text:
    Mark F. Madden and Michael S. Madden, Plaintiffs in Error, v. Charles A. Brown, Defendant in Error.
    Gen. No. 16,309.
    1. Brokers and factors—when real estate commissions cannot be recovered. If the broker or Ms agent make material misrepresentations as to matters connected with their undertaking they cannot recover.
    2. Brokers and factors—when real estate commissions cannot be recovered. If the purchaser produced is not in a position to perform, the agent cannot recover commissions with respect to a transaction not consummated.
    Error to the Municipal Court of CMcago; the Hon. Hosea W. Wells. Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 11, 1912.

      Rogers & Mahoney, for plaintiffs in error.
    Pines & Newmann, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This was an action brought by Madden Brothers, real estate brokers, hereinafter referred to as plaintiffs, against Charles A. Brown, hereinafter referred to as defendant, to recover the sum of-$750, claimed to be due plaintiffs for commissions. After a trial without a jury, the court found the issues-for the defendant, and entered judgment on the finding against plaintiff for costs.

The facts of the case are substantially as follows: In August, 1907, plaintiffs inserted an advertisement in a Chicago newspaper that they had certain downtown property for sale. Defendant, owning certain Evanston property which he wished to exchange for other property, noticed said advertisement and telephoned plaintiffs, and ■ they sent a representative, named Whalen, to call on defendant. Whalen, acting for plaintiffs, submitted several pieces of property which were not acceptable to defendant, and, finally, in September, 1907, presented a leasehold at No. 175 Monroe street, Chicago, which he said was owned by Edwin S. Mason, at the price of $60,000, proposing that defendant should sell his Evanston property at $30,000 to Mason, pay Mason $5,000 cash, and give notes for $25,000 at 5% per cent, per annum, secured by mortgage on said leasehold, thus making said $60,000 for said leasehold. To persuade defendant to make the trade, Whalen gave to defendant a memorandum of the probable income of the building from rents, estimating it at $18,000, and figuring the expenses of maintaining the leasehold and building (such as ground rent, interest on mortgage, taxes, insurance, fuel, etc.), at such a figure as showed a net income of over $6,000 per annum. In that memorandum the annual taxes on the property were stated as being $1,400. During the negotiations, Whalen asked defendant if he would pay 2y3 per cent, commission on the price of $30,000, put upon defendant’s property, or $750, if a deal should be made, to which defendant assented. Whalen testified on this point: “I said to him (defendant), if you make the deal, you will pay the regular 2y2 per cent., and he said ‘certainly.’ ” Defendant testified: “I told him (Whalen), that it must be understood that no commission would be paid unless the deal went through, and he said, ‘Of course, that is understood.’ ”

On September 26, 1907, defendant wrote a letter to plaintiffs in which he made an offer for said Monroe street property, substantially as follows: That he would give $5,000 in cash, and his said Evanston property, “for the leasehold as it has been set forth by you, subject only to $25,000 mortgage, * * * and subject to a lease for 20 years to a responsible tenant, * * * at the rate of $14,500 per year with payments satisfactorily secured.” This proposition was not accepted for the reason that plaintiffs, after much effort, were unable to obtain the required tenant for the building.

Subsequently, in January, 1908, Whalen called at the office of defendant, and resumed negotiations. Whalen represented plaintiffs at this time, and Mason testified that plaintiffs had full authority, as agents for Mason, to “make the deal” which Whalen proposed to defendant. Whalen offered the leasehold at $52,500, and told defendant that “we” could take his Evanston property at $37,500, the difference of $15,000 to be paid by defendant—$5,000 in cash and $10,000 by a mortgage on the leasehold bearing 3 per cent, interest per annum. Defendant testified that Whalen, in urging the advantages of this new proposition, told him that the income from the leasehold would be greater than he had thought before, that the interest charge would be reduced from $1,375 to $300 per annum, that the annual taxes were $1,400, and that, even if the income from the tenants of the building did not reach $18,000, it would still give a large percentage of $100,000, as the value of the leasehold.

Shortly after the interview the defendant met Whalen by appointment, and for the first time went through and examined the building. Mason and one of the plaintiffs also accompanied defendant on this trip through the building. The first floor of the building appeared to be vacant, and Whalen stated in Mason’s presence that the rent for said floor (amounting to $5,000 per year) was being paid by a guarantor on the lease. There were no tenants whatever in the building. Returning from the building with Whalen, the subject of commissions was again referred to, and it was agreed between defendant and Whalen that it should be as previously agreed. It was also agreed that a contract be drafted, which was personally done by Whalen, dated January 15,1908, and left by Whalen at defendant’s office. A few days afterwards, Mason called and signed the document, and at the same time one Novander, in whose name the Evanston property of defendant was held, also signed it at defendant’s direction and in his presence, and delivered it to defendant, but defendant did not surrender possession of it, nor did he at any time thereafter deliver it to plaintiffs. This document provided, among other things, that Mason agreed to assign said leasehold to defendant at the price above mentioned, subject to an encumbrance of $10,000, that defendant agreed to convey his Evanston property and pay $5,000 in cash to Mason, that in ease material defects be found in the title, and reported within the time specified, if such defects be not cured within 60 days, the contract, at the option of the party delivering the objections, might become null and void, that “all deeds shall be passed and this negotiation closed at the office of Madden Bros, within five days after the titles have been found good,” that “this contract shall be held by Madden Bros, for the mutual benefit of the parties,” and that “brokerage fees or commissions shall be paid to Madden Bros, as follows, Edwin S. Mason $1,250, Leonard W. Novander $750, * * * as heretofore agreed by them,”

At the time this document was signed (defendant retaining possession of it), defendant, as he testifies, told Mason that he “would look into the matter further and turn the contract over to Madden Brothers, if I found everything to be satisfactory and as represented.” Mason and defendant then separated, and defendant went over to the office of a friend to investigate if everything was as represented, and to ascertain particularly “what the taxes were,” what the title was, about the lease, if the rent was being paid for the first floor on the guaranteed lease, and, in fact, “all the points that had been represented to me about the property.” Upon making this investigation defendant found that the annual taxes were $2,205, instead of $1,400, as represented by Whalen, and defendant, at this time, made no further inquiry as to the other matters he desired information upon, but decided, on account of the $800 difference in the taxes, to go no further with the deal, and he immediately notified Mason, by letter, that on account of said difference in the taxes, he would not continue negotiations and that the whole matter was off. A day or two afterwards Whalen called on defendant at the latter’s office, and urged defendant to continue negotiations, but defendant refused, telling Whalen that he had misrepresented the amount of the taxes, and that in view of the added burden upon the property, which would never diminish, defendant would have nothing further to do with the matter. According to defendant’s testimony, and that of an employe of defendant who was present at the conversation, Whalen admitted that he had misrepresented the amount of the taxes. Whalen denies making any such admission. Later Mason called on defendant also urging a renewal of negotiations, at a lower price for the leasehold, but defendant again refused. There was also evidence introduced at the trial tending to show that the guarantor on the lease of the ground floor of the building had either failed or discontinued business, and that Mason, during these negotiations, was not receiving any rent for said floor and had not since May, 1907, that defendant had never been tendered any abstract of title of the leasehold, and that no examination had been made to ascertain if there were any material defects therein, and the record does not clearly disclose that the title thereto was clear and unencumbered, outside of said mortgage of $10,000.

