author: Mr. Justice McGuorty

text:
    Carl Hansen, Plaintiff in Error, v. David A. Stein, David B. Falter and Louis H. Kohn, survivors of Max Ederheimer, lately trading as Ederheimer, Stein & Company, Defendants in Error.
    Gen. No. 21,570.
    1. Landlord and tenant, § 95

      —who are tenants from month to month. Tenants of a building pending negotiation for a lease for years, rental payable monthly, held tenants from month to month, and liable for use and occupation.
    2. Evidence, § 44*—presumption as to repair and improvement of premises for tenant’s own benefit. A tenant is presumed to repair and improve the premises for his own benefit.
    3. Landlord and tenant, § 223*—when landlord not liable for improvements. In an action for use and occupation, held that the defendants could not counterclaim for the value of improvements placed on the premises by them where they did not contend that the landlord did anything more than assent to the improvements nor that they were to the betterment of the premises.
    4. Landlord and tenant, § 456*—when right of abandonment waived. Where tenants continued two months in possession of premises after the refusal of the landlord to execute a lease in writing, as the tenants claimed he had promised to do, held that though such refusal be regarded as a constructive eviction, the tenants’ remaining in possession amounted to a waiver of the right of abandonment.
    5. Landlord and tenant, § 223*—when landlord not liable for improvements. In an action for use and occupation of premises, held that the tenants could not counterclaim for damages for the value of improvements placed on the premises by them on their own initiative where they remained in possession of the premises two months after the landlord had refused to execute a written lease in accordance with his alleged promise to do so.
    6. Appeal and error—when presentation of propositions of law not necessary for purpose of review. The presentation to the trial court of propositions of law is not necessary in order to permit the Appellate Court to determine whether or not evidence presented tends to support a cause of action.
    7. Assumpsit, Action of—what is measure of damages for use and occupation of premises. The measure of damages for use and occupation of premises is the reasonable rental value thereof.

      Error to the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment here with finding of fact.
    Opinion filed October 10, 1916.
    Walther & Lanaghen, for plaintiff in error; Walter S. Hull, of counsel.
    Silber, Isaacs, Silber & Woley, for defendants in error.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McGuorty

delivered the opinion of the court.

Plaintiff in error brought suit against defendants in error for $500 for use and occupancy of certain premises. Defendants in error, in addition to an affidavit of merits, filed a set-off alleging, in substance, that because of plaintiff’s wrongful refusal (a) to execute and deliver a lease to defendants, (b) to accept payment of rent tendered by defendants and (c) to recognize the relationship of landlord and tenant as existing between them, defendants were compelled to move from the premises in question and thereby suffered loss and damage in the sum of $999, by reason of moneys expended by defendants in fitting up said premises for use as a tailor shop. Trial by jury was waived, resulting in a finding of the issues in favor of defendants and judgment for $46 on defendants’ set-off. Plaintiff contends that the judgment of the court below should be reversed and judgment entered here in favor of plaintiff for $500.

The principal question for our determination is, does the evidence in support of defendants’ counterclaim or set-off for damages support a cause of action? It is admitted that defendants entered into possession of said premises and made repairs or changes therein, with the consent of plaintiff, and under a verbal agreement with him for a written lease of said premises for a period of three years, at $125 per month, commencing May 1, 1913.

On June 5, 1913, in pursuance to such verbal agreement, plaintiff submitted to defendants a written form of lease, therein limiting the use of said premises to a tailor shop. Defendants did not sign such lease, hut presented to plaintiff a form of lease prepared by them, which provided that said premises might be used for any lawful purpose. Plaintiff refused to sign such lease, and, on June 24, 1913, a third form of lease was submitted by defendants to plaintiff containing modified provisions as to the use of the premises and other covenants contained in the original lease prepared by plaintiff, which modifications, the evidence tends to show, were verbally agreed upon by and between the respective. parties. The plaintiff, however, refused either to sign such lease or to accept tender of payment of rent made by defendants, in accordance with said verbal agreement. Defendants continued in possession until August 30, 1913, when they vacated said premises.

During June, 1913, while the defendants were engaged in fitting said premises for their use, plaintiff demanded that certain electrical equipment installed in said premises by nonunion workmen employed by defendants be torn out, or that defendants pay $100 in settlement of labor troubles that ensued (including a strike) in the building in question. Defendants refused to accede to either of plaintiff’s said demands, and the evidence tends to show that because of such refusal, plaintiff refused to execute the written lease to defendants, last referred to.

Pending negotiations for a written lease, defendants were only tenants from month to month and liable to plaintiff for rent for use and occupancy of said premises.

“The rule is well settled that the wrongful act of the landlord does not debar him from a recovery of rent, unless the tenant by such act has been deprived in whole or in part of the possession, either actually or constructively, or the premises rendered useless.” Rubens v. Rill, 213 Ill. 523-543.

There was no meeting of the minds of the parties at any time as to remunerating defendants for the changes or repairs made by them on said premises during their occupancy thereof. It is a well-settled rule of law that:

“A landlord is not liable to his tenant for the value of improvements voluntarily made by the latter, in the absence of an agreement creating such liability; the tenant’s right extending no further than that of removal of them before the expiration of his term.” 24 Cyc. 1104. Bedford v. Bedford, 136 Ill. 354-362.

The tenant is presumed to repair and improve for his own benefit. Gocio v. Day, 51 Ark. 46.

It has been held that a special promise may be implied from conduct, and that if the landlord leads the tenant' to believe that the value of the improvements he may thereafter put upon the premises will be deducted from the rent, a contract to do so may be implied. Dunn v. Bagby, 88 N. C. 91. It has also been held that if improvements are made with the assent of the landlord, and for l%is benefit, the law will imply an obligation,to pay for them.

“Merely standing by without objecting will not suffice; there must be some act and encouragement from the landlord, to entitle the tenant to charge the landlord.” Cornell v. Vanartsdalen, 4 Pa. St. 364-373.

It is not contended here that the plaintiff did more than assent to the changes made in said premises by defendants, nor that such changes were to the betterment of said premises. In Yates v. Bachley, 33 Wis. 185, the judgment of the' County Court was reversed because the judge instructed the jury that if there was an agreement for a lease for a term of years, under which the defendant went into possession of the premises, and if the plaintiff refused to execute such lease, the defendant might recover the value of such improvements on the faith of such agreement. The Supreme Court held that the mere refusal to execute the lease was not alone sufficient, and that no recovery could be had for the improvements unless the defendant had been evicted from the premises.

In the instant case the defendants continued in possession nearly two months following plaintiff’s refusal to execute the written lease last submitted to him by defendants. Even if such refusal on the part of plaintiff should be regarded as a constructive eviction, as contended by defendants’ counsel, the possession retained by defendants after such alleged eviction constituted a waiver of the right of abandonment. Barrett v. Boddie, 158 Ill. 479. No constructive eviction exists without surrender of possession. Leiferman v. Osten, 167 Ill. 93.

We are of opinion that defendants’ counterclaim for damages does not constitute a cause of action and that the evidence in support thereof was improperly admitted. No propositions of law were presented to the trial court, and none are necessary to permit this court to determine whether or not the evidence presented tends to support a cause of action. Under the evidence the plaintiff is entitled to recover from defendants the reasonable rental value of the premises in question during the period of defendants’ use and occupancy thereof, viz., June, July and August, respectively, 1913: There is evidence tending to show that such reasonable rental value is $125 per month, which was the sum agreed upon by the parties, and tendered to plaintiff by defendants, under their agreement for a written lease. The finding and judgment of the Municipal Court is reversed, with a finding of the issues and judgment here in favor of plaintiff in the sum of $375.

Judgment reversed and judgment here with finding of fact.

Finding of fact. We find that there was no agreement, express or implied, on the part of plaintiff in error to pay defendants in error for expenditures in way of repair of the premises in question, and no binding written contract for a lease of said premises, and that the reasonable rental value thereof for the time they were occupied by defendants in error is $375.


source: Caselaw Access Project

author: Mr. Justice McGoorty

license: Public Domain

text:
    Complete Artificial Stone Company, Defendant in Error, v. Angeline Dyniewicz and Casimir W. Dyniewicz, Plaintiffs in Error.
    Gen. No. 21,582.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by the Complete Artificial Stone Company, a corporation, plaintiff, against Angeline Dyniewicz and Casimir W. Dyniewicz, defendants. To review a judgment for plaintiff, defendants prosecute a writ of error.
    Alphonse Lefkow, for plaintiffs in error.
    Roscoe L. Roberts, for defendant in error.
   Mr. Justice McGoorty

delivered the opinion of the court.

