author: Mr. Presiding Justice Gridley

text:
    M. Hommel Wine Company, Defendant in Error, v. Theo. Netter, Plaintiff in Error.
    Gen. No. 21,170.
    1. Sales, § 329

      —when evidence sufficient to establish acceptance of goods. In an action to recover the purchase price of wine sold and delivered to defendant, where the defense was that the wine delivered was not in compliance with the contract, and it appeared that defendant inspected the wine after delivery at the dock, that he afterwards refused to return the wine when requested by plaintiff to do so, and took the wine from the dock, storing it in a warehouse and refilling some of the barrels and selling a large part of it, held that a peremptory instruction for plaintiff on the ground that the facts showed an acceptance with full knowledge of the condition of the wine was proper.
    2. Sales, § 153

      —what constitutes an acceptance of goods. Any act done by the buyer of goods tendered in fulfilment of a contract of sale, which such buyer has no right to do unless he is the owner of the goods, is itself an acceptance of the goods.
    3. Sales, § 155

      —when acceptance of goods har to claim for compensation for defects in goods. The acceptance of an article sold on an executory contract after opportunity to examine it amounts, in the absence of fraud or latent defects, to an agreement that the article conforms to the contract and was satisfactory and bars all claim for compensation for defects in the article.
    4. Sales, § 389

      —when damages on account of inferior quality of goods may not he recouped. Where there has been an acceptance of goods delivered under an executory contract, damages on account of the inferior quality of the accepted goods cannot be recouped, in the absence of fraud or express warranty, or of latent defects incapable of discovery on inspection.
    5. Sales, § 329

      —when not necessary to prove that goods correspond with sample or description. ' In order to recover the purchase price of goods sold and delivered under a contract, it is not necessary to prove that the goods delivered exactly corresponded with the sample or with the description thereof in the contract where it appears that defendant received and retained the goods actually delivered, since the law does not permit a vtendee to receive and retain the goods delivered under a contract, and afterwards defeat an action for the purchase price on the ground that such goods were not of the exact quality or description called for by the contract.
    6. Sales, § 146

      —what is remedy of purchaser of goods not complying with contract. Where goods tendered in performance of a contract are not in compliance therewith, the remedy of the vendee, in the absence of a warranty, is to refuse the goods, or to return them within a reasonable time after he discovers that they are not .as required by the contract.
    7. Sales, § 356

      —when evidence as to loss of profits properly excluded. In an action to recover for wine sold and delivered, where defendant sought to set off or recoup profits alleged to have been lost as a result of the alleged inferior quality of the wine delivered, the exclusion of evidence of such profits held not erroneous, it appearing that defendant’s conduct amounted to an acceptanee of the wine with full knowledge of its condition when delivered, and there being no evidence that defendant had a contract for the resale of the wine at the time of making the contract sued on.
    8. Damages, § 61