After a careful examination of the record, we are of the opinion that the finding and judgment of the trial court should not be disturbed, because (1) the evidence tends to show that plaintiffs were not entitled to any commissions unless the transaction was consummated, and it was not consummated, (2) because the evidence also tends to show that the signed contract was never delivered by defendant to plaintiffs, (3) because the evidence also tends to show that material misrepresentations as to the leasehold, particularly as to the annual taxes thereon, were made by plaintiffs’ agent to defendant, which, upon defendant’s being advised of the true situation, justified defendant in refusing to consummate the transaction, and (4) because the record does not affirmatively disclose that Mason was able to give defendant an unencumbered title to 'said leasehold, subject only to said mortgage of $10,000. Parmly v. Head, 33 Ill. App. 134; Biederman v. O’Connor, 117 Ill. 493; Lawrence v. Rhodes, 188 Ill. 96, 100; Leahy v. Hair, 33 Ill. App. 461; Howe v. Hutchinson, 105 Ill. 501, 504.

The judgment must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Charles Turgrimson, Appellant, v. Sophie Wahl and Julius Wahl, Appellees.
    Gen. No. 16,364.
    Chattel mortgages—when upon household goods void. If a chattel mortgage is executed by the husband who holds a power of attorney from his wife, she not joining therein, the chattel mortgage is void where the answer of the wife filed to the bill to foreclosure denies the authority of the husband to execute and acknowledge in her behalf the particular mortgage in question.
    Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 11, 1912.
    Rehearing denied May 2, 1912.
    Clark & Clark, for appellant.
    C. C. March, for appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court' of Cook county, sustaining the exceptions of Sophie Wahl and Julius Wahl to the master’s report, and dismissing the bill of Charles Turgrimson for want of equity. Complainant’s bill was a bill in the usual form to foreclose a chattel mortgage upon certain household goods owned by Julius Wahl, the husband of Sophie Wahl.

The facts are substantially as follows: At different times between July 1, 1904, and September 9, 1905, inclusive, Julius Wahl borrowed in the aggregate the sum of $375 from complainant. Of this sum he has paid back $66.50, leaving a balance of $308.50. Of this sum of $375, he received $100 from complainant on September 9, 1905, and on that date he personally signed a judgment note for $450, due April 9, 1906, payable to the order of complainant. In addition to his own signature, he also signed the note, “Sophie Wahl, by Julius Wahl, her Atty. in fact.” The note provided for reasonable costs of collection, including an attorney’s fee. The amount of said note was made up of the $100 and of the money theretofore loaned, and of interest figured at the rate of five per cent per month. To secure said note, the chattel mortgage in question, dated September 9, 1905, on said household goods was signed by Julius Wahl personally, and was also signed, “Sophie Wahl, by Julius Wahl, her Atty. in fact.” A justice of the peace in the town of Hyde Park certified that the mortgage was duly acknowledged before him “by the above named Sophie Wahl, by Julius Wahl, her attorney in fact, and Julius Wahl, the mortgagors therein named. ’ ’

On said September 9, 1905, but prior to the time of the signing of said note and chattel mortgage as aforesaid, Sophie Wahl signed a power of attorney to her husband, Julius Wahl. She did not acknowledge it. The instrument states, in substance, that she appoints Julius Wahl, her husband, her true and lawful attorney “to borrow such sum or sums of money, for such time or times, upon such terms and conditions, ” as to him may seem proper, and in her behalf, and as her act and deed, “to sign, seal, acknowledge and deliver any and all notes, contracts and chattel mortgages to secure money borrowed or otherwise,” and also in her name and stead to grant, bargain and sell, at such prices and terms as he may deem expedient, “all or any part of the personal property,” which she may now or hereafter “own or have an interest in,” and to sign, acknowledge and deliver “any and all bills of sale or other instruments of conveyance therefor” as to him may seem proper, giving her attorney full power and authority, etc., and ratifying and confirming all that her attorney shall lawfully do.

Complainant’s bill prayed for an aecouning and for a decree of foreclosure on said household goods. An answer by the defendants under oath was waived'. A joint and several answer of the two defendants was subsequently filed, and the defendant, Sophie Wahl, made affidavit that “the portion of said answer, by her individually made, is true in substance and in fact.” In that portion of said answer she alleges, “if the said complainant, or her said co-defendant, Julius Wahl, has any paper or writing from this defendant, purporting to authorize said co-defendant, Wahl, to sign, execute and acknowledge a chattel mortgage for her and in her name, jointly with said co-defendant, that any such paper or writing did not refer to the chattel mortgage set forth in said bill, and * * * that she did not authorize * * * Julius Wahl to sign, acknowledge, execute and deliver said chattel mortgage * * * to the complainant, * * * that she did not sign, execute, acknowledge and deliver the same in person, * * * that she had no knowledge of the claimed existence of any such mortgage until after the complainant filed his bill, * * * and that the said chattel mortgage is not the act, mortgage or deed of this defendant; * * * that the alleged judgment note * * * was not by her signed, executed and delivered to the complainant, nor did she at any time heretofore authorize * * * Julius Wahl to sign, execute and deliver .said alleged note to said complainant for her, or on her behalf, and that the same is not the act of this defendant; * * * and that she did not join in the making and execution of said alleged chattel mortgage, nor does said bill of complaint show that she did join in the making and execution of the same, as required by the statute relating to foreclosure of chattel mortgages on household goods; * * * and she denies that she is now or was at any time heretofore, the owner of said household goods; * * * and she claims and insists that said alleged mortgage is void and of no effect. ’ ’

