Opinion of the Court.

wholesale millinery goods business in the city of Chicago before the first day of July, 1870, for himself, or for any person or persons with whom he might have a joint interest. Nothing could be clearer than that these two instruments relate to the same subject. Both are, therefore, to be regarded as one contract, the same as if embodied in one instrument. It is complete in itself, and the construction of it devolved upon the court, for which purpose recourse might be had to the surrounding circumstances to show the kind of business in which they had been engaged, but not to negotiations or conversations prior to, or cotemporaneous with, its execution. These were all merged in the written contract, which must be presumed to embrace all that was intended by the parties. The consideration appears upon the face of the agreement, so that the admission of such parol evidence can be justified upon no such ground, as showing the consideration.

Evidence was given tending to show that Webster, before the 1st of July, 1870, became in some way connected with a firm engaged in the wholesale millinery business, under the name of Webster Bros., near the place of business of appellee. Whether such connection was that of a member of the firm, or as being jointly interested in it, or that of a mere clerk, was the principal question of fact to be passed upon by the jury.

Appellee's evidence tended to show that he had frequently held himself out as a member of the firm; while appellant's tended to show that he was a mere employee or clerk, and had no joint interest in the business, as partner or otherwise.

This is not like the kind of case where a party holding himself out as member of a firm will be held conclusively bound as to all persons dealing with the firm on the faith of such appearances. But in order to constitute a breach of the contract in question, and a forfeiture of the $2000, it was incumbent upon the appellee to show, by a preponderance of evidence, that Webster was, in point of fact, engaged in buying or selling goods in the line of the wholesale millinery goods business

Opinion of the Court.

at the place and before the time mentioned in the agreement, for himself or for some other person or persons with whom he had a joint interest. If he was not buying or selling for himself, or the firm of Webster Bros., he having a joint interest with them in the business as proprietor, but was acting in the capacity of clerk or employee, then, no matter how he held himself out, his acts would not constitute a breach of the contract, nor the forfeiture follow. The court must enforce the contract as the parties have made it.

The court was requested by appellant's counsel to instruct the jury that, even if they should believe from the evidence that Daniel Webster had called himself a member of the firm of Webster Bros., that that will not defeat the plaintiff's recovery, unless he, in fact, was owner or part owner, or that he was interested in the firm as stated in the contract. The question is, did he in fact have an interest in the business of the firm?

That it was not enough to defeat the action for Daniel Webster to hold himself out as a member of the firm of Webster Bros., unless he, in fact, was such member of the firm, with an interest in it, even if he did hold himself out as such member of the firm.

These instructions were both refused, and exception taken. We think they were based upon a correct construction of the contract, and should have been given.

For the errors indicated, the judgment of the court below must be reversed and the cause remanded.

Judgment reversed.

1. PLEA-justification-condemnation of right of way. A plea to an action of trespass, justifying the entry on the land by a railroad company under proceedings to condemn the right of way, in which notice was not given to the owner, is insufficient to bar the action. A party must have notice of such a proceeding before he can be deprived of his property. It is required by the statute. Whether the proceedings were instituted under the act of 1845 or that of 1852, the notice is equally required. Such a notice is indispensable independent of statutory requirement.

2. CONDEMNATION OF RIGHT OF WAY. The act of 1845, entitled "Right of Way," was in force notwithstanding the act of 1852, on the same subject, so far as it is not repugnant to the latter act, and it has been so recognized by repeated decisions and by legislative enactment. The general railway law of 1849 did not affect the act of 1845. The 19th section of that act was intended to reserve the power in the legislature to fix the route and termini of all roads organized under its provisions, and not to repeal the law of 1845.

APPEAL from the Circuit Court of Henry county; the Hon. GEORGE W. PLEASANTS, Judge, presiding.

Mr. O. E. PAGE, for the appellant.

Messrs. BENNETT & VEEDER, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

This was an action of trespass against the railroad company. The defendant justified under its charter and the act of 1845, entitled "Right of Way." The only averment in the plea as to notice to the party whose land was condemned, was this: "The defendant avers that said plaintiff was present with said commissioners before their report was signed, and had an opportunity to be heard upon his claim for damages."

Opinion of the Court.

The questions are, as to the sufficiency of the plea, the repeal of the act of 1845 by the act of June 22d, 1852, and the construction and effect of the latter act.

There is no sufficient averment of notice. The party whose land is to be taken has the right to reasonable notice of the time and place when and where application will be made for the appointment of the persons who are to assess the damages. For aught that is stated in the plea, he may have known nothing as to the appointment of the commissioners, or of their action, until the assessment of the damages.

But it is contended that the condemnation proceedings, which constituted the justification, were instituted under the law of 1845, and that it did not, in terms, require any notice. There can scarcely be a doubt that the legislature intended that notice should be given under that act.

The first section provides that, when the road shall be required to pass over the land of any person, and the owner shall object, or there is disagreement as to the amount of damages, then the application shall be made to the justice of the peace. This presupposes a notice. There could be no difference as to the amount of damages, and the owner could make no objection to the proceeding, when no notice had been given.

In Gilbert v. Columbia Turnpike Co., 3 Johns. Cases, 107, where a statute, similar to ours, except that it required notice, was under consideration, the court held that, in such cases, which so materially interfere with private rights, it must appear that there was a disagreement between the parties, before the application can be made for the appointment of commissioners.

In

On an appeal from the decision of the commissioners of highways, relative to laying out, altering, etc., a highway, the act did not require any notice, and none had been given. such case, the court held that a notice of the appeal was indispensable, though the act did not direct that it should be given. Commissioners of Highways v. Claire, 15 Johns. 537.

Opinion of the Court.

Section four of the act of 1845 provides that either party may appeal to the circuit court within the time and under the rules and regulations as are prescribed by law for taking appeals from the judgments of justices of the peace.

It is beyond the ability of any ordinary mind to comprehend any benefit which might result from the right to appeal from an assessment, of which the party had never heard. If no notice is required, the grant of the appeal is the merest mockery. The legislature never intended that the right of appeal should be a delusion, as it inevitably must be in numerous instances, if no notice is given.

But if no notice is required by the act of 1845, upon a fair construction of it, still the railroad company was enjoined, by the act of 1852, to give notice to the owner of the land of the commencement of the proceedings to condemn.

In Austin v. Belleville & Illinoistown Railroad Co., 19 Ill. 310, the acts of 1845 and of 1852 were held to be general laws, and in force.

In Taylor v. Pettijohn, 24 Ill. 312, it was held that the portions of the act of 1845, which were not clearly repugnant to the act of 1852, were in force.

In St. Louis, Jacksonville & Chicago Railroad.Co. v. Mitchell, 47 Ill. 165, the proceedings to condemn were instituted under the act of 1845.

The act of 1845 has so often been recognized, since the enactment of 1852, that the validity of the former can not be regarded as an open question in this court.

The legislature has also repeatedly recognized the validity of the act of 1845. The act of 1852 contains no express repeal of it, but is amendatory of it. The title is, "An act to amend the law condemning the right of way for purposes of internal improvement." Sess. Laws of 1852, 146.

In 1869 it was enacted that the provisions of both acts should apply to all proceedings for the condemnation of lands. Sess. Laws 1869, 373.