author: Me. Justice Baume

text:
    Paul Simon, Defendant in Error v. Featherstone Foundry & Machine Company, Plaintiff in Error.
    Gen. No. 17,258.
    1. Master and servant — when evidence does not show what caused injury. In an action for personal injuries by a machinist injured while working at night when a dipper-mouth weighing about six hundred pounds fell against him after he had attached a chain from a crane thereto, held, that the evidence fails to show what negligence of defendant caused the injuries, that it appears that the appliances were suitable, that there was sufficient light and that plaintiff’s fellow-servants were competent.
    2. Evidence — personal injuries. Plaintiff in an action for personal injuries must prove the cause and manner of the injury, and the appellate court cannot speculate with reference thereto.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed with finding of fact.
    Opinion filed April 9, 1913.

      F. J. CanTy and E. P. (xabeett, for plaintiff in error; J. C. M. Clow, of counsel.
    No appearance for defendant in error.
   Me. Justice Baume

delivered the opinion of the court.

This was a suit by defendant in error against plaintiff in error to recover damages for personal injuries alleged to have been occasioned by the negligence of plaintiff in error. The statement of claim filed by defendant in error in the Municipal Court charges that plaintiff in error negligently failed to furnish a reasonably safe place for defendant in error to work, in that said place was insufficiently and improperly lighted; that plaintiff in error negligently failed to furnish defendant in error with reasonably safe tools and appliances with which to do his work; and negligently furnished defendant in error with incompetent assistants to do said work.

A trial by jury resulted in a verdict and judgment against plaintiff - in error for $300.

The only evidence introduced at the trial was introduced on behalf of defendant in error, and at the close of said evidence plaintiff in error moved the court to give to the jury a peremptory instruction, which motion was denied.

There is no appearance by defendant in error in this court.

It is insisted on behalf of plaintiff in error that the evidence fails to disclose any actionable negligence on its part; that defendant in error assumed the risk of the injury sustained by him; that the negligence, if any, which occasioned the injury complained of, was the negligence of a fellow-servant or fellow-servants of defendant in error.

Defendant in error testified that he was 22 years of age, a “full-fledged” machinist, and was employed in that capacity on August 19,1908, by plaintiff in error in its foundry and machine shops; that he worked during the forenoon of that day and again commenced work at 6 o’clock in the evening; that he worked in the shop until about 1 o’clock, when he was directed to go into the foundry yard and assist in removing some dipper-mouths from the yard into tbe shop; that the mouths or front pieces of the dipper were made of sheet steel and weighed about 600 pounds eacb; that there were about 40 of these mouths and a quantity of old junk piled around the yard; that the mouths were lifted on to trucks by operating a crane having a swinging arm from which a block and chains were suspended, which chains were hitched or hooked around the mouths; that there was no artificial light in the yard, but it was moonlight, and he could see the piles of mouths and junk and also the crane and the block and chains; that it was about 6 feet from where the block and chain hung to the mouthpiece around which he hooked the chain; that he took hold of the loose chain and climbed on one of the mouth pieces and somebody came along and said, “All right,” and he made the hitch. In assuming to describe the precise manner in which the injury was occasioned, defendant in error said:

“Just as I was putting that chain around there and I got that chain around this mouth piece, and the fellows there held the block over and the mouth piece came over on me so they pushed the block over. I took up the chain and went and tied it around the mouth piece; then this mouth piece came over on me and smashed my fingers; it did not throw me down, it struck my hand. I hooked this chain .around the mouth piece. Nobody said anything to me. "When I got the chain hooked on there I was just walking away when it fell over on me; it hit me on the chest. I don’t think I had my hands on these mouth pieces; my hands were under the mouth pieces. I don’t know whether they rested on the pile or not. I don’t know where I got hurt; I know I grabbed hold of the mouth pieces. The first thing that happened to me after I fastened the chain around, was when these came over against my chest. That was after I had hooked it on, the chain reached all right around the mouth pieces and I got the chain over to the mouth pieces all right. I got thé chain over these and around the mouth pieces all right.”

August Stringer, the only other witness called on behalf of defendant in error, testified that he had charge of the men who worked in the yard; that he was running the crane when defendant in error was injured, which was about 9 o’clock at night; that the chain was properly hooked on to the mouthpiece; that there was a railroad track in the yard and some freight cars standing on it; that the arm of the crane projected over the cars, which were between the place where he was operating the crane and the place where defendant in error was working, so that he did not see defendant in error when he was injured; that the men who were assisting defendant in error had worked at night in the yards for four weeks; that they could hot talk English, but he had shown them how to do everything.

A consideration of the foregoing evidence obviously falls to disclose what, if any, negligence of plaintiff in error occasioned the injury complained of. Much less does it appear that defendant in error was injured by the negligence of plaintiff in error, as charged in the statement of claim. It appears affirmatively that the appliances furnished by plaintiff in error were proper and suitable for the work in hand; that there was sufficient light to enable the workmen to see the material to be removed, the appliances provided for moving the same, and the application of such appliances to the material; that the fellow-servants of defendant in error were informed as to their duties and were competent to perform the same.

It was incumbent upon defendant in error to prove the cause and manner of his injury, and we cannot indulge in mere speculation with reference thereto. Trybula v. Plamondon Mfg. Co., 153 Ill. App. 298.

The judgment is reversed with a finding of fact to he incorporated in the judgment of this court.

Judgment reversed with finding of fact.

Finding of Fact: We find as an ultimate fact that plaintiff in error was not guilty of any negligence which occasioned the injury to defendant in error.


source: Caselaw Access Project

author: Me.. Justice Baume

license: Public Domain

text:
    Anshel Shamberg et al., Appellees, v. Willard P. Stearns, Appellant.
    Gen. No. 17,312.
    1. Fraud — when representations not relied on. A lease will not be canceled on the ground that complainant was induced to lease premises to be used as a tannery by false representations of the lessor that the necessary permit from the department of health had been secured, where it appears that at complainant’s request the parties interviewed an official of the department of health to ascertain whether the business might be conducted and that the lease was not executed until complainant was assured by such official that the work might safely he done there.
    2. Landlord and tenant — presumption that lease contains terms of contract. A lease in writing entered into after certain oral and written agreements were made relating to the subject-matter thereof is presumed to embody all the terms of the contract between the parties.
    3. Fraud — effect of promise to do something in future. Where cancellation of a lease is sought on the ground that defendant falsely represented that a permit to operate a tannery was obtained, even if evidence that defendant orally agreed to cancel the lease if permission was later denied is competent, it cannot aid complainant, since fraud cannot be predicated on a promise to do something in the future.
    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, 1911.
    Reversed and remanded with directions.
    Opinion filed April 9, 1913.

      JohN Schwender, for appellant.
    Nicolas J. Peitzkek, for appellees.
   Me.. Justice Baume

delivered the opinion of the court.

Appellees, Anshel Shamberg and H. Alswang, filed their hill in equity in the Circuit Court against the appellant, Willard D. Stearns, wherein they alleged that on or about February 10, 1909, appellant offered to rent certain premises in the City of Chicago to appellees for the purpose of tanning leather for razor strops; that appellant was informed and knew that the manufacture of leather usually emitted a disagreeable odor and was only permitted in certain parts of the city, and also was informed and knew that in order to occupy the premises for that purpose it would be necessary to obtain a permit from the department of health; that appellant then informed appellees that he had consulted with the authorities and had been given a permit to rent the premises for the desired purpose and stated to appellees that in the event that such permit was canceled or withheld, he would release appellees from any lease which they might enter into; that relying upon said statements and representations made by appellant, appellees, on February 18, 1908, entered into a lease of said premises, and went into possession of the same and commenced the business of manufacturing leather therein; that shortly thereafter the city authorities directed appellees to discontinue said business and appellees then learned for the first time that the representations made, by appellant as to obtaining the necessary permit from the health department were not true; that said representations were made solely for the purpose of inducing appellees to execute said lease, and that appellees executed the same relying wholly upon the said representations of appellant, and immediately informed bim that they had been directed to discontinue their business in said premises and demanded of Mm the cancellation of said lease, hut that he refused to cancel the same; that in compliance with the said direction of the health department appellees vacated the premises on or about June 30,1909, and paid the rent therefor up to that time and have not since occupied the same; that on October 6, 1909, appellant caused a judgment by confession to be entered against appel-lees in the Municipal Court for $220, being for four months’ rent and for attorney’s fees, and that appellant threatens and will, unless enjoined, confess judgment on said lease each and every month up to the end of the term, to-wit, April 30, 1910; that on November 24, 1909, an execution was issued upon said judgment, and levied upon certain property belonging to appellees, and unless the bailiff of said Municipal Court be restrained he will proceed to sell said property to satisfy said judgment. The bill prays that the said judgment be set aside and vacated; that the said lease be canceled; that appellant be restrained from further confessing any judgment on said lease, and that a sale of the property under said execution be enjoined. Appellant answered the bill denying its material allegations, and upon a hearing before the chancellor, a decree was entered in accordance with the prayer of the bill.

The decree is attacked upon the ground that the charges of fraud and misrepresentation alleged in the bill are not supported by the evidence.