The cause was referred to a master in chancery to take proofs and report the same, together with his conclusions thereon. On the hearing before the master, complainant introduced in evidence as Exhibits 1, 2 and 3, the power of attorney, note, and chattel mortgage, all over the objection of counsel for the defendant, Sophie Wahl. The complainant was sworn as a witness in his own behalf, and testified that the signatures on said note and on said mortgage were the signatures of Sophie Wahl, by Julius Wahl, her attorney in fact, and the signatures of Julius Wahl; that he saw Julius Wahl sign the same; that no money had ever been paid him on said note; that at the time of the signing of said note and mortgage, the said power of attorney “with the signature of Sophie Wahl as it now appears thereon,” was in his possession. Edward L. Curran, an employe of the complainant, also testified on complainant’s behalf to the effect that he was acquainted with both of the defendants, that on September 9, 1909, he called at the home of Sophie Wahl with the instrument “Exhibit 1” (power of attorney), that Sophie Wahl then signed it, and that he saw her sign it. These two witnesses were the only witnesses who testified on behalf of complainant, and their said testimony, together with said exhibits, was the only evidence on the question of Sophie Wahl “joining” with her husband in the execution of said chattel mortgage. The master found that the loans from time to time made to Julius Wahl by complainant were usurious, that there was due to complainant the sum of $308.50 without interest, and that complainant was entitled to collect said sum by the foreclosure of the household goods enumerated in said chattel mortgage. Objections were filed before the master and overruled, these objections were ordered by the Court to stand as exceptions, and on the hearing, the trial Court, as before stated, sustained the exceptions, and dismissed complainant’s bill for want of equity.

In this State, prior to July 1, 1889, a married man might execute a valid chattel mortgage on household goods, which were owned by him, without his wife’s joining in the execution of the mortgage. As a result, •it sometimes happened that the first notice the wife had of the existence of such a mortgage was when teams came to the family home to carry away the goods. To remedy such an abuse, and other abuses, the legislature of this State, in 1889, passed an act entitled “An Act to Regulate the Foreclosure of Chattel Mortgages on Household Goods, Wearing Apparel and Mechanic’s Tools.” Section 2 of that Act, (Sec. 24, Chap. 95, Hurd’s Rev. Stat.) provides:

“No chattel mortgage executed by a married man or married woman on household goods shall be valid unless joined in by the husband or wife, as the case may be.”

It is contended by counsel for the appellees that, by reason of this statute, a married man cannot make a valid chattel mortgage, on household goods owned by him, without his wife’s joining in the execution of the instrument itself, and that, therefore, under the facts in this case, the chattel mortgage now in question is void, and the decree of the trial Court should be affirmed. It is contended by counsel for appellant that a chattel mortgage to be valid, as between the parties, need not be acknowledged by the mortgagor; that, by virtue of Section 14 of Chapter 68 of the statutes of this State, a wife may constitute her husband her attorney in fact to dispose of her property; that an unacknowledged power of attorney given by a wife to her husband, as in this case, whereby she authorized him “to grant, bargain and sell * * * all or any part of the personal property I may now or hereafter own, or have an interest in, and to sign, acknowledge and deliver * * * any and all bills of sale, or other instruments of conveyance thereof, ” is a sufficient authorization to the husband to sign, acknowledge and deliver such a chattel mortgage, as was done in this case in the manner aforesaid, and constitutes a sufficient “joining” in the execution of the mortgage in question, and that, therefore, the mortgage is valid. In support of their contention, counsel for appellant cite the case of Dean v. Shreve, 155 Ill. 650, in which certain provisions of the Act of March 27,1869, relative to married women, were construed. The act provided, in substance, that any feme covert above the age of 18 years, joining with her husband in the execution of any deed or other writing of or relating to the sale, conveyance or other disposition of lands, should be bound and concluded by the same in respect to her right, title, claim, interest or dower in such estate as if she were sole and of full age, and that the acknowledgment or proof of such deed, mortgage, conveyance or other writing might be the same as if she was sole. The deed in question in the case was signed by the wife, ‘ ‘ Samantha Dean, and William C. Dean, by Samantha Dean,” and was duly acknowledged before a notary public by Samantha Dean. The Court held that this was a sufficient “joining.” The Court says (p. 654):

“Under this statute the acknowledgment ceased to be an essential requisite to the validity of a deed. Where she joined with the husband in the execution of the instrument the demands of the law were' complied with. The certificate of acknowledgment might be the same as if she was sole. Indeed, if the instrument was not acknowledged at all, proof of its execution might have been made as at common law. Here the husband and wife joined in the execution of the deed. His name, it is true, was signed to the deed by the wife; but authority from the husband to write his signature to the deed is not denied by either husband or wife in either the answer or the evidence. It will, therefore, be presumed she wrote his name to the deed by his direction.

The fact that the husband did not acknowledge the deed did not impair its validity. He joined with.the wife in its execution which, under the act of 1869, rendered it valid. ’ ’

It will be noticed that our Supreme Court seemingly bases its decision on the fact that authority from the husband to the wife to write his signature to the deed was not denied in either the answer or the evidence by either the husband or the wife, and that, therefore, the presumption exists that she wrote his name to the deed by his direction. In the case now before us, there is no such presumption, because Sophie Wahl, in her answer, specifically says that she did not authorize her husband to execute said chattel mortgage, and that the same is not her act, mortgage or deed. Furthermore, the evidence introduced by the complainant before the master does not show, satisfactorily to us at least, such. an authorization by the wife to the husband, and no evidence was introduced by the defendants. Therefore, we do not think that the decision in the Dean case is applicable to the facts in the present case.

We have been unable to find any case reported in either the Supreme or Appellate Court reports of this State, nor has one been cited by counsel, where the question as to what constitutes “joining” in the execution of a chattel mortgage on household goods by husband and wife has been decided, but after a careful consideration of the entire record and the briefs and arguments of counsel, we have reached the conclusion that the chattel mortgage here in question is void, and that the decree of the trial Court, in dismissing the bill for want of equity, should be affirmed.

Decree affirmed.


author: Mr. Justice McSurely

text:
    Arthur J. Stevens, Defendant in Error, v. Ferdinand Weyer, Plaintiff in Error.
    Gen. No. 16,216.
    Forcible entry and detainer—when right to possession established as against vendee failing to perform. A conveyance by the vendor to the plaintiff coupled with an assignment of the contract of purchase which was breached sufficiently establishes the right to possession.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Michael F. Girten, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 11, 1912.
    Rehearing denied April 25, 1912.
    Cunnea, Scully & Rafferty, for plaintiff in error.
    David Eichberg, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action in forcible detainer, in which Arthur J. Stevens obtained a judgment against Ferdinand Weyer for possession of the premises, No. 7010 Marshfield avenue, Chicago, which judgment we are asked to reverse.