      —when loss of anticipated profits from resale of goods not recoverable. The loss of anticipated profits from a resale of the goods bought because of defects in the goods is not the measure of damages in an action against the vendor for breach of the contract of sale unless the vendor knew that the vendee had a contract to resell at an advanced price, and that the purchase was made to fulfil such contract.
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed January 11, 1916.
    Statement of the Case.
    On August 20, 1913, the plaintiff, a corporation, having its principal office at Sandusky; Ohio, commenced an action of the fourth class in the Municipal Court of Chicago against defendant to recover the purchase price, and interest thereon, of certain Catawba wine sold and delivered to defendant, viz.: 43 barrels (2217% gallons) from cask No. 8, and 17 barrels (873 gallons) from cask No. 7. Plaintiff alleged in its amended statement of claim, inter alia, that said 60 barrels of wine were received by defendant and accepted by him. The defendant in his affidavit of merits alleged, in substance, that plaintiff represented that the wine should be like certain samples submitted and should be a good and merchantable wine; that the wine shipped was not like the samples submitted and was not as represented, but was acetic, unsound and decomposed and not fit for human consumption and of no value or use whatsoever; and that defendant refused and still refuses to accept the wine. The defendant also filed a claim of set-off for damages for loss of profits and for expenses incurred in hauling and storing the wine, etc. The case was tried before a jury on November 13, 1914, and at the conclusion of all the evidence the court, over the objection of the defendant, instructed the jury as follows: “I have come to the conclusion that this is a case where the defendant, having purchased the wine by description and sample without any express warranty as to its condition, and having had ample opportunity to inspect it when he received it, and having insjjected it and accepted it and failed to return it, cannot defend at this time in an action for the purchase price, and your verdict should be for the plaintiff for the amount of the purchase price.” Accordingly the jury returned a verdict finding the issues against the defendant and assessing plaintiff’s damages at the sum of $986, and subsequently, on December 5, 1914, the court entered judgment on the verdict against the defendant, which judgment the defendant by this writ seeks to reverse.
    The following facts, in substance, were disclosed by the evidence: Prior to March 7, 1913, plaintiff’s salesman, McNally, submitted to defendant at Chicago certain samples of wine, and afterwards, on March 7th, defendant signed a written order wherein he directed plaintiff to ship him at Chicago, /. o. b. Sandusky, Ohio, about 2174 gallons of “pure catawba wine”, to be taken from cask No. 8 in the wine cellar of plaintiff at Sandusky, at the price of 33 cents per gallon. It was mentioned on the face of the order that defendant would furnish cooperage for which he was to be allowed 3 cents per gallon. On May 5, 1913, defendant signed another written order wherein he directed plaintiff to ship him at Chicago, /. o. b. Sandusky, Ohio, about 1000 gallons of “dry Catawba” from plaintiff’s cask No. 7, at 33 cents per gallon. It was mentioned in the order that the amount of wine to be shipped “by boat with balance” should total 60 barrels and that defendant should be allowed 3 cents per gallon on cooperage. Before said order had been accepted by plaintiff the defendant, on May 12th, wrote plaintiff in part as follows: “I have ordered cask
      # 8, containing about 2174 gals., and the balance of the car with cask # 7, about 1000 gals., at 33^ per gal., we to be allowed 3 cts. per gal. by furnishing our own cooperage. The cooperage was understood to be f. o. b. Chicago. * * * If you desire to fill this order like samples, kindly let' me know by return mail so I can make shipment of cooperage. * * * We wish opr own cooperage used.” On May 16th plaintiff wrote a letter in reply, in part, as follows: ‘‘ Everything is satisfactory to us but the barrels. We do not intend to pay freight from Chicago to Sandusky and allow you 3$ for cooperage besides. * * * We are today expressing you sample of the wine as it is in the cask. Of course, when we ship it it will be filtered nice and clear. * * * If sample is satisfactory you can ship your barrels at once, and we will make immediate shipment by boat.” On June 12th defendant wrote plaintiff: ‘ ‘ The empty bbls. will go forward tomorrow. * * * You understand this wine must be like samples—about 2174 gals, from cask No. 8 and the balance from No. 7,” and on June 16th he again wrote plaintiff: “All the empty bbls. have been shipped now. * * * Please send me the paid freight expense bill on same.” The testimony of several of plaintiff’s witnesses disclosed that after defendant’s barrels,had been received by plaintiff the same were cleaned, steamed and sulphured and put in proper condition to receive the wine; that 43 barrels were filled with wine taken from plaintiff’s cask No. 8, and 17 barrels with wine taken from plaintiff’s cask No. 7; that the wine so taken corresponded with the samples previously taken from said casks and submitted to defendant; that the wine before being put into the barrels was properly filtered and was pure Catawba wine, of good taste and free from foreign substances and acetic acid, and that the barrels were taken to the dock at Sandusky and shipped by water to defendant via Anchor Line, as requested. Plaintiff’s evidence as to the condition and quality of the wine in the barrels at Sandusky, and as to it being the same at San-dusky as the samples previously submitted, was not disputed. The defendant, an. experienced dealer in wines, testified, in substance, that he first saw the barrels of wine in the first part of July, 1913, at the Anchor Line dock in Chicago; that a day or two after the wine arrived he opened about 10 barrels at the dock and took out some of the wine and tasted and inspected it and compared it with the samples previously submitted; that the wine was not as good as the samples, and was not palatable, contained acetic acid, and was unfit for consumption as wine. On July 11th defendant wrote plaintiff to the effect that the wine had been found upon inspection not to correspond with the samples submitted and that he would expect plaintiff to send him wine like the samples. To this letter plaintiff on July 14th replied, expressing surprise and saying that plaintiff could not furnish any different wine than that shipped, as that wine was taken from the same casks as the samples previously submitted and was the same wine, and further saying: “Let us hear from you by return mail what you propose to do, and if you do not accept it, the writer” (W. H. Hommel, secretary and treasurer of plaintiff) “will come to Chicago and attempt to sell it elsewhere and return you your barrels, and we will be out our labor of cleaning, steaming and sulphuring your barrels.” Not hearing further from defendant, plaintiff, on July 17th, and again on July 18th, wired defendant requesting a definite reply to plaintiff’s letter of July 14th. No reply being received to either the letter or the telegrams, W. H. Hommel, about July 20th, left Sandusky, came to Chicago and called on defendant at his place of business. At this interview, according to Hommel’s uncontradicted testimony, defendant said that the wine was not the same as the samples and Hommel insisted that it was. Hommel proposed that plaintiff take it and dispose of it elsewhere but defendant refused to accede to this. Hommel then said that defendant would have to pay for the wine, to which defendant replied that he would not do that and that plaintiff had better go ahead and sue him. Hommel then proposed that he and defendant together go and inspect the wine and see how it compared with the samples, but defendant refused to do this or to inform Hommel where the wine then was, and.thereupon the interview ended. The defendant further testified that some days after he had opened the 10 barrels at the dock he removed all of the barrels to a basement ware-.. house of a friend of his, where he opened 7 or 8 other barrels and inspected and tasted the wine therein contained, and that 8 or 9 days afterwards, about July 23rd, he took certain samples of the wine drawn from different barrels, which in the meantime he had kept ¡in his office, to a consulting chemist, named Norton, who examined and tasted the same and made a report to defendant. This chemist was one of defendant’s i witnesses at the trial and he testified to the effect that the samples of wine so submitted to him at that time contained acetic acid, and that the wine was not palatable, had a tart, sour taste and was almost vinegar, and had no value as wine but only would have a value when it would become vinegar. On July 30th defendant wrote plaintiff, in part, as follows: . “I employed a consulting expert to examine the wine and he pronounces it inferior and unmarketable and not the same wine as the sample I bought by. Now, I demand that you send me within 10 days from this date the exact kind of wine I bought from you and if you do not, I shall expect you to compensate me for the loss I will have sustained by your failure so to do.” To this letter plaintiff replied on August 1st, in part, as follows: “If you mean to accuse us of sending you a different kind of wine than what we sold you, you have got the wrong bull by the horn. * * * We have sent you nice, pure Catawba wine. * * * You will not have to wait 10 days. * * * We want your reply by return mail whether you want this wine, or whether you will give it up to us for further disposal. We will take it off your hands without any expense to you whatever and will gladly return your barrels when they are empty. We will also pay the freight which we have already done on your barrels from Chicago to Sandusky, and more than that we will not do. * * You can wire us at our expense what you intend to do. ’ ’ And on August 2nd defendant wrote plaintiff acknowledging receipt of plaintiff’s letter of August 1st, and saying in part: “In view of your attitude, I shall have only one alternative left, for it is very evident from your letter that you are not desirous of either sending me the goods I ordered, or to compensate me for the loss and damage I will suffer by your failure. The damage accruing to me from your failure to send the quality ordered on the 3090% gallons of wine is, approximately, $772.50. * * * I have 'come to the conclusion that I will be justified in selling the inferior wine you have sent me at the very best price I can obtain for the same, and I will apply the proceeds from this on account of the amount you owe me, approximately, $772.50. '* * * I trust you will either send me the wine I ordered, or a check in the amount of $772.50 at your early convenience. ’ ’ Seemingly, no further letters passed between the parties, and on August 20th plaintiff commenced the present action.
    On cross-examination the defendant testified, in substance, that shortly after the wine arrived in Chicago and he had inspected it he made up his mind that he could not take the wine and sell it as wine; that he afterwards had the expert, Norton, test the wine shipped and the samples previously submitted, for the purpose of obtaining proof that the wine was not good wine and was not the same as the samples previously submitted; that he afterwards ascertained that the wine had no value to him because he could not sell it; that the wine was stored in a warehouse; that he did not know exactly whether or not all of the 60 barrels had been opened; that he had refilled some of the barrels with wine taken from the other barrels; that he did not have all of the 60 barrels of wine on hand; and that he had disposed of some of the barrels of wine by selling them “for cash to pay the storage.” On redirect examination he testified that he had sold about 18 barrels of the wine, all from cask 7, “ninety days ago.”
    Defendant further testified that in making the purchase of the wine he had intended to carbonate or charge it, and to put the carbonated wine in cases containing pint or quart bottles, and that ordinarily about 20 of such cases of wine could be procured from one barrel. He offered to prove £hat his net profit on each case of carbonated wine would have been $2, or on 1200 cases a total net profit of $2400, but the court would not allow him to so testify.
    Benjamin F. J. Odell, for plaintiff in error.
    Scott, Bancroft & Stephens, for defendant in error; John E. MacLeish, of counsel.

