City of Pekin v. Newell.

the day above named the defendant received the plaintiff upon. said ferry and bridge, to cross the same with a horse, the property of said plaintiff, and received toll therefor; and if the jury shall further believe, from the evidence, that said bridge was not in good repair and safe for the passage of horses across the same, and that the plaintiff had not notice that said bridge was out of repair and unsafe, and that in attempting to cross same with his horse the said horse fell through said bridge and was killed, or so badly injured as to be rendered valueless or of little value to the plaintiff, because of the defective and unsafe condition of the said bridge and without any fault on the part of the plaintiff, the jury should find for the plaintiff, and allow him such damages as they shall believe, from the evidence, he has sustained thereby..

That whether the city had or had not sufficient legal authority to build and keep in repair said bridge, yet if it undertook so to do, and to invite travel across said bridge, it was bound to do its work well and make said bridge safe and sufficient for the purpose designed; and if the jury shall believe, from the evidence, that the city did build and undertook to keep in repair the said bridge, and did the work so defectively that the plaintiff sustained the damage complained of thereby, without any fault on his part, the jury should find for the plaintiff.

To the giving of which the defendant at the time excepted. The defendant then asked the court to give the jury the following instructions:

The court instructs the jury that the city council of the city of Pekin had no right to build the bridge in question, or to expend money to keep the same in repair, and that no acts in relation to the management and control of the same, of said city council, are binding upon the corporation, and that there being no authority on the part of the city to build said bridge, or to repair or keep the same in repair, the jury will find the defendant not guilty.

The court instructs the jury that there is no obligation upon the part of the city to repair the bridge in question, and they will find for the defendant.

Which the court refused to give, to which the defendant at the time excepted.

The plaintiff below recovered a judgment for $175 and costs. The defendant moved for a new trial, because the court gave improper instructions and refused proper instructions, admitted improper evidence, and there was no legal liability on the part of the city to repair. The motion was overruled, and an exception taken.

City of Pekin v. Newell.

JAMES ROBERTS, for Appellant.

J. K. COOPER, for Appellee.

CATON, C. J. By the law, the city of Pekin was authorized "to build and construct an embankment and plank road across the Illinois river bottom opposite said city." Under this authority the city constructed a pile bridge across the bottom in so careless a way that the horse of the plaintiff, when rightfully passing along the way, fell through and was killed. The city now says that it was only authorized to build an embankment and plankroad, and that in building this pile bridge it exceeded its authority, and hence it was not the act of the city, but only of its officers, who did it in the name of the city, and that the city is not responsible for the manner in which the work was done. This is an ungracious defense in every point of view, and is not supported by any legal principle. Had the city officers, acting in the name of the city, gone across the river into another county, and constructed this work without any authority of law to go there, then the cases cited would apply; but here the city was authorized to construct a road at the place where it constructed this road; and if it did not construct it in the mode prescribed by law, that increases rather than diminishes its liability. Suppose the law had in express terms authorized the construction of this road on a pile bridge, and provided that the piles should not be less than six feet apart, and they had been placed ten feet apart, or that oak piles were required, and basswood had been used, could this departure from the requirements of the law exonerate the city from liability for damages resulting from this very violation of the law? Had the road been built upon an embankment, and covered with plank, as the law seemed to contemplate, it is not likely that the plaintiff's horse would have fallen through it. Assuming that this road was not built in a manner contemplated by the law, (which is a question we do not decide,) and we think the liability of the city is quite as manifest as if the road had been built in every particular according to the law.

Some other minor questions were made in the case, which we have examined, but do not think necessary to discuss. The judgment must be affirmed.

Judgment affirmed.

Stephens, use of, etc., v. Thornton et al

HORACE A. STEPHENS, for the use of Joseph Hall, Plaintiff in Error, v. ARNOLD THORNTON, and NELSON DUGAN, Defendants in Error.

ERROR TO PUTNAM.

It is for the jury to decide whether an order on another person was taken for collection merely, or as payment, when the amount thereof should be collected. Whether an order was accepted in satisfaction of a debt, or in discharge of a demand against the party giving it, should be left to the jury. Unless the party was to be discharged, no new consideration was necessary to make the promise to pay the order binding.

THIS was an action of assumpsit. The declaration contained common counts, and three special counts on a bill of exchange, of date August 11, 1857, for $297.38, drawn by the defendant, as partners, upon James J. Todd & Co., to the order of plaintiff Stephens, payable on demand.

The defendants first demurred generally to the declaration, and then filed pleas as follows: 1st, The general issue; 2nd, Set-off; 3rd, Accord and satisfaction.

Issue was formed on the foregoing pleas.

Defendants also pleaded,

4th. That when the bill was presented to the drawees, they paid $150 thereon, and plaintiff agreed with them to give them further time of payment, and to take in payment of the balance, when he should demand the same, highwines at St. Louis prices, less the freight from Hennepin to St. Louis. The plea avers that the said drawees then agreed to pay said balance in highwines, at said prices, and that plaintiff never demanded the same.