Appellee, Alswang, testified that when the proposal to rent appellant’s premises was under consideration, he expressed Ms doubts as to whether the building was a proper place for tanning; that appellant said he thought it was, and would take care of it right from the start; that appellant visited the place where witness was then conducting a tannery for the purpose of determining whether or not it would be advisable to move the business to his premises; that he showed the condition of the place to appellant and told Mm that the conditions were worse than they wonld be in his premises where there was a cement floor; that a conple of days later appellant told him he wonld go to the health department and investigate thoroughly; that npon the day the lease was executed appellant told him that he had been to the health department and investigated, and that witness should not worry about it, but sign the lease, move in and conduct his business; that he told appellant that the latter must realize that if witness should have any trouble after he moved in he would be almost a ruined man, and that he had not investigated, but relied on appellant; that appellant replied, “I am the power behind the throne, go ahead and work, don’t be foolish.”

Appellee Shamberg, testified that he told appellant that they wanted and could use his place if the city would allow them to start a tannery, but that they were afraid the city might stop them; that appellant then went out and looked at the place that Al-swang was conducting; that the next time he saw appellant the latter said he was satisfied, but witness was not satisfied and wanted appellant to go with him to the City Hall; that he accompanied appellant to the City Hall, where they met a man to whom appellant spoke, and the man said he didn’t think the business would be stopped; that at the end of the conversation with the man appellant said it would be all right, he was going to take care of it, and in case they were stopped they would not be required to pay any money or to use the place; that he took appellant’s word more than anything else.

Appellant testified that after having visited the place occupied by Alswang he told Shamberg, who desired to rent his premises, that, as far as he was concerned, the business would not be objectionable to him; that the question then came up as to whether or not the business would be objectionable to the city, and he accompanied Shamberg to the health department, where they saw a party supposed to he the officer in charge, to whom Shamberg stated what they wanted and what the business was; that the health officer made inquiries of Shamberg as to how the work was done and after considering the matter said he thought it would be safe for appellees to conduct their business in the proposed new location; that he then told Sham-berg that appellees could have the place if they wanted, and that appellees then signed the lease. Appellant further denied having made any statement or promises other than those embodied in the lease.

The written proposal for the lease signed by appel-lees and the written acceptance of such proposal signed by appellant were introduced in evidence. These writings embody the agreements of the parties with reference to the terms of the proposed lease and certain improvements and changes in the premises to be made by appellant, and the lease as executed conformed to the terms of such agreement.

On April 29, 1909, appellees were notified by the health department to discontinue making hides in preparatory processes to tanning, on account of foul odor from “bait.” The business was abated on June 28th following, and appellees then vacated the premises.

J. A. Spallard, one of the- inspectors in the health department, testified that upon the occasion when he inspected the premises occupied by appellees he asked them how they came to be there, by what authority, and that appelles told him that they had permission from the secretary, if they didn’t commit a nuisance.

Section 692 of the Municipal Code provides, in part, as follows:

“It shall not be lawful for any person or corporation to locate, build, construct or maintain, on any street or alley in the city, in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, any building for a boarding, livery or sale stable, gas reservoir, blacksmith shop, foundry, packing house, rendering plant, soap factory, tannery, etc., without the written consent of a majority of the property owners to frontage, on both sides of such street or alley.”

The chancellor appears to have granted the relief prayed for in the bill upon the ground that, in leasing the premises to appellees to be used as a tannery, appellant was guilty of a violation of said section of the Municipal Code, and that said lease’ was thereby rendered void and unenforcible.

The relief prayed in the bill is predicated solely upon the alleged false and fraudulent representations of appellant, whereby appellees were induced to execute the lease in question. The jurisdiction of a court of equity is invoked upon that ground alone, and unless the proof sustains the allegations of the bill in that particular appellees are not entitled -to the relief prayed.

It is not controverted that appellant and appellee, Shamberg, at the solicitation of the latter, interviewed one of the officials connected with the department of health for the express purpose of ascertaining whether the work in question, as performed by appellees, might properly be carried on in the building belonging to appellant, and that the lease was not executed until appellees were assured by such official that they might safely do the work there. The proof shows that appel-lees did not rely upon the representations of appellant, if any such were made, but that they insisted upon making an independent investigation of the subject, and that they relied upon the result of such investigation. Under such circumstances appellees are not entitled to invoke the aid of a court of equity for the purpose of procuring a cancellation of the lease. Crocker v. Manley, 164 Ill. 282; Hooker v. Midland Steel Co., 215 Ill. 444.

The lease is a contract in writing and is presumed to embody all the terms of the contract between the parties.

If evidence, tending to show that appellant orally agreed to cancel the lease if a permit to appellee to conduct the business was denied, had been competent, it would avail appellees nothing, because fraud cannot he predicated upon a promise or agreement to do something in the future. Miller v. Sutliff, 241 Ill. 521.

The decree is reversed and the cause remanded with directions to dismiss the hill.

Decree reversed and cause remanded with directions.


author: Mr. Justice Baume

text:
    Selman Mikshonis, Defendant in Error, v. Hyde Park Hotel Company, Plaintiff in Error.
    Gen. No. 17,331.
    1. Master and servant — duty to inspect rests on master. It is the duty of the master to use ordinary care to provide servants with reasonably safe appliances and to inspect such appliances from time to time, depending upon their character and the manner in which they are used.
    2. Master and servant — inspection. The question whether a master has performed his duty with regard to inspection of a machine or appliance is to he determined by considering whether the test used will give indications as to actual conditions.
    3. Master and servant — questions for jury. Where plaintiff is injured by the falling of a motor which he is helping lift from a shelf, there being evidence that defendant’s engineer felt the eye-bolt in the top of the motor with his hand to see if it was firm before inserting a gas pipe by which to lift it, the question is properly submitted to the jury as to whether the master performed its duty of inspection.
    4. New trial — where affidavit discloses want of diligence. A motion for new trial on the ground of newly-discovered evidence is properly denied where the affidavit in support of such motion discloses a want of diligence in procuring and producing it.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed April 9, 1913.

      Bobert J. FoloNie and H. B. Bale, for plaintiff in error.
    Morgah & BubeNsteiN for defendant in error; Bowles & Bowles, of counsel.
   Mr. Justice Baume

delivered the opinion of the conrt.

In a snit to recover damages for personal injuries instituted in the Municipal Court by defendant in error against plaintiff in error, a trial by jury resulted in a verdict and judgment for $1,000 against plaintiff in error, who prosecutes this writ of error to reverse such judgment.

Plaintiff in error rested at the close of the evidence for defendant in error, and there is no material controversy as to the facts. At the time of his injury defendant in error was employed as a fireman of a boiler in the basement of the hotel conducted by plaintiff in error. Anderson, the chief engineer, and Johnson, the second engineer, proposed to disconnect a motor in the ice machine room and carry it into the kitchen to take the place of one which was out of order. The motor weighed from 175 to 300 pounds and stood upon a shelf about five feet above the floor. Through an eye-bolt, which was supposed to be securely screwed into the top of the motor, Anderson and Johnson inserted a gas pipe for the purpose of thereby lifting and carrying the motor, and then directed defendant in error to assist them in removing the motor from the shelf, by taking hold of it and steadying it, while they stationed one at either end of the gas pipe, should lift it and place it upon the floor or down to a convenient level to be carried by them. Necessarily, defendant in error was located beneath and in front of the motor, while Anderson and Johnson were on either side of it. When they had lifted the motor from the shelf and while defendant in error was holding it, it became released from the eye-bolt and fell upon defendant in error’s left foot, causing the injury complained of. Johnson testified that before he inserted the gas pipe through the eye-bolt, he felt the eye-holt with his hand, and it felt firm; that the eye-bolt was half an inch in diameter ; that he could not see how far it was screwed into the motor; that just as Anderson and he swung the motor from the platform toward defendant in error the eye-holt turned about a quarter of a turn and came out; that after the motor fell he observed that the eye-bolt had only been inserted about two threads, and that the threads were not pulled out or stripped.

We do not understand that plaintiff in error seeks to avoid the duty cast upon it by law to use ordinary care to provide its servants with reasonably safe appliances with which to work and to inspect such appliances from time to time, but it is insisted by plaintiff in error that the full measure of its duty in that regard was performed by Johnson, its vice principal, when he felt of the eye-bolt with his hands, and that he was not bound to unscrew the eye-bolt from the motor for the purpose of determining whether the eye-bolt was securely fastened.

We do not presume to say that any particular method of examination and inspection should have been adopted by plaintiff in error, and we are not disposed to concede that the method suggested was the only other practicable one to determine whether or not the eye-bolt was securely fastened. Concerning the duty of inspection, it is said:

“While there is no absolute duty to keep appliances in safe condition, there is a duty to use reasonable care to keep them fit, and this duty may require inspection at reasonable intervals and the employment of such tests as will reveal the condition of the machinery or appliances. This duty of inspection rests upon the employer and not upon the employe, and depends upon the character of the machine or appliance, since ordinary care may require an inspection oftener in one case than in another.” Armour v. Brazeau, 191 Ill. 117.

Likewise, the character and extent of the test required by the master, in the fulfillment of the duty imposed upon him, may depend upon the manner in which the appliance is to be used, as affecting the safety of the servant.

In the case at bar, defendant in error, in the performance of the duty imposed upon him, was required to stand beneath the motor, as it was being lifted from the shelf and lowered to the desired level, and was necessarily exposed to danger of injury, if the eye-bolt separated from the motor.