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

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

There is no dispute as to the quantity of the wine received by defendant or as to the total purchase price thereof. Ño point is made as to the verdict being excessive in amount on the ground that interest on said purchase price was included in the verdict. The main contention of counsel for defendant is that the trial court erred in directing a verdict in favor of plaintiff in any amount.

After due consideration of all the evidence we are of the opinion that the court’s action in directing a verdict in favor of the plaintiff was proper. We think that the evidence clearly shows that the wine, after its arrival in Chicago, was inspected by the defendant and with full knowledge of its condition was accepted by him. While he at first notified plaintiff that he would not accept the wine because he claimed that the same was not like the samples- previously submitted to him, yet he afterwards refused to return the wine to plaintiff when requested so to do, and took the wine from the dock and stored it in a warehouse, and afterwards refilled some of the barrels and also sold a large portion of the wine. “Any act done by the buyer of goods tendered in fulfillment of a contract of sale, which he would have no right to do if he were not the owner, constitutes, of itself, an acceptance of the goods.” (Wolf Co. v. Monarch Refrigerating Co., 252 Ill. 491, 502.) In Barker v. Turnbull, 51 Ill. App. 226, 229, quoted with approval in McLeod v. Andreius & Johnson Co., 116 Ill. App. 646, 649, it is said: “This court held in Eureka Cast Steel Co. v. Morden Frog Works, 23 Ill. App. 591, that, in the absence of fraud or latent defects, the acceptance of an article sold upon an executory contract after an opportunity to examine it, amounted to an agreement that the article conformed to the contract and was satisfactory, and barred all claim for compensation for defects existing in the article. Where there has been an acceptance after an opportunity to inspect the goods delivered under an executory contract, damages because of the inferior quality of the accepted goods cannot be recouped in the absence of proof of fraud, or express warranty by the vendor, or of latent defects incapable of discovery on inspection.” In the instant case the evidence clearly discloses that the wine was sold by samples, upon which samples the defendant relied, that there was no express warranty upon which defendant relied, that the defendant had ample opportunity to inspect the wine after it was received, that there were no latent defects in the wine incapable of discovery on inspection, and that no fraud was practiced by plaintiff on defendant. In the ease of America Theatre Co. v. Siegel, Cooper & Co., 221 Ill. 145, the defendant gave a written order to plaintiff for the delivery to defendant at a price named of a certain number of opera chairs, “same as sample shown” and “backs to be upholstered in red plush, same quality as sample submitted.” Plaintiff delivered the chairs and subsequently brought suit against defendant for the purchase price. On the trial at the close of all the evidence the court instructed the jury to return a verdict in favor of plaintiff for the full purchase price of the chairs, upon which verdict judgment was entered. It was contended that this action was erroneous in that plaintiff had failed to prove that the chairs delivered complied with the description contained in the order and that the chairs were of the same quality and description as the sample exhibited to defendant. In affirming the judgment our Supreme Court said (p. 147):

. “The evidence offered by appellee showed that the chairs which were delivered were ‘K. D.’ opera chairs, with iron frames and upholstered backs, and that appellant received and retained them and had them set up in its opera house for use. With this proof in the record it was not necessary for appellee to prove that the chairs exactly corresponded with the sample or with the description contained in the contract. The law does not permit a person to receive goods under a contract, appropriate them to his own use, and. then defeat an action for the purchase price on the ground that the goods were not of the exact quality or description called for by the contract. His remedy, in the absence of a warranty, is to refuse to accept the goods when delivered, or to return them within a reasonable time after the departure from the terms of the contract is discovered.”

It is also contended that the trial court, in connection with defendant’s claim, of set-off or recoupment, erred in refusing to admit in evidence defendant’s offered testimony relative to his alleged loss of profits. Under the facts of this case and for reasons above stated we do not think that the court erred. Furthermore, the loss by a purchaser of goods of anticipated profits from a resale of the goods because of defects therein is not the measure of damages unless the seller knew that the buyer had an existing contract to resell at an advanced price, and that the purchase was made to fulfil such contract. (Rhea Implement Co. v. Racine Co., 89 Ill. App. 463.) There was no evidence that the defendant, at the time he purchased the wine, had an existing contract with any one to resell the wine at an advanced price, and there was no evidence introduced or offered that defendant had lost any actual profits, as distinguished from probable or speculative profits.

The judgment of the Municipal Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    John Cichon, Defendant in Error, v. Marie Gartner and Franz Gartner, Plaintiffs in Error.
    Gen. No. 21,218.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed January 11, 1916.
    Statement of the Case.
    Action by John Cichon, plaintiff, against Marie Gartner and Franz Gartner, defendants, in the Municipal Court of Chicago, to recover a broker’s commission for procuring a sale of defendant’s house. To reverse a judgment for plaintiff for $120, defendants prosecute this writ of error.
    Plaintiff’s statement of claim alleged a contract between plaintiff and defendants to procure a purchaser for the house, and that plaintiff procured such a customer, to whom the house was later conveyed for $2,525, and that plaintiff was entitled as commission to 5 per cent, of such price. Defendants’ affidavit of merits denied the contract alleged or that plaintiff rendered any services in procuring such purchaser.
    Plaintiff’s_ testimony was that in June, 1914, he called upon Franz Gartner in company with one Rytlanski and asked if the property was for sale and Gartner replied that defendants would sell for $2,700, or less for cash and that Gartner also said that if plaintiff procured a purchaser at a satisfactory price he would pay a commission. Plaintiff was corroborated by Rytlanski as to the above facts. Franz Gartner denied the conversation, and Marie Gartner testified that she never saw plaintiff. Plaintiff further testified that for a sale of such property at the price for which defendants sold, the commissions were 5 per cent. Joseph Olsowki testified that he was an employee of plaintiff, and was directed to find a purchaser for' defendants’ property; that he submitted the property to Marcinkiewicz; that on September 8, 1914, he and Marcinkiewicz called on Franz Gartner and informed him, that he was an employee of plaintiff, and that the contract for the purchase of said property was then signed by Marcinkiewicz and Franz Gartner in the presence of the witness. Marcinkiewicz testified that Olsowki was the- only one who called his attention to the property; that on September 8, 1914, he and Olsowki called on defendants and then signed a contract for the purchase of the property at the agreed price of $2,525, and that subsequently he received a deed to the property from defendants.

    Abstract of the Decision.
    1. Brokers, § 88

      —-when evidence sufficient to establish contract to procure purchaser. In an action to recover a broker’s commission for the sale of a house, where defendant denied making a contract with plaintiff to procure a purchaser, hut where plaintiff was corroborated by another witness, a finding that such contract was made, held not against the weight of the evidence.