5th. Same as in the 4th plea to the words "at said prices," with the additional allegation, that in pursuance of the agreement, plaintiff extended the time of payment to the drawees for a long space of time, viz., from the presentation of the bill ever since.

Before they assumed the above form, plaintiff demurred to said fourth and fifth pleas severally.

The demurrer was confessed, and leave given to amend said pleas, and they being amended so as to be as above, the demurrer before interposed was then overruled.

Leave was given to file several replications to said fourth and fifth pleas, which replications, as to the fourth plea, were as follows:

1st. Denied the alleged agreement with Todd & Co.

2nd.

Alleged that said supposed agreement was without any good or valuable consideration to plaintiff.

Stephens, use of, etc., v. Thornton et al.

3rd. That the said agreement, if any such there was, was made with the assent of defendants.

4th. That after the said agreement, and with full notice thereof, defendants promised to pay plaintiff the amount of the bill on request.

Said first two replications to the fourth plea were repeated as to the fifth plea.

The third replication to the fourth plea was repeated as to the fifth plea, with the addition that plaintiff demanded the highwines before the commencement of the suit, and Todd & Co. failed to deliver them.

The fourth replication to the fourth plea was repeated as to the fifth plea, with the omission of the words, "on request." The fifth replication to the fifth plea denied that the time of payment was extended to Todd & Co.

Similiter to first replication to 4th plea; also to 1st and 5th replications to 5th plea.

Defendants' demurrer to the 2nd, 3rd and 4th replications to each of the 4th and 5th pleas, was sustained, and plaintiff took leave to amend the 4th replication to the 4th plea, and the 3rd replication to the 5th plea, and they were amended so as to be as above, which being done, the rejoinders of defendants were as follows:

That defendants did not for a good or valuable consideration promise to pay the bill on request.

To the 3rd replication to the 5th plea: 1, That plaintiffs did not demand the highwines of Todd & Co., as alleged in the replication. 2, That no such agreement (with Todd & Co.) was made with the assent of defendants. 3, That defendants did not receive due and legal notice of such non-payment (by Todd & Co.)

The cause was tried at the March term, A. D. 1859, of the Putnam Circuit Court, before BALLOU, Judge, and a jury.

The plaintiff read in evidence the bill of exchange, which was accepted by Todd & Co., and credited with two payments, together amounting to $161.

He then called James M. Norton as a witness, who testified: That in the fall of 1857 he was in the employ of plaintiff, and went with him to Hennepin on the 13th of August, 1857, when he presented the order to Todd & Co., and they paid $150 on it, and said they might pay something more the next day; that the order was again presented to them the next day, and nothing more paid; that the next day afterwards, at plaintiff's request, he went to Magnolia, and notified defendant Dugan what had been done with respect to the order; that defendant Dugan being so notified, said it would be all right; that he

Stephens, use of, etc., v. Thornton et al.

would like to have plaintiff (Stephens) get the amount from Todd & Co. if he could, as Todd & Co. were owing defendants over $1,000; but that if Todd & Co. did not pay the order, defendants would when defendant Thornton returned from New York; that then they had to use all their money for the purchase of goods.

That soon after the return of Thornton from New York, and about three or four weeks after the giving of the order, witness, at request of plaintiff, went to get the balance on the order from defendants, and defendant Thornton said defendants had paid all their money on freights, but as soon as they could collect in some money they would pay the order, and that defendant Thornton spoke of going to see plaintiff to get him to collect the order from Todd & Co. if he could, as Todd & Co. were owing defendants a large amount. That he again saw Thornton in September, 1857, when Thornton asked him if Stephens had collected the order, and further said that defendants ought to have paid the order sometime before, but had been hard run.

That the order was given by defendants to plaintiff for a balance due on storage; that he retained it after seeing defendants at their request to see if he could get the money from Todd & Co., as defendants seemed anxious to have done.

That he thought he went twice to see Todd & Co. to get the amount of the order, (one of said times being a week or ten days after he first saw Dugan as aforesaid,) but failed to get the money.

That Todd & Co. had been owing Stephens on an account, which had been settled by giving highwines, and the balance on the highwines, supposed to be about $11, was a credit on the order.

The defendants then called James J. Todd, one of the drawees and acceptors, and he was sworn as a witness.

Plaintiff objected to his testimony being received, because of his being such drawee and acceptor, and not released by defendants from liability for costs. The court overruled the objection, and plaintiff excepted to the decision.

Todd thereupon testified that his firm (Todd & Co.) paid $150 on the order as credited, and Stephens called the next day, but got no money; that within some ten days after the giving of the order, Stephens came again for his pay, and then asked Todd & Co. to let him have highwines, and it was then agreed between witness and Stephens that Stephens would take the amount of his account against Todd & Co., and the balance of the order, in high wines, at St. Louis prices less the freight, the highwines to be shipped by Todd & Co. upon order of