Goeing v. Outhouse

Mr. Justice Sheldon delivered the opinion of the Court: "Volney Carter, in the spring of 1876, rented from appellants forty acres of land on which to raise corn, the rent to be one-fourth of the crop. On the 17th day of October, 1876, Carter having departed from the State, appellants issued their distress warrant against him for the rent alleged to be due, which was levied.upon the undivided three-fourths of the forty acres of corn. On the 8th of November, 1876, on trial had before a justice of the peace upon this distress proceeding, judgment was rendered . for the defendant, which, on appeal to the circuit court, was reversed, and a judgment was rendered in favor of appellants against Carter for $45 rent, and that they have execution against the property distrained for that sum and costs. In the meantime the appellees herein, claiming to have bought the corn levied upon by the distress warrant, had gathered and appropriated the same to their use. This suit was then instituted by appellants, against appellees, before a justice of the peace, to recover damages for the alleged wrongful taking of such corn'. From the judgment before the justice of the peace in favor of the defendants, an appeal was taken to the circuit court, where the judgment of the justice of the peace was affirmed, and a verdict and judgment were rendered in favor of the defendants, which, on appeal to the Appellate Court for the Fourth District, was affirmed, and the plaintiffs then appealed to this court. The controverted question of fact in the case as to the conversation, from which it is claimed there was a waiver of the lien, must be regarded as settled by the judgment of the Appellate Court in favor of the appellees. We can, then, only consider the questions of law involved which are raised on the instructions given by the court. The main error alleged in respect of instructions, is as to waiver of the lien. The court modified the first, second and third instructions asked by the appellants, that upon the case presented by the instructions the jury should find for appellants, by adding thereto the qualification, that “if the appellants had not waived their lien.” This modification is complained of as inapplicable; that upon any testimony there was in the case, there could not have been any waiver of the lien. One August Krug was appellants’ agent. There was testimony that one Roper bought Carter’s interest in the corn, and that Roper went to the house of Krug and told him that he, Roper, had bought Carter’s three-fourths interest in this corn, and Krug said that was all right, that he was satisfied; that he had settled with Carter, and that nothing was due except the one-fourth of the corn, and that he, Krug, was to gather that at his own expense. The point made is, that this conversation was after the purchase by Roper; that he did not change his situation and was not influenced thereby, and so no waiver could be predicated upon it. The evidence shows that Roper had not paid Carter for the corn at the time of this conversation, and it was testified that after this time Roper sold two-thirds of the corn to the appellees, Outhouse and Davidson, informing them of this conversation had with Krug, and from the money paid by Outhouse and Davidson Roper paid Carter for the purchase made from him. As testified to, we think it clearly a case where the doctrine of estoppel by conduct and a waiver would apply, and that there was no error in the modification of the instructions. Two of the instructions for appellees were to the effect, that if, before the commencement of the distress proceedings, appellants waived their lien upon the corn for rent, then they could not assert their lien for the rent as against appellees. The objection is taken to them, that even admitting their applicability in the case, the waiver, in respect of time, should not have been stated if made before the commencement of the distress proceedings, but should have been limited to having been made before the time of the purchase by Roper from Carter. But as the proof showed that the waiver relied upon was before Roper had made any payment to Carter for the corn, and before appellees had bought from Roper, the instructions, though they would have been more accurate in the form suggested, yet they could do no harm in the respect named, under the facts of the case. Objection is made to the giving of the following instruction for appellees: 1. “ If you believe, from the evidence, that August Krug has wilfully and knowingly sworn falsely as to any material point in controversy, then you may disregard his entire testimony.” This instruction was inaccurate without the modification that the witness was uncorroborated by other evidence. Yundt v. Hartrunft, 41 Ill. 10. The vital portion of Krug’s testimony was in regard to the alleged conversation had with him, from which a waiver of the lien was claimed, he denying the conversation as testified to by appellants’ witnesses. The only corroborative evidence in the case was that of his small boy, twelve years of age when he testified, and only nine years old when the conversation took place, and which he testifies to have been as related by his father. Under the circumstances, we can hardly think the inaccuracy in this instruction should be held sufficient error to reverse the judgment. The judgment will be affirmed. Judgment affirmed.