In Labatt on Master and Servant, Vol. 1, 351, the principles applicable here are stated, thus:-

“"Whether or not the duty of a master with regard to proper inspection has been performed by the application of any given test is to be determined by considering whether that test will give indications as to the actual condition of the instrumentality in question. In the application of this principle the courts have usually proceeded upon the theory that a merely visual or ocular inspection of external conditions does not satisfy the full measure of a master’s obligations, where the servant’s safety depends upon the soundness of the material of which an instrumentality is composed, or upon the firmness with which the separate parts of an instrumentality are attached to each other, or upon the stability of some heavy substance.” See also Pagan v. City of Highland, 152 Ill. App. 607.

The question whether or not plaintiff in error exercised reasonable care, in view of the situation, in performing its duty of inspection was properly submitted to the jury, and in the absence of prejudicial errors of law, the verdict must be held to be conclusive upon that issue.

The fourth instruction given at the instance of defendant in error is hot a model, but when considered in connection with the other given instructions, it could not have operated to the prejudice of plaintiff in error. Several of the instructions given at the request of plaintiff in error stated the law much more favorably to it than was authorized, and if they had been followed by the jury, a verdict for defendant in error would have been impossible.-

The motion for a new trial, upon the ground of newly discovered evidence, was properly denied. The affidavits in support of such motion disclose a want of diligence in procuring the alleged newly discovered evidence and in producing the same at the trial.

The damages awarded,, while ample, are not so large as to demand interference with the verdict in that respect.

There is no error in the record prejudicial to plaintiff in error and the judgment is affirmed.

Judgment affirmed.


text:
    Rose Harrison et al., Administrators, Plaintiffs in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 17,355.
    1. Steeet Railroads — instruction as to contributory negligence. In an action for wrongful death of plaintiff’s intestate caused from being struck by defendant’s street car, an instruction as to what constitutes ordinary care, which is abstract in form and does not inform the jury that the duty of the deceased to exercise reasonable care for his own safety was not limited to the instant when he was injured but existed as well while he approached and attempted to cross the tracks, is properly refused.
    2. Street railroads — instruction as to duty of care proportionate with danger. In an action for the wrongful death of plaintiff’s intestate caused from being struck by a south-bound street ear while attempting to cross behind one north-bound, it is proper to instruct the jury that it was the duty of deceased to exercise care for his own safety proportionate to the danger and with reference to the situation and position which he was about to take.
    3. Evidence — when not substantial error to strike out proper testimony. In a personal injury action, where the testimony of a witness that he could have heard the hell on a street car if it had been rung is improperly stricken out, it is not a substantial error, the jury being as well qualified as the witness to determine whether or not he would have heard it.
    Error to the Superior Court of Cook county; the Hon. Oscak E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed April 9, 1913.
    Rehearing denied April 24, 1913.
    HeNry S. Wilcox, for plaintiffs in error; Charles C. SpeNCer and Jesse Wilcox, of counsel.
    Johs E. Kehoe and WatsoN J. Ferry, for defendant in error; Leonard A. Busby, of counsel.
   Mr. Justice Baume

delivered tlie opinion of the court.

This was an action in case by plaintiffs in error against defendant in error to recover damages for wrongfully causing the death of John Harrison. A trial by jury in the Superior Court resulted in a verdict in favor of defendant in error and a judgment against plaintiffs in error for costs.

At about 6:30 o’clock, p. m., on February 9, 1908, Harrison, while attempting to cross Wabash avenue on the north crossing of 16th street and in the rear of a north-bound electric street car was struck and killed by a south-bound car operated by defendant in error. The declaration charges negligence generally in the management and operation of the south-bound car; negligence in failing to warn persons then and there about to cross Wabash avenue of the approach of said car; negligence in running said car at a high and dangerous rate of speed; negligence in failing to stop said car. and in failing to provide proper and sufficient appliances for stopping the same.

The only assignments of error argued by plaintiffs in error relate to the action of the court in refusing, modifying and giving certain instructions, and in excluding certain evidence offered by plaintiffs in error.

The first instruction tendered by plaintiffs in error and refused by the court was purely abstract in form and was not improperly refused. We do not regard Chicago City Ry. Co v. Kastrzewa, 141 Ill. App. 10, as an authority approving the instruction in the form in which it was tendered in the instant case. In the Kastrzewa case the jury were instructed orally and for aught that appears in the reported opinion the portion of the instruction there quoted may have been concretely applied to the facts involved by other portions of the instruction given to the jury.

To have given the instruction which was modified by the court, without modification, would have merely involved a repetitious definition of what constitutes “ordinary care,” and the court not improperly referred the' jury to other given instructions defining such expression. Furthermore, the instruction, as tendered, was abstract in form and did not inform the jury that the duty of the deceased to exercise reasonable care for his own safety was not limited to the instant when he was injured, but existed as well while he approached and attempted to cross the tracks of defendant in error. The instruction, as tendered, differs materially from the instruction which was approved in Town of Normal v. Bright, 223 Ill. 99, cited by plaintiff in error. In the Bright case the injury to the plaintiff was occasioned by a defective street crossing, and the instruction there involved referred to the duty of the plaintiff to exercise due care and caution “in using the crossing in controversy.”

The twentieth instruction given at the request of defendant in error is not wholly exempt from criticism, but, as applied to the facts disclosed by the evidence, the duty of the deceased, as there announced, to exercise care for his own safety proportionate to the danger, and with reference to the situation and position which he was about to take and in which he found himself, is not so improperly stated as to require a reversal of the judgment. While cars were being operated upon the track there, and when the presence of a north-hound car necessarily obstructed the view of an approaching south-bound car, the crossing in question was obviously a place of danger. The deceased was familiar with the crossing, having had occasion to travel over it four or five times a day during the period of about three years. There is evidence tending to show, and the jury was warranted in finding, that, upon the occasion in question, the deceased was intoxicated; that when he passed in the rear of the north-bound car he looked to the north and saw an approaching south-bound car which he might have avoided by remaining stationary, and that in attempting to cross the south-bound track he slipped and fell backward so that his legs were thrown across the east rail of the south-bound track, where they were cut off by the wheels of the approaching south-bound car.

Objection to the other instructions given to the jury at the instance of defendant in error do not merit consideration. They contain nothing that could have misled the jury to the prejudice of plaintiff in error.

Eobert Topp, a witness called by plaintiff in error, testified that at the time of the accident he was standing on the northwest corner of Wabash avenue and 16th street; that as the south-bound car came down he did not hear any bell or gong ring or sound; that his hearing was good; that he had stood examination twice for railroad service and had passed. He was then asked: “Well, if the bell had been rung on that car could you have heard it?” He replied in the affirmative, and on motion of counsel for defendant in error such reply was stricken out. The reply of the witness might with propriety have been permitted to stand, but in view of his statement that his hearing was good and the undisputed fact that he was standing about 25 or 30 feet from the place where the accident occurred, the jury were as well qualified as was the witness to determine whether or not he would have-heard the gong, if it had been sounded, and plaintiff in error was not harmed by the ruling.

There is no substantial error in the record which demands a reversal of the judgment, and the judgment is affirmed.

Judgment affirmed.


text:
    John A. Hyde, Appellee, v. John A. Sokol, Appellant.
    Gen. No. 17,377.
    •1. Appeals and ebbobs — when finding of trial court without jury conclusive. Where the trial court without a jury holds special findings of fact submitted by defendant, such findings upon the facts in issue and so submitted must be regarded as conclusive on appeal by defendant, when no cross-errors are assigned on the rulings thereon.
    2. Negotiable instbuments — guaranty. Where one indorses a note as guarantor before its delivery, the consideration of the note is presumed to be the consideration for the guaranty.
    3. Evidence — presumption that one in possession is owner. It must be presumed that a person in possession of a store and stock of goods on the day that notes given by him in payment therefor were dated was then the owner thereof, in the absence of evidence tending to show that such possession was acquired conditionally.
    4. Negotiable instbuments — when indorser not liable as guarantor. A person is not liable upon notes as guarantor where it appears that such person signed at the payee’s request several days after delivery thereof, that the maker never requested him to indorse the notes, that he never agreed with the maker to do so, that the payee did not request him to sign before or at the time the consideration was delivered, that he did not then agree to do so and that no consideration was given or promised, for the indorsement.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed with finding of fact.
    Opinion filed April 9, 1913.
    Rehearing denied April 24, 1913.

      Delbert A. Clithero and James H. DuNN, for appellant.
    Michael Frahk Cure, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit instituted by John A. Hyde against John A. Sokol in the Municipal Court to recover upon two promissory notes whereon it is sought to charge the defendant as guarantor. A trial by the court without a jury resulted in a judgment against defendant for $1,035, and this appeal followed.

The verified statement of claim filed by plaintiff states that the claim is for money past due and owing on two notes of $500 each, made by one Olaf J. Johnson, dated November 12, 1906, payable to the order of plaintiff in 44 and 48 months, respectively, after the date thereof, with interest at the rate of 6 per cent per annum after date, which said notes the defendant, before the execution and delivery thereof, indorsed in blank as guarantor, etc.

The verified affidavit of merits filed by defendant states that defendant did not indorse in blank as a guarantor the two notes described in plaintiff’s statement of claim before the execution and delivery thereof; that defendant did indorse as a guarantor said notes described in plaintiff’s statement of claim after the execution thereof by one Olaf J. Johnson and after the same had been delivered to plaintiff, the payee; that defendant indorsed said notes as a guarantor at the special instance and request of the plaintiff; that the indorsement by defendant as a guarantor, as aforesaid, of said notes was wholly without any consideration therefor; that neither the said plaintiff, the said Olaf J. Johnson nor any other person paid, gave or received, either directly or indirectly, any promise, consideration or anything of value of any kind or nature whatever to procure the indorsement of said notes by defendant as a guarantor as aforesaid; and that said contract of guaranty is wholly without consideration and is a mere nudum pactum.