It appears that on June 17,1909, one James H. Collins sold to Weyer the aforesaid premises under a contract signed by both parties, which provided that Weyer should make a cash payment on said date of $70; $30 on June 23, 1909; $25 on August 5, 1909, and $25 on the 5th day of each succeeding month until the purchase price was fully paid. Said contract also contained these further provisions:

“In case of failure of the said second party to make either of the said payments, or any part thereof, or to perform any of tlie covenants or agreements on his part hereby made and entered into then this contract shall, at the option of the said first party, be forfeited and determined, and said second party shall forfeit all payments made by him on this contract and all interest right to said premises shall be retained by the said first party in fnll satisfaction and liquidation of all damages by him sustained, and he shall have the right to re-enter and take possession of the said premises aforesaid.

“It is further agreed by and between the parties hereto, that the time of payment shall be the essence of this contract and all of the provisions hereof, and that all of the agreements and covenants herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties hereto, but it is expressly agreed that this contract shall not be sold or assigned by the said second party without the written consent of the first party first had and obtained.

Collins afterwards signed and acknowledged a deed before a notary public in the oEce of Stevens, conveying said premises to Stevens, and left the same with the notary public. He also, on July 1, 1909, signed an assignment on the back of the contract of purchase, by which, for one dollar and other good and valuable considerations, he assigned “the within contract to Arthur J. Stevens, and guarantee the fulfillment of all the conditions by the parties to it."

The only payments made by Weyer were the cash payment of $70 and the $30 due June 23, 1909. On October 25,1909, Stevens caused a written notice to be served on Weyer, to the effect that unless the arrears of installments due under the contract were paid before October 30, 1909, the contract would be forfeited; and again on November 1,1909, a more formal written notice was served on Weyer, to the effect that said contract had been declared forfeited on account of defaults in the payment of installments, and demanding 'immediate possession of the premises..

The defense is that there was not a suEcient showing of the right of possession in Stevens to entitle him to a judgment.

We are of the opinion that by the assignment Stevens succeeded to all the rights of Collins under the contract, and this, together with the evidence of the execution of the deed from Collins to Stevens, was sufficient evidence of Stevens ’ right to possession.

The judgment is affirmed.

Affirmed.


text:
    S. Merkiewicz, Defendant in Error, v. The Standard Brewery, Plaintiff in Error.
    Gen. No. 16,264.
    1. Employer and Employe—when discharge not justified. If the conduct of the employe for which the discharge was made was sanctioned by custom so general as to enter into the contract of hiring, the discharge is wrongful.
    2. Verdicts-—when not set aside as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 11, 1912.
    Castle, Williams, Long & Castle, for plaintiff in error.

      No appearance for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

S. Merkiewicz, hereinafter called the plaintiff, was employed by the' Standard Brewery, hereinafter called the defendant, as a teamster, his wages being $60 a month. He was discharged on the 7th day of September, 1909, and paid his wages for the number of days in September he had worked. He brought suit for wages for the remainder of the month, claiming that his discharge was without cause, and obtained a judgment therefor, which we are asked to reverse.

No reason was given plaintiff for his discharge. He testifies that he had been paid by the month theretofore, and that no complaint had ever been made to him that his work was not satisfactory. He told defendant when he was discharged, and subsequent thereto, that he was ready and willing to continue working for the defendant, but was not permitted to work after the time of his discharge.

The defendant claims in the argument that the discharge was justified because on Labor Day, which was the first Monday of September, the plaintiff had used the team and wagon of the defendant without permission, in moving household goods of his brother-in-law. Apparently, however, the reason urged at the trial was that no deliveries of goods were made to defendant’s customers on the day before Labor Day, which was Sunday, and on Labor Day, which was the following Monday, and this is not denied by the plaintiff. He says, in explanation of his non-deliveries on these two days, that he had taken out an extra large load on the preceding Saturday and had supplied his customers on Saturday with goods sufficient to last over Sunday and Monday. He also says that it was a general custom among the drivers, known and agreed to by the defendant, that if a driver could supply his customers the day before a holiday with sufficient goods, he would not be expected to work on such holiday. The question of whether or not this was the custom was the issue of fact at the trial, and there was a conflict in the evidence on this point. There was no evidence of any complaint by any customer of an insufficient supply of goods on these two days. It is evident that the occasion of plaintiff’s discharge was not because he had used the team on Labor Day for a short time in other, work, but because the team had not been used on that day in making deliveries to customers. The evidence and instructions of the court were on that theory. It was therefore a fair question for the jury to determine the existence or otherwise of such a custom as was claimed. The jury evidently believed that the evidence established the existence of such a custom, and this finding, in our opinion, was justified by the preponderance of the evidence.

It therefore follows as a matter of law, that the defendant could not discharge the plaintiff for following such a custom, without being liable for wages for the entire month.

The judgment is affirmed.

Affirmed.


text:
    Cooke Brewing Co., Defendant in Error, v. Abe Cohen, Plaintiff in Error.
    Gen. No. 16,285.
    Appeals and errors—when conduct of counsel not preserved for review. If tke conduct complained of as prejudicial does not appear in the abstract it will not be considered on review.
    Error to the Municipal Court of Chicago; the Hon. Michael E. Gus-ten, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 11, 1912.
    William Friedman and Alphonse Lefkow, for plaintiff in error.
    E. F. Masterson, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This Court gathers from the briefs of opposing counsel that it is claimed that upon the trial some things were said and done by counsel for both sides, and particularly by the attorney for the defendant in error, which were highly improper and constituted prejudicial error but inasmuch as nothing of what counsel either said or did upon the trial appears in the abstract of record, we cannot arrive at any opinion thereon.

As to the claim that the verdict of the jury is contrary to the evidence, we can only say that a reading of the abstract of record and consideration of the arguments of counsel do not incline us so to think.

The judgment will therefore be affirmed.

Affirmed.


text:
    United States Gypsum Company, Defendant in Error, v. Abraham Bernstein and Henry Wolf, Plaintiffs in Error.
    Gen. No. 16,289.
    1. Suretyship—how contract of guaranty construed. Such a contract must be strictly construed; but where there is some uncertainty in its terms the court may resort to the ordinary canons of construction to ascertain the intent of the parties.
    2. Suretyship—contract of guaranty construed. Held, that the contract of guaranty in question in this ease merely limited the amount of the liability of the guarantor and did not limit the amount of credit to be given to the principal debtor.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Poster, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 11, 1912.