Abstract of the Decision.

Venue, § 10*—when motion for change of erroneously refused. The Refusal of the trial court to grant the defendants’ motion for a change of venue, held reversible error under the ruling in Feigen v. Shaeffer, 256 Ill. 493.


text:
    First National Bank of Allegan, Michigan, Defendant in Error, v. Chicago Sanitary Rag Company, Plaintiff in Error.
    Gen. No. 21,601.
    (Not to be reported in full.)
    Abstract of the Decision.
    Continuance, § 66

      —when refusal of motion for on ground of absence of material witness is harmless error. Refusal of the trial court to grant the defendant’s motion for a continuance on the ground oí the absence of a material witness, held not reversible error where the affidavit filed in support of the motion, though setting forth that the witness was an important witness for the defendant, that it had a good defense to the action as set forth in the affidavit of merits, that the witness could substantiate the allegations therein if he were present and that without his presence the defendant would be greatly prejudiced, did not set forth the particular facts to which such witness would testify if present at the trial, and did not show diligence on the part of the defendant to procure the attendance of such witness.

      Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by the First National Bank of Allegan, Michigan, plaintiff, against the Chicago Sanitary Bag Company, a corporation, defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Benjamin P. Ruekberg, for plaintiff in error.
    Musgrave, Oppenheim & Lee, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    Michael Kramp et al., Plaintiffs in Error, v. Louis Thexton et al., Defendants in Error.
    Gen. No. 21,673.
    (Not to he reported in full.)
    Error to the Superior Court of Cook county; the Hon. William Fenimoke Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Suit by Michael Kramp et al., complainants, against Louis Thexton et al., defendants, to foreclose a'mortgage. To review an order setting aside a personal deficiency decree . entered against Louis Thexton, the complainants prosecute a writ of error.
    This case was before the Appellate Court on a former- appeal in Kramp v. Kramp, 185 Ill. App. 464, wherein a decree, ordering that certain premises in which Louis Thexton owned the equity be sold subject to a first mortgage to pay a second mortgage, was affirmed. After sale of the premises an order was entered in the Superior Court approving the sale, and a personal deficiency judgment was entered against Louis Thexton and the one who had executed the second mortgage. On motion by Louis Thexton an order was entered by another judge of the Superior Court, modifying the decree by setting it aside so far as it made Louis Thexton liable for the deficiency. To review that order the complainants prosecute this writ of error.
    Abstract of the Decision.
    1. Courts—when Superior Court power to vacate order or decree. The Superior Court has the discretionary power at any time during the term at which an order or decree in a cause has heen entered, whether it be interlocutory or final, to vacate and set it aside for such cause as may be necessary to promote justice.
    2. Courts—when judge of Superior Court power to set aside judgment entered by another judge. A judge of the Superior Court has the power in a proper case to set aside a personal deficiency judgment entered in foreclosure proceedings by another judge of the same court during the same term at which the motion therefor is made.
    3. Mortgages, § 635

      —when personal deficiency decree properly set aside. Where the record in a foreclosure suit showed that one against whom a personal deficiency decree had been' entered had taken the real estate in question subject to incumbrances and had not assumed them, there being no allegations in the bill of complaint and no finding prior to the decree of sale of any personal liability on his part, held that the decree was properly set aside on his motion.
    Hamlin & Topliff, for plaintiffs in error.
    Harvey Strickler, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McGoorty

delivered the opinion of the court.


author: Mr. Justice McGoortt

text:
    The Stag Company, Plaintiff in Error, v. Union Bank of Chicago, Defendant in Error.
    Gen. No. 21,688.
    (Not to be reported in full;).
    Abstract of the Decision.
    Banks and banking, § 140

      —when bank liable to drawer for payment before due of postdated cheek. Where the drawer of a postdated check notified the hank on which it was drawn before the day of its date not to pay it but the hank had already paid it, held that the drawer could recover the full amount of the check from the bank, though the drawer admitted that it had received goods and money from the payee, who had cashed the check, which it had applied in payment of the payee’s general indebtedness to it, the bank not contending that the payee, on making the payment, had directed the drawer as to the manner in which the payment should be applied on his indebtedness.
    Error to the Municipal Court of Chicago; the Hon. D. H. Wamsley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by the Stag Company, a corporation, plaintiff, against the Union Bank of Chicago, a corporation, defendant, to recover the amount of a postdated check drawn by the plaintiff on the defendant and paid by the latter before the day of its date and before notice to stop payment given before the day of its date. To review a judgment for a part of the amount claimed, plaintiff prosecutes a writ of error.
    Meter Morton, for plaintiff in error.
    Christian C. H. Zillman, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McGoortt

delivered the opinion of the court.


text:
    Stanley Dranicki, Defendant in Error, v. Julian B. Oglozinski, Plaintiff in Error.
    Gen. No. 21,706.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court op Chicago, § 31

      —when judgment affirmed on appeal. Where the record on appeal contained no bill of exceptions or stenographic report, but merely contained what purported to be a statement of facts which was so incomplete and insufficient as not to enable the court to say that a verdict for the plaintiff was against the manifest weight of the evidence, the judgment was affirmed.
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Stanley Dranicki, plaintiff, against Julian B. Oglozinski, defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Myer H. Gladstone, for plaintiff in error.
    George M. Weichelt, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McGoorty

delivered the opinion of the court.


author: Mr. Presiding Justice O’Connor

text:
    H. and A. Israelstam, trading as Grant Works Fair, Appellees, v. United States Casualty Company, Appellant.
    Gen. No. 20,862.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 878

      —When question of insufficiency of evidence to sustain judgment may not he raised on appeal. The contention that the evidence was insufficient to support the amount of a judgment cannot be raised for the first time in the appellant’s reply brief.
    2. Insurance, § 704*—when judgment will not he set aside on appeal as unsupported by evidence. In an action on a policy of burglary insurance, providing that there could be no recovery for loss if the accounts and records of the assured were not so kept that the actual loss could he accurately determined therefrom, held that the Appellate Court could not say that the finding of the trial court that the loss could he determined from the accounts and records was not supported by evidence which tended to show that the plaintiffs kept a ledger, cashbook, checkbook, invoices, sales slips and an inventory, the latter being made up some- months before the loss, and including testimony of one of the plaintiffs that from these the amount of the loss could be determined, where the inventory, invoices, sales slips and checkbook were not preserved in the record.

      Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 18, 1916.
    Rehearing denied November 3, 1916.
    Statement of the Case.
    Action by H. and A. Israelstam, copartners, trading as Grant Works Fair, plaintiffs, against the United States Casualty Company, a corporation, defendant, on a policy of burglary insurance. From a judgment for plaintiffs, defendant appeals.
    Moses, Rosenthal & Kennedy, for appellant; Walter Bachrach, of counsel.
    Rose, Symmes & Kirkland and John L. Fogle, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

3. Insurance, § 287 —what is purpose of condition in policy for keeping of accounts. On an appeal by an insurer from a judgment for a loss entered in favor of the insured under a policy of burglary insurance, providing that there could be no recovery for loss if the accounts and records of the insured were not so kept that the actual loss could be accurately determined therefrom, held that the judgment would not be reversed on the ground that the condition in respect to the keeping of accounts had not been fulfilled by the insured where it was not claimed that the judgment did not represent the amount of the loss, as such condition was merely intended to protect the insurer against an excessive claim.


text:
    John Sullivan and Margaret Sullivan, Appellees, v. Catholic Order of Foresters, Appellant.
    Gen. No. 21,360.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance—when evidence sufficient to show erroneous recording of true answer by examining physician. In an action on a benefit certificate issued by a fraternal insurance society, where the defense was that a warranted answer to a question in the application, as to whether the insured had within a certain time sought medical advice, was false, and it was contended by the plaintiffs that the applicant had given a true answer but that the defendant’s examining physician had erroneously recorded it, held that the court' could not say that a judgment for the plaintiffs was manifestly against the weight of the evidence.
    Appeal from the Superior Court of Cook county; the Hon. Clinton F. Ibwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed October 18, 1916.
    Rehearing denied October 30, 1916.
    Statement of the Case.
    Action by John Sullivan and Margaret Sulliyan, plaintiffs, against the Catholic Order of Foresters, defendant, on a benefit certificate issued by the defendant insuring the life of the plaintiffs’ son. From a judgment for plaintiffs, defendant appeals.
    Edmund S. Cummings, for appellant.
    Quin O’Brien, for appellees; Munson T. Case, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