At the close of the evidence and before argument and entry of judgment defendant submitted to the court certain special findings of fact, of which the 1st, 2nd, 3rd, 4th, 5th, 6th and 8th were held by the court as follows:

First. “That the only consideration paid, given or received for the notes in suit herein, which are Plaintiff’s Exhibit 1 and 2, was the sale and transfer of the grocery store on Ogden evenue by the plaintiff John A. Hyde to one Olaf J. Johnson.”

Second. “That an inventory was taken of said grocery store and the stock therein by the said Johnson and Hyde on Sunday the 11th day of November, A. D. 1906.”

Third. “That thereafter the possession of said grocery store was delivered by the said Hyde to the said Johnson; that the said Johnson opened said store for business on Monday, the 12th day of November, A. D. 1906, and on and thereafter had the possession and control of said grocery store and conducted business therein until he died in September, A. D. 1910; and that the notes in suit herein, dated respectively November 12, A. D. 1906, were given by the said Johnson to the said Hyde as part payment of the consideration for said grocery store so sold by the said Hyde, plaintiff herein, to the said Olaf J. Johnson.”

Fourth. “That three or four days after the delivery of the possession of said grocery store to the said Johnson by the said Hyde, as heretofore found, the said defendant John A. Sokol indorsed as a guarantor the said notes in suit herein, being Plaintiff’s Exhibits 1 and 2.”

Fifth. “That said defendant John A. Sokol indorsed the said notes in suit, being Plaintiff’s Exhibits 1 and 2, at the request of John A. Hyde, plaintiff herein, and that no consideration was given, paid or promised by the said Hyde or anyone else in consideration of the said defendant John A. Sokol guaranteeing payment of said notes as aforesaid.”

Sixth. “That at the time said defendant John A. Sokol indorsed said notes as a guarantor, as aforesaid, he did so at the special instance and request of the said plaintiff John A. Hyde without any consideration therefor, as heretofore found, and after the said notes in suit, Plaintiff’s Exhibits 1 and 2, had been signed by the said Olaf J. Johnson and delivered to the said plaintiff John A. Hyde.”

Eighth. “That the two notes in suit herein are numbers 9 and 10 of a series of ten notes, numbered from 1 to 10, inclusive, given by the said Olaf J. Johnson to the said Hyde as part payment for said grocery store and business,' each of said notes being for $500, and the first eight of said notes having been paid by the said Olaf J. Johnson during his life time.”

Appellee has assigned no cross-errors upon the rulings of the court on such special findings, as submitted, and they must be regarded as conclusive upon the facts in issue and so submitted.

The indorsement of a note in blank by a third party at the time of its execution creates a presumption, subject, however, to be rebutted, that the indorser intended to assume the liability of a guarantor, and in a suit on such indorsement the presuniption obtains, in the absence of countervailing evidence, that an undated indorsement was made at the date of the note. De Clerque v. Campbell, 231 Ill. 442. In such case also the consideration for the note is held to be the consideration for the guaranty, and no further consideration need be shown. Davis v. Wolff Mfg. Co., 84 Ill. App. 579, and cases there cited.

Delivery is essential to the validity of a note, and the execution of a note is not complete until it is delivered to the payee, or some one for him. King v. Fleming, 72 Ill. 21; First Nat. Bank of Centralia v. Strang, 72 Ill. 559.

Where a party indorses a note as guarantor before its delivery to the payee, the consideration of the note will be presumed to be the consideration for the guaranty, but if he indorses such note after its delivery to tlie payee, a consideration must be proved, unless it appears that it was agreed between tbe maker tbe payee and tbe indorser that tbe latter sbonld guarantee tbe note. Parkhurst v. Vail, 73 Ill. 343.

Possession is prima facie evidence of ownership, and in tbe absence of evidence, tending to show that tbe possession by Johnson of the store and stock of groceries on November 12, 1906, was acquired conditionally it must be presumed that be was then tbe owner of tbe same. There is not a scintilla of evidence tending to show that Johnson ever requested appellant to indorse tbe notes, sued on as guarantor, or that appellant ever agreed with Johnson to do so, or that prior to or at tbe time appellee delivered possession of tbe store and stock of groceries to Johnson appellee requested appellant to indorse said notes, or that appellant then agreed so to do.

Tbe court specially found that tbe only consideration for tbe notes was tbe sale of tbe grocery store by appellant to Johnson; that possession of said grocery store was delivered by appellant to Johnson on November 12, 1906; that three or four days thereafter appellant indorsed said notes as guarantor, and that no consideration was given, paid or promised for tbe indorsement of said notes by appellant as guarantor; that appellant so indorsed tbe same at tbe request of appellee after tbe same bad been signed by Johnson and delivered to appellee.

TJpon tbe facts so found by tbe court, and in tbe absence of proof of any agreement between tbe parties that appellant should guaranty tbe notes, tbe court should have found that appellant was not liable upon said notes as guarantor.

Tbe judgment is reversed with a finding of fact to be incorporated in tbe judgment of this court.

Judgment reversed with finding of fact.

Finding of Fact: We find as an ultimate fact that tbe indorsement by appellant as guarantor of tbe notes sued on was without any consideration therefor.


text:
    Gustave Verboomen, minor, by Leone Van Mortel, his next friend, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,388.
    1. Cabbiebs — when verdict .not against weight of evidence. In an action against a street railway- company for injuries caused by the alleged negligence of the company in starting a car while plaintiff, a boy fourteen years of age, was boarding it, held, that a verdict for plaintiff was not against the manifest weight of the evidence.
    2. Appeals and ebbobs — duty of appellate court in weighing evidence. It is the duty of the appellate court in weighing the evidence to consider the probability of the testimony of the various witnesses.
    3. Appeals and ebbobs — effect of failure to instruct where complaining party made no request therefor. In an action against a street railway company for injuries received by plaintiff when boarding a car, failure to inform the jury as a question of law what facts will create the contract relation of carrier and passenger does not require reversal of a judgment for plaintiff where no instruction on that subject was requested by defendant.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed April 9, 1913.
    Rehearing denied April 24, 1913.
    JohN E. Kehoe and Watson J. Ferry, for appellant; Leohard A. B/usby, of counsel.
    John R. Harrington and Guerin, Gallagher & Barrett, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by Gustave Verboomen, a minor, by his next friend, against the Chicago City Railway Company to recover damages for personal injuries. Upon the verdict of a jury the Circuit Court entered judgment against the defendant for $3,000, and this appeal followed.

The case was submitted to the jury upon the second and fifth original counts, and the first, third and fourth amended counts of the declaration. The first amended count alleges the possession of and operation by the defendant on May 13, 1909, of a line of street cars for the conveyance of passengers on 31st street in the City of Chicago; that on said date at and near the point where Vernon avenue meets said 31st street on the south side thereof plaintiff awaited the coming of the west-bound car which was then approaching said intersection for the purpose of boarding said car; that while in the exercise of due care for his own safety he sought to become a passenger on said car and that in pursuance of his purpose to board said car, he attempted to step upon the foot board of said car; that defendant knew or should have known in the exercise of due care that he was attempting to board said car; that while he was attempting to board said car, but before he could get safely upon or into the same defendant negligently started said car with a sudden and violent motion, whereby he was thrown upon the ground and upon the track of the defendant and his foot was run over, mangled and crushed, so that it became necessary to amputate it, etc. The second count charges that defendant so negligently managed and operated said car at or near said intersection that the plaintiff who was then a passenger of said defendant and using due care for his own safety was thrown, etc. The third amended count charges a duty on the part of defendant in the operation and management of said car to stop the same a reasonable length of time to give the plaintiff an opportunity of getting safely upon said car and reaching a place of safety thereon, and alleged that defendant failed to perform such duty, but negligently, suddenly moved and jerked said car while the plaintiff, as defendant well knew or should have known, was attempting to board said car and while he was stepping on the platform of said car, etc. The fourth amended count charges a duty upon the part of defendant to nse great care and caution in the operation and management of its street cars so that the plaintiff and others who might have occasion to be received as passengers thereon might not he injured, and to stop said ear at said street crossing and to canse the same to remain standing a reasonable length of time to give the plaintiff an opportunity of getting safely aboard and of reaching a place of safety on said car and not to start or move said car nor accelerate its speed while plaintiff was attempting to board the same, and alleges a failure by defendant to perform such duty, and that it negligently failed to bring said car to a stop, but slackened up to a slow rate of speed on said 31st street near Vernon avenue, and while the plaintiff was getting on said car, as the defendant well knew or should have known, and while plaintiff was using due care the defendant suddenly and without warning negligently moved said car at a high rate of speed and accelerated the speed of said car while plaintiff was attempting to board the same, etc. The fifth original count alleges that plaintiff then and there awaited the approach of said car on 31st street at or near its intersection with Vernon avenue; that said car came to said intersection and that plaintiff in the exercise of due care attempted to board said car and became a passenger thereon; that defendant well knew or could have known that plaintiff was about to board said car and that while plaintiff was so attempting to board said car defendant negligently caused said car to be suddenly and violently jerked and moved forward, etc.

It is insisted that the verdict is not justified by the evidence; that the verdict is against the manifest weight of the evidence; and that certain instructions given at the instance of the plaintiff are erroneous.

