author: Mr.. Justice Brown

text:
    The Walker-Edmund Company, Plaintiff in Error, v. The Bankers Surety Company, Defendant in Error.
    Gen. No. 14,418.

      Suretyship—when fidelity bond not binding. Held, that the fidelity bond in suit in this case, which contained a condition as follows: “It is essential to the validity of this bond that it be signed by the employe”, was not binding upon the company in the absence of the signature of such employe.
    Action of contract. Error to the Municipal Court of Chicago; the Hon. Jonp W. Houston, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed April 12, 1909.
    Zachariah B. Waggoner, for plaintiff in error.
    Stein, Mayer & Stein, for defendant in error.
   Mr.. Justice Brown

delivered the opinion of the court.

This Writ of error is brought to reverse a judgment of nil capiat and for costs rendered by the Municipal Court of Chicago against the plaintiff corporation below, which is plaintiff in error here.

The suit was brought in the Municipal Court on July 3,1907, and the following bill of particulars filed:

“Plaintiff’s claim is for the value of one diamond ring of the value of two hundred dollars, property of The Walker-Edmund Co., converted by Bertha M. Owen, while in the employ of the said plaintiff, the defendant being surety on a fidelity bond of the said Bertha M. Owen.”

The bond in question was for a thousand dollars and the condition was, “That the employe shall in the position of saleslady, Stockkeeper and Register, Chicago and in no other, in the employer’s service make good to the employer, within sixty days any loss sustained by the employer by larceny or embezzlement committed by the employe.” There are various conditions on which the bond recites that it is accepted, one of which is that “It is essential to the validity of this bond that it be signed by the employe”.

The bond presented in evidence had not been signed by the employe.

After the termination of Bertha M. Owen’s employment by the plaintiff a diamond ring, which the plaintiff ought -to have found in stock, being unaccounted for under circumstances which led the plaintiff to charge its absence to Miss Owen, it brought suit on the bond. The cause was submitted to a jury and after the introduction of evidence on both sides and instructions by the court on the law, the jury returned a verdict for the defendant. It is to reverse the judgment based on this verdict that the present writ of error is prosecuted.

We do not see why we should disturb it. It is at the least extremely doubtful whether the bond was ever valid without the signature of Bertha M. Owen. It is claimed by the plaintiff in error that the plaintiff’s manager not having read the bond, the plaintiff is not chargeable with any knowledge of what was in it, and that the delivery of the bond without the signature of the employe waived the condition which required that signature to make the bond valid.

It seems to us rather that if delivering the bond to the employer was to be considered as waiving the signature of the employe, the condition would be useless. Before the bond is delivered, the company has full control of it. It need not deliver it until it is in the form and has all the signatures it requires. Therefore it would not be necessary to put a formal condition in the bond that it was “made, issued and -accepted” upon the condition that “It is essential to the validity of this bond that it be signed by the employe”, unless the delivery was expected to precede the signature by the employe. The renewal, by which the Bankers Surety Company, on November 23, 1906, certified that in consideration of the sum of seven 50/100 dollars The Bankers Surety Company “hereby continues in force Bond No. 29,247 in the sum of one thousand dollars on behalf of Bertha M. Owen, in favor of Walker-Edmund Company,” might perhaps, with more plausibility be deemed a waiver at that time of the condition, although the certificate contains the proviso that it is “subject to all of the covenants and conditions of said original bond”.

It might be said, nevertheless, that the company should then have ascertained whether the employe had signed the bond, ■ and if not, refused the renewal until the signature had been obtained.

But it is not necessary for us to decide this question, for in justice to the parties concerned we feel that the decision should be placed on the ground that, assuming the bond to be valid, no breach of it was shown. The instructions were correct which, in various forms, told the jury that recovery could not be had unless they were satisfied beyond a reasonable doubt that Bertha M. Owen stole the diamond ring in question. We have carefully considered the evidence as far as it appears in the statement certified to by the trial judge, and are no more convinced “beyond a reasonable doubt” than the jury were, that the young woman named stole or converted the ring. Various other hypotheses seem to us, from the statement, quite as likely.

We do not think there would be any benefit in further discussion of the cause. It seems to us that justice has been done, and that any other verdict would have been to give altogether-too far reaching an effect to mere reasons for suspicion.

The judgment of the Municipal Court of Chicago is affirmed. Affirmed.


source: Caselaw Access Project

author: Mr. Justice Bbowet

license: Public Domain

text:
    Nicola Cardella et al., Defendants in Error, v. Tony Perille, Plaintiff in Error.
    Gen. No. 14,431.

      Agency—when evidence establishes. Held, that the evidence in this case showed, as a matter of law, that the real estate broker involved in the transaction in question, was not the agent of the prospective purchaser.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and judgment here.
    Opinion filed April 12, 1909.
    Boleh & Stewart, for plaintiff in error.
    Caktston & Poage, for defendants in error.
   Mr. Justice Bbowet

delivered the opinion of the court.

We think that this judgment must be reversed. The cause turns on a question of law, for the evidence is uncontradicted. It is briefly this:

Cardella and Montemurro, the plaintiffs, wanted to buy a particular piece of property on West Erie street, and they came to Perille, who was a real estate dealer, agent and broker, who lived and had an office on that street near by the place they wanted to buy, and asked him what he wanted for that place. There is no explanation given why Cardella and Montemurro should have supposed Perille had the property for sale or could fix the price, and as the only evidence offered by the plaintiffs was Perille’s own and he spoke English imperfectly, it might be argued that there was some mistake or misapprehension in this statement.

But the burden of proving the claim of the plaintiffs rests on them, and this is .the testimony that they produce and the only .testimony that they produce on an essential and fundamental point in their case. For we consider that the vital question is: Was the defendant the agent of the plaintiffs in the transaction in this case?

What was said at the beginning of the negotiation is very important in determining the answer to this question, and we must take the case as the plaintiffs have made it, and cannot guess or suspect that not what Perille testified to, hut something else, was the actual conversation, and on this guess or suspicion found a case for him.

Beginning, then, with this inquiry in effect of the plaintiffs from the defendant,—“What will you take for 629 West Erie Street?”—it is plain that Perille was not the agent of plaintiffs unless the negotiations changed their complexion afterwards. Perille replied to the question, “I will let you know in a day or two.” Then Perille went to the owner of 629 West Erie Street, Mr. Foster (how he knew that Foster owned it does not appear), and interviewed him.

As to what afterward occurred, there is the concurrent testimony of Perille and Foster.

Perille wanted to know Foster’s lowest price and Foster said, in effect, “$2,000 net to me.” That was equivalent to saying, “If you sell it you must add your commission to the $2,000,” and indeed, in answer to Perille’s statement that he. couldn’t work for nothing, those are not far from the words which Foster used. Perille went home. The two plaintiffs came to see him again and he said to them. “I want $2,300 for the place.” Here again it would be difficult to trace the least evidence of Perille’s agency for the plaintiffs. Then occurred the first words, according to the testimony, which look in • any aspect like referring to an agency of Perille for the plaintiffs. His words in answer .to the question,-—-What did he (one of the plaintiffs) say? are, “Well, he says, you try to get a little lower, and I go to Mr. Foster again and this, I ask him—My! he says,—you come again?”

But still, on direct examination Perille said, “I asked them twenty-three hundred dollars, and this Nic Cardella ashed me to try to come doion a little bit. Then I go to George Foster and he ask me what is the price and he ask me everything.” The two statements taken together and in connection with the preceding conversation, would seem to indicate that the plaintiffs were begging Perille for a lower price— not employing -him to secure one. Then Perille took Cardella to Foster. Foster wrote on a card at that time or before, it is hard from the testimony to say which, “Will take two thousand dollars ($2,000) cash for 629 West Erie Street. George Foster,”—by which, however, he says he meant that $2,000 net must come to him. He gave this card to Perille. Afterward, at Perille’s request, he modified these terms and amount and wrote on the reverse of the card, “Will take twelve hundred dollars cash, one thousand dollars first mortgage.” Foster says he changed the card at Perille’s request and that the purpose may have been to cover the commission.

There is further testimony of Perille that when Cardella interviewed Foster, through Perille’s mediation, Foster told Cardella that the price was $2,200, and that Cardella said he and his partner had but about $700 or $800 in cash, and Foster told him to try to make the cash $1,200 and the mortgage but a thousand. As the result of the whole matter, the two plaintiffs paid Perille $200 as a deposit on the sale, for which he gave them a receipt and Mr. Foster executed a deed to them afterward, in which the consideration was named as $2,000, and for which he received from the plaintiffs one thousand dollars in cash (paid by them in addition to the $200 they had paid Perille) and a trust1 deed mortgage on the property for one thousand dollars. Foster was satisfied, but the plaintiffs became dissatisfied with what had been done by Perille and brought suit against him for the $200 as money “wrongfully taken from them by misrepresentation with reference to a real estate transaction.”