2. Insurance, § 761 —when error of examining physician in recording true answer will not defeat recovery. In an action on a benefit certificate issued by a fraternal insurance society where the defense was that a warranted answer to a question in the application, as to whether the insured had within a certain time sought medical advice, was false, held that if the question had been truthfully answered but the defendant’s examining physician had made a mistake in writing it down, a recovery on the certificate would not thereby be defeated.


text:
    G. N. Nelson, Appellee, v. The Hemlandet Company, Appellant.
    Gen. No. 21,370.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed October 18, 1916.
    Statement of the Case.
    Action by CL N. Nelson, plaintiff, against the Hem-1 anclet Company, defendant, to recover damages for the breach of a contract of employment of the plaintiff by the defendant. From a judgment for plaintiff, defendant appeals.
    O. D. Olson, for appellant.
    Brothers & Mills, for appellee; Elmer D. Brothers, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and fraction number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 50 —when evidence sufficient to show wrongful discharge of servant. In an action to recover damages for the breach of a contract of employment of the plaintiff by the defendant, where the latter contended that the plaintiff was rightfully discharged on account of incompetency, inefficiency and indolence, held that a verdict for the plaintiff was not manifestly against the weight of evidence.

2. Master and servant, § 42*—when action lies for breach of contract of employment. In an action to recover damages for the breach of a contract of employment of the plaintiff by the defendant, held that the defendant’s contention that the action was to recover salary and commissions, on the theory that the contract was still in force, was untenable, the action being one for breach of contract.

3. Master and servant, § 52*—what is measure of damages of for breach of contract 'of employment. In an action for damages for breach of a contract of employment by an employer, both damages already accrued and that might thereafter accrue up to the time of the trial may be recovered.


text:
    Mary Kaber, Administratrix, Appellee, v. Harriet B. Borland, Appellant.
    Gen. No. 21,377.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.. Heard in the Branch Appellate Court at the March term, 1915. Certiorari denied by Supreme Court (making opinion final).
    Reversed, with finding of fact.
    Opinion filed October 18, 1916.
    Statement of the Case.
    Action by Mary Kaber, administratrix of the estate of Frank Kaber, deceased, plaintiff, against Harriet B. Borland, defendant, to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the defendant’s negligence. From a judgment for plaintiff, defendant appeals.
    The evidence tended to show that the deceased was a bright boy between fourteen and fifteen years of age; that defendant owned and maintained a building in Chicago, which was nine stories in height and occupied by ten or twelve tenants. The deceased was employed as a delivery boy for one of the tenants occupying the fourth floor of the building. The rear of the building faced an alley, and extending along the rear of the building was a platform about three and one-half feet wide and four feet high. A freight elevator, which was used by the various tenants and was operated and controlled by defendant, opened on this platform. This opening into the elevator shaft was about seven and one-half feet wide and was closed by two iron doors extending horizontally across the same. The doors operated up and down, coming together in the middle. By pushing the lower door down the upper door would rise. These doors were fastened together on the inside by rods or latches, and could not be opened from the outside except by pressure in the center, which would release the rods or latches. From the platform on the outside, the position of the elevator could not be ascertained except by opening the doors and looking up or down the shaft. There was a push button at the side of the opening which operated a signal or buzzer inside of the elevator, and served to notify the operator that the elevator was wanted at the platform.
    The deceased had been in the employ of one of the tenants on the fourth floor for two or three weeks prior to the accident, and had ridden up and down in the elevator in the performance of his duties several times each day. Just prior do the accident he went down on the elevator with a delivery cart to the platform. Afterwards he returned with some castings on the cart. The elevator stopped at the platform hut he was unable to get in on account of its being loaded. The doors were closed and the elevator ascended to the seventh floor. The signal then indicated to the operator that the elevator was wanted at the fourth floor and also in the basement, which was some eighteen feet below the platform or first floor. The deceased, who was waiting on the platform for the car, stuck his head between the doors, into the elevator shaft, and as he did so the car descending struck his head, and he was killed instantly. There was testimony by a witness who was in the basement of the bottom of the elevator shaft, to the effect that he saw the doors opening on the platform and the deceased put his head through the opening in the doors and look up in the elevator shaft; that before he could warn the deceased of his danger he was struck by the car.
    Abstract of the Decision.
    1. Elevators, § 21

      —when boy opening door to elevator shaft guilty of contributory negligence. In an action for the death of a fourteen-year-old boy, resulting from his being struck on the head by a descending freight elevator, after he had opened, from the outside, a door to the elevator shaft and looked in, with the object of ascertaining the position of the elevator, where the undisputed evidence showed that the elevator was in charge of an operator, that the door was not intended to be opened from the outside and that a push button was placed outside the door for the purpose of signaling the operator, held that the deceased wag not in the exercise of ordinary care for his own safety and that no recovery could he had, there being no claim of wanton and wilful negligence on the part of the defendant, the owner of the building.

      The evidence also tended to show that the latches or rods fastening the two doors together were out of repair and out of position; that when the latches or rods were in position the doors remained closed unless forced apart.
    Ralph F. Potter, for appellant; Wilkerson, Cassels & Potter, of counsel.
    P. R. Boylan and H. R. Lloyd, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same-topic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

2. Elevators, § 13 —what is effect of violation of ordinance by owner of building. In an action for death of a prospective passenger on an elevator, who, having opened the door of the shaft and looked in so as to ascertain the position of the elevator, was thereupon struck on the head by it and killed, held that the deceased’s lack of care for his own safety would bar a recovery, though the defendant had violated an ordinance in not keeping the door in repair, so that it could not be opened from the outside, wilful and wanton negligence on the part of the defendant not being alleged.


text:
    Ella Miller, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 21,102.
    (Not to Tbe reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded with directions.
    Opinion filed October 18, 1916.
    Statement of the Case.
    Proceedings under the Workmen’s Compensation Act, instituted by Ella Miller, administratrix of the estate of James H. Miller, deceased, complainant, against the Illinois Central Railroad Company, respondent, to recover for the death of the plaintiff’s intestate, claimed to have been killed by being struck by the respondent’s train. To review proceedings before the Industrial Board, wherein an award was made to the claimant, the respondent brought the record to the Circuit Court of Cook county by common-law writ .of certiorari. From an order of that court quashing the writ and dismissing the respondent’s petition, the respondent appeals.
    Abstract of the Decision.
    Workmen’s Compensation Act, § 4

      —when inapplicable to interstate railroad employees. The Workmen’s Compensation Act has no application to injuries received by railroad employees while both the employee and the railroad company are engaged in interstate commerce and the employer’s liability in such case is governed exclusively by the Federal Employers’ Liability Act, regardless of the question of negligence or want of negligence of either party.
    Vernon W. Foster and John G. Drennan, for ap- , pellant; Blewett Lee and Walter S. Horton, of counsel.
    No appearance for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Mabel Hendrickson Weifenbach, Appellee, v. White City Construction Company, Appellant.
    Gen. No. 21,407.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed on remittitur.
    Opinion filed October 18, 1916.
    Statement of the Case.
    Action by Mabel Hendrickson Weifenbach, plaintiff, against the White City Construction Company, defendant, for personal injuries. From a judgment for plaintiff, defendant appeals.,
    August 24, 1907, plaintiff, then a young woman, in company with a young man visited the “White City,” an amusement park located in Chicago, for an evening’s entertainment. In the park there was a contrivance known as the “Whizz,” which consisted principally of a chute starting from a height of about twenty-two feet and descending in curves and bumps to the ground, where the patron landed on a hair mattress covered with heavy duck canvas. The mattress was inclosed by frames to which it was securely fastened. A person desiring to slide down the chute was admitted through a gate, upon the payment of a fee. Plaintiff, after watching for some time several persons coming down the chute and landing on the mattress, paid the admission fee, slid down the chute, and as she landed on the mattress her left ankle was severely sprained. The negligence charged in the second count was that the covering of the mattress was torn, ripped, loose, unfastened, and dangerous and unsuitable.
    Brickwood & Brickwood and Thornton & Chahcellor, for appellant.