On the morning of May 13, 1909, the plaintiff and two other persons who purposed being carried on one of the defendant’s west-bound street cars, then being operated on 31st street, were standing on the northwest corner of 31st street and Yernon avenue at or near the place where passengers customarily boarded •the rear platform of defendnat’s west-bound cars when said cars came to a stop at or immediately west of the west crossing at the intersection of said streets. As the car in question approached said crossing, it slowed down for the purpose of coming to a stop and receiving the persons waiting there as passengers. The plaintiff was then about 14 years of age and was carrying in his left hand, or by the fingers on his left hand, a small package wrapped with twine containing his lunch. The evidence bearing upon the conduct of the plaintiff, the manner in which the car was managed and operated, and the manner in which the plaintiff sustained the injury complained of, while conflicting in some essential, as well as non-essential, particulars, is sufficient to justify a recovery under one or more counts of the declaration, and the verdict is not against the manifest weight of such evidence.

The evidence for the plaintiff tends to show that, as the car approached the crossing from the east, the plaintiff was standing two or three feet east of the witness, Marguerite Bowen; that before the front end of the car reached said crossing the plaintiff walked or ran westward by Miss Bowen for the purpose of boarding the car at the front platform, and that when the car, running slowly and apparently about to stop at the customary stopping place, had reached a point 15 or 20 feet west of said crossing, and approximately the same distance east of the place where cars customarily stopped, the plaintiff grasped the front hand rail of the car with his right hand and stepped upon the step of the front platform for the purpose of entering the car, and that, as and when he did so, the car moved rapidly forward with a sudden and violent jerk; that plaintiff was thereby thrown to the ground and injured, as alleged in the declaration; that when the car was brought to a stop the plaintiff was lying where he had fallen, a short distance west of the crossing and in the rear of the ear, which had passed over his foot.

There is some evidence tending’ to show that the plaintiff signalled the motorman to stop the car, but whether he did so or not is without significance, in view of the undisputed fact that the motorman saw the persons, including the plaintiff, waiting at the crossing for' the apparent purpose of boarding the car, and that he reduced the speed of the car, with the intention and for the purpose of stopping at the crossing and receiving said persons as passengers thereon.

It is conceded that “ordinarily an attempt to hoard or alight from a moving car is not of itself negligence. ’ ’ "Whether or not, in this case, the plaintiff was negligent was properly submitted to the jury, and upon the evidence, as it appears in the record, we are constrained to hold that the finding of the jury upon that issue was not unwarranted.

We are not unmindful of our duty in weighing the evidence to consider the probability or improbability of the testimony of the various witnesses, and our conclusion that the verdict is not against the manifest weight of the evidence is predicted upon a painstaking attempt to justly discharge our duty in that regard.

The instructions complained of are based upon evidence adduced at the trial, and are in accord with the principles announced in the somewhat similar case, upon the facts, of Chicago Union Traction Co. v. O’Brien, 219 Ill. 303.

That the court failed to inform the jury as a question of law what facts will create the contract relation of carrier and passenger does not require a reversal of the judgment,' in view of the fact that defendant requested no instruction upon that question.

There is no error in the record and the judgment is affirmed. 9

Judgment affirmed.


text:
    Frederick W. Fippinger, Appellee, v. Henry Ullrich, Appellant.
    Gen. No. 17,394.
    1. Escrows — negotiable instruments. Where a note held in escrow is to he delivered to plaintiff upon the consummation of a certain transaction, and the contract is never consummated, it is improper to allow plaintiff to recover on it.
    2. Attachment — evidence necessary to sustain. In an attachment on the ground that defendant has fraudulently disposed of his property so as to hinder and delay his creditors, it is incumbent on plaintiff to show by a preponderance of the evidence that the conveyances were made with an actual fraudulent intent to hinder and delay creditors.
    3. Appeals and errors — cost of unnecessary abstract. Where there is no occasion for the filing by appellee of a supplemental or additional abstract of the record, his motion to tax the cost of the same against appellant is properly denied.
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed April 9, 1913.
    George M. Boyd, for appellant.
    BbNNisoN F. Bartel, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

On July 13, 1910, appellee sued out a writ of attachment in the County Court to secure a claim for $1,000, alleged to he due him from appellant, and said writ was levied on certain real estate in Melrose Park in Cook County. The affidavit of appellee sets forth, as grounds for issuing the writ, that appellant “has within two years last past, fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder and delay his creditors; and has within two years last past, fraudulently concealed or disposed of his property, so as to binder and delay Ms creditors; and is now about fraudulently to conceal, assign, or otherwise dispose of bis property or effects, so as to binder or delay Ms creditors.”

Tbe alleged claim of appellee, as stated by bim, is “for commissions on real estate sales amounting to $975, and an agreed balance of $25 for rent, for wMcb appellant bad executed bis promissory note, dated December 14, 1909, and due January 2, 1910.”

Issues were made upon appellant’s verified plea traversing tbe several grounds for attachment and upon proper pleas denying tbe execution of tbe note and tbe alleged indebtedness, and a trial of such issues resulted in verdicts in favor of appellee upon both issues and judgment against appellant.

On or about March 1, 1909, appellant, who was engaged in tbe sale of real estate owned or controlled by bim, located in Melrose Park and in tbe states of Michigan and Wisconsin, employed appellee in tbe capacity of a salesman to procure purchasers for said real estate in Melrose Park, and appellee continued in such employment until September following. Tbe terms of tbe employment are disputed. Tbe evidence introduced on behalf of appellee tends to show that appellant agreed to pay bim a commission of 10% upon all sales made by him, and to allow Mm as an advancement upon such commissions $15 per week, and that tbe amount of tbe commissions earned by ap-pellee was to be ascertained and determined every 6 or 7 months, wMle tbe evidence introduced on behalf of appellant tends to show that be agreed to pay ap-pellee a commission of 5% upon all such sales, together with a like advancement of $15 per week, and that tbe amount of appellee’s commissions was to be ascertained, and paid when tbe purchaser made final payment.

It is admitted by appellee that be received tbe advancement of $15 per week during tbe time be was employed by appellant, and bis claim for unpaid commissions amounting to $975 is the difference between tbe amount of such, commissions and the total amount of the weekly advancements, which it is agreed was $365.

Upon the other issues of fact involved relating to whether the specific sales claimed to have been made by appellee were made by him or by appellant or by other salesmen employed by appellant, the evidence is irreconcilably conflicting. While the evidence, as it appears in the record, would, in our judgment, have warranted a finding for appellant upon the issues of fact above stated, we cannot say that the finding of the jury upon such issues is against the manifest weight of such evidence.

The evidence bearing on the question of appellant’s liability upon a note for $25 is wholly insufficient to justify a recovery thereon. Appellee’s own version of the transaction, while somewhat obscure and unintelligible, precludes a recovery by him on the note. The note appears to have been made payable to the order of appellee and signed by appellant and deposited, together with certain contracts and deeds, with one Soffel, in escrow, to be delivered to appellee upon the consummation of a transaction, which was never in fact consummated. The note was never delivered to or in the possession of appellee and was hot produced at the trial.

The only evidence offered by appellee in support of the grounds of attachment stated in the affidavit consisted of certain conveyances by Jane S. Haven and by the Chicago Title and Trust Company, as trustee under the will of Samuel R. Haven, to Lydia Ullrich, the wife of appellant,, of certain lots in Melrose Park, part and parcel of the real estate for which appellant and his salesmen sought to procure purchasers. A statement in detail of the transactions, as disclosed by the evidence offered on behalf of appellant, whereby said real estate was acquired, and the conveyances therefor were made by the owners to the wife of appellant would unduly extend this opinion and would serve no useful purpose.

There is no evidence tending to show any actual fraudulent intent on the part of appellant with respect to the conveyances of said real estate to his wife, hut the uncontradicted evidence discloses that said real estate was acquired with the independent means of his wife; that appellant owned other real estate, the title to which was in his own name, and that he was solvent at and since the time the writ of attachment was issued.

To justify the issuance of the writ of attachment here involved it was incumbent upon appellee to show by a preponderance of the evidence that the conveyances in question were procured to he made by appellant with an actual fraudulent intent on his part to hinder and delay his creditors. Wadsworth v. Laurie, 164 Ill. 42; Murry Nelson & Co. v. Leiter, 190 Ill. 414; McNeil & Higgins Co. v. Plows & Co., 83 Ill. App. 186.

Upon the evidence adduced the trial court should have given to the jury the peremptory instruction tendered by appellant as to the issues involved in the attachment.

There was no occasion for the filing by appellee of a supplemental or additional abstract of the record, and his motion to tax the cost of the same against appellant is denied.