      Blum & Blum, for plaintiffs in error.
    Eastman, Eastman & White, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

The United States Gypsum Company, hereinafter called the plaintiff, brought suit against Abraham Bernstein and Henry Wolf, copartners trading as Bernstein & Wolf, hereinafter called the defendants, upon a written guaranty. The trial court found for the plaintiff and rendered judgment for $100, which we are asked to reverse.

The writing sued on is as follows:

“Chicago, Ill., Sept. 14, 1908.

U. S. Gypsum Co.,

Chicago, Ill.

Gentlemen:—

We hereby guarantee the account of Gottlieb Hoffman for material delivered to him at 481-483 South Halsted Street, City, said account not to exceed the sum of one hundred dollars.

Tours very truly,

Bernstein & Wole.”

The trial court apparently held this to be an absolute guaranty for $100. It is claimed by the defendants that it is not an absolute guaranty, but a conditional guaranty, the condition being that the entire credit extended to Hoffman should not exceed $100. It is conceded that the plaintiff sold materials to Hoffman of the value of $203.33, and it is claimed that this was a violation of the condition imposed by the guarantors and hence they are relieved from liability.

Undoubtedly a guarantor may impose conditions which, if violated, will operate to discharge him from liability. He may impose as a condition a limit upon the credit to be given, and if credit is given beyond that limit the guaranty fails. (Ryan v. Trustees of Shawneetown, 14 Ill. 20.) He also may impose only a limit upon his liability, without limiting the credit to be given. (Frost v. Standard Metal Co., 215 Ill. 240, 243.) To determine into which one of these classes the guaranty before us falls is wholly a question of construction. Such a contract must be construed strictly, but where there is some uncertainty in its terms the court may “resort to the same aids and invoke the same canons of interpretation which apply in case of other contracts.” (Shreffler v. Nadelhoffer, 133 Ill. 536, 552.) By inquiring into the circumstances surrounding this guaranty, it appears that the defendants were the owners of the premises named in the guaranty, and were making alterations and improvements in the building at that place, under a general contract with a firm of contractors. The general contractors employed Hoffman as a subcontractor to furnish certain plastering and other kindred work in the premises, and it became necessary for Hoffman to purchase materials for his work. The plaintiff declined to extend credit to Hoffman, and thereupon the defendants executed and delivered to the plaintiff the guaranty in question. Thereafter Hoffman purchased from plaintiff materials to the amount of $203.33, which were used in the construction of said building. It further appears that the plaintiff, being unable to collect payment for these materials, sought to obtain a lien therefor upon the premises, but was denied this upon the ground that it was a sub-subcontractor and therefore not entitled to a lien. Plaintiff has therefore received nothing for its materials, and if defendants are not obligated by this guaranty it will receive no compensation for.the materials used in defendants’ building.

We are convinced that the natural and clearest meaning of the guaranty is that the guarantors undertook onlv to limit their liability to the amount of $100, and not to limit the amount of credit to be given Hoffman. The defendants, as an inducement to the plaintiff to make delivery of materials for their building, agreed to guarantee the account to the amount of $100, but not to exceed that sum. We fail to see how the defendants could have been interested in limiting the amount of plastering materials purchased by Hoffman and used in their building. They presumably wanted the building plastered in accordance with the terms of the general contract, which fixed the amount they should pay for the entire work, including plastering, regardless of how much material Hoffman used.

The other points made by the defendants do not modify our conclusion that the finding of the trial court was right. The judgment will be affirmed.

Affirmed.


text:
    Albert E. Klaproth, Defendant in Error, v. Louis Greenberg, Plaintiff in Error.
    Gen. No. 16,303.
    1. Appeals and errors—what notice of redocketing essential. Notice of redocketing after remandment should be personal.
    2. Appeals and errors—what part of record without incorporation in hill of exceptions. A notice to redocket after remandment is a necessary process to confer jurisdiction of the parties and it is therefore a part of the record without incorporation in a bill of exceptions.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed April 11, 1912.
    Martin Connor, for plaintiff in error.
    Lowes & Richards, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This case has heretofore been in the Appellate Court, this district, as No. 14,270, and was reversed and remanded. Thereafter a remanding order was filed in the Municipal Court by the defendant in error, hereinafter called the plaintiff, it is claimed without serving the proper notice as required by "statute.

The statute in such a case provides that before a cause shall be reinstated, notice shall be “given to the adverse party or his attorney.” Hurd’s Revised Statutes, Chapter 110, Sec. 113. It was attempted to serve the notice in the case at bar on Louis Greenberg, hereinafter called the defendant, as shown by the return, “by leaving an exact copy of the same in his office.” Manifestly this service was not such as is required by the statute. "When a notice is required, and the mode of service is not specified, the law requires that it shall be personal.” (C. & A. R. R. Co. v. Smith, 78 Ill. 96, 99.)

The record shows that upon calling the case for trial the defendant did not appear, and judgment was rendered against him by default.

It seems to be conceded by counsel for the plaintiff that the notice was insufficient, but the reply is that there is no showing in this court by bill of exceptions that the defendant was not given the notice required by statute, and hence jurisdiction in the trial court must be presumed. The notice does appear in this court in the record, and not by bill of exceptions, and the question is whether or not this notice is a proper part of the record.

In our opinion this notice is a necessary process to give the court jurisdiction of the parties, and therefore properly a part of the record. In Miller v. Glass, 14 Ill. App. 177 (181), this exact question was raised, in a case similar to this, and the court said: “It is true there is no bill of exceptions in this case. But the judgment being by default and without notice, so far as the record shows, there could have been none; and there having been no appearance, there was no waiver. We think that under such circumstances, there can be no intendment that notice was given.”

In Snell v. Weldon, 243 Ill. 496, the court said, concerning the practice in this case, on page 516: “After the judgment was reversed and the cause remanded and the remanding order filed in the Circuit Court, the cause was then pending in that court, and the court had jurisdiction of the subject matter of the cause but could not properly proceed to the trial of it until the ten-day notice required by the Practice Act was given to the opposite party. (Austin v. Dufour, 110 Ill. 85.) The situation of the cause at that time was similar to a case pending in the court before service of the defendant.”