      Abstract of the Decision.
    1. Negligence, § 187

      —when evidence sufficient to show that appliance in amusement park; is defective. In an action for injuries sustained by one sliding down an amusement device known as a “Whizz,” consisting of an inclined chute at the bottom of which was a mattress designed to receive patrons, evidence held to justify a finding that the covering of the mattress was torn and that the plaintiff’s foot was caught therein and her ankle sprained.
    2. Appeal and error, § 1699*—when error in refusal to direct verdict for defendant waived. WThere, at the close of all the evidence introduced in an action for negligence, the defendant moved for a directed verdict of not guilty but did not renew a motion made at the close of the plaintiff’s case to find the defendant not guilty on a particular count, held that the failure to renew the motion waived any error in refusing to grant it.
    3. Appeal and error, § 1520*—when refusal of court to direct verdict on one count is harmless error. Where there is evidence sufficient to sustain a verdict for the plaintiff on one count of a declaration, the refusal of the court to direct a verdict for the defendant on another count is harmless, even though erroneous.
    4. Evidence, § 171*—when admissions against interest admissible. In an action for personal injuries, admissions against interest of the plaintiff made after the accident are admissible.
    5. Appeal and error, § 1491*—when exclusion of admissions of party harmless error. Where, in a personal injury action, a witness for the defendant was permitted without objection to testify as to what the plaintiff said after the accident, and the record failed to show that the defendant offered to prove any further admissions by the plaintiff, held that the defendant could not complain of a prior ruling excluding testimony as to the plaintiff’s admission.
    6. Negligence, § 205*—when instruction not insufficient. An instruction in a personal injury action to the effect that the plaintiff was not bound to prove her case beyond a reasonable doubt but only by a preponderance of the evidence, that if the evidence bearing upon the case preponderated in her favor, although but slightly, it would be sufficient for the jury to find in her favor, held not open to the objection that the plaintiff’s case was not defined, that the jury were left to determine what evidence bore upon it and that it left out altogether the defendant’s case. .

      Edward J. Creen, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

7. Negligence, § 214 —when instruction referring jury to declaration not erroneous. An instruction in a personal injury action which told the jury that if they believed from the evidence that the plaintiff had proven the allegation of certain counts of the declaration by a preponderance of the evidence, and that she had suffered and sustained injuries in the manner charged in such counts and that she was in the exercise of ordinary care and free from negligence, they should find the defendant guilty, held not open to the objection that the jury were left to determine what the allegations of such counts were.

8. Negligence, § 88*—when doctrine of assumed risk inapplicable. The doctrine of assumed risk rests upon and grows out of the contractual relation which exists between master and servant, and is not involved in negligence cases where such relation does not exist.

9. New trial, § 107*—when verdict may not be impeached by affidavits of jurors. An affidavit in a personal injury action tending to show that jurors, when deliberating in the jury room, had included in their verdict items for doctor’s bills, attorney’s fees, etc., held not receivable in support of the defendant’s contention that the verdict was excessive.

10. Damages, § 115*—when verdict for personal injuries excessive. A judgment for $5,625 entered in a personal injury action in favor of a woman who had sustained a sprain of one of her ankles, ordered reversed unless the plaintiff should remit to $3,000.


text:
    The People of the State of Illinois ex rel. Annie Mickarczyk, Defendant in Error, v. Louis Wenglarz, Plaintiff in Error.
    Gen. No. 22,278.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Bastards, § 22

      —when evidence sufficient to sustain finding that relatrix is unmarried. Where the relatrix in a bastardy proceeding swore in her complaint that she was unmarried, a finding that she was unmarried was held justified in the absence of evidence. that she was married.
    2. Bastards, § 22*—when evidence sufficient to sustain finding that defendant is father of child. In a bastardy proceeding, a finding that the defendant was the father of the child, held justified where the defendant had not denied that he had had sexual intercourse with the relatrix and the only testimony offered by him tended to show that other men had had sexual intercourse with her about the time of conception, which was denied by the relatrix.
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 18, 1916.
    Statement of the Case.
    Bastardy proceedings instituted by the People of the State of Illinois ex rel. Annie Mickarczyk, plaintiff, against Louis Wenglarz, defendant. To review a judgment entered against him, the defendant prosecutes a writ of error.
    Frank A. Ramsey, for plaintiff in error.
    Maclay Hoyne, for defendant in error.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

3. Evidence, § 480 —what is effect of failure of defendant to testify. The defendant sitting silent during the trial of a bastardy proceeding, held a circumstance to be considered against him on the issue as to whether he was the father of the child.


author: Mr. Justice Goodwin

text:
    Victor Young, Plaintiff in Error, v. County of Cook and Civil Service Commission of Cook County, Illinois, Defendants in Error.
    Gen. No. 21,053.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. John P. McGoortt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 18, 1916.
    Rehearing denied October 30, 1916.
    Statement of the Case.
    Petition by Victor Young, petitioner, against the County of Cook and Civil Service Commission of Cook County, Illinois, defendants, for a rule upon the defendants to show cause why they should not be punished for contempt for failure to comply with a writ of mandamus commanding them to place the petitioner’s name upon the roster of the assistant county agents of Cook county, etc. To review an order discharging the rule, the petitioner prosecutes a writ of error.
    A. D. Gash, for plaintiff in error.
    Maclay Hoyne, for defendants in error; Marvin E. Barnhart and Ernst Buehler, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

Civil service, § 30 —when reinstated assistant county agent not entitled to position of first assistant. Where, in obedience to a writ of mandamus, the petitioner was reinstated as assistant county' agent and subsequently, as the result of art examination, an assistant other than the petitioner, receiving the highest mark, was certified by the civil service commission to the position of first assistant, held that though the petitioner, prior to his unlawful discharge, had performed duties subsequently performed by the first assistant so appointed, a rule on the defendants to show cause why they should not be punished for contempt for not reinstating the petitioner as first assistant was properly discharged, since the examination which the petitioner originally took was for the performance of the duties of superintendent of substations and not for a general supervisory position, and it was clearly within the power of the civil service commission to reclassify and regrade the positions of assistant county agents to provide for the position of first assistant county agent.


text:
    Morris & Company, Defendant in Error, v. Heitman Lithograph Company, Plaintiff in Error.
    Gen. No. 21,165.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed.
    Opinion filed October 18, 1916.
    Statement of the Case.
    Action by Morris & Company, a corporation, plaintiff, against the Heitman Lithograph Company, defendant, for damages for breach of an alleged contract to furnish advertising hangers to the plaintiff. To review a judgment for plaintiff, defendant prosecutes a writ of error.

      Abstract of the Decision.
    Sales, § 9

      —when letter does not constitute confirmation of oral contract. A letter written by the plaintiff to the defendant, held to be an order for lithographic advertising hangers, which was not accepted by the defendant and was not a confirmation of an oral contract previously entered into by the parties, as it contained essential terms and stipulations, such as that time was of the essence of the contract and that the hangers as produced by the defendant must be perfect and to the entire satisfaction of the plaintiff, which terms the plaintiff had not contended were contained in the oral contract, and further that the oral contract, claimed to have been entered into by the plaintiff with a solicitor of the defendant, contained terms so essentially different from and more burdensome on the defendant than those contained in a bid previously submitted by the defendant to the plaintiff as to render it improbable that it was in fact ever entered into by the parties.
    P. H. Bishop, for plaintiff in error.
    M. W. Borders and N. G. Collins, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Page-Davis Company, Appellant, v. John P. Shaddock, Appellee.
    Gen. No. 21,226.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Brknch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed October 18, 1916.
    Statement of the Case.
    Action by Page-Davis Company, a corporation, plaintiff, against John P. Shaddock, defendant, for breach of an alleged contract to pay for a correspondence course of instructions furnished by defendant to plaintiff. From a judgment for defendant, plaintiff appeals.
    Abstract of the Decision.
    1. Contracts, § 309

      —what are duties of person agreeing to furnish course of instruction. Any one agreeing to furnish a course of instruction, in the absence of a special contract, binds himself to exercise reasonable skill, judgment, ordinary care and diligence m furnishing the instruction.
    2. Contracts, § 387*—when evidence sufficient to sustain judgment in action for breach of contract. In an action by a correspondence school for breach of a contract by a student to pay for a course of instruction, where it appeared, among other things, that students’ answers sent in for correction, were corrected by girls receiving as low as six dollars per week for their services and who possessed but a superficial, if any, knowledge of the subject, held evidence did not justify the setting aside of a judgment for the defendant.
    Richards, Voigt & Darby, for appellant.
    Rothchild & Schaffner, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Michael Deddo, Defendant in Error, v. Michael Volpe, Plaintiff in Error.
    Gen. No. 21,246.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Contracts, § 129

