Opinion of the Court.

corrected. 1 Story's Eq. sec. 165; Mills et al. v. Lockwood, 42 Ill. 111; Wilson v. Byers et al. 77 id. 76.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, brought by the Sandoval Coal and Mining Company, against Samuel Ewing, to correct a mistake in a deed executed on the 6th day of November, 1877, by Samuel Ewing, to Ozias Townsend, in trust for the St. Louis and Sandoval Coal and Mining Company. The deed conveyed the exclusive right to mine and excavate for coal, and to remove the same under and beneath the east half of the north-west quarter of section 17, township 2, north of range 1, east of the third principal meridian, in Marion county, and it is alleged in the bill that it was the intention to convey the east half of the north-east quarter of section 17; that the scrivener by mistake inserted in the deed, "east half of the north-west quarter of section 17," when the grantor and grantee intended to insert in the deed, "east half of the north-east quarter of section 17." The defendant put in an answer to the bill, and the court, on the hearing, found that all the material allegations of the bill were sustained by the evidence, and rendered a decree as prayed for in the bill, to reverse which the defendant sued out this writ of error.

It is first contended that the decree is erroneous because the allegations and proofs do not agree. In proceedings in equity, as a general rule, the proofs and the allegations of the bill must correspond, and a party will not be entitled to relief, although the evidence may establish a clear case in his favor, unless there are averments in the bill to support the case made. (Morgan v. Smith, 11 Ill. 194.) But upon an examination of the allegations of the bill, and the evidence introduced in support of those allegations, we find no substantial variance upon any material averment. A mistake in the description of the land embraced in the deed is alleged,

Opinion of the Court.

and that is established by evidence. It does not militate against the decree that the mistake was established in part by parol evidence. Upon this point, Story, sec. 156, says: "We must therefore treat the cases in which equity affords relief, and allows parol evidence to vary and reform written contracts and instruments upon the ground of accident and mistake, as properly forming, like cases of fraud, exceptions to the general rule, which excludes parol evidence, and as standing in the same policy as the rule itself." A deed or other instrument of writing should not be reformed unless the evidence of mistake is clear and positive,—or as said by Story, sec. 157: "Relief will be granted in cases of written instruments only where there is a plain mistake, clearly made out by satisfactory proofs."

But it is said that the court erred in decreeing more relief than the allegations of the bill and prayer asked, in this, that the decree authorizes complainant to enter upon defendant's land and sink a coal shaft. The right to mine coal on the land was conveyed by the deed, and the right to go upon the land and dig for coal passed as an incident to the conveyance. We do not think it was necessary for complainant's bill to contain a special prayer for a decree authorizing him to go upon the land. That followed as a matter of course. When the mistake was corrected the deed conferred the right to go upon the land and mine the coal, as specified in the deed. But even if it was necessary for the complainant to pray for relief of this character, the prayer for general relief was all that was required.

In conclusion, we think the evidence fully sustains the decree, and we perceive no substantial error in the record. The decree of the circuit court will be affirmed.

Decree affirmed.

Syllabus.

110 294 26a 198

110 294 28a 149

110 294

129 156

129 383

110 294

31a 598!

110 294 38a 189 110 294 143 489 144 411 146 627 110 294

69a 182 110 294 82a 367 82a 373

110 294 192 4218 96a 2183 110 294 e19551 d195 53

110 294 d209 2309

110 294 113a 2234

CITY OF PEORIA et al.

v.

ROBERT SIMPSON.

Filed at Ottawa June 13, 1884.

1. NEGLIGENCE—due care on the part of the plaintiff. In an action on the case against a city and the owner of premises in the city, to recover for an injury received from a neglect to keep the sidewalk in front of the premises in repair, the court instructed the jury that "when a city is vested, under the provisions of its charter, with the charge of its streets, roads, alleys and sidewalks, said city is bound to see that the same are kept in a reasonably safe state of repair; and such city is liable to parties injured by its negligence in so doing:" Held, that the instruction lacked the essential qualification that the plaintiff was, at the time of the injury, observing that due care and caution for his personal safety a reasonable person would do under the same circumstances.

2. SAME of joint and several liability-distinction in this regard between a trespass and a neglect of duty. For separate acts of trespass separately done, or for positive acts negligently done, although a single injury is inflicted, the parties can not be jointly held liable to the party injured. If there is no concert of action, or no common intent, there is no joint liability. But a different principle applies when the injury is the result of a neglect to perform a common duty resting on two or more persons, although there may be no concert of action between them. In such cases the injured party may have his election to sue all parties owing the common duty, or each separately, treating the liability as joint or separate.

3.

SAME-in the case sidewalks are out of repair-liability of the city and of the private owner of adjacent premises. Where a duty rests upon both a city and the owner of premises within the city to keep the sidewalk in repair fronting the premises, and over an excavation, a failure to do so is a common neglect of duty, and both will be liable, either jointly or severally, to one injured in consequence of such neglect, who has himself exercised due care.