The court below said: “In this matter I hold that Perille, the defendant, was the agent for the" plaintiffs in the transaction. Therefore it necessarily follows that the plaintiffs are entitled to recover this $200 which the defendant received from them.”

The conclusion follows the holding properly enough, but we cannot agree with the trial judge that the evidence shows that the defendant was the plaintiffs’ agent, and consequently we think it necessarily follows that plaintiffs are Hot entitled to recover the $200, but that it must be considered as a portion of the purchase money, which the owner allowed Perille, as Ms agent, to retain, as compensation for making the sale.

We do not think the cases cited by the plaintiffs are in point, because they relate to the rights of a principal against an agent and the correlative duties. Those duties and rights are not involved here. .

The defendants in error cite Kice v. Porter, 53 S. W. Rep. 258 (not officially reported), to the position that even if Perille was not the agent of the plaintiffs, yet if he told a falsehood about what Foster would take, he is liable.

There is obiter dictum in Kice v. Porter (in which a judgment much like the present was reversed), to the effect that in certain contingencies (assuming falsehood on the part of the real estate dealer) the difference between the amount actually received by him and a reasonable and customary commission might be recovered by the vendee, even when the dealer was not vendee’s agent; but the proposition is a very doubtful one at best. We think that the language of Tuck v. Downing, 76 Ill. 71, is the more applicable.

The falsehood, if the evidence can be said to establish one (and there is an answer of Perille, in which he says, “I told them (the plaintiffs) the man that has got the place, I told them the best he do for you is twenty-two hundred dollars”), “was not a fraud in legal contemplation, there being no relation of trust . or confidence between these parties creating a duty resting on appellant to state the truth. It might be morally wrong, but the law cannot lay hold of it.”

We are forced to the conclusion that the judgment of the Municipal Court should be reversed and, as the case was tried by the court below without a jury, a judgment of nil capiat and for costs in both courts entered here against the defendants in error, and this order is accordingly made.

Reversed and judgment here.


author: Mr. Justice Brown

text:
    Eric A. Larson, Defendant in Error, v. Anna Schamberg, Plaintiff in Error.
    Gen. No. 14,438.
    Brokers and factors—when right of action accrues. A broker’s right to a commission in effecting an exchange oí real property accrues ii it appears that such exchange was the result of the broker’s initiative.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Jtjdson P. Going, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed April 12, 1909.
    Sears, Boose & Boeger, for plaintiff in error.
    Bat & Pease, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This case was tried by the Municipal Court of Chicago without a jury, on evidence which it has since been agreed showed the following facts:

On or about the middle of October, 1904, the defendant called at the plaintiff’s place of business, who was then a licensed real estate broker in the city of Chicago, and listed her property, located at No. 929 Lawndale avenue, in Chicago, to be sold or exchanged by the plaintiff at the price of $2,800, and defendant was told by plaintiff that in case a deal was made, he would charge a commission of two and one-half per centran on the valuation placed on her property; again in January or February, 1905, defendant called at plaintiff’s office and talked with plaintiff’s agent; thereafter, on June 2, 1905, plaintiff, by his agent, caused to be sent to defendant a letter calling the attention of defendant to certain premises belonging to one Alvina Lemke, who, he stated, wished to exchange her property at a valuation of $4,500; shortly after plaintiff had submitted the Lemke property, defendant called at plaintiff’s office and told plaintiff’s agent, who was in charge of said office, that she did not like the Lemke property and asked him to find something else; thereafter, on or about August 12,1905, the agent of plaintiff submitted to defendant other property by memorandum in writing, to which the plaintiff received no reply. In the meantime, about August 4, 1905, defendant, without plaintiff’s knowledge, entered into an agreement for the exchange of her property, at a valuation of $2,800, for the Lemke property, at a valuation of $4,000, which agreement was carried out September 14, 1905.

Thereafter, on or about September 26, 1905, plaintiff ascertained that defendant had, without his knowledge, exchanged her property located at No. 929 Lawn-dale avenue, in the city of Chicago, for the premises of the said Alvina Lemke,. which had been submitted by plaintiff to defendant; thereupon the plaintiff, by his agent, called at the house of defendant and demanded the sum of $70 as his commission, which was refused by the defendant, and no payment has been made on account of the commission so claimed by the plaintiff.

The plaintiff was the agent and received a commission of $105 from the said Alvina Lemke, for negotiating the exchange of this particular property, and the plaintiff had not expressly disclosed to the defendant the fact that he was at the time representing Alvina Lemke, as her agent, or that he expected to receive a commission from the said Alvina Lemke; and plaintiff made no express agreement with the defendant whereby she consented or agreed to his receiving a double commission. Defendant made the deal through a real estate broker by the name of Simons, who had submitted the property of the said Alvina Lemke to the defendant at a valuation of $4,000.

Afterwards, and before the transaction was closed, defendant went to plaintiff’s place of business and there found a boy, a young man, in charge; defendant said to him, “How is this? Simons offers me the Lemke property at $500 less than you do?” After-wards, on or about the 14th day of September, 1905, the deal was closed by the said Simons, and the defendant paid Simons his commission.

The bill of particulars states the plaintiff’s claim to be “For commission on exchange of real estate No. 929 Lawndale avenue 2y2% on price $2,800—-or $70.”

The court allowed the claim and rendered judgment for the amount of $70 in favor of the plaintiff against the defendant. This writ of error is brought to reverse the judgment. Various technical objections to the consideration of the merits of the case are advanced by defendant in error, but we do not regard them as controlling.

A Municipal Court case of the fourth class comes here under different statutory provisions than those which control cases from other courts. We do not think it worth while to discuss the points made, but it may be remarked that the whole course of the proceeding in the Municipal Court may serve to show that the finding and judgment in favor of one party was made “against the objection” of the other party, within the meaning of the Municipal Court Act.

But on the merits, although the case is not free from some doubt, we do not feel like disturbing the judgment in favor of the plaintiff. The cases cited by plaintiff in error state the law correctly and so do those cited by the defendant in error. They do not conflict. The difficulty is not with the law, but with the application of it to the facts in this case.

We think on the whole record that this exchange is shown to have been the result of the plaintiff’s initiative; that the plaintiff can be considered as a broker, rather than strictly a mere agent of the defendant ; that the defendant could justifiably be found by the court to have known and consented to the employment of the plaintiff by Alvina Lemke, and consequently that his right of recovery from the defendant for the negotiation of the exchange was not cut off.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


author: Mr. Justice Holdom

text:
    George J. Haberer et al., Appellees, v. Karl F. O. Hansen, Appellant.
    Gen. No. 14,375.
    1. Suretyship—what discharges appeal bond. A surety upon an appeal bond given to review a judgment in favor of an individual is discharged if upon appeal after amendment duly made judgment is obtained by such individual jointly with another.
    2. Suretyship—how conditions of appeal bond construed. The conditions of appeal bonds are strictly construed; they are not extended by intendments nor aided by presumptions.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthiix, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed.
    Opinion filed April 12, 1909.
    Wickett, Meier & Booth, for appellant.
    Alexander Collins, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

One of the plaintiffs, Charles J. Delfosse, for the use of B. A. L. Thomson, instituted a suit before A. C. Strayer, a justice of the peace, against Oscar Holler, and obtained a judgment against Holler in due course for $96.40. From this judgment Holler prosecuted an appeal to the Circuit Court and defendant signed with Holler as surety the appeal bond. After the Circuit Court acquired jurisdiction of the appeal, on motion of Delfosse the papers were all amended, making plaintiffs in the cause George J. Haberer and Charles J. Delfosse, partners, etc., as Haberer & Delfosse, for use of B. A. L. Thomson. On a trial of the appeal judgment was rendered in the cause as amended in favor of plaintiffs and against Holler for the same amount as the judgment appealed from. On the motion of plaintiffs, Haberer and Delfosse for use, etc., a scire facias was ordered to issue against defendant as surety upon the appeal bond in the appeal from the judgment of the justice of the peace, in which Delfosse for use of Thomson was the obligee. Defendant appeared and interposed a demurrer to the scire facias, which being overruled, he filed four pleas: first, non est factum; second, that defendant did not in the bond promise to pay plaintiffs the amount of any judgment which might be rendered in their favor; third, nil debet; and fourth, practically a reiteration in another form of the second plea.

The only evidence received and considered by the court was the appeal bond in which Oscar Holler and defendant are the obligors and Charles J. Delfosse,' use of B. A. L. Thomson, the obligee. The penalty of the bond is $200, and in the condition thereof it is recited that Charles J. Delfosse, use of B. A. L. Thomson, did on the twelfth day of August, 1905, before A. C. Strayer, Esq., a justice of the peace for the county of Cook, recover a judgment against the “above bounden” Oscar Holler for $96.40, and costs of suit, from which Holler has taken an appeal to the Circuit Court. “Now if the said Oscar Holler shall prosecute his appeal with effect and shall pay whatever judgment may be rendered against" him by the Court upon the trial of said appeal, or * * * will pay the judgment rendered against him by said justice and all costs occasioned by said appeal,” then the obligation to be void.