In Austin v. Dufour, 110 Ill. 85 (87), the court stated the rule thus: “By the filing of the transcript in the trial court that court again obtains jurisdiction over the subject matter of the suit. But this is not sufficient, of itself, to authorize the court to proceed. Before any steps can be taken in the cause, the court must also obtain jurisdiction over the person of the adverse party, and this, in the absence of a voluntary appearance, can only be done by giving the notice required by the section of the statute above mentioned. * * * Unless the court has jurisdiction both of the person and subject matter of the suit, its proceedings will be coram non judice,—or, in other words, void.”

To the same effect are Taylor v. Brougham, 63 Ill. App. 283, and McIntyer v. Houseman, 108 Ill. App. 276. These cases are decisive of the case at bar.

We might add that the notice under consideration in Christie v. Walker, 126 Ill. App. 424, cited by plaintiff’s counsel, was not such a notice as is involved here, and was there expressly held not to be a jurisdictional notice.

The trial court not having jurisdiction of the defendant, Greenberg, it had no authority to enter its judgmeat of November 29,1909, and the same is void. The. judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Samuel W. Winefield, Defendant in Error, v. Louis Feder, Plaintiff in Error.
    Gen. No. 16,323.
    1. Trial'—effect of opening statement. “A party is not confined in the introduction of evidence to the statement made in the opening.”
    C Contracts—when past services constitute sufficient consideration. If such services were rendered at the request of the party sought to he charged they constitute a sufficient consideration.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 11, 1912.
    Brown & Navigato, for plaintiff in error.
    Moses Rosenthal & Kennedy, for defendant in error; Julius Moses and Walter Bachrach, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Samuel W. Winefield, hereinafter called the plaintiff, recovered a judgment against Louis Feder, hereinafter called the defendant, for $500 for commissions claimed under a special verbal contract, whereby the defendant agreed to pay plaintiff said amount if he should secure a purchaser of real estate belonging to the defendant, for $76,000.

It is sought to reverse this judgment for the reason, as it is claimed, that the evidence does not show an enforceable contract or agreement, and hence the trial court should have instructed the jury to find the issues for the defendant.

The evidence shows that the defendant employed plaintiff to procure a purchaser for defendant’s property. Plaintiff did so, in the person of B. J. Cahn, who, after some negotiations with the defendant, arrived at an agreement with him as to the price and terms of purchase. At that time the defendant notified plaintiff by telephone that he was closing the deal with Cahn, but that the plaintiff would have to be satisfied with $500 commissions. Plaintiff at first objected and wanted $1,000, but finally agreed to take $500, saying to defendant, “All right; go ahead and close it up. I am satisfied.” It was agreed between the defendant and Cahn that Cahn should pay $5,000 down, upon receiving the contract of purchase signed by the defendant and his wife, and defendant took the contract away with him to procure his wife’s signature. Nothing further was done in the matter.

These facts clearly establish an agreement by defendant to pay $500 to the plaintiff, and his right to a judgment for the same.

Counsel for plaintiff, in his opening statement to the jury, made some statement to the effect that between July 6th and 8th the matter had been abandoned, and it is argued that plaintiff was bound thereby, and that it was error to admit evidence of what was done during that period. We do not agree with this claim. “A party * * * is not confined in the introduction of evidence to the statement made in the opening, if one is made. ’ ’ Pietsch v. Pietsch, 245 Ill. 454 (457).

As to the point that a past act cannot serve as a consideration for a promise, it is sufficient to say that the prior services were rendered at the request of Feder. Our Supreme Court in Carson v. Clark, 2 Ill. 113 (114), held: “If the consideration for the promise be past and executed, it can then be enforced only upon the ground that the consideration or service was rendered at the request of the party promising. This request must be averred and proved, or the moral obligation under which the party was placed, and the beneficial nature of the service, must be of such a character that it will necessarily be implied.” See also 1 Parsons on Contracts, 468.

There was no reversible error in the rulings of the court upon the admissibility of testimony. The judgment is affirmed.

Affirmed.


text:
    St. Louis Southwestern Railway Co., Plaintiff in Error, v. White Lumber Co., Defendant in Error.
    Gen. No. 16,345.
    Principal and agent—when latter not personally hound. Where an agent discloses the fact of his agency or where the other party knows at the time that he is acting as such agent the latter will not be liable unless he binds himself to become responsible.
    Error to the Municipal Court of Chicago; the Hon. Michael E. G-irten, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed,
    Opinion filed April 11, 1912.
    Jeffery, Ott & Campbell, for plaintiff in error.
    Adams, Bobb & Adams, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

The Ferguson Hardwood Lumber Companv, of Texas, hereinafter called the Ferguson Company, shipped a carload of lumber from "Weaver, Texas, to the "White Lumber Company, of Chicago, hereinafter called the defendant, the Ferguson Company agreeing to pay the freight to Chicago. The St. Louis Southwestern Bailway Company, hereinafter called the plaintiff, received the car of lumber from the Ferguson Company and carried it to the connecting point of the Chicago & Alton B. B. Co., who delivered it to the defendant. The defendant, as agent for the Ferguson Company, paid the freight thereon, as called for by the freight bill presented to it by the Chicago & Alton.

It is claimed by the plaintiff that through a mistake of a clerk in the office of one of the railroad companies, the amount called for in the freight bill was $11 less than the proper charge under the legal tariff rates; and this does not seem to be controverted. About eighteen months thereafter this suit was brought to collect this undercharge of $11 from the defendant, and judgment was rendered against the plaintiff.

We think there is but little doubt that the plaintiff is entitled to collect from some one the full amount of the freight at the legal tariff rates. The only question is whether or not the defendant is liable therefor. From the stipulation of facts it appears that at the time defendant paid the freight bill it was acting as the agent of the Ferguson Company, and presumably plaintiff knew that fact. This being true, we can see no reason for holding the agent liable. Where an agent discloses the fact of his agency, or where the other party knows at the time that he is acting as such agent, the latter will not be liable, unless he binds himself to become responsible. Millikin v. Jones, 77 Ill. 372; Brainard v. Turner, 4 Ill. App. 61.

We do not understand why plaintiff did not bring its suit against the Ferguson Company in Texas, where both parties reside, instead of waiting eighteen months after the transaction and then bringing suit against the agent of the Texas company in Chicago.

The judgment is affirmed.