For the reasons stated the judgment is reversed and the cause remanded.

jReversed and remanded.


author: Mr. Justice Graves

text:
    Isaac Stein, Defendant in Error, v. Isaac Deutsch, Plaintiff in Error.
    Gen. No. 17,225.
    1. CONTRACTS — when third person to he benefited may maintain action. Where a debtor delivers to defendant certain property to be sold and proceeds distributed among the creditors, and one of the obligations, a note guarantied by plaintiff is not paid, plaintiff having paid it may maintain an action against defendant.
    2. Statute of frauds — contract for benefit of third persons. Where defendant receives a debtor’s property and agrees to distribute the proceeds among his creditors, there is an original undertaking and the statute of frauds does not apply.
    3. Evidence — cross-examination. On cross-examination an objection to a question concerning a matter not material to the issues and not testified to on direct examination is properly sustained.
    •Error to the Municipal Court of Chicago; the Hon. Harry Orson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed April 9, 1913.
    SimoN La Grou, for plaintiff in error.
    Delbert A. Clithero and James H. DuNN, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

Moses A. Freilich owed his wife $200, Herman Deutsch $300 and the Metropolitan Trust and Savings Bank of Chicago $300, for which it held his note, the payment of which was guaranteed by defendant in er — - ror, Isaac Stein. Freilich was in financial difficulties and turned over to one Isaac Deutsch, who was his wife’s brother, merchandise of the wholesale value of $835.35. Defendant in error says these goods — were sold and delivered to plaintiff in error in consideration of his promise to pay the above named obligations. Plaintiff in error claims the goods were delivered to he sold and the proceeds only whatever the same should be were to be distributed among the named creditors. Plaintiff in error did not pay the debt to the bank guaranteed by defendant in error. Defendant in error paid the note and brought suit on the- contract claimed to have been made between plaintiff in error and Freilich for his benefit. The court, tried the case without a jury, found the issues for defendant in error and assessed his damages at the full amount paid by him in the satisfaction of the note. Judgment was entered on the finding and this writ of error brings the record in that case here for review. The question presented to this court for review is whether the finding is supported by, or is against, the weight of the evidence. A review of the testimony of the witnesses for the respective parties would not be useful. It is conflicting. The finding must not be disturbed unless it is manifestly against the weight of the evidence. A careful examination of the Record discloses sufficient evidence, we think, to sustain the finding. While it is conflicting, it strongly tends to show that the $835.35 worth of goods were delivered to plaintiff in error by Freilich upon and in consideration of the promise of plaintiff in error to pay the debts above enumerated. This, we fhinlr, was an original, independent undertaking based upon a valuable consideration, and was enforceable by the persons who were to be benefited thereby, of whom defendant in error was one. Eddy v. Roberts, 17 Ill. 505; Bay v. Williams, 112 Ill. 91; Harts v. Emery, 184 Ill. 560; Cobb v. Heron, 180 Ill. 49; Webster v. Fleming, 178 Ill. 140. To that sort of contract the statute of frauds has ho application. While the proof in this record might possibly have been found sufficient to sustain arfinding for plaintiff in error, it is certain the one ^/macle is not so manifestly contrary to the evidence as to warrant a reversal of the judgment.

Only one complaint is made to the rulings of the court on the admission of evidence. This was during the cross-examination of Freilich, when he was asked by counsel for plaintiff in error, “And yon bought only cheap lines and misfits to sell to that trade?” An objection was made by counsel for defendant in error and was sustained by the court. There was no error in so doing. It was not a subject about which he had testified in chief. Neither was it in any way material to the issues in the case.

The judgment of the Municipal Court is, therefore, affirmed.

Judgment affirmed.


author: Mr. Justice Craves

text:
    Richard McCurrie, Defendant in Error, v. Edward Hines Lumber Company, Plaintiff in Error.
    Gen. No. 17,233.
    1. Damages — when •party cannot complain of amount. In an action to recover the value of a wagon, defendant cannot complain as to the amount of the judgment where the court without a jury adopts the testimony of his witness as to the value thereof.
    2. Damages — when party cannot complain that proof of value related to time before the conversion. Where action was brought for the value of a wagon, defendant cannot complain as to the amount of the judgment because the testimony as to value related to a time before the conversion, where that was the best evidence of which the question was susceptible and where he offered evidence of its value at that same time.
    3. Bailment — when evidence shows a bailment and that goods were lost through bailee’s negligence. In an action for the value of a wagon, where it appears that plaintiff, a teamster hired by defendant, according to the custom left his empty wagon in defendant’s lumber yard and hitched to a loaded wagon, expecting as usual to get his wagon in the evening, but that the wagon was not there and was never recovered, held, that the evidence warranted findings that the transaction constituted a bailment for defendant’s sole benefit; that defendant did not exercise care to prevent loss of the wagon and that the loss was due to defendant’s negligence.
    Error to the Municipal Court of Chicago; the Hon. Fbeeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed April 9, 1913.

      Haynie & Lust, for plaintiff in error.
    Edward E. Litziuger, for defendant in error; LeoN-abd C. Eeid, of counsel.
   Mr. Justice Craves

delivered the opinion of the court.

Defendant in error was in the teaming business. He was under contract with plaintiff in error to haul lumber from its yards. It was the custom, known to both parties, for plaintiff in error to require teamsters who came into the yards with an unloaded wagon to unhitch their teams therefrom and leave it in the yards to he loaded while they hitched their teams to loaded wagons and hauled them out of the yards. When their wagons were loaded, other teamsters, who in the meantime came into the yards with unloaded wagons, would in like manner hitch to the first wagon so left and loaded and so on, until a teamster was through work, when he would take or he given his own wagon and would take it away. In March, 1910, in the performance of his contract, defendant in error sent a team, wagon and a teamster hy the name of Hanahan to the yards of plaintiff in error to haul lumber, and in conformity to the custom mentioned and the directions of one Maher, the shipping clerk of plaintiff in error, Hanahan left the wagon of defendant in error in the yards to he loaded, and when it was loaded it was hauled out hy some other teamster. When Hanahan was through his work, he did not get the wagon he took there. Whether that was because it was loaded, or because it had been sent out hy another teamster, when it came time for him to quit work, is not made clear. The so-called stenographic report of the evidence, filed in attempted compliance with the Municipal Court Act, is in the narrative form and the help sometimes to he derived from the form of the questions put to the witnesses and the exact language used by them in reply is not available here. It is clear, however, tliat when Hanab.an was ready to leave tbe yards of plaintiff in error, where be bad left tbe wagon, it was not available to bim to take borne with him and that neither be nor bis employer ever did get it.

Tbe evidence conclusively establishes tbe further fact that plaintiff in error did not exercise any care whatever to see that tbe wagon was not lost.

It is apparent from tbe evidence that tbe reason for establishing tbe rule requiring teamsters to exchange wagons, and for tbe following of tbe rule in this particular instance, was to prevent tbe delay and waste of time that would be incident to tbe loading of each teamster’s wagon while be waited, and was for tbe sole benefit of plaintiff in error. Defendant in error made two demands on plaintiff in error for tbe return of tbe wagon before bringing this suit to recover its value. Tbe cause was tried by tbe court witb@ut a jury and resulted in a finding and judgment in favor of defendant in error for $94. Tbe court arrived at tbe amount of tbe judgment by allowing defendant in error $100 for tbe wagon and allowing plaintiff in error an item of set-off to tbe amount of $6. Tbe proof shows tbe wagon was worth at tbe time it was lost from $100, according to tbe testimony of a witness for plaintiff in error, to $120, according to tbe testimony of defendant in error.

Plaintiff in error is not in a position to complain as to tbe amount of tbe judgment, because tbe court adopted tbe testimony of its witness as to tbe value of tbe wagon. Neither can it complain because tbe testimony as to tbe value related to a time before it bad converted tbe wagon to its own use, because that was tbe. best evidence of which tbe question of value was susceptible in this case, and for tbe further reason that plaintiff in error offered evidence of its value at that same time, thereby waiving tbe question of its being tbe proper time.

When tbe identical property delivered to a person is to be returned, it is a bailment. Lonergan v. Stewart, 55 Ill. 44; Fleet v. Hertz, 201 Ill. 594-619. Where a bailment is for tbe sole benefit of the bailee, he must exercise extraordinary care over the property. Phillips v. Coudon, 14 Ill. 84; Hagebush v. Ragland, 78 Ill. 40; Howard v. Babcock, 21 Ill. 259; Bennett v. O’Brien, 37 Ill. 250. When property is delivered into the hands of a bailee and is not returned at all, the law presumes negligence on the part of the bailee and imposes on him the burden of showing that he exercised such care as was required by the bailment. Funkhouser v. Wagner, 62 Ill. 59; Bennett v. O’Brien, 37 Ill. 250; Cumins v. Wood, 44 Ill. 416; Hudson v. Bradford, 91 Ill. App. 218.

After a full consideration of all the evidence introduced we are satisfied the Municipal Court was warranted in finding that the transaction constituted a bailment of the wagon in question to plaintiff in error for its sole benefit and that it did not exercise the degree of care required or in fact any care at all over the same to prevent its loss; that its loss was due to the negligence of plaintiff in error, and it was, therefore, liable to the bailor, the defendant in error, for its value.

The judgment of the Municipal Court is, therefore, affirmed.

Judgment affirmed.


text:
    Edward C. Wentworth, Trading as Whiteside & Wentworth, Defendant in Error, v. Ales Mann, Plaintiff in Error.
    Gen. No. 17,278.
    1. Brokers — when may recover commissions. A real estate broker cannot recover for commissions earned under a brokerage contract unless he shows that he sold the property in question or was instrumental in bringing about the sale, or procured a purchaser ready, able and willing to purchase at the stipulated terms.
    2. Actions and defenses — no recovery for breach, of contract in action for earnings thereunder. Where action is brought to recover earnings under an executed contract, no recovery can be had for damages for its breach. ,
    Error to the Municipal Court of Chicago; the Hon. William H. Hinebaugu, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed April 9, 1913.
    W. H. Chadwick, for plaintiff in error.
    John C. Everett, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

Defendant in error began suit in the Municipal Court to recover commissions claimed to have been earned by him under the following contract, viz.:

“March 9th, 1910.
"Whiteside & Wentworth,
140 Dearborn street,
Chicago.
GENTLEMEN:

Ton are hereby authorized to sell my property, described as 4445 Evanston Ave. at the price of twelve thousand dollars, upon the following terms:

Cash Five Thousand Five Hundred, Balance as per mortgage. Subject pro-rata to taxes and assessments levied subsequent to the year 1909, also special assessments for and to an encumbrance of $6,500 due May, 1910.