It is clear law, we think, that the surety upon a bond is not to be charged beyond the condition of his obligation. There is no room for presumptions in conflict with plain provisions. As it is denominated in the bond, so is the obligation of the surety to respond—no more and no less. There can be no cortracting of the liability nor expansion of it beyond the plain letter of the condition. The doctrine of strictissimi juris is the canon of construction governing the liability of sureties on bonds. Having these observations in mind, what does the record disclose? A judgment against Holler in favor of Delfosse on a liability presumably personal to Delfosse—something owing to him as an individual by Holler. From this judgment Holler appeals to the Circuit Court, and defendant becomes surety on Holler’s bond to pay that judgment in that suit. That Delfosse had a right, or his usee, Thomson, for him, to interpose amendments in the Circuit Court and change the nature of the action and the parties to it, is not of the essence of our decision ; nor is it necessary for us to decide whether such right of amendment is conferred by the “Justice and Constable” or the “Practice” Act. Whatever may be said as to such right, the condition of the bond remains the same, and the liability of the surety is circumscribed thereby. Can it be said that the judgment in the Circuit Court on the assumed obligation to the firm of Haberer & Delfosse is the same as the judgment before the justice of the peace in favor of the individual, Charles J. Delfosse. Can it be assumed, as matter of law, that the obligation to the firm is the same as the obligation to the individual? So to hold would be extending the doctrine of presumptions into the realm of remote conjecture and speculation and to uproot the safeguard of contract rights. The changing of the cause of action from a claim against Holler in favor of the individual, Delfosse, to a partnership claim against Holler of the firm of Haberer & Delfosse, was in effect the injecting of a new cause of action and the creation of a cause entirely of a distinct nature to that before the justice, in which a judgment was rendered and which defendant obligated himself to pay and satisfy on Holler’s failure to do so.

Plaintiffs rely on Tobin v. French, 80 Ill. App. 47; but as we understand that case, it is in no way controlling of this. There the bond was given to the Benjamin F. Tobin Estate, and the names of the executors were afterwards, on appeal, interpolated. This was simply description and changed no existing right or obligation of either of the parties to the bond, while here a new cause of action was interpolated. The judgment in the justice court was in favor of an individual, but on appeal in the Circuit Court, judgment was rendered in favor of a partnership firm. The parties were new and the obligation of Holler was changed. He might be indebted to Delfosse, the individual, but not to the firm of Haberer & Delfosse, or vice versa. The surety on a bond in either case cannot be held to respond in the other, toward whom he has no contractual obligation. Liability is measured by the condition of the bond and cannot be extended beyond such condition.

The doctrine announced in Horse v. Goetz, 51 Ill. App. 485, we think is decisive of this cause. It is the same in principle and very nearly akin to it on the facts. In the Horse case the justice’s judgment was in favor of one Lehman, and the appeal bond ran to bim as obligee. In the Circuit Court the cause was amended by inserting Goetz as plaintiff for the use of Lehman, the plaintiff in the justice court and the obligee in the bond then in suit. The decision was based upon the theory and the fact that the surety entered into no obligation to Goetz; that his obligation was to Lehman, and that “there could be no breach of the condition of the bond signed by Morse, without a judgment in the appeal suit in favor of Lehman.” There is reason and logic, demonstrated by the facts in the case at bar, why the law should be as it is. Hansen, on being convinced that Moller’s obligation was not to Delfosse, but to the firm of Haberer & Delfosse, might well have been willing to go surety on his appeal bond on a judgment in favor of Delfosse, knowing that it could not be sustained; while he would not have been willing to assume the obligation if the judgment had been in favor of the firm to whom the judgment in the Circuit Court proved him to be indebted.

The strictness with which the law construes conditions of a bond in favor of the surety, has an extreme illustration in Sharpe v. Bedell, 5 Grilm. 88, where the condition of the appeal bond was to pay whatever judgment should be rendered by the Circuit Court of Hancock county, and because a change of venue was taken to McDonough county, where a judgment in favor of the obligee was rendered, the Supreme Court held that “no breach of the condition was shown.”

The undertaking of a surety is to be strictly construed, and he cannot be held liable beyond the precise terms of his undertaking. C. & A. v. Higgins, 58 Ill. 128; Ovington v. Smith, 78 ibid. 250.

The judgment of the Circuit Court is erroneous and is therefore reversed, and, as the right to recover is predicated upon the bond and the judgment, which together will not permit of a recovery, the cause is not remanded.

Reversed.


author: Mb. Justice Holdom

text:
    May Day, Plaintiff in Error, v. Marshall E. Sampsell, Receiver, Defendant in Error.
    Gen. No. 14,403.
    1. Verdicts—when not disturbed. A verdict of a jury will not be disturbed on review unless it plainly appears that it is so manifestly contrary to the weight of the evidence as to be the offspring of the passion and prejudice of the jury rendering it.
    2. Instruction's—approved form as to impeachment of witnesses. An instruction upon this subject as follows, is approved:
    “The jury are instructed that one mode of impeaching a witness is by showing that the witness has made different and contradictory statements on the same point on former occasions. If it appears from the evidence in this case that either of the witnesses has been impeached in this manner, the jury have a right to take into consideration such impeachment in determining the' value of the testimony of such witness or witnesses.’’
    3. Personal injuries—upon what injuries recovery must be predicated. In an action for personal injuries the plaintiff is not entitled to recover compensation for any injuries or ailments which do not arise from, or are not traceable to, the injuries suffered as the result of the negligence of the defendant.
    4. Personal injuries—what evidence competent to rebut. It is competent to show the mode and manner ih which a plaintiff has lived prior to an accident from which she claims hysteria has resulted, if such mode and manner of living were such as might have tended to produce such condition of hysteria.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Marcus Kavanaoh, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed April 12, 1909.
    L. L. Smith and A. J. Rooney, for plaintiff in error.
    John A. Rose and Frank: L. Kbiete, for defendant in error.
   Mb. Justice Holdom

delivered the opinion of the court.

This cause was submitted to a jury, who returned a verdict in favor of defendant, upon which the trial judge, after overruling, the motion of plaintiff for a new trial, entered a judgment of nil capiat and for costs. Plaintiff brings the record to this court by writ of error for review and a judgment of reversal of the trial court’s judgment and the award of a new trial.

The action is case for personal injuries suffered by the plaintiff in alighting from an electrically propelled car operated under the direction of defendant as receiver. At the time of the accident plaintiff was a passenger. The negligence charged is, that on April 7, 1907, while plaintiff was such passenger upon the car of defendant, and while attempting to alight therefrom, at the intersection of North Clark street with Indiana street, “the defendant, through its servants in charge of said car, so recklessly, negligently and carelessly managed and operated said car that as a direct result of said carelessness, the plaintiff, being in the exercise, of due care for her safety, was thrown with great force and violence to the. ground and injured; that the left leg and hip of plaintiff were bruised, dislocated and permanently injured, her intestines and vital organs were permanently injured, the spine and back of plaintiff were permanently injured, her nervous system shocked and shattered,” etc.

Three reasons are discussed, under appropriate assignments of error, why the judgment should be reversed. They are: First, the verdict is contrary to the great weight and preponderance of the evidence; second, the court erred in giving to the jury certain instructions at the instance of defendant; and third, the admission of improper evidence on defense.

That the accident happened to plaintiff at the time and place averred is demonstrated by the proofs, and that she was seriously injured as a result of such accident is likewise established by the evidence. So far as such facts go, they entitle plaintiff to an award of damages, providing it was further made to appear from the proofs that the accident and resulting injuries were brought about and occasioned by the negligent acts charged against the defendant as the primary and efficient cause of such accident. Axiomatic principles, so firmly settled as not to be the subject of further dispute, are involved in the first proposition argued for reversal. They are that the jury are the primary judges of the credibility of the witnesses and of the credit to be given to their evidence. That a verdict of a jury will not be disturbed on review unless it plainly appears that it is so manifestly contrary to the weight of the evidence as to be the offspring of the passion and prejudice of the jury rendering it. While the verdict is not conclusive on this court, and we will, as we oftentimes heretofore have had occasion to do, in a proper case, reverse a judgment rendered upon a verdict, yet this prerogative of the court will not be exercised when the case made by the party prevailing is sufficient, in our judgment, to sustain and support such verdict, and the countervailing proof is of that character which involves the determination of the credibility of the several witnesses, which the jury and the trial judge are so much more competent to pass upon with accuracy than we, because we are under the disadvantage of seeing naught but the passive and unresponsive record, while they observe the witnesses during the whole progress of the trial and have visual evidence of their manner and appearance, intelligence or lack of intelligence, their feeling or bias, if any is developed, and therefrom are in a better position to decide which of the witnesses is the most credible and worthy of belief, and to pronounce a more correct opinion upon the weight and probative force of the evidence, than can a court sitting in review. And as said in Eckels v. Cooper, 136 Ill. App. 60: “To the conclusions of the jury, acquiesced in by the trial judge, we ought to add our adherence, unless we are impelled by the record to the conclusion that the finding of the jury is clearly contrary to the weight of the evidence or the result of passion, prejudice or improper conduct on their part.”