      —when evidence insufficient to show illegality of. The repudiation by the defendant of a contract entered into with the plaintiff whereby the latter agreed to raise the defendant’s house, held not justified on the ground of illegality, because an ordinance prevented the performance of the work if certain alterations were not made, which were not included in the contract, in the absence of a showing that it was intended that the work should be done without compliance with the ordinance and in the absence of any proof of the ordinance.
    2. Contracts, § 98*—when evidence insufficient to show fraud in procuring execution of. In an action for the breach by the defendant of a contract, whereby the plaintiff agreed to raise the defendant’s house, evidence held not to show that the defendant had been induced to enter into the contract by fraud.
    Error to the Municipal Court of Chicago; the Hon. Perrt L. Persons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed October 18, 1916.
    Statement of the Case.
    Action by Michael Deddo, plaintiff, against Michael Volpe, defendant, for breach of contract. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Cairoli Gigliotti, for plaintiff in error.
    Thomas H. Maddock and Jacob H. Jaffe, for defendant in error.

      See Illinois Notes Digest, Vols, XI lo XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.

3. Municipal Court of Chicago, § 4 —when judge of another court may sit in Municipal Court. A judgment of the Municipal Court of Chicago held not illegal because it was entered by one not a judge of that court, where the placita showed the presiding judge to have been a “judge of the County Court of Lake County, Illinois, holding a branch of the Municipal Court of Chicago at the reguest of the judges of the said Municipal Court,” as such authority is expressly conferred by the Municipal Court Act, sec. 13 (J. & A. ¶ 3325).

4. Trial, § 45*—when prejudice and Mas not exhibited by trial judge. Record on appeal in an action for breach of contract, held not to sustain a contention that prejudice and bias were exhibited by the trial court.


text:
    Marie E. Rice, Appellee, v. Warner Hotel Company, Appellant.
    Gen. No. 21,327.
    1. Innkeepers—when evidence sufficient to support finding in favor of plaintiff as to occurrence of accident. In an action for personal injuries, alleged to have been caused by falling window glass, broken from the upper sash of a window, which struck violently against the upper casement as the plaintiff attempted to raise it, held that the conclusion that the accident happened as claimed by plaintiff is not contrary to the clear preponderance of the evidence.
    2. Innkeepers—what are duties of towards personal safety of guests. While an innkeeper is not an insurer of the safety of his guest, the law places upon him the duty of using reasonable care to see that the room to which a guest is assigned is safe, which duty includes that a reasonable inspection be made from time to time.
    3. Innkeepers—what degree of care required to secure safety of guests. While it cannot be said that an innkeeper is bound to use the same degree of care as a common carrier, the relation of innkeeper and guest imposes upon the former a duty to use a very high degree of care to secure the safety of the latter.

      4. Innkeepers—when unsafe condition of window question for jury. In an action against an innkeeper for damages, alleged to have been caused by the falling of window glass on the plaintiff, the question as to whether the window was in an unsafe condition, held for the jury.
    5. Innkeepers—when manner of happening of accident is evidence of unsafe condition of window. In an action for damages, alleged to have been caused by the falling of window glass on the plaintiff, the manner of the happening of the accident as described by the plaintiff, held, apart from any application of the doctrine of res ipsa loquitur, to strongly corroborate evidence offered in her behalf that the window was in an unsafe condition.
    6. Appeal and error, § 1408

      —when verdict not disturbed as unsupported by evidence. A jury’s finding as to the cause of an accident cannot be disregarded by the Appellate Court where it cannot say that their finding is clearly contrary to the weight of the evidence.
    7. Innkeepers—when possibility of ascertaining defective condition of window by inspection is question for jury. In an action for injury to a guest in a hotel, alleged to have been caused by the falling upon her of window glass, due to the putty holding the glass becoming deteriorated through age, the question whether such condition could have been known to the defendant if proper inspection had been made, held for the jury, and their finding thereon not against the manifest weight of evidence.
    8. Innkeepers—when question of negligence in failing to repair window is question for jury. In an action for injuries to a guest in a hotel, alleged to have been caused by the falling upon her of window glass, due to the putty holding the glass becoming deteriorated through age, the question whether the failure of the proprietor to remedy such condition, if found by him to exist, was negligence, held for the jury, and their finding thereon in favor of the plaintiff not against the manifest weight of the evidence.
    9. Damages, § 115*—when verdict for personal injuries not excessive. A verdict for §4,500, found in favor of a female guest in a hotel who was cut on the arm by falling window glass, held not excessive.
    10. Instructions, § 151*—when properly refused. It is not error to refuse to give instructions the substance of which was given in other instructions.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed October 18, 1916.

      Calhoun, Lyford & Sheean, for appellant; Edward W. Bawlins, of counsel.
    Winston, Payne, Strawn & Shaw, for appellee; Edward W. Everett, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.

By this appeal the appellant seeks to reverse a judgment against it for $4,500, recovered on account of personal injuries which were alleged to have resulted from its negligence. Upon a former appeal [187 Ill. App. 317] a judgment for the same amount was reversed and remanded because of improper questions put to the veniremen by counsel for appellee, and because of the admission of expert testimony in regard to a matter which this court held to be one of common knowledge.

The material facts were substantially as follows: Appellee was a guest at appellant’s hotel, which consisted of two buildings, the larger known as the Warner Hotel, and the smaller, as the Warner Annex. She had been stopping at the former for some months, but two days prior to the time of the accident, moved to a suite of rooms in the latter. She returned to her room on the afternoon of the accident, and found a window had been lowered about a foot and a half from the top. The window consisted of two frames, each of which held a large single pane of glass puttied in from the outside in the usual way with putty and zinc points. Each pane was fifty inches wide by thirty-three and one-half inches high, and was of double thickness. The appellee stated that in order to close the window she stepped on the sill and started to push it up with her right hand; she was five feet and one and one-half inches tall, and while she could reach the top of the sash when standing on the sill, she could not reach the top of the window when closed. She had, she said, never had occasion to close it before. At first, when she pushed it, the window seemed to stick; it then started up with a “bang,” as though it exploded, and the glass flew out cutting and injuring her right arm at and about the elbow. Some of the cuts were so deep that they had to be sewed up. About two and one-half inches above the elbow on the back of her arm was a deep straight-in transverse cut about two and one-half inches long; below the elbow was another straight-in cut. There were also two cuts running lengthwise on the back of the arm above the elbow several inches long; one of these, however, was an operative cut or scar. Appellee made no examination of the window after the accident, but stated that it looked like an ordinary window. She said that the break in the glass extended clear to the woodwork in places; that there were jagged edges of glass left in the window around the break; in the lower part of the window there were jagged edges standing up about three or four inches high; these had blood on them.

A nurse called in her behalf testified that on the afternoon of the accident she examined the window, and that most of the putty was off and the rest appeared to be decayed and old looking; that it was black from age. She noticed that there was some glass on the floor, some pieces being small and some large.

One Mabel Mecke, a friend of appellee, who called during the afternoon or evening of the accident, testified that the putty on the sash where the glass had not fallen out was “breaky,” cracked and crumbled looking, and did not seem especially new or in good condition. She did not observe whether any zinc points or tips were in the window; .all she did was to stand on the floor and look out.

For the appellant, a former manager of the hotel testified that he did not notice the putty, but the glass left around the edge of the sash was solid; he took hold of some of the pieces of glass to see if he could pull them out, and could not.

The hotel carpenter testified that he took out all the loose glass he could with his hands; that there was a lot of glass still in around the edges which was solid; he broke this off down to the putty; he found that the putty was in good condition, and had to use a chisel and hammer to chisel out the putty. There were zinc points made of three-cornered pieces of zinc put in to hold the glass in place which were puttied over; that the putty around the edges was hard; that the older it gets the harder it gets; that good white putty with linseed oil will last a life time. He found the framework of the window in good condition; that putty exposed to the weather crumbles when it has not been painted; that it would begin to crumble in a year or so if it is not taken care of,

A chambermaid testified that there were three or four or five pieces of glass on the floor about two inches by one and a half; that that was all the glass there was in the room; that the break in the glass was not very big.