4. SAME-in the case of leased premises-liability as between landlord and tenant. The tenant in possession, and not the landlord, is responsible to third persons for injuries occasioned by a failure to keep the demised premises in repair, unless the owner has agreed to keep them in repair, or when the premises were let with the alleged nuisance upon them, in which case the owner, and not the tenant, is responsible for injuries caused by the

nuisance.

Brief for the City of Peoria.

5. INSTRUCTION—correcting an error in one by stating the true rule in another. The practice of giving an instruction which, standing alone, does not correctly state the law of the case upon the facts, and then giving a separate instruction which, if read with the other, would announce the true rule, is not to be commended, if it is not an error. It is better that each instruction should be as nearly accurate as it can be made, in itself.

6. SAME-directing the jury as to extent of finding of damages. In an action to recover damages for a personal injury alleged to have been occasioned by the negligence of the defendant, the court instructed the jury, for the plaintiff, that if they found, from the evidence, the plaintiff had established his case, and was entitled to a verdict for damages, then it became their "duty to fix such damages at the full sum that upon the whole evidence" should "prove to be just and reasonable:" Held, that the instruction was calculated to create in the minds of the jury the belief that it was their duty, in case they found for the plaintiff, to fix his damages at the highest possible amount the evidence would justify, and that it was error to tell the jury, as a matter of law, that such was their duty.

7. SAME-suggesting what influences ought not to control as to extent of damages. In an action on the case against a city and another party, the court, in an instruction, told the jury that in forming an estimate of the damages sustained by the plaintiff, they had no right and should not permit themselves to be influenced by any consideration of what effect their verdict might have upon taxation in the case of the city, or upon his financial condition in the case of the other defendant: Held, that this was in no sense submitting a proposition of law to the jury, applicable to the facts, but a mere suggestion to them, which the court had no right to make.

APPEAL from the Appellate Court for the Second District;heard in that court on appeal from the Circuit Court of Peoria county; the Hon. NINIAN M. LAWS, Judge, presiding.

Mr. GEORGE A. WILSON, for the city of Peoria:

Plaintiff's ninth instruction is bad beyond question. It plainly tells the jury that no matter how negligent the injured party may have been, the city is liable to him in any event. Lovenguth v. Bloomington, 71 Ill. 238; Village of Kewanee v. Depew, 80 id. 109; Armour v. McFadden, 9 Bradw. 508; City of Chicago v. Watson, 6 id. 349.

The sixteenth instruction is erroneous in telling the jury that if they found for the plaintiff it was their duty to fix his

Brief for the Appellant Densberger.

damages at the full sum the whole evidence proved to be just and reasonable. We deny that any court can instruct a jury to fix the damages at the full sum, etc. Chicago and Northwestern Ry. Co. v. Chisholm, 79 Ill. 583.

The ninth instruction should have been modified as follows, viz: "This is the law if the parties injured were at the time exercising reasonable care and prudence to avoid injury." City of Chicago v. McGiven, 78 Ill. 347; Litchfield Coal Co. v. Taylor, 81 id. 590; City of Chicago v. Bixby, 84 id. 82.

A correct instruction given for one side will not obviate an error in an instruction on the other side. Illinois Linen Co. v. Hough, 91 Ill. 63; Quinn v. Donovan, 85 id. 194.

Messrs. JACK & MOORE, for the appellant Densberger:

As a general rule the tenant in possession, and not the owner, is responsible for injuries received in consequence of a failure to keep the premises occupied, in repair. Gridley v. Bloomington, 68 Ill. 47; Union Brass Manf. Co. v. Lindsay, 10 Bradw. 583; Fisher v. Thirkell, 21 Mich. 1; City of Lowell v. Spaulding, 4 Cush. 237; Milford v. Holbrook, 9 Allen, 17; Leonard v. Storer, 115 Mass. 86; Shipley v. Fifty Associates, 101 id. 251; Irvine v. Wood, 51 N. Y. 224; Bears v. Ambler, 9 Barr, 153; Painter v. Pittsburg, 46 Pa. 213; Clark v. Fry, 8 Ohio St. 358; Shindlebeck v. Moore, 32 id. 264; Payne v. Rogers, 2 H. Blackf. 350; Roswell v. Price, 12 Mod. 635; Rich v. Basterfield, 4 Com. B. 783; Russell v. Shenton, 4 Eng. C. L. 449; Bishop v. Bradford, 1 E. & E. 697; Hadley v. Taylor, L. R. 1 C. P. 53.

To this rule there are two exceptions: First, when the landlord has, by express agreement, covenanted to make repairs; and second, when the premises have been let with a nuisance on them.

When there is no agreement as to who shall make repairs the burden is thrown on the tenant. Gridley v. Bloomington, 68 Ill. 47; Gott v. Gandy, 22 Eng. L. & E. 173; Leavitt v.