      On the cross-examination of Olsowki and Marcinkiewicz, it appeared that after the sale Marcinkiewicz, at Olsowki’s request, paid Olsowki the sum of $10 “for finding the house.”
    There was no evidence that there was any agreement between plaintiff and Marcinkiewicz that if plaintiff should find a satisfactory house for Marcinkiewicz the latter would pay a commission.
    The action was tried by the court without a jury, •and the court found the issues in favor of plaintiff.
    Otto C. Rentner, for plaintiffs in error.
    Sonnenschein, Berkson & Fishell, for defendant in error; Herbert M. Lautmann, of counsel.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

2. Brokers, § 91 —when evidence insufficient to establish unfait dealing such as to bar recovery. In an action to recover a broker’s commission for the sale of a house, unfair dealing such as to bar a recovery is not shown by the fact that after the sale plaintiff’s employee asked and received $10 from the purchaser “for finding the house,” where there was no evidence that there was a contract between plaintiff and the purchaser for the payment to plaintiff by such purchaser of a commission in case plaintiff found the house, and where there was no evidence that the acts of plaintiff’s employee were with the knowledge or by the direction of plaintiff.

3. Brokers, § 62 —when right to commission not barred by receipt of commission from other party. The rule that a broker, acting as the agent of both parties in an exchange of real estate with a contract for the payment of commission from each party, cannot recover from one of them who did not know of or consent to his employment by the other has no application to a case where plaintiff’s agent, without his knowledge or direction, asks and receives such a commission from the purchaser of a house, for the sale of which plaintiff is seeking to recover a commission from the seller.


author: Mr. Justice Barnes

text:
    Thomas Pellum, Defendant in Error, v. Aaron B. Mead, Plaintiff in Error.
    Gen. No. 20,425.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed January 11, 1916.
    Statement of the Case.
    Action by Thomas Pellum, plaintiff, against Minnie Hawkins and Aaron B. Mead, defendants, in the Municipal Court of Chicago, to recover for goods alleged to have been negligently destroyed in tearing down a bam in which the goods were stored. To reverse a judgment for plaintiff, defendant Mead prosecutes this writ of error.
    Abstract of the Decision.
    1. Principal and agent, § 173

      —what is duty of agent allowing goods to he stored without authority to protect goods. One who without authority rents a barn to another for the storage of goods incurs no special duty to protect such goods.
    2. Principal and agent, § 173

      —what duty agent tearing down barn owes owner of stored goods. In the, absence of any privity of contract or relationship between the agent of an estate and one who without authority stores goods in a barn on such estate, such agent in tearing down such barn owes the owner of the goods no duty further than to exercise reasonable care to protect them until the owner has a reasonable opportunity to remove them.
    3. Negligence, § 162

      —when evidence admissible that goods not taken away or destroyed. In an action against the agent of an estate to recover for goods alleged to have been negligently destroyed by defendant in tearing down a barn in which the goods were stored, and where the record does not show what became of the "goods, it is error to exclude evidence tending to prove an averment in defendant’s affidavit of merits that no goods were taken away or destroyed as alleged.
    4. Torts, § 30

      -—when evidence insufficient to establish joint liability. In an action against two defendants to recover for goods alleged to have been negligently destroyed in tearing down a barn where the goods were stored, the record fails to show a joint liability where it appears therefrom that one defendant was the agent of the estate ito which the barn belonged and the other defendant was the tenant of a cottage on such estate who had rented the barn to plaintiff without authority from the owner.
    Ota P. Lightfoot, for plaintiff in error Aaron B. Mead.
    George. W. Ellis and Richard E. Westbrooks, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Amanda Gerlock, Plaintiff in Error, v. John W. Conroy, Defendant in Error.
    Gen. No. 20,629.
    (Not to be reported in full.)
    Abstract of the Decision.
    Trial, § 195

      —when improper to direct verdict. Where the evidence is conflicting, its weight is for the jury and not for the court.
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed January 11, 1916.
    Statement of the Case.
    Action of assumpsit on a breach of promise of marriage by Amanda Gerlock against John W. Conroy. ' From a judgment for defendant upon a directed verdict, plaintiff appeals.
    L. A. Kapsa and Charles C. Spencer, for plaintiff in error.
    John W. Sutton, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    L. H. Brink and Ignatz Pilat, trading as Brink and Pilat, Plaintiffs in Error, v. M. Finkelstein and Sam Rosenthal, Defendants in Error.
    Gen. No. 20,835.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed January 11, 1916.
    Statement of the Case.
    Action by L. H. Brink and Ignatz Pilat, trading as Brink and Pilat, against M. Finkelstein and Sam Bosenthal for goods sold and delivered by plaintiffs to defendants at plaintiffs’ request. From a judgment for defendants, after a trial by the court, plaintiffs appeal.
    Plaintiffs were commission merchants and Finkelstein was a dealer in poultry. Bosenthal was Finkelstein’s real estate agent and accommodated him at times by giving him checks for cash. The goods sued for were sold and delivered to Finkelstein between December 9 and 14, 1912. Plaintiffs had previously sold and delivered to him similar goods and received payments therefor in the form of checks signed by Bosenthal. It was claimed by plaintiffs that before the sale and delivery of said goods, Bosenthal had promised to pay for them over the telephone. Bosenthal denied that he had made any such promise, or that he ever talked over the telephone to or saw plaintiffs until after the transactions sued on were had, when he endeavored to effect a settlement. He said that when he gave the checks in question it was for cash given him by Finkelstein to the amount of plaintiffs’ bills. He was corroborated by Finkelstein.
    Q. J. Chott, for plaintiffs in error.

      Abstract of the Decision.
    Frauds, Statute of, § 126*—when evidence sufficient to sustain finding that promise not original. Where a merchant sold goods to another at different times and customarily received the check of another person in payment, held, in action against the buyer and such other person for goods sold and delivered, in which the only question was whether such other person had made an original promise to pay for the goods, that a finding by the court that such promise had not been made was sustained by the evidence.
    Nicholas J. Pritzker, for defendant in error Sam Rosenthal.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Marie Haupt by John D. Casey, Guardian, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 20,931.
    Appeal and error, § 1514

      —when improper argument of counsel reversible error. Where, in an action by a five-year-old girl against a street railway company for damages for personal injuries, necessitating the amputation of a leg, counsel for plaintiff in his argument gave his individual opinion as to the amount of damages stated that the verdict should be for an amount sufficient to support plaintiff for the rest of her life, made reference to her humble circumstances, alluded to her going down “into the valley of the shadow of death” while under the anesthetic, discussed her mental pain and spoiled matrimonial prospects, and when objection was made by defendant’s counsel, repeatedly continued his argument without giving opportunity for a prompt ruling, and without rebuke by the court, and remarked that defendant’s counsel was trying “to break up his argument,” that he “expected it” and called the jury’s attention to the fact that he was being “interrupted and bully-ragged every minute,” and withdrew improper statements repeatedly “to save time,” without a ruling by the court, held that the judgment should be reversed.