The whole question of defendant’s negligence rests for solution of the fact, deducible from the evidence, as to whether plaintiff fell as the result of the cars moving without giving her an opportunity to alight in safety, after she had started to do so, or whether plaintiff, in attempting to alight while the car was at a standstill, either slipped from the car, or, upon reaching the roadway, slipped thereon and fell and injured herself. If the former is the fact, the defendant is liable; but if the latter is proven by competent evidence to be the cause of the fall of plaintiff and of the resulting injuries complained about, then she is not entitled to recover, and the verdict of the jury must stand. The record discloses a sharp conflict in the evidence. That of plaintiff, without any countervailing evidence in contradiction, is sufficient to entitle her to a verdict for substantial damages. So, the proof of defendant, uncontradicted, entitled it to prevail and to receive the verdict in its favor which the jury rendered. To reconcile this conflict in the evidence was the task and duty of the jury. A painstaking analysis of all the evidence commends to our minds the verdict of the jury and its wisdom in rendering it. We do not hesitate to say that its preponderating force and probity is in favor of the defendant’s contention that when plaintiff fell, the car from which she was in the act of alighting was at a standstill, and that her fall is attributable to her slipping, either off from the car while in the act of alighting, or on the roadway in so alighting, or after her feet were on the ground. Under these circumstances, unless error of a prejudicial character in the trial court’s rulings upon the evidence, or in its instructions to the jury, appears in the record, we are not at liberty to interfere with the judgment.

Counsel for plaintiff argue that the giving to the jury of the following instruction, at the instance of defendant, was reversible error. Said instruction reads:

“The jury are instructed that one mode of impeaching a witness is by showing that the witness has made different and contradictory statements on the same point on former occasions. If it appears from the evidence in this case that either of the witnesses has been impeached, in this manner, the jury have a right to take into consideration such impeachment in determining the value of the testimony of such witness or witnesses.”

This instruction does not tell the jury to disregard the evidence of any witness or witnesses who may have made different or contradictory statements upon the same point on former occasions, but limits the right of the jury to the taking of such fact into consideration in determining the value of the testimony of such witness. It does not necessarily impeach the veracity of such a witness, but has reference more to the reliability of the memory of such witness, and concerns the weight to be given his testimony. It was an instruction of general application to all the witnesses, without specifying any particular one of them. The authorities cited by plaintiff’s counsel refer to instructions entirely different from the one here challenged. These authorities relate' to instructions in which the jury were told on what grounds they had the right to reject the testimony of an impeached witness; while the instruction criticised directs the jury to take into consideration the probative force of the testimony of a witness who has made different and contradictory statements upon the same point on other occasions, and has no reference whatever to rejecting the testimony of any witness. Therefore we regard such cases as inapplicable to the instruction under consideration.

In Craig v. Rohrer, 63 Ill. 325, the court, in its criticism of an instruction held to be erroneous, say: “A recognized mode of impeaching the credit of a witness is by proof that he has made statements out of court contrary to what he has testified at the trial. Such proof has a direct tendency to impeach either the veracity or the memory of the witness. There is no legal warrant requiring as conditions to affect the credibility of the witness, that the testimony so contradicted should be material to the issue and intentionally false, as asserted by the instructions.” Kerr v. Hodge, 39 Ill. App. 546.

In the light of instruction 8, we do not think that the jury could have been misled in their application of the doctrine of impeachment of witnesses to the evidence before them. This instruction informed them that if they believed from the evidence that any witness had wilfully sworn falsely to any material fact, they had the right to disregard all the testimony of such a witness except where corroborated by other credible evidence or by facts and circumstances appearing in evidence.

We find no inherent defect in instruction 16. It states a plain principle of law—that plaintiff is not entitled to recover compensation for any injuries or ailments which do not arise from or are not attributable to the injury suffered as a result of the negligence of defendant. However, there is nothing in this instruction which inhibited the jury from awarding compensation to plaintiff for all the injuries and ills traceable to the accident, if caused by the negligence of defendant, as charged, notwithstanding plaintiff may have suffered other physical ills entirely disconnected with the accident.

The 12th instruction stated a basic principle, determinative of plaintiff’s right to recover. It was in every respect proper and was supported not only by defendant’s theory of how the accident actually occurred, but was fortified by proof at least tending to sustain such theory. The instruction reads: “If the jury believe from the evidence and the instructions of. the court that the plaintiff alighted from the car in safety, and that after having so alighted, she slipped on the pavement and fell, then the plaintiff cannot recover, and your verdict should be not guilty.” There is no reversible error in either of the three instructions above discussed.

Among qfher afflictions which plaintiff contended she suffered as a result of her fall, was “hysteria.” She also, in fortification of this claim, testified that before the accident she was in good health. She also testifled she did not visit saloons nor live with any man as his wife. On the contention that to plaintiff’s former mode of living was attributable the hysteria from which she suffered, it was necessary and proper to inquire into her mode of life. In this way the reputation of places where she lived and worked, her habits of drinking, her engaging in a brawl with another woman at one time, her sustaining meretricious relations with one of her witnesses, Tom 'Sherwin, her habits of carousing in drinking resorts, were all, we think, admissible, so that the jury might have an opportunity of judging whether her “hysteria” flowed from the accident or was attributable to her mode and manner of living prior thereto. The “Village Inn,” in which plaintiff was “housekeeper” for more than four years, was testified to be a house of assignation by Captain Healy of the Chicago police force. Other officers testified to seeing her drink and, on several occasions, of her being in a state of intoxication. We do not think, all other evidence considered, that the times of these conditions and occurrences were too remote to be admissible as evidence. Much of the testimony of this nature was admitted without objection, and, in our opinion, none to which objection was made and exceptions preserved prejudicially affected the rights of plaintiff on the merits of her case.

Finding no error of a reversible nature in the record, the judgment of the Superior Court is affirmed.

Affirmed.


text:
    Alexander F. Gibson et al., Defendants in Error, v. George MacDonald et al., Plaintiffs in Error.
    Gen. No. 14,417.
    Municipal Court—when finding of judge not disturbed. The finding of a judge of the Municipal Court will not be set aside on review where it appears to be supported by a preponderance of the evidence.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed April 12, 1909.
    Frederic B. De Yototg and George A. Miller, for plaintiff in error.
    Adams & Froehlich, for defendants in error.
   Mr. Justice Holdom

delivered the opinion of the court.

This writ of error presents for our review the record of the Municipal Court in which the plaintiffs recovered a judgment of $285.75 on the finding of a judge of that court to whom the controversy was submitted by the agreement of the parties.

There is no contention as to the material furnished or its value. The whole controversy centres in the contention of defendants that the stone furnished was not ordered by them and that consequently they are not liable to pay for it. It seems that the defendants, who are building contractors, constructed for one John L. Carnegie quite a number of buildings; that they had a contract to do the masonry work for four buildings on Forest avenue, Chicago. Defendants contend that the contract was in writing, on a card furnished Carnegie, and that it expressly excluded the stone work. Carnegie and his son both swore that no such card was either given or received, but that the contract was verbal.

With the consent of William MacDonald the cut stone work was let to plaintiffs for $75 for each building. Plaintiffs first bid for the job was at $85, and on MacDonald telling Carnegie that he could get the stone for $75, consented that Carnegie might let plaintiffs have the job at $80, when the latter arranged with plaintiffs for $75.

MacDonald admitted on the trial that a contract for “mason work” would include cut stone unless expressly excluded by an understanding to the contrary. Furthermore, in many like contracts between defendants and Carnegie, defendants had furnished the cut stone. Van Etten furnished some “pier caps” to the value of $14.75, which were ordered by MacDonald, as he testified, and this statement not being contradicted, we think tends to lend verity to the contention that defendants’ contract with Carnegie included the furnishing of the cut stone for the four buildings. For this amount the trial judge credited defendants, rendering judgment for plaintiffs’ claim, less that amount. We see no reason to disagree with the trial judge in his finding of fact, as the testimony considered as a whole, in our judgment, sustains the claim of plaintiffs by a preponderance of the evidence.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    People of the State of Illinois, ex rel. Oscar S. Holty, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 14,448.