Affirmed.


text:
    Ideal Coated Paper Co., Defendant in Error, v. Samuel Cupples Envelope Co., Plaintiff in Error.
    Gen. No. 16,381.
    1. Sales—when vendee entitled to recover purchase price. If merchandise is sold by sample and payment made therefor before delivery and opportunity for examination recovery may be had of the amount paid if the merchandise upon examination is not up to sample.
    2. Set-off—what not unliquidated damages. A claim predicated upon the transaction set forth in the preceding paragraph of syllabus is not unliquidated and is a proper subject of set-off.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and judgment here.
    Opinion filed April 11, 1912.
    Wm. M. and Wm. S. Johnston, for plaintiff in error; Frederick C. Ellis, of counsel.
    Baker & Holder, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

The Ideal Coated Paper Co., hereinafter called the plaintiff, is a corporation of Massachusetts, but not licensed to do business in Illinois. The Samuel Cupples Envelope Co., hereinafter called the defendant, is a Missouri corporation, with its main office in St. Louis, but licensed to do business in Illinois, and with a branch office in Chicago.

The plaintiff brought suit in the Municipal Court of Chicago, to recover for a consignment of paper sold by it to the Chicago office of the defendant. This transaction is not in dispute. Defendant claims a set-off, which was disallowed by the trial court, and judgment was entered for the full amount of plaintiff’s claim.

The defendant claims that plaintiff, being a foreign corporation not licensed to do business in Illinois, should not be permitted to prosecute its suit here; but the Supreme Court, in Alpena Portland Cement Co. v. Jenkins & Reynolds Co., 244 Ill. 354, has held adversely to this claim.

The set-off claimed by defendant arises from the following facts: Some months before the sale of paper to the Chicago office of defendant, above referred to, a traveling salesman for plaintiff sold to the St. Louis office of defendant certain paper, under a guaranty that the goods delivered should be like the sample submitted, and suitable for a particular kind of work for which it was desired by defendant. The goods were delivered, but for the purpose of taking advantage of a discount, the defendant paid for the same, the amount being $108.30, before it had examined or tested the paper. After examination and testing, it proved to be not like the sample and unfit for defendant’s use for which it had been purchased. Defendant notified plaintiff of this fact and offered to return the paper, which offer was declined by plaintiff, who claimed that the paper was satisfactory. In our opinion the evidence clearly shows that the paper delivered to the ■St. Louis office did not comply with the conditions of the sale, and defendant was entitled to recover from plaintiff the money paid therefor.

The claim by plaintiff that the paper was accepted because the defendant used a small quantity in making tests, is untenable, for tests of the kind made by defendant were contemplated at the time of the sale. Neither can we agree with the statement that it was accepted because “there was no unconditional offer to return the goods.” A fair construction of defendant’s letter of May 24, 1909, does not support this claim, while the letter of plaintiff dated August 4, 1909, clearly evidences a refusal by plaintiff to accept the return of the paper. Another tender of the paper was made by defendant npon the trial, and refused by plaintiff. Under such circumstances there has been nothing done by the defendant which we consider to have been an acceptance of the paper. (Kingman & Co. v. Meyer Bros., 70 Ill. App. 476.)

The critical question is whether or not this claim of set-off is for unliquidated damages, and therefore comes under the general rule that such damages cannot be a subject of set-off. (Higbie v. Rust, 211 Ill. 333.) We do not consider this to be a claim for unliquidated damages. Unliquidated damages have been defined in Butts v. Collins, 13 Wend. 139, 156, as follows:

‘ ‘ They are such as rest in opinion only, and must be ascertained by a jury, their verdict being regulated by the peculiar circumstances of each particular case. They are damages which can not be ascertained by computation or calculation, as, for instance, damages for not using a farm in a workmanlike manner; * * * for carelessly upsetting a stage, by which a bone is broken, and other cases of like character, where the amount to be settled rests in the discretion, judgment or opinion of the jury.”

The only claim of defendant is for the return of the money paid plaintiff, and it is, undisputed that this amount is $108.30, from which should be deducted $1.70, the value of the paper used in making tests. These figures are not matters of opinion; their correctness is not disputed; hence they do not come within the description of unliquidated damages.

“Statutes of set-off, being regarded as remedial acts, tending to prevent circuity of action and thus to settle controversies speedily, are to be liberally construed.” 25 Am. & Eng. Ency., 2nd ed., 491; Kelley, Maus & Co. v. Caffrey, 79 Ill. App. 278; Heenan Co. v. Welter, 144 Ill. App. 279. Items such as “goods sold and delivered, and money, etc.,” are a “proper subject of set-off.” East v. Crow, 70 Ill. 91.

Defendant’s claim was in the nature of liquidated damages, and should have been set off against the amount due to plaintiff.

We are asked to reverse this judgment on the further ground that as the plaintiff is a non-resident, a demand even for unliquidated damages may be used by the defendant as a set-off, although as a general rule such a demand cannot be the subject of a set-off. The cases of Forbes & Bros. v. Cooper & Co., 88 Ky. 285, and Bibb Land-Lumber Co. v. Lima Machine Works, 104 Ga. 116, are directly in point in holding this to be the correct rule, and we are referred to no cases to the contrary. In Quick v. Lemon, 105 Ill. 578 (586-587), pur own Supreme Court has held that in a proceeding in chancery, non-residence of the complainant is sufficient ground for permitting the defendant to claim by cross-bill a set-off against a judgment, where otherwise such claim would not be allowed. The Supreme Court quotes with approval from Robbins v. Holley, 1 Monroe 194, where the court said: “Robbins is admitted to be insolvent, and Dodge must be understood, from the proceedings, to be out of the country; and it will not be denied that these facts are sufficient, in general, to warrant a court of equity in taking cognizance of a cause, for the purpose of setting off demands which, from a lack of connection, could not otherwise be decreed in a court of equity.” To this our Supreme Court adds: “It would seem to be inequitable to require the corporation to go to another State to collect its demand in an action at law, and we are inclined to hold that the non-residence of the complainant, in connection with the fact he calls upon a court of equity to enforce his judgment, is sufficient to allow the defendant corporation to prove and set off its demand set up in the cross-bill against the judgment of the complainant.”

These considerations, we believe, are equally potent in a suit at law. No just reason can be perceived why a resident of this state, when sued here by a non-resident, should be barred from trying his counter claim in the same action, and be compelled to go into the foreign state to seek redress. To work this hardship upon a citizen of this state is to give undue advantage to a non-resident.

Counsel for the plaintiff have not referred to this point in their Brief and Argument, so that nothing in opposition thereto has been presented to this court.