      Appeal from the Superior Court of Cook county; the Hon. Edwabd M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed January 11, 1916.
    Statement by the Court. This is a suit brought by appellee, a minor aged five years at the time of the accident and eight at the time of the trial, to recover damages for loss of a foot, the amputation of which was necessitated by being run over by one of appellant’s cars. The verdict and judgment were for $12,000. The following are excerpts from the record of the proceedings during the course of argument to the jury by plaintiff’s attorney:
    Mr. R. “* * * The time will come, and is not very far distant, when she will realize, when she will know the pain of mind that comes from realizing that you are a cripple.
    Mr. H. I object to that argument.
    Mr. R. That you must go all your life in that condition.
    Mr. H. Wait a minute, I object to that argument.
    Mr. R. I do not want to waste my time, I will go on to something else.
    Mr. H. I object to this argument by counsel.
    Mr. R. My time is limited.
    Mr. H. I do not think that is any element that ought to be argued, realization that she is to be a cripple.
    Mr. R. Pain of mind I understand to be an element. I do not want to have this time taken up unduly, but I think that is a fair subject to argue to the jury, and the law says so, too.
    Mr. H. I object to it.
    The Court. All right, go on, Mr. Rathbone.”
    (Exception to ruling and remarks.)
    Mr. R. “Who is going to marry a cripple with her foot off? Now the only hope for her is to go out and do something. What is she fitted for?”
    (Objection sustained. Exception to remarks.)
    Mr. R. “If there is any question about it, gentlemen, I withdraw it. Now here—yon know just what the future before that child is—what is the use of our beating around the bush—you know perfectly well what she has got to do. If she is to be anything, or do anything, she has got to go out and earn a living, or attempt to do so; unless this jury does what we consider the fair and right thing. Now here. What ought to be a sufficient sum to maintain that child? What is she really damaged? * * * Yes, I know your game. I didn’t interrupt you. I know you are taking all my time you can, and trying to break me up before this jury. I know it, and I expected it. * * * The pain she suffered there at that time, the pain she underwent when she went down under the anesthetic into the valley of the shadow of death—
    Mr. H. I object to that.
    Mr. R. When she came out—
    Mr. H. I object, wait a minute.
    Mr. B. I withdraw it. I am not going to have my time taken up. I have only got a few minutes more. Mr. H. I object, your Honor.
    Mr. B. I withdraw it to save time—anything to get the time that you have taken.
    Mr. H. Will you wait a minute?
    Mr. B. No.
    Mr. H. I object to that statement of counsel, and in spite of the withdrawal, I wish to preserve an exception to the making’ of the remark. You cannot stick a knife in and then pull it out and not leave a hole.” (Exception entered.) * * *
    Mr. B. “What would be a fair compensation for this girl? What ought to keep her through her life? I say to you she can not have an investment at a much safer percentage than five per cent. What would that bring her? Would you ask this girl, in her condition, to live on less than $1,000 a year? Don’t you think that would be fair and right? When everything now, and everything that she has got to meet and take care of is taken into consideration? Do you mean to say that would be too much? Now, gentlemen of the jury, consider it well. What would that be? At five per cent, that would be—

      Mr. H. That is objected to.
    Mr. B. $20,000.
    Mr. H. Wait a minute, I object to that.
    Mr. B. Is that too much?
    Mr. H. I object to the argument, if your Honor please, that there is anything in the law that allows any damages based on a percentage derived from a principal, for the reason that the principal never comes back to the other party. It is not—
    Mr. B. Oh, now—
    Mr. H. Wait a minute.
    Mr. B. Yes.
    Mr. H. It is a wrong argument. It has no foundation in law, and it should not be made. He cannot argue here that there is some principal from which an income is to be derived. I object to it.
    The Court. The objection is sustained.” (Exception to remarks.)
    Mr. B. “Of course I lmow now, gentlemen, what is a fair compensation for this girl, what she ought to have. I have pondered this thing well. I will give you my opinion for what I think it is worth—what would be sustained in this court or any other court, and be fair and square. Taking into consideration all the pain of body and mind that she has suffered, the money loss that she would have; all the pleasures she will be deprived of. Gentlemen of the jury, what does it mean? Is $20,000 too much? I say that it is not when everything is considered. Would you ask her or any human being to live on less than that or to get along? Do not turn her away now, even if she is in humble circumstances. Do not scale that down or make it too small.
    Mr. H. I object to that.
    Mr. B. Now gentlemen, I know—
    Mr. H. Wait a minute.
    Mr. B. I know you will try to break me up.
    Mr. H. I know when I make an objection, it is usual and customary among lawyers to stop until the objection can be passed upon.
    Mr. B. Yes.

      Mr. H. I object to the statement that ‘she is in humble circumstances.’
    Mr. B. Well, I will cast that out.
    The Court. The objection is overruled.” (Exception to ruling and remark.)
    Mr. B. Yes, I know, take it out. I will withdraw that, or anything to get along and present this case in a connected way to this jnry.
    Mr. H. Yes.
    Mr. B. You know no lawyer can speak to any advantage when he is being interrupted and bully-ragged every minute. I.didn’t do it to him. But, gentlemen of the jury you know the truth and justice of this case. I have told you what she ought to have in my opinion. I stake my opinion and reputation upon it that it is not too much, unfair or unreasonable.
    Mr. H. I object to that, I object to that.
    Mr. B. I believe that is just.
    Mr. H. I object to that, “I stake my opinion and reputation on that.”
    The"Court. “The objection is sustained.” (Exception to the remark.)
    Mr. B. ‘ ‘ Grentlemen, I see that I cannot make much of a talk here to-day, but I don’t care what it is, you can judge between us both. * * * I have told you what I believe this amount ought to be and I ask you to give it. I ask you to give that amount as a fair, square compensation; I ask you with all earnestness, gentlemen : Do justice to this little girl, do justice to her and as long as you live you will never have cause to regret it.”
    Franklin B. Hussey and Charles LeRoy Brown, for appellant; John R. Guilliams, of counsel.
    Henry B. Rathbone, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

The only error assigned necessary to consider is that relating to remarks of counsel for plaintiff during his address to the jury. Because their prejudicial effect is made more apparent when viewed in their entirety they have been quoted in the foregoing statement at some length.