      Mandamus—when laches defense. In a proceeding by mandamus against the civil service commission to compel restoration to the office of policeman a delay of over nine months between the dismissal of the relator and the filing of the petition for mandamus, if unexplained, constitutes laches which bars the right to the writ

      Mandamus. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded with directions.
    Opinion filed April 12, 1909.
    Edward J. Brundagb, Corporation Counsel, Clyde L. Day and Emil C. Wettest, for appellant.
    No appearance by appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

The Superior Court granted a writ of mandamus against the respondents upon the petition of relator Holty, commanding them to restore Holty to the position and emoluments of a policeman from which he was dismissed by order of the Civil Service Commission of Chicago on June 8, 1906, upon charges preferred against him by the Superintendent of Police.

Relator does not defend against this appeal. The petition for mandamus was filed March 28, 1907. The respondents interposed a general demurrer to the petition, which the trial judge overruled, and they electing to stand by their demurrer the writ was awarded, from which judgment this appeal is prosecuted. The action of the court in overruling respondents’ demurrer and in granting the writ of mandamus is assigned for error.

Appellants’ contentions have all been settled in quite a number of similar cases in their favor, so that they are not now open to dispute. We will therefore discuss but one principle, which if we were to concede, which we certainly do not,-that all of the other contentions were not well made, still this one would be conclusive against the right of relator to prevail. We refer to the doctrine of laches. The time between the dismissal of relator and the filing of his petition for a mandamus deducible from the dates quoted above is 9 months and 20 days. Such a delay has frequently been held to be such laches, in cases where it has been attempted, as here, to restore a discharged policeman to his former position and emoluments, as to be an effective and insuperable bar to relief. As said by this court in People ex rel. King v. City of Chicago, in 147 Ill. App. 591, “confronted with the decision in Clark v. City of Chicago, 233 Ill. 113, there is no escape from the laches imputable to relator and the avenue of redress is therefore forever closed against him in this proceeding.” The court say in the Clark case as quoted in our opinion supra: 1 ‘ The petition for the writ in this case was filed ten months after the petitioner had been removed from office and as the petitioner makes no showing why said petition was not filed at an earlier date and within six months of the date of the entry of the order of removal by the Civil Service Commission, we think the appellee should be held to be barred by reason of his laches, of his right to have said order reviewed.” The court said in People v. Olsen, 215 Ill. 622: “the writ of mandamus is not a writ of right, and is largely within the sound discretion of the trial court to refuse to issue it. When a writ of mandamus is asked the court may inquire whether it will operate impartially, create confusion and disorder and whether it will or will, not promote substantial justice. Courts may in view of the consequences attendant on the issuing of a writ of mandamus, refuse the writ, though the petitioner has a clear right for which mandamus is a proper remedy.” People v. McKenna, 127 Ill. App. 118; Heaney v. City of Chicago, 117 ibid. 405; City of Chicago v. Condell, 224 Ill. 597. As relator failed to state in his petition any fact tending to excuse the delay in filing his petition under the decisions cited, the doctrine of laches, invokable by way of demurrer, is a complete bar to relief.

The Superior Court erred in overruling the demurrer of appellants to appellee’s petition for a writ of mandamus, and its judgment is therefore reversed and as the relator is not entitled to the writ the cause is remanded to the Superior Court with directions to enter an order sustaining the demurrer of respondents and dismissing the petition of relator.

Reversed and remanded with directions.


author: Me. Justice Holdom

text:
    Thomas J. Gannon, Defendant in Error, v. Hiram Tyree, Plaintiff in Error.
    Gen. No. 14,358.

      Contract—what does not excuse undertaking to loan money. If in establishing an agency the principal agrees to lend the agent a specific sum each month for the period of a year, he is not excused from so doing by the fact that such agency does not prove profitable or by the fact that the commissions earned by the agent, out of which the loans are to be repaid, were not sufficient to make such repayment.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed April 12, 1909.
    Arthur A. House and Nathan E. Utt, for plaintiff in error.
    Hugh J. Kearns, for defendant in error.
   Me. Justice Holdom

delivered the opinion of the court.

TMs cause was tried in the Municipal Court before a judge thereof without the intervention of a jury, and resulted in a finding and judgment for the amount of plaintiff’s claim, $1,000, and defendant prosecutes this writ of error in an effort to have that judgment reversed.

The cause of action rests on the rights of the parties as they appear from a contract consisting of a letter from the defendant to plaintiff and one Emmet L. Siver, and their acceptance of it in these words:

“Chicago, Feb. 9th, 1907.
Messes. Thomas J. Gannon and E. L. Siver,
Chicago, Ill.
Gentlemen: You are hereby appointed as agents or representatives of mine to sell mining stock in such corporations as I may determine, and I agree to give you 25% commission on all sales effected by you, and the difference between 25% and the compensation you may pay to agents secured and employed by you and working under your direction. I guarantee to maintain the office now established in Fort Dearborn building, or elsewhere as I may decide, in the City of Chicago, for a period of one year, and I guarantee to loan or advance to each of you the sum of $250 per month for one year, the said loans to be charged against you and to be deducted from commissions that may accrue under this contract. You are to work under my directions, and to give all your time and best efforts to selling of stock in such corporations as may be designated.
Respectfully,
Hiram Tyree.
I accept the above.
Thomas J. Gannon.
E. L. Siver.”

The business contemplated by the contract thus made proved unprofitable and may be said to have been a failure. Defendant was disappointed in the success he had hoped for, but that in no way affects the contractual relations of the parties. While everyone anticipates profits from their ventures, many are doomed to suffer disappointment, and the law holds the disappointed to the same liability for their losses, as it protects those, whose expectations have been realized, in their lawful gains. Defendant refused to further perform his part of the contract, and the instalments of $250 sought to be recovered are those due for the months of March, April, May and June, 1907.

It is not contended that plaintiff was derelict in any such way as to bring about his discharge or justify defendant in abandoning the contract. As a matter of fact, defendant pnt in no countervailing proof, but contented himself with a motion, made at the close of plaintiff’s case, for a finding in his favor.

The contract bound defendant to loan plaintiff $250 each month for one year, “the said loans to be charged you and to be deducted from commissions that may accrue under this contract.”

The question here presented for solution is somewhat novel, and aside from the authorities cited to us by plaintiff we have been unable to find any which are of an analogous character. However, it seems reasonable to us that the contract bound defendant to loan plaintiff $250 a month during the year, such loans, to a limited extent, to be charged against plaintiff. The only liability, however, resting on plaintiff to repay was from commissions earned, and none worthy of mention were earned. To such commissions defendant must look for repayment. Notwithstanding no commissions were being earned, this fact did not absolve defendant from his contract obligation to advance $250 each month for a year. In faith of that understanding upon the part of defendant, plaintiff became a party to the contract. Defendant cannot, in reason or fairness, escape such self-imposed liability because the result has proven to be unprofitable to him.

Schlessinger v. Burland, 42 Misc. Rep. N. Y. 206, is certainly as near alike to the case at bar as two cases can well be. In the Burland case the compensation of the salesman was commission on sales made. The employer agreed to advance traveling expenses and $250 each month for one year, both to be charged to and deducted from commissions at the end of the period of employment. The action was for two monthly advance payments. The employer set up as a counter claim a small sum of money advanced in excess of commissions. This counter claim was eliminated by demurrer. In construing that part of the contract providing for reimbursement for the advances, the court say: “In effect the presence of the last mentioned provision points to the mutual intention of the parties, that the commissions should constitute a fund which alone should be resorted to for reimbursement of the ‘advances.’ We are to give reasonable meaning, if possible, to every part of the agreement, rather than to hold a particular clause thereof wholly without import.” But it is said that in the contract at bar the monthly advances of $250 are called loans, while in case supra, nowhere in the contract is the traveling expenses or the $250 denominated' loans. We think, however, this is a distinction without a difference, and more clear does this appear when it is borne in mind that whether advances or loans, both were to be repaid from the same source, viz: commissions on sales. The practical effect, therefore, in each case is the same. The advances in one case were to be paid from commissions, and the loans in the case at bar were to be repaid from commissions. In neither could the employer escape the liability to make the loans or advances at the appointed time. Neither could he obtain repayment except from commissions earned. Nor did the contract in either case impose a personal obligation other than to make repayment from the fund designated for that purpose.

Schwerin v. Rosen, 45 Misc. Rep. N. Y. 409, is in no respect distinguishable in principle from Schlessinger v. Burland, supra, in which latter case the court say: “This agreement is in one way distinguishable from that before the Court in Wineberg v. Blum, 13 Daly 399, in which case the Court adopted the construction that, since no time was fixed for the payment of commissions, the commission account was to be adjusted at the end of the period of employment, and that the provision for weekly withdrawals imported the agreement by "the employer to pay the sum from week to week, irrespective of the question whether commissions had accrued for application to each withdrawal. The agreement before us specified no time for the payment of commissions.”

We perceive no error in the judgment of the Municipal Court, and it is therefore affirmed.