A railroad porter who was a bell boy at the time of the accident testified that when he came into the room after the accident, he saw a chair tilted against the window sill and moved it over and set it against the north wall of the room; that he saw the break in the glass; thought one-third of the window must have been gone; did not notice any glass on the floor at all; the window appeared to be in good condition. He said he could not see the putty unless he went and investigated, as it was on the outside. Another porter said that he swept up a good sized shovelful of glass from the sidewalk. The housekeeper did not testify in regard to the condition of the putty, but did testify that a chair was lying on the floor in front of the window when she came in.

The former manager of the hotel also testified that he went to appellee’s room immediately after the accident, and that she told him that she got upon a chair to push up the window; that her hand slipped and went through it. This was denied by appellee. His wife testified that she called on appellee after the accident, and appellee said it was not the hotel’s fault (this was denied by appellee and the nurse who was present at the time); she did not give any testimony in regard to the condition of the putty. Medical testimony was also received in regard to the extent of the injuries.

It is contended by appellant, at the outset, that the manifest weight of the evidence shows that appellee was injured by falling from a chair and forcing her elbow through the window, and not in the manner testified to by her. Appellant’s counsel contend that the position and character of the cuts show that they could not have been made by falling glass. Upon a careful consideration of the evidence, however, we are of the opinion that this contention rests entirely upon supposition and speculation. There is certainly nothing in the fact that the cut was at the back of the arm which contradicts appellee’s story. The back of her arm above the elbow was as likely to be exposed as any other portion, particularly if she instinctively moved it to protect herself from falling glass. It is impossible for us to say what and how deep cuts would be inflicted by double-thick glass falling from a broken window in the manner described. Nor do we think that the fact, if it is a fact, that the greater portion of the glass fell outside rather than inside shows that the glass was broken by a blow from within. If glass were broken in the manner testified to by appellee, namely, by reason of the window frame striking violently against the upper part of the casement, it would be impossible to say what portion would fall outside. One might reason that if the break came from a blow from the inside, all of the broken pieces would fall outside, but this, in turn, would be mere idle speculation. We, therefore, do not think that this part of the testimony throws any helpful light upon the case. The fact that there was blood on the lower part of the edges of the glass has some tendency to support appellant’s contention, although that fact is obviously not necessarily inconsistent with appellee’s story. Appellee is, however, directly contradicted by the then manager of the hotel, who testified that she stated that it happened in the manner claimed by appellant.. We do not think that this is materially strengthened, however, by the testimony of his wife (which was contradicted by appellee and one other witness), to the effect that appellee stated that it was not the hotel company’s fault, as such a statement would be, at most, a conclusion of law. Upon a review of the entire testimony on this point, we are unable to say that the clear preponderance of the evidence shows that the accident did not happen in the manner described by appellee.

The next contention of appellant is that the facts disclosed form no basis upon which appellant’s liability could be predicated. Appellee obviously recovered upon an alleged breach of appellant’s duty as an innkeeper to see that the premises were in a reasonably safe condition. An innkeeper is clearly not an insurer of the safety of his guests, but the law does place upon him a duty to use reasonable care to see that the rooms to which a guest is assigned are safe. The degree of care required of him has not been accurately defined nor perhaps finally determined, but certainly it includes reasonable inspection from time to time. Upon the question of the scope of an innkeeper’s duty to his guest, the United States Circuit Court of Appeals, in Truloch v. Willey [112 C. C. A. 1], 187 Fed. 956, said, at page 958:

“The relation existing between an innkeeper and his guest is much like that existing between a common carrier and its passenger, and, while not an insurer of the personal safety of the guest, the proprietor of the hotel is held, and ought to be held, to the exercise of a very high degree of care for the protection of his guests against the negligent acts of servants employed therein. ’ ’

The court there does not say, and we do not wish ourselves to be taken as saying, that an innkeeper is bound to use the same degree of care as a common carrier, but we do think it is clear that the very circumstances surrounding the'relationship of innkeeper and guest impose upon the former a duty to use a very high degree of care to secure the safety of the latter.

The question of the condition of the window, upon which there was a decided conflict of testimony, was one of fact for the jury, and if appellee’s story of how the accident happened is to be accepted (and as indicated above, the state of the record does not permit us to reject it), then, entirely outside the doctrine of res ipsa loquitur, the happening of the accident itself, in the manner appellee described, tends strongly to corroborate the evidence offered in her behalf to show that it was in an unsafe condition. We are, therefore, of the opinion that we are not at liberty to say that the jury’s conclusion that the accident happened as the result of causes alleged by appellee is clearly contrary to the weight of the evidence, and, in such circumstances, the repeated decisions of both this and the Illinois Supreme Court prohibit us from disregarding it.

The question remains as to whether the condition of the window as testified to by appellee and her witnesses would have been known to appellant if proper inspection had taken place, and, if known, was sufficient to warrant an inference of negligence in not causing it to be remedied. This, like the question just discussed, was an issue of fact which was properly submitted to the jury by the court through the giving of specific instructions. The jury’s verdict for the appellee, therefore, also determined that question in her favor, and, as just indicated, we are not at liberty to set aside this finding unless it be contrary to the manifest weight of the evidence. An examination of the testimony shows that the hotel had' been built some six or seven years, and had been in the hands of appellant some considerable time before the happening of the accident, and it is further apparent that the conditions testified to, if they existed at all, must, from their very nature, have existed for a long time prior to the occurrence complained of. We are, therefore, of the opinion that the jury’s conclusion in this regard is not contrary to the manifest weight of the evidence.

The reasoning of the court in Davis v. Diamond Carriage & Livery Co., 146 Cal. 59, in which recovery was had for an accident resulting from the breaking of a windowpane, is in harmony with the conclusion we have reached here. There, it was contended that the accident happened in a way and from a cause that could not have been reasonably anticipated by the defendant. In answer to this, the court said, at page 61:

“We cannot say, as a matter of law, that the defendant has exercised ordinary care to prevent injury to its servants when there is evidence tending to show that an examination of this window from the outside would have disclosed its dilapidated and dangerous condition. That it was dangerous the result shows; and we think, as the jury seem to have thought, that the danger might have been discovered by the men in charge of-the stable by the exercise of ordinary care, and that it was negligence not to exercise such ordinary care. Whether the plaintiff was also negligent was again a question for the jury. If they believed his version of the matter they were warranted in finding that he was not negligent, and we must presume in support of the verdict that they took his statement as true.” We are also unable to agree with counsel’s further contention that the verdict was clearly excessive.

Appellant contends that it was error to refuse instructions twenty-five and twenty-six, which it tendered. The substance of these instructions was, however, fully stated in instructions nine and ten, and as the courts have severely condemned the repetition of the same instruction in different forms, the court did not err in refusing to give them. Nor do we think the court’s modification of the ninth instruction was subject to objection, although it seems to have been unnecessary. There were two directly conflicting theories in regard to the maimer in which the accident happened; both could not be true. If the jury believed that the accident happened on account of an accidental fall against the window, and not as appellee charged in her declaration, then she could not recover, and this they were clearly told in the instruction.

For the foregoing reasons, the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Tracy Walter, Appellee, v. Henry J. Dillner and George Reeve, Appellants.
    Gen. No. 21,396.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 192

      —when dismissal as to one defendant does not bar judgment against other defendants. Where a special, count in a declaration counted on a general partnership obligation against three defendants and common counts therein counted against “said defendants,” and after verdict the action was dismissed as to one of the defendants, held that the refusal of the trial court to grant a motion in arrest of judgment was not error, as the common counts after the amendment declared only against the remaining defendants.

      Appeal from the Superior Court of Cook county; the Hon. Mabcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed October 18, 1916.
    Statement of the Case.
    Action by Tracy Walter, plaintiff, against Henry J. Dillner and George Reeve, and another defendant, counting upon a general partnership obligation of all defendants, and upon common counts against “said defendants.” After a verdict and dismissal of one defendant, the others moved in arrest of judgment on the ground that a declaration, counting upon a general obligation of three living défendants, would not sustain a judgment against two. From an order denying the motion, they appeal.
    J. T. Greenacre and O. F. Reich, for appellants.
    John C. Trainer, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.

2. Judgment, § 218 —when motion in arrest of judgment will not he granted. Where a judgment may he sustained on one count of a declaration, the fact that it cannot be sustained on another count will not justify the granting of a motion in arrest of judgment.