Besides the impropriety of some of them, two things were manifest in the course of the trial,—that there was unrestrained departure from the lines of proper argument and comment, and laxity in enforcing recognized rules of procedure. But for the latter the former would rarely occur and occasions for review would be lessened. But if the presiding judge neglects his duty to guide the trial and exercise the power to prevent abuse of argument and improper comment before the jury, it cannot be expected that the judgment will pass review. And if counsel will not take warning from the numerous decisions on this subject to refrain from transgressing the well-known limitations a fair' trial and dispassionate consideration of the evidence prescribe, they must attribute the loss of benefits to their excess of zeal or indiscretion and not to a disposition of reviewing courts lightly to disturb the verdict of a jury. It is as essential to the attainment of justice as to the dignity of the court that abuses of this sort should not be tolerated. "

To be specific. On several occasions when defendant’s counsel sought a ruling on his objections he was ' compelled, apparently without assistance of the court, to dissuade plaintiff’s counsel from pressing the argument objected to before a ruling could be obtained. The exercise of the undoubted right to demand a ruling on objections was not only repeatedly interfered with by continuing the line of argument without giving opportunity for a prompt ruling, but freely characterized, without rebuke or admonition of the court, as purposely intended “to break up” counsel’s argument. To emphasize it, he declared that he “expected it,” and knew opposing counsel would try “to break him up,” and instead of appealing to the court if he needed protection, invited the jury’s consideration of Ms disadvantage in being “interrupted and bully-ragged every minute. ’ ’' Remarks of this kind were improper even when the rulings were in his favor. But when against him they took the form of appealing from judge to jury of the impropriety not only of counsel’s “interruptions” but of the rulings of the court. When the court sustained objection to the remark as to his client’s matrimonial prospects, he said to the jury, “what is the use of our beating around the bush?” When objection was sustained to “staking his opinion and reputation” as to what the damages should be, he said: “Gentlemen, I see that I can not make much of a talk here to-day, but I don’t care what it is, you can judge between us both. * * * I have told you what I believe this amount ought to be and I ask you to give it.”

Again, when improper remarks were objected to they were withdrawn frequently with the remark that it was done “to save time” and without a ruling of the court, thus leaving the jury to consider both their propriety and the necessity of counsel’s suggested sacrifice.

We cannot believe that such procedure was without prejudice to defendant, and its extent cannot be measured. It was calculated to warp the jury’s judgment as to the evidence as well as the amount of the verdict. A remittitur would not cure the error even if we were disposed to regard the amount of the verdict as excessive. It was at least large.

. It was the duty of the court to pass on objections when made that the jury might be guided by its rulings, and it was the duty of counsel to stop his argument until the ruling was made. It was the court’s duty not only to require him to cease, but not to permit his reflections on the exercise of the legal right to interpose objections. It was for the court to pass upon the grounds and not for the jury on the motives of objections. Being unacquainted with technical procedure or the necessities therefor, the jury should not have been left by absence of the proper conduct and guidance of the trial to infer that the objections were resorted to as a mere device to interrupt counsel’s argument and consume his time. We would not reverse for occasional infractions of this kind, but when they are so numerous as to show a clear disregard of the settled course of procedure designed to insure a fair hearing and protect parties to a trial from injustice, we are constrained to reverse the judgment even though it might otherwise stand. The responsibility of the result is not with us, but that of upholding the guaranties surrounding a fair trial is.

But if the unwarranted obtrusion of counsel’s individual opinion as to the amount of damages, the argument that the basis of the verdict should be an amount sufficient to produce an income that would support the minor the rest of her life, the reference to her “humble circumstances,” the allusion to her going down “into the valley of the shadow of death” while under the anesthetic, and the discussion of mental pain and spoiled matrimonial prospects, would not separately call for a reversal of the judgment, when taken together in connection with the course of procedure above alluded to, they undoubtedly would.

Reversed and remcmded.


text:
    James E. Plew, Appellee, v. E. M. Board et al., Appellants.
    Gen. No. 21,040.
    1. Municipal Court op Chicago, § 13

      —when statement of claim does not state ground of liability in action against officers of corporation for corporate debt. A statement of claim in an action in the Municipal Court of Chicago against the officers of a corporation on notes of the corporation alleging that the notes purported to have been executed by the United Publishing Company, a pretended corporation; but that said corporation had never complied with the laws of the State relating to corporations, and had never been authorized or licensed to execute said notes, or otherwise transact business in the State; but that such notes were the obligations of the defendants as makers, such defendants being or pretending to be stockholders, officers, agents and the board of directors of such corporation, and assuming as such to exercise corporate powers under such corporate name, held, not to state a ground of legal liability.
    2. Corporations, § 297

      —nonliability of officers assuming to exercise corporate powers of foreign corporation. The General Incorporation Act, Sec. 18 (J. & A. If 2531), which makes persons assuming to exercise corporate powers of a corporation liable under specific circumstances for debts contracted by them in its name, has no application to the failure of a foreign corporation to take out a license to do business within the State.
    3. Municipal Court of Chicago, § 13

      —when necessary that statement of claim disclose ground of legal liability.' A statement of claim in a fourth class case in the Municipal Court of Chicago must show a ground of legal liability.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Reversed.
    Opinion filed January 11, 1916.
    Samuel Shaw Parks, for appellants.
    Frederick A. Freeark, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Appellee brought suit against appellants and others to recover the principal and interest on two promissory notes, copies of which are set forth in the statement of claim, which avers that they were' “notes purporting to have been executed by the United Publishing Company, a pretended corporation; but * * * that said corporation * * * never has complied with the laws of this State relating to corporations, * * * and never has been authorized or licensed to execute said notes, or otherwise transact business in this state; but that said notes are the obligations of the first four above named defendants as makers, said defendants being or pretending to be stockholders, officers, agents, and the board of directors of said corporation, and assuming as such to exercise corporate powers under said corporate name.” The notes were dated at Chicago, Illinois, and bear the signature: “The United Publishing Company, By H. L. Bird, President, By E. M. Board, Treasurer.” They also bear a corporate seal containing the company’s name and the words “Corporate Seal, 1911, Delaware.” Appellants filed their affidavit of defense denying liability, but as a stipulation as to the facts has been stricken from the transcript of the record, the assignments of error rest on the common-law record and present as the only question whether or not the statement of claim states a ground of legal liability.

While the statement of claim alludes in one part to a “pretended” corporation, taken as a whole it must be regarded as recognizing as the real ground of action that the United Publishing Company was a foreign corporation and had not been licensed to transact business in this State as required under our act regulating foreign corporations. To avoid this construction, counsel for appellee suggests that the averment that said company was not licensed to do business in this State should be treated as surplusage, and the rest of the pleading be given the most favorable intendments and presumptions. But so to do would be in violence of the pleading’s most reasonable construction; for outside of this averment it contains mere generalizations or conclusions which seemingly allude to the alleged fact of noncompliance with said act, which is the only specific fact alleged in the statement of claim from which the basis of liability can be inferred. The action was manifestly brought on the theory that officers and directors of a foreign corporation that has not taken out a license to do business in this State are liable for the debts it incurs in this State. This is the only reasonable construction that can be given to the statement of claim.