Affirmed.


text:
    Emmet L. Siver, Defendant in Error, v. Hiram Tyree, Plaintiff in Error.
    Gen. No. 14,389.
    This case is controlled by the decision in Gannon v. Tyree, ante, p. 99.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Samuel A. Fosteb, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed April 12, 1909.
    Arthur A. House and Nathan E. Htt, for plaintiff in error.
    Hugh J. Kearns, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

This writ of error was consolidated for hearing with case No. 14358, Thomas J. Gannon v. Hiram Tyree, ante, p. 99. While a separate record with abstracts and briefs have been filed in each case, yet there is .no distinguishing feature between them, except that plaintiff here recovered for three monthly payments of $250 each, while the rights of all the parties in both cases rest in the same contract. The judgment in the Municipal Court in this case was for $750.

What we said in the Gannon case is equally decisive of the rights of the parties in the case at bar, and, without here repeating, we adopt as our opinion in this case all that we said in the opinion now filed in the Gannon case, and for the reasons there stated the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    William H. Swanson, Appellee, v. C. B. Fisher, Appellant.
    Gen. No. 15,564.
    1. Fbatjd—tohen equity will not set aside lease. Equity will not decree the setting aside of a lease upon the ground that it .was obtained by fraud and misrepresentation as to the condition of the premises demised, where, by the terms of the lease, it appears that the lessee took the premises in the condition in which they were at the time of such demise.
    2. Fraud—what waiver of. Alleged fraudulent misrepresentations inducing the execution of a lease are waived by the lessee if he enters into possession and pursuant to the terms of the lease proceeds to repair and use the same.
    3. Fraud—what does not constitute. Misrepresentations as to mere matters of opinion do not constitute such legal fraud as will justify a court of equity in setting aside a contract.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed.
    Opinion filed April 12, 1909.
    Hoyne, O ’Connor, Hoyne & Irwin, for appellant; Carl J. Appell, of counsel.
    Douglas C. Gregg, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from an interlocutory injunctional order granted without notice.

Appellant leased to appellee, a thoroughly experienced theatrical man, the Lyceum Theatre in Springfield, Ohio. The lease was made and entered into in Chicago. Appellant sued appellee for unpaid rent, in the Municipal Court of Chicago. Whereupon appellee thereafter filed this bill to restrain the prosecution of that suit and for a cancellation of the lease, on the ground that his execution of the same was procured by fraudulent representations.

The bill avers, inter alia, after setting forth the lease in haec verba, that appellant represented that the theatre was first-class in every respect and was the best located of any theatre in Springfield and that it had been in constant nse as a “Stock Company theatre,” that it was in first-class condition and ready for immediate occupancy and use as a theatre; that appellee knew nothing in relation to said theatre except as disclosed by these representations of appellant, and that he relied upon their verity in executing the lease; that appellee thereafter discovered that the theatre was not in the condition represented, that it was unsanitary, out of repair and had been condemned by the municipal authorities as unsafe from the standpoint of fire and sanitation; that appellee repaired the theatre, putting it into a sanitary condition and complying with the municipal regulations sufficiently to permit of his opening the same as a theatre in October; that appellee operated the theatre from the time he opened it until the 25th of November following, when he closed it because and owing to the reputation, location and surroundings of the said theatre it was impossible for him to operate the same, notwithstanding his wide experience as a manager and operator of theatres; that the conditions as to location, repair and reputation were contrary to the representations made by appellee.

Counsel for appellee rely upon Borders v. Kattleman, 142 Ill. 96, to sustain their contention that because the. theatre was at a place remote from that where the lease was executed and because of appellee’s entire lack of knowledge in relation to the theatre, its location, condition or reputation, that appellant, though barren of actual knowledge in relation thereto, is presumed to have such knowledge, and that appellee was justified in relying upon such assumption and that such representations not being true in fact, were a fraud in law, sufficient to confer the right upon a court of equity to cancel the lease made in faith of the truth of such representations. However, without discussing the principle thus laid down, it is quite clear that the facts are not at all so analogous to the case at bar as to make it of any controlling force in our decision.

Two things are significant and seem to us to be irreconcilable with appellee’s claim for relief. First. The clause of the lease quoted after this sentence, to our minds inhibits a conclusion of fraud or misrepresentation as to the condition of the theatre at the time the lease was executed and put appellee upon inquiry as to its real condition and, failing such inquiry, bound him to take it in the condition in which it was at the time the lease was made: “Furthermore it is understood that I take the house etc. just as it is at this date, and any and all changes, furnishings and improveyments are to be made at my expense solely and are to conform with the consent of the lessor.” 'Second. Appellee avers that when he learned of the condition of the theatre he “thereupon * set about placing the said premises in good, safe condition and repair, so that it would meet the requirements of the City authorities of the City of Springfield, Ohio, so it could be used as a theatre. That thereupon sometime in the month of October 1908 your orator did open up said premises as a theatre.” Appellee operated the theatre until November 25, 1908, and paid one month’s rent. The condition of the lease recited and the action of appellee in making repairs are inconsistent with his present claims. The covenant quoted is contradictory of the claim now made by appellee as to representations made by appellant concerning the condition of the theatre as to repair or otherwise at the time he signed the lease. If that covenant means anything (and we think it means just what it says), it is notice to appellee that appellant was, if not ignorant of the condition of the theatre, not willing to repair or alter it, and that appellee took it as it then was and assumed the burden of putting it in such condition as might be necessary or suited to his taste or convenience.

Appellee was not a novice in matters theatrical, and therefore presumably knew the consequences of his act in executing the lease and in taking the theatre in whatever condition it might be in, and assuming the obligation of changing it to suit whatever purpose he might have in view for its future operation. As further proof of his entire understanding of his obligation he took possession of the theatre and put it in such condition of repair that it conformed to regulations of the municipality in which it was situated; and from the further fact that it was opened and operated as a theatre it was inferably so done with the license and consent of the municipality. When appellee repaired the leased theatre, he put his own construction and interpretation upon that clause of the lease above set forth, and we regard what he then did as being the measure of his obligation thereunder. If appellee desired to cancel the lease by reason of the fraudulent representations set forth in his bill, he should have proceeded at the earliest possible moment to rescind.- Such time should not have been later than when he first ascertained the true condition and the consequent falsity of the representations. By proceeding to repair and use the premises he ratified the whole transaction and waived the misrepresentations, if any were in fact made. Appellee by inspection knew the condition of the theatre as to repair and sanitation. Whether it was, as to location, first-class and if it had been condemned for any reason by the municipality, these facts were also readily ascertainable. Such representations, however, were merely matters of opinion about which persons might disagree, and did not constitute as a matter of law a misrepresentation. Much less can they be held to be fraudulent when the subject-matter of the representation is equally open for inspection by all the contracting parties and no fraudulent means or device was used or exerted to prevent such inspection. Brady v. Cole, 164 Ill. 116.

The bill does not state a case calling for the interference by injunction of the enforcement of the rights of appellant under the lease in a court of law; neither is appellee entitled to rescind Ms contract of lease or cancel it for any reasons appearing from the averments of the bill. Had appellee been entitled, on the facts averred, to a temporary injunction, it was improvidently granted without notice to appellant of the application. The suit, the prosecution of which was enjoined, was commenced in the Municipal Court January 27, 1909. The cause was set for trial before a judge of that court for February 26, 1909. The bill was filed the day preceding the trial day, February 25, 1909. Nothing appears, either by averment in the bill or statement of any fact in the affidavit accompanying it, excusing the delay in filing the bill of nearly one month from the time the suit was instituted and of three months from the time when appellee abandoned the theatre for the reasons averred. The policy of the law in tMs forum is, that no one shall be deprived of any substantial right, not even temporarily, without being first heard in his defense. It is plain that no adequate reason appears why appellee should not have sooner filed Ms bill and given notice to appellant of Ms application for an injunction. In failing to give notice appellee obtained an unlawful advantage over appellant and one not sanctioned by our courts. The decisions are numerous as well as harmonious on this point. An averment that the applicant for an injunction will suffer irreparable injury if the writ is not granted without notice to the party sought to be enjoined is wholly insufficient to sustain an injunctional order or the action of the court in granting it, unless such facts are stated either in the bill or affidavit accompanying it that warrant the conclusion of irreparable injury. And if it appears that the waiving of notice sought is occasioned by the unexcused delay of the moving party, the injunctional order must be denied. Brin v. Craig, 135 Ill. App. 301; Gonyo v. Village of Wilmette, 135 ibid. 645; Williams v. Harper, 127 ibid. 619; Goldberg v. Laughlin, 137 ibid. 283; Ebann v. Brown, 139 ibid. 213.

Because the bill does not state a casé entitling appellee to the injunction and any other relief prayed, the order of the Superior Court awarding a temporary injunction is reversed.

