was made. Had the declaration averred that the payee had indorsed it to the plaintiff by the designation aforesaid, or by the name of R. Solon Craig, then there would have been a variance. As it was, there was the simple question of fact to be determined

Clark v. Morris et al.

whether the note was really indorsed to the plaintiff by any name or description. The court found that it was, and we think properly.

The judgment must be affirmed.

Judgment affirmed.

LETTY M. CLARK, Plaintiff in Error, v. BUCKNER S. MORRIS, et al., Defendants in Error.

ERROR TO COOK COUNTY COURT OF COMMON PLEAS.

A party who sets up a claim to real estate, founded upon an unrecorded deed, from a brother, must show such facts as were sufficient to put any one upon inquiry who was dealing with the estate. Negligence in giving notice to those to whom it was known the estate was about to be conveyed, might amount to an estoppel. The fact of possession by such a party must be considered, in connection with all the circumstances surrounding it; as to who was the head of the family; how far the conveyance was kept concealed; the motives for the conveyance; the consideration, and all the incidents affecting the transaction.

THE opinion of the court, contains a full statement of the case, condensed from a very voluminous record, which it is not deemed necessary to present, otherwise than as it is there presented.

R. S. BLACKWELL, and GOOKINS, THOMAS & ROBERTS, for Plaintiff in Error.

B. S. MORRIS, for Defendants in Error.

BREESE, J. We cannot but admire and approve the brief and pointed manner in which one of the counsel for plaintiff in error states this case. From a very voluminous record, he extracts four points only, as worthy the consideration of this court, and when considered, such will be found to be the fact.

The points are: 1st, That complainant was in possession of the property in question at the time of the execution of the trust deed by Lewis W. Clark to Burch, the trustee of Corning, under an unrecorded deed from Lewis W. Clark, her brother, and if this was true, Burch the trustee and Corning the cestui que trust, had notice, in equity, of the complainant's rights. Second, If Lewis W. Clark and complainant were both in possession, then it was a mixed possession, and the law in such case is, that the possession shall be adjudged to the party having the

Clark v. Morris et al.

right that complainant had the right, and consequently it was her possession, and this possession put the trustee and cestui que trust upon inquiry which constitutes notice in equity of the unrecorded deed to the complainant. Third, The recital in the deed of a pecuniary consideration and the support of the father and mother of the grantor and grantee, cannot be contradicted by loose hearsay, and fourth, If the unrecorded deed be invalid as against the trustee and cestui que trust, the complainant has a right to redeem from the trust deed.

These are the grains of wheat winnowed by diligence from the superfluous matter with which the case is encumbered, and which is the fortune of all cases in chancery where large values are involved.

We think the above propositions present all of the case necessary for us to consider in order to a correct decision on the merits.

The first and leading question is, was the complainant at any time, in legal contemplation, in the possession of the premises in controversy?

We understand by possession, in the connection, an adverse and an exclusive possession against all the world, claiming the property during the time, under an unrecorded deed, and such is the allegation in the bill of complaint.

And it is further alleged in the bill, that the complainant was put in possession of the lots, "on or about the 8th of November, 1845, by said Lewis W. Clark, and that she continued in possession from thence until about the 23rd of March, 1850, by actual residence thereon."

The proof that the house in which she resided, was built on the lots by Lewis W. Clark, is clear and unequivocal, and that he designed it as a home for his aged parents, and for the complainant, his sister, who had then passed her climacteric, unmarried, and with no prop of support, but her kind-hearted and generous brother, is equally conclusive.

A brief history of this family may tend to illustrate the character of this possession now set up by complainant. Previous to their removal to Chicago, it seems they were residing at Utica, New York. Whilst living there, the old gentleman was not known to do anything for a living, and he had been heard to say that he was supported by his son Lewis. In 1836, Lewis, it seems, brought his parents and family to Chicago, to take care of them, as he always declared. He first rented a house for them, called in the pleadings, the Hubbard House, where they resided three years. The family then consisted of his father and mother, the complainant, another brother who died in that house, and his son, a lad. He paid the rents and furnished for