But it is erroneous to suppose that such a state of facts will support a cause of action against the company’s officers. It is the corporation itself and not its officers or agents that is subject to the penalties prescribed by our act regulating foreign corporations for failure of the corporation to comply with its provisions (Hurd’s Bev. St. 1911, ch. 32, 67g, J. & A. 2531); and it is too obvious for discussion that section 18 or the General Incorporation Act (J. & A. U 2435) which makes persons assuming to exercise corporate powers of a corporation liable under specific circumstances for debts contracted by them in its name, has no application to the failure of a foreign corporation to take out a license to do business in this State.

Inasmuch as the statement of claim fails to disclose any ground of legal liability on the part of appellants or to state a cause of action, the judgment cannot stand, and, therefore, it must be reversed. (Gillman v. Chicago Rys. Co., 268 Ill. 305.)

Reversed.


text:
    George Hoey, Defendant in Error, v. Alcazar Amusement Company, Plaintiff in Error.
    Gen. No. 21,055.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fishes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed January 11, 1916.
    Rehearing denied January 25, 1916.
    Statement of the Case.
    Action by George Hoey, plaintiff, against Alcazar Amusement Company, defendant, to recover money under a written contract for a theatrical performance given, and damages for refusal of defendant to permit plaintiff to perform for the balance of the time stipulated in the contract. From a judgment for plaintiff, defendant appeals.
    The contract began with a recital that it was an agreement between said company and “In Old New York (Geo. Hoey, Mgr.),” to be designated thereafter in the contract as manager and artist respectively. By its terms the manager engaged the artist “in his specialty or act” for a period of one week commencing July 6th, at the price of three hundred and fifty dollars.
    Defendant urged that it was not a contract between the parties because Hoey was not referred to as a party in the body thereof. The contract was signed by each of the parties and the evidence tended to show that the term “In Old New York (Geo. Hoey, Mgr.),” was a name used by Hoey to designate his company of performers composed of himself and his employees, and that defendant knew it was dealing with Hoey personally and no one else.
    The court refused to permit defendant to prove whether or not one Jacobs employed by the booking agency that negotiated the contract between Hoey and said company reported to the latter a conversation he had with Hoey.
    Abstract of the Decision.
    1. Contracts, § 385

      —when evidence sufficient to establish contract. In an action by a theatrical performer against a theatrical company to recover money under a written contract for a performance given, and damages for refusal to permit plaintiff to perform for the balance of the. stipulated period, evidence held sufficient to establish a contract.
    2. Contracts, § 196

      —when printed words do not control. An amusement company cannot escape liability upon a written contract with a theatrical performer for one week’s service because of the fact that the contract provides that a failure on the part of either party to perform “such week” shall not be deemed a violation of its terms by either party, it appearing that the parties used a printed form designed to cover various situations, including those for a longer term than one week, and this clause referred to a situation where a contract was made for more than one week.
    3. Contracts, § 377

      —when evidence of conversation properly excluded. In an action by a theatrical performer against a theatrical company to recover money under a written contract for a performance given, and damages for refusal to permit plaintiff to fulfil the contract, held, that evidence to prove whether or not a certain person employed by the booking agency which negotiated the contract reported to defendant a conversation he had with plaintiff was properly excluded, as such conversation did not tend to show an admission by plaintiff or that he had abandoned the contract.

      The court also excluded a letter from said booking agency to the defendant purporting to accept for Hoey defendant’s cancellation of the contract. There was no proof that it had any authority so to do, nor evidence justifying the cancellation.
    A clause in the contract that a failure on the part of either party to perform “such week” should not be deemed a violation of its terms by either party. In framing the contract the parties used a printed form of the booking agency designed to cover various situations.
    Frank P. Leefingwell, for plaintiff in error.
    Adolph Marks, for defendant in error.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

4. Contracts, § 377 —when letter by third, person purporting to accept cancellation properly excluded. In an action by a theatrical performer against a theatrical company to recover under a written contract for a performance given, and damages for refusal to permit plaintiff to fulfil the contract, held that a letter from a booking agency which negotiated the contract to the defendant purporting to accept for plaintiff defendant’s cancellation of the contract was properly excluded, there being no proof that it had any authority to so do, nor evidence justifying the cancellation.


text:
    Albert Moses, Defendant in Error, v. Lazar Jacobsohn, Plaintiff in Error.
    Gen. No. 21,069.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago;. the Hon, John K. Prindiville, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinon filed January 11, 1916.
    Statement of the Case.
    Albert Moses, plaintiff, brought an attachment suit against Lazar Jacobsohn, defendant, on the ground that defendant was a nonresident of the State and owed plaintiff a sum of money. The defendant put in a general appearance. On judgment for the plaintiff for damages and costs, the defendant brings error.
    William M. Lawton and H. C. Lindsey, for plaintiff in error; Maxwell R. Herman, of counsel.

      Abstract of the Decision.
    Appeal and error, § 1301— when presumed trial court heard evidence to support judgment. Where in an attachment suit the record shows that the trial court heard evidence and found against the defendant both as to the attachment and the merits of the action, but entered judgment on the main issues only the reviewing court will, in the absence of a bill of exceptions, presume that the trial court heard sufficient evidence to support the judgment, and it is immaterial whether any judgment was entered on the attachment issue.
    Samuels & Samuels, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Howard Carlson by C. G. Carlson, Defendant in Error, v. Simeon Swenson, Plaintiff in Error.
    Gen. No. 31,086.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed January 11, 1916.
    Statement of the Case.
    Action by Howard Carlson, a minor, by C. G-. Carlson, his next friend, plaintiff, .against Simeon Swenson, defendant, to recover for personal injuries sustained by the plaintiff by having fall on him a radiator placed in the lobby of the defendant’s theater. From a judgment for the plaintiff, the defendant brings error.
    AlBert O. Olson, for plaintiff in error; James J. Leahy, of counsel.