Reversed.


author: Mr. Presiding Justice Smith

text:
    Frank Sible, Appellee, v. Wells Brothers Company, Appellant.
    Gen. No. 14,499.
    1. Master and servant—When vice-principal cannot recover. A vice-principal cannot recover for the breach of those duties of the master which he as vice-principal has duly assumed to perform upon behalf of the master.
    2. Master and servant—when vice-principal cannot recover. A foreman or vice-principal cannot recover from his master for injuries due to' the neglect of an employe hired by him and under his direction and control or for defects in construction and maintenance of appliances which it was his duty to construct and maintain.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dupdy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Rehearing denied April 30, 1909.
    Reversed with finding of fact.
    Opinion filed April 20, 1909.
    Statement by the Court. Frank Sible, appellee, recovered a judgment in the Superior Court against Wells Brothers Company for personal injury, from which this appeal is prosecuted.
    The evidence in the record tends to show that the defendant, Wells Brothers Company, was engaged in the business of erecting buildings as contractors. In June, 1905, it had the contract for the masonry work of the annex to the Union League Club building in the city of Chicago, near the corner of Jackson boulevard and Custom House place.
    This building had progressed to a considerable height, and the mason work was being done several stories above the floor where the accident in question occurred. Frank Sible, appellee, was foreman for appellant over the mason work. Other foremen were in charge of other departments of the work, and Frank Lyons was superintendent in charge of the entire work of appellant on the premises.
    The basement of the building was ten or twelve feet below the first floor level and included the entire site of the new building. Along the south wall of the new building and extending from the street on the east to the alley on the west, there was constructed a floor ten or twelve feet wide and from twelve to eighteen inches below the level of the street sidewalk. This floor is termed “mezzanine” floor.
    For the purpose of facilitating the handling of materials and doing the work, it was necessary to have floors and platforms about on the street level. Almost the first work, accordingly, which appellant did under its contract was the construction of a platform or scaffold along the north side of the new building from the street to the alley. This platform was about fifteen feet wide, and it was connected with the so-called mezzanine floor by extending a platform from fifteen to twenty feet wide. Beneath this connecting platform and about the middle of it, a hoisting engine was placed for the purpose of hoisting the materials necessary to be used in executing the contract; and a regular hoist was constructed extending from the basement to the top floor of the building.
    Appellee Sible was the foreman under whose direction and control the mezzanine floor and the other floors or scaffolds, and the appliances, were constructed. He had charge of their inspection and maintenance. He attended to the hiring and discharging of the men who were engaged in this work, and also all the men who were thereafter engaged in the operation of these instrumentalities, and in the doing of the mason work. He had charge also of all the work necessary to be done to keep the masons supplied with materials, including the hoisting appliances, and the laborers. He received $7 a day from appellant for his services, as such foreman.
    There was an understanding between the Club and appellant that when the Club could spare the steam for running the hoisting engine appellant could use it. But, early in the work it developed that the Club had not sufficient steam for its own purposes and for running the hoisting engine as well, and.so appellant found it necessary to generate steam in the boiler of the hoisting engine. For this purpose it was necessary to use coal. A coal bin was constructed under this crossing platform near the engine. The smoke stack extended up through this platform and some feet above it. Around the smoke stack a framework was constructéd, and boards were laid close to it. A board extended from the smoke stack to the west edge of the platform, and directly over the coal bin. Coal for the engine was brought to the building and dumped in the street, and then some laborer under Sible wheeled it into the building in a wheelbarrow over this platform, and taking up this board dumped the coal into the bin.
    Some three or four weeks before the accident, there was a teamsters’ strike in Chicago and for that reason the coal men could not deliver coal. In order to get coal, Frank Lyons, appellant’s superintendent, told Sible it would be necessary to send some discreet man and have it brought to the building, suggesting or requesting that one Joyce, one of the laborers employed by Sible, should be sent to get the coal. Sible told Joyce what was wanted and sent him to Lyons, who would explain matters. Joyce thereupon went to Lyons, who directed him to procure an express wagon and go to a certain place, load the wagon with coal and. bring it to the building. This was done and the coal was unloaded in the street, and then taken into the building and dumped into the bin in the usual way.
    On June 4th or 5th, the strike conditions still prevailing, Joyce was sent after a load of coal. He brought the coal to the building and took it into the building and dumped it into the bin as usual.
    In his conduct of the work Sible was at "different times in all parts of the building. On the day of his injury he had twenty or thirty men on the upper floors of the building and five or six men, including Joyce, working in and about the basement. Sible was on the upper floors most of the day. During the noon hour he was passing along this platform, intending to look at some mortar boxes which were in the basement to the west of the platform. It was his duty to see that mortar was kept in sufficient quantities to keep the men supplied. He walked to the edge of the platform for the purpose of looking over it, and stepped upon this particular board which had been taken up for the purpose of dumping the coal into the bin. The board not being securely fastened, or not fastened at all, tipped down over the west stringer on which it rested, and Sible fell into the basement, breaking a bone of one foot.
    The declaration consists of three counts, which, in slightly varying language, aver that appellee, 'Sible, was an employe of appellant; that it was the duty of appellant to provide him a safe place in which to,work; that appellant, in violation of such duty, provided an unsafe place, to wit, a floor or platform upon which there was a loose plank, and that appellee, while exercising ordinary care for his own safety, stepped upon such loose plank, causing him to fall and to sustain the injuries complained of.
    Appellant pleaded the general issue. The trial of . the cause resulted in a verdict in favor of appellee for $1200. The court overruled appellant’s motions for a new trial and in arrest of judgment, and entered judgment on the verdict.
    At the close of appellee’s evidence, and again at the close of all the evidence, appellant moved to exclude all the evidence and to direct a verdict for appellant, submitting with each motion an instruction to find appellant not guilty. The court denied the motions and marked the instructions refused.
    Kraus, Alschuleb & Holden and W. J. Weldon, for appellant.
    Harrow, Masters & Wilson, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The negligence averred in the first count of the declaration was the failure of appellant to provide for appellee a safe place in which to work.

The following evidence in the record is practically uncontradicted. The witness Koenig, called by appellee, testified that appellee was foreman over the masons and laborers at the Union League Club. “I was working under his (Sible’s) rules and building the platform under his rules, and the men with me were working under his rules and directions. He was about there when the platform was being built and gave me directions what to do, but didn’t tell us how to do it. I knew how to build it * * * I came to work there and worked there until April, some part of April. All that time I was working under Sible as foreman, and the men who were working on and about that platform after it was constructed were under the same man, Sible, the plaintiff. He had the hiring and discharging of the men. This was an addition to the Union League Club House fronting east on Custom House place. I belonged to the laboring department and the laboring department was under the foreman-ship of Sible.”

Appellee himself testified: “I was on the building from the foundation up as a mason foreman. * * * When I started the job in order to get the brick off the street I had to put in planking and make a platform there. The platform was made on stringers, the planks running east and west and the stringers north and south. I had my men build it—the laborers built it * * * I hired the laborers, the helpers and the masons on the job. * * * If the work of these men did not suit me most undoubtedly I would discharge them or correct them in some way. That was my business. It was my business to be there and know and find out whether the men were competent or incompetent, and to observe whether the men were" careless in their work or careful and did their work right. * * * These scaffolds and platforms were built by the men under me and it was under my general direction and supervision in a way that these platforms were built. I brought Kenny (Koenig) over there to put this platform down, he being the scaffolding man. I told him what I wanted and he done it. If I saw he was not doing it right, I would stop him. That was my business—part of the business I was hired for, certainly. ’ ’

This is appellee’s testimony as to the construction of the platform. As to the duties of appellee regarding its maintenance his testimony is equally clear and comprehensive. He says: “As foreman in charge there in going around these different places, I was supposed to keep my eyes open and see the condition of things. If I saw anything wrong or out of the way there with workmen or with appliances in my line, it was my duty to call attention to it and see that.it was corrected. * * * As I passed around these different places it was certainly my duty to observe and see what the men were doing. My duty was to work for Wells Brothers and most undoubtedly it was my duty to do these very things that suggested themselves. If I would go around to these various platforms and discover a place where the nails were out and boards loose, I would certainly have sent a man there to have them fixed up. I had general charge of the hoisting of this stuff for the masons. * * * I made it a point to watch the boards in the platform as I go over them—that was a part of my duty. ’ ’

It is clear from his testimony, we think, that appellant looked to appellee, and had a right to look to him as between appellee and appellant, for careful supervision of the' construction of the platform; also for the intelligent and watchful inspection and maintenance thereof, necessary to keep and maintain the platform and appliances under his control in a safe condition for use.

The question arises then, can appellee, Sible, who was charged with and assumed this duty in relation to this platform, for and in consideration of $7 per day, maintain this action against appellant for a violation of that same duty assumed by him and entrusted to him by appellant? In our opinion it would be unjust and contrary to the facts and the law to hold that appellee is entitled to recover under the facts and circumstances disclosed in the record.