3. Appeal and error, § 1303*—when presumed that evidence sufficient to support judgment. Where no bill of exceptions is filed, it must be conclusively presumed that the evidence is sufficient to support the judgment.


text:
    The People of the State of Illinois, Defendant in Error, v. Julius F. Taylor, Plaintiff in Error.
    Gen. No. 21,777.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 18, 1916.
    Rehearing denied October 31, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Julius F. Taylor, defendant, on an information charging criminal libel. To review a judgment against him, the defendant prosecutes a writ of error.
    Walter M. Farmer, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

      Abstract of the Decision.
    1. Libel and slander, § 189

      —when burden of proof on defendant to sustain plea of justification. In a prosecution for criminal libel, a plea of justification being affirmative, the burden is cast upon the defendant to sustain the plea.
    2. Libel and slander, § 191*—when evidence insufficient to establish truth of libelous matter. In a prosecution for criminal libel, evidence held not to show that the trial court erred in finding that the defendant had failed to- establish the truth of the libelous matter.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Mary C. De Wolf, Appellee, v. Marshall Field, & Company, Appellant.
    Gen. No. 21,321.
    1. Municipal corporations, § 81

      —when ordinances deemed to be retrospective. While the general presumption is, as a matter of law, that ordinances are not intended to be retrospective, yet if the intention is clear that they are to be retrospective, that intention must govern unless it is found to be in contravention of some constitutional restriction or provision.
    2. Building restrictions and regulations, § 1*—when ordinance is a police regulation. The building ordinance of Chicago is chiefly a police regulation.
    3. Building restrictions and regulations, § 1*—what council may regulate by ordinance. The city council, if it believes that handrails on stairways in certain buildings are reasonably necessary, for the public safety, has the right to provide by ordinance that all such buildings be furnished therewith.
    4. Building restrictions and regulations, § 1*—when ordinance retrospective. The Building Code of Chicago of 1911, ch. 16, art. XVIII, subd. 668, par. (j), providing that stairways in certain buildings shall be equipped with handrails, applies to buildings constructed at the time of the passage of such ordinance as well as to those subsequently constructed.
    5. Building restrictions and regulations, § 1*—when handrail does not comply with building regulation. A handrail which did not extend over the last three steps at the bottom of a stairway, held not to comply with the requirements of the Building Code of Chicago of 1911, ch. 16, art. XVIII, subd. 668, par. (j).
    Appeal from the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed October 18, 1916.
    Frank P. Leffingwell and Robert J. Folonie, for appellant.
    R. J. Finn, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

On the morning of July 1, 1912, appellee, a woman about sixty-two years of age, while descending a basement stairway in the department store belonging to the appellant, fell and broke her right leg. Subsequently she brought suit in the Circuit Court and obtained a verdict for $5,000. A new trial was granted and, at the second trial, she obtained a judgment for $1,950, which the defendant now seeks to reverse.

The declaration contains but one count. Therein it is averred, among other things, that the stairway did not conform to the building ordinance of the City of Chicago, which ordinance requires, it is claimed, two handrails, one on each side running from the top to the bottom, and that the failure to provide said rails was the proximate cause of the injury.

The building was erected in 1902 and the stairway has remained substantially in its original condition ever since that time. The steps and risers of the stairway are of marble. On the right side of the stairway, being the side on which the plaintiff descended, there was a handrail which extended part of the way down the stairs, terminating in one of the large columns that support the building. The handrail is about three inches wide and four inches high and is about two feet ten inches above the stairs or steps. There are three steps and a fraction down below and beyond the handrail. The lowest step is ten feet six inches in width; the second step nine feet; the third step seven feet nine inches; the fourth step and all above, six feet eleven inches. The stairway is composed altogether of eleven steps.

The accident occurred as follows: The appellee, on July 1, 1912, entered the premises by the main entrance and walked to the stairway which led from the main floor to the basement. She took hold of the handrail with her right hand, then turned, in walking down, to the north, then towards the west, having hold of the rail all the time and being on the right side of the stairway. While going towards the bottom of the stairs her hand slipped off the end of the railing and her feet went out from under her and she fell, incurring the injury complained of.

It is claimed by the appellee that the handrail, to comply with the building ordinance, should have extended down so as to reach the last step. The appellant denies the application of the ordinance.

The Building Ordinance of the City of Chicago is known as “Chapter XVI of The Chicago Code of 1911” and is composed of twenty-seven articles. Article XVIII is entitled “stairways.” The first five paragraphs of Article XVIII are as follows:

“666. Stairways, Number—Location — Construction.) (a) Fireproof office buildings existing at the time of the passage of this ordinance which are equipped either with one stairway and two or more stairway fire escapes or with two stairways and one or more stairway fire escapes, shall not be required to have additional stairways or stairway fire escapes.

“(b) Except as otherwise expressly provided in this article, it shall be unlawful to construct or maintain any building or structure of Classes I, II and VII unless its stairway or stairways comply with the following provisions:

“(c) In every existing building of ordinary construction having an area greater than nine thousand square feet, or of mill or slow-burning construction greater than twelve thousand square feet, there shall be not less than three stairways. The width of stairs shall be at least eighty per cent of the width of stairs as computed by the formulae given herein and in no case less than twelve feet.

“ (d) Every building shall be at least one stairway from the ground to the top floor and one stairway from the lowest basement or cellar to the street grade, and no stairway shall be less than three feet in width.

“(e) The width of stairs required for a building shall be construed as the total width of all stairways required on the building. Stairs shall be measured between the wall and handrail for a single stair and between handrails where two or more handrails are required by this chapter.”

Subdivision 668 of Article XVIII contains the following :

“ (j) Stairways which are less than three feet three inches wide shall not have less than one handrail and stairways which are more than three feet three inches wide shall have not less than two handrails. Stairways which are over eight feet wide shall have double intermediate handrails with end newel posts at least five and a half feet high.”

Subdivision 514 (a) of Article XII contains the following :

“514. Alterations op Existing Buildings.) (a) In construing the several sections of this chapter, said sections shall not be construed as requiring alterations in the construction or equipment of buildings or structures in existence at the time of the passage of this chapter except where specifically provided, unless such buildings shall not have sufficient or adequate means of egress therefrom or ingress thereto, by reason of insufficient or inadequate stairway or stairways improperly located or insufficient or inadequate elevators or elevator equipment, doors, fire escapes, windows or other means of egress or ingress, and except also in sections which are herein made retroactive.”

Subdivision 242 of Article III contains the following:

“242. Conflict Between Special and General Provisions.) Whenever any provision or requirement of this chapter relating specifically to the construction, equipment, maintenance, or operation of any building or part of a building used for the purpose of any specified class, shall conflict with the general provisions of this chapter relating to the construction, equipment, maintenance and operating of buildings generally, the special provisions shall govern in each case, except in the case of section 514, which shall govern in all cases coming within its provisions.”

It is contended by the appellant that section 668 (j) is not retroactive but prospective only; that the words “shall have not less than two handrails” do not mean that the handrails shall extend from the top to the bottom; that the fact that the handrails do not extend to the bottom step was not a proximate cause of the injury.

As to the question, whether the ordinance applied to stairways already constructed at the time the ordinance was passed, we start, as a matter of law, with the general presumption that the ordinance was not intended to be retrospective in its operation. However, if it were plainly the expressed intention of the city council in passing the ordinance to make it retrospective, that intention must govern unless it is found to be in contravention of some constitutional restraint or provision.

To determine whether the ordinance applies to the stairway in question, it is necessary to interpret the words, “to construct or maintain.” It is claimed by the appellant that those words mean “to construct, and after having constructed, to continue or maintain.”

The decisions of the courts, in which the meaning of the word “maintain” has been considered and the definitions of the lexicographers when critically analyzed, all agree as to the general meaning of the word.

In reference to a physical thing, such as a stairway, “maintain” means, in its ordinary and obvious sense, “to keep” or “to have.”

In accurately determining the meaning of the word, “maintain,” as used in the ordinance in question, however, it is necessary to consider, not only the definitions and dictionaries and the idea the word connotes when it is popularly used, but also the context, that is, the general subject-matter of the ordinance in whole and in part.

The building ordinance is chiefly a police regulation. It makes certain requirements for purposes of sanitation, some for the general convenience of the public, and some particularly to prevent the occurrence of fire and the loss and injury generally entailed thereby.