      Abstract of the Decision.
    1. Appeal and error, § 538

      —when error in refusing motion to direct verdict not preserved for review. Where on the court’s refusal of the defendant’s motion for a directed verdict made at the close of the plaintiff’s case, the defendant introduces proof and fails to renew his motion at the close of all the evidence, the point that such refusal was erroneous is not preserved for review.
    2. Appeal and error, § 800

      —when motion for new trial and ruling thereon need not appear in hill of exceptions as basis for review. Since the Amendment of 1911 to section 81 of the Practice Act (J. & A. If 8618) dispensing with the necessity of incorporating formal exceptions in the record, it seems that the former rule of practice, requiring that to preserve for review the refusal of a new trial the motion therefor and ruling thereon must appear in the hill of exceptions, no longer applies where the transcript of the record contains a specific order of the court overruling and denying the motion as such order presumably would not have been entered had the motion not been made, and as it need not have been in writing nor an exception to the ruling preserved, the reason for the rule has failed.
    3. Theaters and shows, § 4

      —when evidence sufficient to sustain verdict for damages for personal injuries. A verdict for the plaintiff for personal injuries is not manifestly against the weight of evidence where the evidence tends to show that defendant eonductéd a theater on his premises, in the lobby of which were pictures and advertisements hung for the public to come in and see, and that in the wall of the lobby a radiator was so insecurely fastened that without apparent negligence on the part of the plaintiff, a minor, it fell out of its place upon him and injured him while he was looking at the pictures, the circumstances being such as to raise the inference of neglect on the part of defendant to have the radiator so fastened that it would not fall over from contact with it such as might be expected in a public place.
    John E. Anderson, for defendant in error; George B. Cohen, of connsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Alf. Ripon, Defendant in Error, v. Alcazar Amusement Company, Plaintiff in Error.
    Gen. No. 21,104.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed January 11, 1916.
    Rehearing denied January 25, 1916.
    Statement of the Case.
    Action by Alf. Ripon, plaintiff, against the Alcazar Amusement Company, defendant, to recover damages for the breach of a contract whereby the plaintiff was engaged to perform for one week at the defendant’s theater. From a judgment for plaintiff, defendant brings error.
    Though the contract, consisting of a printed form filled in, was not signed by the plaintiff it was signed by the defendant, which also entered the engagement upon its books. On the date when the performances were to begin the plaintiff presented himself, but permission to perform was refused. Having been unable, after diligent search, to obtain an engagement elsewhere during the week specified in the contract, the plaintiff sued for the stipulated remuneration, for which he recovered judgment.
    Frank P. Leffingwell, for plaintiff in error.
    Adolph Marks, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Contracts, § 4 —what constitutes contract for services. Where a writing signed by the defendant only, purporting to engage the services of the plaintiff to appear at the defendant’s théater, is orally accepted by the plaintiff, and the defendant makes an entry on its books of the plaintiff’s engagement, a valid contract, oral if not written, is entered into, on the breach whereof by the defendant, in refusing to allow the plaintiff to perform in accordance with the terms thereof, a suit will lie for the stipulated remuneration, such writing not being a mere proposal revocable by defendant and subject to cancellation before performance of such services.

2. Contracts, § 196 —when printed portion of contract not controlling. A written agreement consisting of a printed form, filled in and signed by the defendant, whereby he engages the services of the plaintiff fop one week, reciting that a failure on the part of either party to perform on “such week” shall not be a violation of its terms, will, on the refusal of the defendant to accept performance, support an action by the plaintiff to recover the stipulated remuneration for such services on his tendering performance, it being evident that the printed form was designed to cover a case where the term of the engagement extends over a period longer than one week.


text:
    George E. Ford, Defendant in Error, v. M. Piowaty & Sons, Plaintiff in Error.
    Gen. No. 21,112.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed January 11, 1916.
    Rehearing denied January 25, 1916.
    Statement of the Case.
    Action by George E. Ford, plaintiff, against M. Piowaty & Sons, a corporation, defendant, to recover the purchase price of goods sold and delivered at the defendant’s special instance and request. On judgment for plaintiff, defendant brings error.
    Abstract of the Decision.
    1. Appeal and error, § 1470

      —when receipt of secondary evidence without laying proper foundation reversible error. In an action for goods sold and delivered, held that the receipt of secondary evidence over objections thereto, without laying a proper foundation therefor was reversible error.
    2. Sales, § 329

      —when evidence insufficient to sustain verdict. In an action for goods sold and delivered, evidence which merely tends to show that a deal was made by the plaintiff with a party whom the plaintiff claims was an officer or agent of the defendant, supplemented by evidence of the contents of a check purporting to come from the defendant without adequate proof of notice to produce the original, and of a letter purporting to come from the defendant without adequate proof either that it came from or was authorized by the defendant, and of certain inclosures therewith that were incompetent without adequate proof of the letter itself, is insufficient to sustain a judgment for the plaintiff.
    Sabath, Stafford & Sabath, for plaintiff in error.-
    Stewart Reed Brown, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Frank Schoenfeld, Defendant in Error, v. Lake Shore & Michigan Southern Railway Company, Plaintiff in Error.
    Gen. No. 21,141.
    (Not to be reported in full.)
    Abstract of the Decision.
    Carriers, § 20

      —when presumed that connecting carrier acts as mere agent of initial carrier. In the absence of evidence to the contrary, it is presumed that a railroad company selling a through ticket over its own and a connecting line merely acts as agent for such line, and is not liable in damages to the purchaser for the refusal of the connecting line to honor the ticket and transport the passenger in accordance therewith.

      Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Reversed.
    Opinion filed January 11, 1916.
    Statement of the Case.
    Action by Frank Schoenfeld, plaintiff, against the Lake Shore & Michigan Southern Railway Company, defendant, to recover the amount .of fare paid on refusal of defendant to honor a ticket purchased by plaintiff. From a judgment for plaintiff, defendant brings error.
    The plaintiff purchased from the defendant a round trip ticket over the defendant’s line to a point on a connecting line. On refusal of the connecting line to honor the ticket the plaintiff was obliged to pay for his transportation over again, and to recover the amount so expended brings this action.
    Robert J. Cary and Bertrand Walker, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Orrin J. Shafer, Plaintiff in Error.
    Gen. No. 21,249.
    (Not to be reported in full.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed January 11, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against Orrin J. Shafer for violation of section 10 of the Motor Vehicle Act (J. & A. (f 10,010). Having been convicted on trial before the court without a jury, the defendant brings error.
    The principal issue of fact raised at the hearing was as to the speed at which the defendant was driving an automobile in a locality where speed in excess of fifteen miles an hour was by statute made prima facie' evidence of its violation. After the single witness produced by the State had testified that the car was going at twenty-five miles per hour, and the defendant had testified that he was not driving faster than twelve miles an hour, that his car went about fifteen feet after he started to stop, and that he could stop it within that distance when running twelve miles an hour, the trial judge announced that it was unnecessary for him to hear any more evidence, that from his own experience in driving a car he could not accept the defendant’s testimony as to speed, and refused the request of the defendant’s counsel, to call other witnesses.
    Abstract of the Decision.
    1. Trial, § 34

      —when refusal to allow production of witnesses denial of justice. To deny a defendant in a trial before the court his manifest right to produce witnesses to support his plea of not guilty is a palpable denial of justice.
    2. Trial, § 286

      —when disregard of evidence by trial judge denial of justice. For a judge to decide the issues before him on his private experience instead of on the evidence is a palpable denial of justice.
    Jonas & Hess, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.