It clearly appears, we think, that appellee was the vice-principal of appellant. “When a master confers authority upon one of his employes to take charge and control of a certain class of workmen in carrying on some particular branch of his business, such employe, in governing and directing the movements of the men under his. charge with respect to that branch of the business, is the direct representative of the master and not a mere fellow-servant.” Wenona Coal Co v. Holmquist, 152 Ill. 581, 590.

“There are certain duties of the master that are non-assignable,—that is, when delegated to another, that other occupies the relation of vice-principal, for whose negligence and want of care the master is responsible. Among such duties, with the assumption by the servant of the ordinary hazards in such case, are, that he shall exercise reasonable care to see that tools, appliances and machinery are reasonably safe, and must use reasonable care that the place where the servant works is reasonably safe; to exercise ordinary care in the selection of superintending fellow-servants, and where he has notice of the unfitness of a fellow-servant, to discharge him; * * * to use reasonable care to keep in repair machinery, tools and appliances with which and where the servant is employed.” M. & O. R. R. Co. v. Godfrey, 155 Ill. 78, 82; Baier v. Selke, 211 id. 512, 517; Schillinger Bros. Co. v. Smith, 225 id. 74, 79.

The alleged negligence of appellant being, if negligence at all, necessarily the negligence of appellee, its vice-principal, it follows, we think, that for injury growing out of negligence so attributable to himself, the vice-principal cannot recover.

Furthermore, on the same principle, we think a foreman or vice-principal cannot recover from his master for injuries due to the neglect of an employe hired by bim and under his direction and control, or for defects in construction and maintenance of appliances which it was his duty to construct and maintain.

In the case of Evans v. A. & P. R. R. Co., 62 Mo. 49, the plaintiff was a station master of the defendant, and had charge and management of all the freight trains within his division and on him the special duty was placed of keeping the track' clear of obstruction. He was injured while crossing the railway in attending to his own personal affairs, his injuries being due to the negligence of an engineer in failing to sound the bell on his engine. In affirming the action of the lower court in instructing the jury that the plaintiff could not recover, the Supreme Court, at page 59, said: “It is clear that being an agent of the company, and required by the regulations to superintend the freight trains, he could not hold the company responsible for any negligence of the servants of the company, who were subject to his orders. He was, as station agent, especially intrusted with the duty of attending to freight trains; to see that they were loaded and unloaded, and to see that they were properly secured on the side track or switches. That because he was neglecting his duty at the time the accident happened, he is entitled to claim the rights of a stranger, is too monstrous a proposition to be conceded. The liabilities of the company depend on his rights as an employe. His employment, as is conceded, involved the control of the train by which he was injured, and this concession alone exempts the defendant, and the court, therefore, properly gave the instruction complained of.”

Erskine v. Chino Val. Beet-Sugar Co., 71 Fed. Rep. 270, was a case where the plaintiff’s decedent was killed through the breaking of a defective rope, while engaged in washing windows at a high elevation outside of defendant’s building. The deceased was a foreman of the defendant’s rigging gangs and had control and charge of all ropes, tackle and other hoisting appliances about defendant’s factory, and it was his duty to inspect them. In deciding the case the court said:

“The servant does not undertake to incur the risks arising from negligence in providing suitable and safe material or other instruments with which he is to work. His contract implies that, in regard to these matters, his employer will exercise due care in making adequate provision that no danger shall ensue to him; and this duty the master can not delegate to a servant, so as to exempt himself from liability for injuries caused to another servant by its omission. It will be observed from this language, however, that it cannot apply when the injured person is himself the servant to whom the master delegated the duty whose omission caused the injuries. * * * The deceased, by virtue of his employment for a long period of time at the factory, had charge of all the defendant’s rope and tackle and hoisting appliances and that it was his duty to inspect them. From these facts two conclusions inevitably result, namely: That the deceased had equal means of knowledge with the defendant as to the defect in the rope; and, further, if there was any negligence in not discovering said defect, such negligence was the negligence of the deceased. ’ ’

In I. C. R. R. Co. v. Barslow, 94 Ill. App. 206, 213, this court laid down the rule announced in the above cases as follows: “Here the very care which the appellant undertook to exercise in order that its cars might not be used while couplings were defective, was intrusted to appellee arid his fellow train men. The appellant was obliged to entrust to some of his employes this task. It was intrusted to appellee, and if he failed in performance, such failure cannot be permitted to create a liability to himself.” See also C. & A. R. R. Co. v. Merriman, 95 Ill. App. 628. And so in I. C. R. R. Co. v. Jewell, Admx., 46 Ill. 99, it was held that a railroad company will not be held «liable for injuries sustained by one of its servants in the course of his employment, when such injuries resulted from his own neglect to perform a duty, the performance of which might have avoided the accident.”

The second count is predicated on the same theory as the first count gbove discussed, but avers the duty with reference to providing a safe approach over which plaintiff could pass in going to his work, and avers that the loose plank was in the mezzanine floor. Clearly this count was not sustained by the evidence, for the loose plank was in the- platform and not in the mezzanine floor.

The third count of the declaration avers that appellant was negligent in failing to keep the plank or flooring in a safe condition. The authorities cited above apply to the case stated in this count.

The evidence shows that Joyce was under the control of Lyons, the general superintendent of appellant, while he procured a wagon and went for coal during the teamsters’ strike, and perhaps in unloading it in the street in front of the building. But when he commenced to carry the coal into the building, and in putting it into the coal bin, he was performing his usual duties at the building, and was under the control and direction of Sible, his foreman. Sible himself testified: “If the coal was dumped inside there was no trouble about it, my laboring men would do that work, wherever the coal came from, whether by express wagon or coal wagon. I knew that the coal had to be wheeled in and dumped down, as the witnesses have described, in this coal box.” He further said: “I recall that Lyons said to me, cIt is necessary to send off somewhere and get coal; we can’t get it in the usual way. Let me have a bright man of yours who is all right and send him off to bring that coal,’ or something of that kind.. * * * I told him Joyce would be a good man and he asked for him and I gave bim to him. This was several weeks before the accident.”

The witness Telfer’s testimony shows that when the coal was dumped in the street, Joyce or some other laborer would bring the coal in.

We do not think, upon a review of the testimony that the contention of appellee that Joyce was acting directly under the orders of Lyons while he was wheeling the coal in from the street, is justified or warranted by the evidence. We do not find in the record that Lyons gave Joyce, or any other laborer any directions in regard to that work. Joyce testified that when the first load of coal which he brought was unloaded at the building, some two or three weeks before the accident, Sible ordered him to take it in by means of a wheelbarrow and dump it through the platform into the coal box. On the other hand we draw the inference from the evidence that Joyce and other laborers were under Bible’s direction and authority while taking the coal in from the street. It was undoubtedly the duty of the laborers under Sible to bring the coal into the building. In the absence of any proof as to particular directions during the teamsters’ strike, the natural and reasonable inference from the evidence is that the men in doing that work were discharging their duties as laborers under Sible’s foremanship.

The precise act of negligence, however, if it was negligence, consisted in not nailing down the plank while the load of coal was being put in the coal box. The evidence of Keefe is that Joyce had not finished putting in the coal by noon, and that he temporarily “clapped” down the plank at noon without nailing it, and that it was apparent from the conditions on the platform that the putting in of the load of coal had not been completed before the accident. Telfer testified that it was customary to nail down the plank when they finished putting in a whole load of coal. Further, there is some conflict in the evidence as to whether or not this particular plank had ever been fastened. Joyce says that at the times he raised the plank to put coal in the box it was loose and had not been nailed, and that each time he put it back loose as he found it.

It is difficult, however, to see how either state of facts relieves appellee, or takes the case out of the principle of law above applied. If the plank ought to have been fastened, but never was fastened, appellee in his general supervision over the construction and maintenance of the platform cannot complain of injury to himself resulting from his own omission to do.effectively what he was employed to do. If, on the other hand, the practice was to pull up this board and nail it down again in the necessary operation of dumping the coal through this particular opening, appellee should know or did know of such practice and that such practice in time would probably impair the holding qualities of the nails upon the stringers, and furthermore, that one of his laborers might inadvertently fail to nail the plank. Nor will the reasonable theory based on Keefe’s and Telfer’s evidence avail appellee. Keefe testified that Joyce had not finished putting in the load of coal at the noon hour, and that he temporarily “clapped” down the plank at noon without nailing it; and that the conditions around there indicated that the load had not been disposed of fully at the time of the accident; and Telfer says that this practice was usual. Sible, of all persons connected with the work being done, was chargeable with knowledge of all things within the very essence of his duties there, and particularly that such condition as that which he alleges caused the injury to himself did not exist.

Under the law and on the evidence we are of the opinion that Sible cannot recover in this case and that the judgment of the Superior Court must be reversed with a finding of fact.

Reversed with finding of fact.