Moss et al. v. Johnson.

distinguishes the case from that of Gillenwater v. Madison and Indiana Railroad Co., 5 Ind. 339, and also from the case of Fitzpatrick v. The New Albany and Salem Railroad Company, 7 Ind. 436. His position was of his own choosing, without any request by the plaintiffs, or direction by them, or contract by them of any kind, to carry him to and from his work on the road, nothing of that kind being alleged or shown. The act of placing himself on this car was his own voluntary act, and in the absence of negligence and want of care on the part of the plaintiffs, such as is alleged in the declaration, he is not, on any principle of law we know of, entitled to recover.

We admit, being on the cars with the plaintiffs' consent, they were bound to use due diligence to carry him safely.

The allegation in the first count is that they did not use due and proper care, safely and securely to carry and convey him, and in the second count, it is alleged that the cars were so carelessly managed and conducted, that they ran off the track, whereby his leg was broken. Now as to the proof. His own witnesses, Barr, Richardson and Wheaton, prove nothing of the kind, but a different case altogether.

Barr, who is a carpenter also, says, in my judgment there was no carelessness or negligence in the conducting or running the train, and in his opinion the accident occurred by reason of a defect in the friction plate of the car-it was too tight to allow the car to turn easily. Richardson says he was in the car at the time of the accident-went back to see how it happened and thinks he knows-he says there were no chairs where the accident happened, and there is a slight curve in the track; the appearance was that the flange of the wheels had struck the square end of the rails which had got out of place for the want of chairs the ends not coming square together; thinks the cause of the accident was this misjoinder of the rails; he says distinctly, there was no mismanagement in running or conducting the train, and was not running as fast as usual on that day. Wheaton says he is an engineer by profession-meaning doubtless, an engine driver, and he speaks only as to the proper mode of making up trains and the safety and condition of the road; thinks it might be safe with proper attention without chairs. All the evidence given in relation to the manner of making up the train and to the condition of the road, was objected to by the plaintiffs, but admitted by the court, and it will be seen such proof makes out no such case as is stated in the declaration. All the witnesses speaking to the facts stated in the declaration, ignore them all. The facts proved, not being those alleged or of kin to them, the court should have refused the instructions given for the defendant in error, marked two and five, on this

Moss et al. v. Johnson.

branch of the case, and should have given the fourth instruction asked by the plaintiffs in error.

But the important question behind all these, is as to the liability at all of the plaintiffs in error, under the facts alleged in the declaration, if proved.

We have fully examined this question in another case, and all the authorities to which reference has been made in this case. Ill. Central R. R. Co. v. Cox, 21 Ill. R. 20. We have neither time nor inclination to go over the ground again.

The facts in this case abundantly show that the defendant in error was in a condition to know the condition of the road, passing over it as he did daily, in carrying out his contract with the company as one of its employees, and he must be presumed to have contracted in view of all the hazards to which he was exposed, by an insecure and imperfect road-making up trains upon it as well as the negligence of his co-employees.

The cases decided in Indiana, 5 Ind. R. 339, and 7 ib. 436, as well as those decided by the Supreme Court of Ohio, 3 Ohio State R. 201, and 20 Ohio R. 415, are all based on the ruling of the Scotch courts, entirely ignoring the English decisions, and those of most of the courts of the United States. The Scotch case is Dixon v. Ranken, 1 Am. Railway Cases, 569. The case in 17 Ben. Monroe, 587, was the case of injury to a slave. The court there say, without questioning the propriety of the rule in Ill. Cent. R. R. Co. v. Cox: "There is manifest propriety in distinguishing between the two classes of cases, involving free persons on the one hand and slaves on the other, and in applying a different rule of law when a slave is an employee. A slave may not with impunity remind and urge a free white person, who is a co-employee, to a discharge of his duties, or reprimand him for his carelessness or neglect; nor may he, with impunity, desert his post at discretion, when danger is impending; nor quit his employment on account of the unskillfulness, bad management, inattention or neglect of others of the crew. Whatever may be the danger, by reason of any of these causes, he must stand to his post, though destruction of life or limb may be never so imminent. He is fettered by the stern bonds of slavery-necessity is upon him, and he must hold on to his employment."

The defendant in error was his own master, fettered by nothing but considerations of his own interests, and they prompted him to incur the hazards which have been so injurious to him. In law, he cannot complain. We have nothing to add to the case of Cox, supra, but a reference to two additional cases fortifying it. The first is the case of Tarrant v. Webb, decided at

Steele et al. v. Biggs et al.

the Middlesex sittings at Trinity Term, 1857, and the other is Noyes v. Smith and Lee, 2 Williams' Ver. R. 59.

On this branch of the case, the Circuit Court should have refused the other instructions given for the defendant in error, numbered one, three, four and six, and should have given the first three instructions asked by the defendant.

It may be well to observe here, that the special plea of plaintiffs in error amounted to the general issue, and was demurrable for that cause. All the facts stated in it, could be given in evidence under the general issue, and that is the proper door to pass them through.

The judgment of the court below, for the reasons given, is reversed.

Judgment reversed.

GEORGE STEELE et al., Appellants, v. THOMAS R. BIGGS et al., 22 643

Appellees.

60a 24

APPEAL FROM COOK.

Time may be of the essence of a contract, and where that is made clearly to appear, the court will enforce a forfeiture, unless there are circumstances which will relieve against it.

A payment of a considerable part of the purchase money will not excuse the purchaser for non-performance.