In passing the ordinance in question, having reference particularly to Article XVIII, the city council may have had in mind, and it quite probably did, that the handrails required would facilitate in case of a fire the exit of both employees and customers; or it may have believed that handrails, in connection with such stairways, were necessary for the public safety or general welfare.

The court said, in Marshall Field & Co. v. Le Bosky, 133 Ill. App. 316, which is a case pertaining to a fall upon a marble stairway:

“As above stated, probably no stairs are absolutely safe. We know of none upon which persons using them without due care can be guaranteed against slipping or falling.”

It may be that the city council had in mind the danger which arises by reason of the existence of such stairways and undertook to make them safer for those using them. We, of course, have no right under the law, to pass upon the reasonableness of the ordinance; that is a matter solely within the jurisdiction and power of the city council.

If the latter believed that handrails, in connection with such stairways, were reasonably necessary for the public safety, it had the right to order that all such stairways be furnished with handrails.

Bearing in mind, therefore, what the words, “to construct or maintain,” used in the ordinance, mean in their general and ordinary sense, and considering the context and the apparent intention of the ordinance, we are compelled to the conclusion that the legislative body, the city council, in using those words intended to cover, and had in mind, all such stairways built or to be built.

Some question is raised as to the meaning of the words, “shall have not less than two handrails.” The handrail in question, which was at the right side and above the stairway, extended so as to be of service to seven and a fraction of the eleven steps which constituted the whole stairway. A handrail, in conjunction with a stairway means, normally, a rail which extends from top to bottom. Of course no such handrail existed as fulfils that definition. It is our opinion, therefore, that the handrail in question did not comply with the requirements of the ordinance.

As to the absence of the handrail being the proximate cause, the verdict of the jury implies that they believed the appellee was in the exercise of ordinary care and that the failure of appellant to provide handrails extending to the bottom of the stairway, in part, at least, caused her fall.

We have examined the evidence, the rulings and the instructions and have found no prejudicial error. The judgment is affirmed.

Affirmed.


author: Mr. Justice Taylor

text:
    F. H. Clark, Appellee, v. Eliza J. Conrad, Appellant.
    Gen. No. 21,329.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed October 18, 1916.
    Statement of the Case.
    Bill for an injunction by F. H. Clark, complainant, against Eliza J. Conrad, defendant, to enjoin the prosecution of a suit by a creditor’s bill, based on a judgment entered against the complainant by the defendant, on the ground of the existence of an agreement between the parties to the effect that on payment of a certain amount by the complainant to the defendant the latter would authorize satisfaction of the judgment and that the complainant had made a tender to various persons of the amount due. From a decree for complainant, defendant appeals.
    Sumner C. Palmer and Charles Daniels, for appellant.
    E. F. Thompson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

Compromise and settlement, § 11 —when rights of judgment debtor under settlement agreement not forfeited. A judgment debtor held not to have forfeited his right under an escrow agreement with the judgment creditor, whereby on payment of certain sums at certain times the judgment was to be canceled, where, though in default, he had made tender to the party in whose hands the escrow agreement had been placed, which payment was however refused because of lack of authority to receive it, and made tender to other parties which was also refused, he not having been able to locate the former attorney for the creditor, who drew the agreement, though he could, by the exercise of diligence, have found out the residence of the creditor or the party who was acting as her agent to receive payrhent, time not being of the essence of such agreement.


author: Mb. Justice Taylor

text:
    The People of the State of Illinois, Defendant in Error, v. Rosie Eli, Plaintiff in Error.
    Gen. No. 22,141.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 18, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Eosie Eli, defendant. To review a judgment against her, the defendant prosecutes a writ of error.
    Erbstein & Macaulay, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

      Abstract of the Decision.
    Criminal law, § 472

      —how defect in information must he taken advantage of. Where the defendant in a prosecution for larceny was present in court, waived trial by jury, submitted to the jurisdiction of the court and made no objection to the form of the information charging her with the larceny of a certain number of dollars, lawful money of the United States, without more definitely describing it, held that in the absence of a motion to quash the information, as defective for uncertainty, a conviction must be sustained.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mb. Justice Taylor

delivered the opinion of the court.


author: Mr. Presiding Justice

text:
    Sophie Horowicki, Defendant in Error, v. Globe Mutual life Insurance Association, Plaintiff in Error.
    Gen. No. 22,291.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby C. Moran, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Action by Sophie Horowicki, plaintiff, against the Globe Mutual Life Insurance Association, defendant, in the Municipal Court of Chicago, to recover on a policy of insurance. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    M. H. Hoey, for plaintiff in error.

      Abstract of the Decision.
    Instjbance, § 436—when refusal to dismiss action prematurely brought is erroneous. In an action on an insurance policy providing that no amount payable thereunder should be due until sixty days after proofs of death were furnished, it is error to deny a motion to dismiss where it appears that the action was commenced eighteen days after the date of death, and before any proofs of death had been furnished.
    Emory J. Smith and Clarence P. Smith, for defendant in error.
   Mr. Presiding Justice

McSurely delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    John B. Smith, Administrator, Appellee, v. Peter Schoenhofen Brewing Company, Appellant.
    Gen. No. 22,311.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with finding of fact.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Action by John B. Smith, administrator of the estate of Alfred Smith, deceased, plaintiff, against the Peter Schoenhofen Brewing -Company, a corporation, defendant, in the Superior Court of Cook county, to recover for the death of plaintiff’s intestate as a result of injuries sustained by being run over by a heavy truck belonging to defendant. Prom a judgment for plaintiff for $6,000, defendant appeals.

      Abstract of the Decision.
    Automobiles and gabages, § 3*—when evidence shows driver not negligent. In an action to recover for the death of a boy fourteen years of age, by reason of injuries sustained by being run over by a heavy truck, evidence examined and held to show that the driver of the truck was not negligent.

      There have been three trials of this cause, in two of which the jury disagreed. Four disinterested eyewitnesses testified substantially that the loaded truck was going south on Union avenue at a moderate rate of speed; that it was making considerable noise; that deceased was walking south on Union avenue on the west sidewalk between 33rd and 34th streets; that as the truck approached, the boy ran out in the street in a southeasterly direction, and for about ten feet ran alongside the truck behind the front wheels, then caught hold of it near its center on the right side and hung there a short time, and then, seeming to lose his hold, fell down in front of the rear wheel, which passed over him. Testimony of these witnesses was unanimous that the front part of the truck had passed deceased when he left the curb, and that he was at no time in front of the front wheels of the truck after he got out in the street, and that the point where he grabbed hold of the truck was behind the driver’s seat.
    The chauffeur gave substantially similar testimony. There was no testimony in direct conflict with that adduced by defendant, though three witnesses gave testimony from which it was sought to be inferred that deceased was in front of the truck when struck.
    Miller, Gorham & Wales, for appellant.
    Charles W. Stiefel and Johh B. Heinemann, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.


text:
    James E. Hills, Appellant, v. Joseph Hopp, Appellee.

      Gen. No. 22,314.

      (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence—when exclusion of parol evidence contradicting memorandum erroneous. In an action to recover for breach of a parol contract to repurchase stock assigned by defendant to plaintiff, it appeared that plaintiff received a certain certificate, assigned in blank, and surrendered it for cancellation, receiving a new certificate, and that defendant, who was president of the' corporation issuing the stock, made on the face of the canceled certificate a memorandum, which was never delivered to or seen by plaintiff, to the effect that a new certificate had been delivered to plaintiff in lieu of that which was canceled. Parol evidence of the contract sued on was excluded, on the ground that it contradicted a written instrument, the memorandum being the instrument referred to. Held, that the exclusion was erroneous, the memorandum not being a contract between the parties, for which reason the rule invoked did not apply.

      Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed October 30, 1916.
    Rehearing denied November 13, 1916.
    Statement of the Case.
    Action by James B. Hills, plaintiff, against Joseph Hopp, defendant, in the Municipal Court of Chicago, to recover on an alleged verbal agreement to repurchase stock sold to plaintiff. From a judgment for defendant, plaintiff appeals.
    Frederick A. Bangs, for appellant; Richard H. Colby, of counsel.
    Burkhalter, Crossberg & Newfield, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Contracts, § 32*—when memoranda not binding as contract. Memoranda made by officials of a corporation for their own convenience- in keeping their records are not binding on strangers who are ignorant of the existence of such memoranda.

3. Appeal and error, § 365*—what points not reviewable. Points not made at the trial cannot be made for the first time on review.