When you sell the property, I will furnisli a merchantable abstract of title brought down to date of sale, and will pay you for your services a commission of 2y2 per cent on the price at which the property sold, and in addition y2 of whatever you can realize above my said price.

You are to have the exclusive right to sell the property Two months from date and thereafter until written notice.

Apex MaNN, Owner.

We hereby accept the above agency and agree to push the sale of the property.

Whiteside & WeNtwopth.”

He recovered a verdict and judgment for $200.

The uncontradicted facts are that within two months after this contract was signed defendant in error sold the property in question through a real estate brokerage firm by the name of Young & Johnson, and that-said sale was not made by defendant in error, nor was it made to any customer procured by him or through any instrumentality of his.

Whatever may be the law in other jurisdictions, it is the settled law in this state that before a real estate broker can recover for commissions earned under a brokerage contract, he must show that he has either sold the property in question, been instrumental in bringing about the sale, or that he has procured a purchaser who was ready, able and willing to purchase it at the stipulated terms. Smith v. Keeler, 151 Ill. 518; Henry v. Stewart, 185 Ill. 448; Swigart v. Hawley, 140 Ill. 186; Bunn v. Keach, 214 Ill. 259; Woolf v. Sullivan, 224 Ill. 509. There is a total lack of any evidence that defendant in error complied with any of the foregoing conditions, but that he did not do so is conceded. This being an action for commissions earned and there being no evidence whatever that he ever earned the commissions claimed, the verdict is contrary to the evidence and the judgment cannot be sustained.

If plaintiff in error has violated his agreement with defendant in error and the snit had been brought to recover damages for such breach, it might well be he would have been liable in damages for an amount equal to or perhaps exceeding the amount of the judgment in this case, but that is not the case made by the pleadings. In a suit to recover earnings under an executed contract recovery cannot be had for damages for its breach. Dickson v. Owens, 134 Ill. App. 561; Metzen v. Wyatt, 41 Ill. App. 487; Gilbert v. Coons, 37 Ill. App. 448.

The judgment of the Municipal Court is, therefore, reversed and the cause remanded.

Reversed and remanded.


text:
    Bertene Broholm, Defendant in Error, v. John E. Anderson, Plaintiff in Error.
    Gen. No. 17,307.
    1. AdmikistratioN of estates — de son tort. One who acts as administratrix without authority is liable to the duly authorized representatives of the estate for money she recovered in the name of the estate, regardless of whether she still has the funds or not.
    2. Administration of estates — action Toy administrator. Where plaintiff acting as administratrix without authority is fraudulently induced by defendant, her attorney, to part with money belonging to the estate, she may sue in her individual capacity for the wrong done her.
    3. Election of remedies — when suit in assumpsit does not bar suit in tort. Where plaintiff is fraudulently induced by defendant, her attorney, to part with money which does not belong to her, the fact that she has instituted a suit in assumpsit and voluntarily dismissed it does not estop her from suing in tort.
    4. Fraud — when notes need not he returned. It is not necessary that plaintiff return notes received from defendant before suing in tort for fraud, the notes being introduced in evidence at the trial.
    5. Attorney and client — attorney has burden of showing fairness. Where the relation of attorney and client is shown to exist, and the question of the tona ficLes of a transaction between the parties is involved, it is' upon the attorney to show the fairness and honesty of. the transaction.
    6. Attorney and client — when client has right of action against attorney. Where an attorney fails to deal fairly and honestly with his client, and fails to give truly all the information he has in relation to the transaction, and the client sustains a loss, he may maintain an action for damages to the amount of the loss sustained.
    7. Attorney and client — where attorney fraudulently attains money from client. Where defendant, an attorney, by withholding advice and information, and making misrepresentations, obtains money from plaintiff, his client, a judgment in tort for the money so obtained, with interest, is sustained.
    8. Instructions — when not on questions to te determined ty the jury. It is not error to refuse instructions which do not deal with questions to be determined by the jury.
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed April 9, 1913.
    Abel L. .AlleN, for plaintiff in error.
    Lee Cohh, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

A son of defendant in error came to his death through an accident at the works of the Illinois Steel Company in South Chicago. The steel company signified its willingness to pay to the proper representatives of his estate $500 in settlement of all claims against it on account of that death. Plaintiff in error, representing defendant in error as her attorney, procured letters of adminstration to be issued to her for the purpose of having her authorized to settle that claim for the $500 offered, and procured an order authorizing that settlement to he made. He then went to the office of the steel company with her and obtained from that company a check for the money, payable to her as administratrix. He then went with her to the bank, where the check was cashed. She was a widow and had two minor children, a brother and sister of the. deceased. In the distribution of this fund sbe was entitled to one-balf and the children were entitled to one-quarter each. Defendant in error testified she did not know when the check was cashed, how much of the money belonged to her personally. The parties had not known each other until this transaction came up. Defendant in error was an illiterate woman. She could not read or write more than her own name. After the check had been paid and before the parties left the bank, there was a division of the money, plaintiff in error taking part and defendant in error the balance. As to how much of the money each had and what was said and done by the parties at the time, there is a conflict in the evidence. She says he had the check in his possession and told her to sign it, which she did; that he then cashed it and turned over to her $200, retaining $300 himself, and asked her “what are you going to do with the children’s money?” and said, “If you want to leave it in the bank you can. They will give you 3%. I will give 4 because I am guardian;” that she said, “All right,” but that she got nothing to show for the money he kept until some three years later when he gave her two notes for $125 each that were dated back to the date the check was cashed. Anna Borngraber a sister of defendant in error, corroborates her in every essential particular.

Plaintiff in error says he identified defendant in error at the bank; that she cashed the check, took $250 of it herself and told him she wanted to “put out” the rest; that he told her the bank would give her 3% on a certificate of deposit; that she might get 6% if she could “find a mortgage;” that she asked him if he could not get more than 3%; that he said, “Oh, I might get you 4% if you want to loan it out, I am not anxious about it;” that she said all right, and that he then gave her his notes for the money. He further testified that he did not tell defendant in error he was the guardian of the children. He further says the notes he then gave her were due on demand. His evidence stands alone and unsupported. He was not the guardian of the minor children. The letters of administration issued to defendant in error were subsequently revoked, because Frank Y. Camp had already been appointed administrator of the estate when letters were issued to her. Plaintiff in error testified he had never paid the notes, because he was not able. The jury found the defendant guilty and assessed the plaintiff’s damages at $382.50, and judgment was entered on the verdict.

Certain undisputable propositions stand out prominently, i. e., defendant in error is legally liable to the duly authorized representatives of the estate of her deceased son for the money she recovered in the name of the estate from the steel company, regardless of whether she still has the funds or not. Plaintiff in error never had any legal right to the money he obtained from defendant in error, because it was not her money. It belongs to the estate of her son. She had no right to loan it to him and he knew it. Even if her letters of administration had been regularly issued and had never been revoked, her right to the money as adminis-tratrix was solely for the purpose of its distribution to the next of kin of her decedent, and plaintiff in error, as her attorney, should have so advised her. He had no right to obtain it from her, either as a loan or by false pretense, or by any misuse of his confidential relations with her as her attorney, and it was in one of these ways he obtained it.

Becognizing her liability to the estate, defendant in error has sued in her individual capacity. She charges in her verified statement of claim that he obtained the money from her, not from the estate, by falsely and fraudulently pretending that he was the guardian of her minor children, and by the abuse of the confidential relation existing between them as attorney and client.

Plaintiff in error insists that defendant in error was acting as an administrator de son tort, and that, while she conld he sned as snch, she conld not sne in that capacity. A sufficient answer to that contention is that she is not suing in that capacity, but in her own right for a wrong done her. It would be a strange rule, indeed, that would deny her the right to recover back money that she has been wrongfully deprived of, because she owes it to some one else.

Plaintiff in error further contends that defendant in error is now estopped from suing in tort, because, before this suit was begun, she brought a suit in as-sumpsit and that such action was an election to treat the transaction as a loan, and to waive the tort. It is conceded that the suit in assumpsit was voluntarily dismissed by defendant in error before this suit was begun.

In Flower v. Brumbach, 131 Ill. 646, the Supreme Court held that “the mere bringing of a suit in as-sumpsit by a creditor who had two concurrent remedies, — the other being in tort for fraud, — is not of itself sufficient to operate as an irrevocable election on the part of the creditor to waive the tort. ’ ’ To the same effect is the holding in First Nat. Bank of Crockett v. Barse Live Stock Commission Co., 198 Ill. 232, and in Gribbs v. Jones, 46 Ill. 319. In the case of Allin v. Millison, 72 Ill. 201, the court holds that one may maintain a suit for fraud and deceit in a contract of sale without returning the consideration. We do not think defendant in error has waived the tort by bringing the suit in assumpsit, in view of the fact that the same was voluntarily dismissed by her. Nor that it was imperative that she return the notes of plaintiff in error before suing in tort. The evidence shows the notes had been matured by demand for payment before this suit was tried. The record shows that they were in the possession of defendant in error at the trial and were introduced in evidence, marked as exhibits and thoroughly identified with this judgment by the evidence in this record, so that this judgment conld be successfully pleaded in bar of ah action on the notes in the hands of anyone.