In contracts for the sale of land to A. B., his representatives or assigns, a covenant for the payment of money, which is broken, is assignable after the breach, and may run with the land, so as to have a forfeiture declared, if the assignee is by the contract vested with the option of so doing.

A forfeiture may be produced by a reasonable notice of the intention to do so, if a strict performance is not made.

A simple inquiry, as to whether a party will take money, is not a tender. The money must be in the power or within immediate control of the party offering it.

THIS bill charges that Orrington Lunt, of Chicago, one of the defendants hereinafter named, was, on and before the 10th of March, 1853, seized of certain real estate, to wit: Lots 20, 21 and 22, in block 62, and lots 1, 2 and 3, in block 63, in the Illinois and Michigan Canal Trustees' subdivision of lots and blocks, in the W. part of the S. W. 1 of sec. 9, T. 39 N., of R. 14 E., old town of Chicago.

That said Lunt entered into an agreement with one George McCullough, of Cincinnati, for the sale thereof to him, which agreement was reduced to writing, and signed and sealed by

Steele et al. v. Biggs et al.

said Lunt and McCullough, and is to the effect as follows: Agreement made 10th March, 1853, between Orrington Lunt, of Chicago, and George McCullough, of Cincinnati, Ohio; that said Lunt, at the request of said McCullough, and in consideration of the money to be paid, and the covenants, as herein expressed, to be performed by said McCullough, agrees to sell to said McCullough all that certain parcel of land, situate in Chicago, described as follows, to wit: Lots 20, 21 and 22, block 62, and lots 1, 2 and 3, block 63, in the Illinois and Michigan Canal Trustees' subdivision of lots and blocks, in the W. part of the S. W. of sec. 9, T. 39 N., of R. 14 E., in old town of Chicago. Said McCullough agrees to pay to said Lunt $10,000 as follows, viz.: $2,500 at date, which is this day paid; $2,500 on March 10, 1854; $2,500 on March 10, 1855; and $2,500 on March 10, 1856; for which three last payments said McCullough has executed his notes of $2,500 each, with interest at six per cent. per annum, to be paid at Marine Bank, Chicago, and also that he will, in due season, pay all taxes and assessments for any purpose whatever, upon said premises.

And said Lunt further agrees with said McCullough, that upon the performance by said McCullough, of his undertakings in this behalf, and of the payment of principal and interest of the sums above mentioned, he, said Lunt, will, without delay, execute and deliver, in person, or by attorney, a good and sufficient deed or deeds to said McCullough, to the above described premises.

It is mutually covenanted and agreed between the parties hereto, that in case default is made in any of the payments of principal or interest at the times above specified, for payment thereof, and for sixty days thereafter, this agreement, and the provisions thereof, shall be null and void, at the option of said Lunt, his representatives or assigns, and all the payments which shall then have been made hereon, or in pursuance hereof, absolutely and forever forfeited to said Lunt, or at the election of said Lunt, his representatives or assigns, the covenants and liability of said McCullough, shall remain obligatory upon said McCullough, and may be enforced, and the said money, with the interest, be collected by proper proceedings at law or equity, from said McCullough, his executors, administrators or assigns.

It is further mutually covenanted by the parties, that in case of default in the payments aforesaid, by said McCullough, or any part thereof, and the election of said Lunt, his representatives or assigns, to consider the contract at an end, and prior payments forfeited, the said McCullough, his heirs, representatives or assigns, who may have possession, or the right of possession of said premises at the time, shall be considered the

Steele et al. v. Biggs et al.

tenant or tenants at will of said Lunt, his representatives or assigns, on a rent equal to ten per cent. per annum, on the whole purchase money above specified, payable quarterly from day of default.

And after such default, and election to consider the contract at an end, the said Lunt, his representatives or assigns, shall have all the powers and remedies provided by law or equity, to collect such rents, or to remove such tenants, the same as if the relation of landlord and tenant, hereby declared, were created by an original, absolute lease, for that sole purpose, on a specified rent, payable quarterly on a tenure at will, and in such case, such tenant or tenants shall pay all taxes and assessments which shall be laid on such premises during continuancy of such tenancy, and shall not commit or suffer any waste or damage to said premises, but will keep and deliver up, on termination of such tenancy, said premises in as good repair (ordinary wear and tear, and unavoidable injury by the elements excepted) as when such tenancy commenced.

Bill shows that said agreement was acknowledged by said Lunt and McCullough before Henry W. Clark, a notary public for Cook county, and a certificate of acknowledgment was thereto appended by said Clark, and said agreement was delivered to said McCullough, and that said agreement and said certificate were filed for record on the day of date of said agreement, in recorder's office of said county.

That said McCullough entered upon said real estate under said agreement; that he made the first and second payments thereon; that he paid taxes thereon; that on the 16th June, 1853, said McCullough entered into articles of agreement with Frederick Becker, of Chicago, in which, for a price therein named, he agreed to convey to said Becker the north twentyfive feet of said lots one, two and three, in block 63; that under said agreement said Becker immediately entered upon said premises, erected a store and made other valuable improvements thereon, and said McCullough occupied the remainder of said estate, until the transfer of said agreement from said Lunt, hereinafter mentioned.

That on the 17th July, said McCullough and Calvary Morris, composing the firm of McCullough, Morris & Co., made a general assignment of all their property, real and personal, owned by them as partners, to complainant, to be disposed of by him, for the benefit of creditors of said concern.

That the interest in said real estate, nominally vested in McCullough by virtue of said agreement, was really owned by said firm of McCullough, Morris & Co., and that by said assign