When the relation of attorney and client is shown to exist and the question of the bona fides of a transaction between the parties is involved, it is upon the attorney to show the fairness and honesty of the transaction. Willin v. Burdette, 172 Ill. 117, and authorities there cited. When an attorney, in his dealings with his client, fails to deal fairly and honestly, taking an advantage of his relation, influence or knowledge, and fails to give to his client truly all the information he has in relation to the deal, and the client is overreached and sustains loss, an action may be maintained by the client against him for damage to the amount of the loss sustained. Gilbert v. Williams, 8 Mass. 51; State v. Vanderheyden, 9 Johns. (N. Y.) 253; Hunter v. Atkins, 3 Myl. & K. 113. Not only did plaintiff in error fail to show fairness and honesty in the performance of his plain duty, as the legal adviser of defendant in error, but we think the clear preponderance of the evidence shows that by withholding the advice and information he should have given and by absolute falsehood and misrepresentation he obtained the money in question, and that defendant in error has shown a clear right to a judgment against him for the same. We also think under the evidence the jury were warranted in finding that the amount of the money so obtained was $300, which was the amount with interest added the jury fixed as the damages.

Plaintiff in error complains of the refusal of instructions numbered 3, 4 and 5 offered by him. They were all properly refused. None of them dealt with questions to be determined by the jury, and it would have been error to give them.

The judgment is, therefore, affirmed. . '

Judgment affirmed.


author: Mr. Presiding Justice Smith

text:
    Knickerbocker Ice Company v. Halsey Brothers Company (Appellee), on appeal of Nollan & Wolff Manufacturing Company (Petitioner), Appellant.
    Gen. No. 17,240.
    1. Mechanics’ liens — when owner may rely on statement of contractor. Where an owner has no notice from the subcontractor of bis claim, and no notice that a sworn statement made to bim by the contractor is false, be may rely on such statement.
    2. Mechanics’ LiENs-^Aere statement made by contractor to owner is false. Where an owner relying upon a sworn statement of the amount due a subcontractor, without notice from the subcontractor and in good faith, fails to retain a sufficient sum to meet the subcontractor’s claim as a result of the statements being false, the subcontractor and not the owner should bear the loss.
    3. Mechanics’ liens — delivery of contractor's statement to owner. Where statements of a contractor are delivered to the architect who is shown to be agent of the owner, there is a delivery to the owner.
    Appeal from the Superior Court of Cook county; the Hon. Akthue H. Chetlain, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    Adams, Bobb & Adams, for appellant Nollau & Wolff Mfg. Co.; James B. Wescott, of counsel.
    Donald L. Morrill, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The Knickerbocker Ice Company filed a hill to enforce a mechanic’s lien against certain premises owned by Halsey Brothers Company for material alleged to have been furnished by the complainant to Paul F. P. Mueller, a mason contractor, in the construction of a building for the said Halsey Brothers Company. Subsequently the Nollau & Wolff Manufacturing Company, the appellant, filed an intervening petition averring, inter alia, that the said Mueller had entered into a contract with the appellant to furnish certain mill work for the said building and appellant had so furnished the said mill work, and that there was then due thereon to appellant $1426.23 with interest thereon from December 23, 1909; that a notice of mechanic’s lien had been served, etc. The Halsey Brothers Company, the appellee, answering said petition admitted ownership of the premises, making of contracts, etc., and alleged that a sworn statement made by said Mueller December 7, 1909, showed $900 to be due appellant and it was ready to pay to the appellant the said sum.

The cause was referred to a Master, who found that there was due and unpaid appellant $1426.23 for material furnished Mueller upon said contract and at the time of the service of a notice of mechanic’s lien upon Halsey Brothers Company it had in its hands $911.00 yet due Mueller, and no payments were made to Mueller after the service of the said notice; that the remainder of the contract price had been paid out by the appellee on architect’s certificates and sworn statements filed by Mueller with the architect prior to the date of service of said mechanic lien notice; that Mueller for the purpose of getting payments had made five sworn statements, the first of which was, in substance, that $150 was due appellant and $1400 to ber come due under the contract; and on this statement $300 had been paid Mueller; that the last statement showed $900 due appellant and was false, as were all the others except the first one. The master reported that the appellant should be given its pro rata share with certain other lien claimants of the said $911, and the Chancellor approved the report and entered a decree accordingly. The appellant had given the ap-pellee no notice of its said contract with Mueller and the appellant had made the payments to the said Mueller believing and relying on the said sworn statements. The facts are practically undisputed.

The appellant, the Nollau. & Wolff Manufacturing Company, by its counsel, say:

“As we stated in the Statement of Facts, the whole controversy in this case is over the sworn statements given by the contractor to the owner — the precise point in controversy being whether or not the owner is hound by the amount named in the first sworn statement when the succeeding sworn statements show a lesser amount, the owner in no case paying any money to the sub-contractor, who is the appellant. ’ ’

Section 5 of the Mechanics’ Lien Law of 1903 is as follows:

“It shall he the duty of the contractor to give the owner, and the duty of the owner to require of the contractor, before the owner or his agent, architect or superintendent shall pay or cause to be paid to said contractor or to his order any moneys or other consideration, due or to become due such contractor, or make or cause to he made to such contractor any advancement of any moneys or any other consideration, a statement in writing, under oath or verified by affidavit, of the names of all parties furnishing materials and labor, and of the amounts due or to become due each. Merchants and dealers in materials only shall not be required to make statements herein provided for.”

It is the contention of the appellant that under this section “the owner is to take one statement from the contractor and is to retain at all times the amounts shown thereby to be due or to become due the subcontractor, ’ ’ and therefore the first statement made by the contractor showing $1550 due and to become due the appellant, it became the duty of the appellee to retain at all times the said amount for the benefit of the appellant unless paid direct to the subcontractor, and any payment made by the owner after the said notice without retaining sufficient money to pay the claim of the appellant was illegal. We believe this contention is correct if it he held that said section 5 limits the contractor to one sworn statement to he made to the owner. We are of the opinion that it makes no such limitation and unless tlie owner has received notice from the subcontractor of his claim, as provided by the act, or unless the owner has notice that a sworn statement made to him by the contractor is false, he may rely thereon without investigation of the truth thereof, and be protected thereunder, as provided in the said act. In the ordinary course of business contracts are frequently modified, and it seems to. us that where a subcontractor gives no notice of his claim to the owner, he thereby indicates his reliance upon the truth of the contractor’s sworn statements to the owner, and should not complain if the owner relies thereon; and if the owner, without notice from the subcontractor and in good faith, relies and acts upon the sworn statements of the contractor, and by reason of false statements therein fails to retain in his hands a sufficient sum to meet the sub-contractor’s claim, the sub-contractor and not the owner should bear the loss, if any, or look to the contractor for the payment of the balance due on his claim.

It is urged that the statements of the contractor were required by the statute to be delivered to the owner, and that they were not so delivered. They were delivered to the architect and the architect, as shown by the evidence, was the agent of the owner; a delivery, therefore, to the architect was a delivery to the owner.

The decree is affirmed.

Affirmed.


author: Me. Presiding Justice Smith

text:
    Edward H. Salisbury, Plaintiff in Error, v. William E. Deutsch, Defendant in Error.
    Gen. No. 17,264.
    1. Appeais Am) ERRORS — when abstract insufficient. An abstract does not comply with tbe rules of tbe appellate court where wbat is termed a “certificate of tbe evidence” appearing in tbe transcript of tbe record consists of 103 pages and is abstracted in less than five pages, and where much of tbe apparently material evidence is not abstracted and none of tbe several written instruments introduced are abstracted.
    2. Appeals and errors — effect of insufficient abstract. "Where tbe appellant furnishes an incomplete abstract, it is not tbe duty of tbe appellate court to search tbe record for reversible error.
    Error to tbe Municipal Court of Chicago; tbe Hon. Robert H. Scott, Judge, presiding. Heard in this court at tbe March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    Elmer H. Adams, Dwight S. Bobb and Asa G-. Adams, for plaintiff in error.
    M. A. Bamborough, for defendant in error.
   Me. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the plaintiff in error, brought a suit against the defendant to recover $37.50 for one month’s rent of a flat. The defendant denied liability and also filed a set-off. On a trial the jury returned a verdict for the defendant on both issues and assessed defendant’s damages at $18.75, for which the court entered judgment against the plaintiff.

The abstract filed by the plaintiff does not comply with the rules of the court. What is termed á “certificate of evidence,” appearing in the transcript of the record, consists of 103 pages and is abstracted in less than five pages. Much of what appears to be-material evidence upon the part of the defendant is not abstracted; nor are any of the several written instruments introduced in evidence abstracted. We fail to appreciate tbe opportunity of doing the work devolving upon counsel, and are not disposed to search the record for the information that the plaintiff should have furnished in the abstract. In Thornton v. Muus, 120 Ill. App. 422, the court cites many authorities in support of the rule there announced to the effect that where an appellant furnishes an incomplete abstract, in violation of the rule, it is not the duty of the court to search the record for reversible error. There are many other authorities to the same effect, and from what appears of the case at bar in the abstract, we have no inclination to hesitate in the enforcement of the rule.

The judgment is affirmed.

Affirmed.