The judgment will therefore be reversed and judgment will be entered here in favor of the plaintiff for $53.89, which amount we have arrived at by allowing the set-off of the defendant for $108.30 less $1.70 for ■the goods used in making tests, which leaves $106.60. Deducting this from $160.49, the amount of plaintiff’s claim, leaves $53.89, for which judgment is entered; costs to be taxed against the defendant in error.

Reversed and judgment here.


text:
    John F. Devine, Administrator, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 16,400.
    1. Appeals and errors—what must he loolced to to determine judgment actually entered. The record proper, rather than the bill of exceptions, should be looked to to determine what judgment was actually rendered by the court.
    2. Verdicts—when not set aside as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.

      Action in ease for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 11, 1912.
    James C. McShane, for plaintiff in error.
    Samuel S. Page and C. LeRoy Brown, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

We are asked by the defendant in error to dismiss this writ upon the ground that the bill of exceptions does not show an appealable final judgment, but a judgment for costs only. A proper final judgment does appear in the record. It is said, however, that the judgment as it appears in the bill of exceptions must prevail, and a number of decisions are cited which support this contention. There is apparently a lack of harmony in the decisions of our courts as to the rule on this point, but we are inclined to think that the greater weight of reason and precedent favors the rule which is indicated by Justice McAllister in Van Cott v. Sprague, 5 Ill. App. 99, subsequently quoted with approval in Baldwin v. McClelland, 152 Ill. 42 (52). This rule is that the judgment has no proper place in the bill of exceptions, but only in the record.

In Cillie v. Hawkins, 48 Ill. 308 (311), the Supreme Court said: "The usé of a bill of' exceptions is not to embrace in it matters of record, but to make that a part of the record which otherwise would not be such. And the verdict of a jury, when entered, and the judgment rendered by the court, have always been regarded, and held to be, a part of the record in a cause, merely upon their being entered on the rolls. A bill of exceptions was, therefore, unnecessary to make them a matter of record.”

In Curran v. Foley, 67 Ill. App. 543, the court said: “A hill of exceptions is not the proper place for either a verdict or judgment to be shown. The record proper, which preserves itself and needs no bill of exceptions, is the appropriate and only necessary place for a verdict and judgment to appear.” To the same effect is Hawley v. Huth, 114 Ill. App. 29.

In 3 Cyc. 155, the rule is stated to be: “ That which belongs to the record proper and is contained therein cannot be contradicted by anything contained in the bill of exceptions.” And this is supported by a long list of citations of decisions in other states.

In our view of the rule, therefore, it is immaterial in what form the judgment appears in the bill of exceptions, and we hold that this cause is properly before this court to be disposed of on its merits.

Henry Byrne, the deceased, hereinafter called plaintiff, met his death through injuries sustained in an accident caused, it is claimed, by the negligence of the Chicago City Bailway Company, hereinafter called the defendant, in operating one of its street cars. The declaration consisted of one count, wherein' it is charged that the defendant “carelessly, negligently and improperly ran, managed and operated said car. ’ ’ The jury found the defendant not guilty and judgment was entered on the verdict, which judgment we are asked to reverse.

Briefly stated, the facts are: The plaintiff, an elderly man, on the evening of December 9,1907, about 7:45 o’clock, was riding upon the seat of the forward one of two wagons which were fastened together and were being drawn by a single horse, which was being driven southward by another toan in the west or southbound track in Wentworth avenue. When they were in the vicinity of 54th street the wheels of the rear wagon got out of the car track, and the driver in the forward wagon undertook to turn the forward wagon partially out of the track to the east, with a view of getting the wheels of the rear wagon back in the track, but while attempting this the rear wagon in some manner bound or caught in the rails in such a way that the front wagon was pulled over and turned upon its side, and the plaintiff and the driver were both thrown out upon the ground, but neither of them was seriously injured. When the front wagon was thus turned on its side the plaintiff went forward to the horse’s head, while the driver attempted to upright the wagon. A southbound car struck the rear wagon and drove it into the forward wagon, which struck plaintiff and knocked him down, while the forward wagon fell on him. From this he sustained injuries which resulted in his death two days afterwards.

It is first contended that the verdict of not guilty was contrary to the manifest weight of the evidence. Many witnesses testified touching the circumstances surrounding the accident and the conduct of the motorman. After giving consideration to the testimony of each witness, we believe the greater weight of the evidence tended to establish the facts touching the question of negligence to be as follows: At the time and place of the accident it was very dark, foggy, rainy and misty. We are inclined to give greater weight to the statements of the witnesses present at the place of the accident than to the testimony of the weather observer as to the conditions on the top of the Federal Building many miles away. The car was brightly lighted and the headlight was burning. There is little, if any, dispute as to this fact. No light or lantern was displayed at any time upon any part of the wagons or upon the horse, which was in violation of an ordinance of the city of Chicago introduced in evidence, which made it unlawful to use the streets of the city without displaying one or more lights. The street Car was late because of slow running on account of the storm. Many witnesses testified concerning the speed of the car just before the time of the accident. A larger number testified that it was going at a greatly diminished speed than testified that the car was going fast. The motorman was at his post, looking directly south all the time, and acted immediately upon discovering the danger.' There is no evidence that the motorman was negligent in the matter of keeping a lookout; on the contrary, a number of witnesses who were on the front platform looking ahead testified that the motorman began to attempt to stop the car as soon as- or before any of them saw the wagon. The gong on the car was being rung loudly and often; this is established by the manifest preponderance of the evidence. There is also credible evidence tending to show that the time elapsing between the upsetting of the wagon and the appearance of the car was only a couple of minutes.

From the evidence tending to establish these facts the jury would have been justified in finding that the motorman was not guilty of negligence.

Concerning the conduct of the plaintiff, we believe the greater weight .of the evidence clearly establishes the facts to be as follows: Plaintiff while standing at the horse’s head had nothing to do except to look out for southbound street cars. All the circumstances indicate that this was what he was expected to do while his companion was busy uprightirig the wagon. We do not believe that the claim that it was necessary for plaintiff to hold the horse’s head to prevent his running away is clearly supported by the evidence. Everyone else on the street at the time discovered the approach of the car. It seems to be undisputed that the driver of the wagon, three or four bystanders, a passing school teacher, all witnesses for the plaintiff, saw and heard the approaching car when it was a considerable distance away. It further seems to be clearly established by the evidence that many of these bystanders shouted warnings to the deceased ; the driver, who was fifteen or twenty feet from plaintiff, called to him; others shouted, but deceased did nothing at all towards getting out of danger.

From this evidence tending to establish these facts, the jury would have been warranted in finding the plaintiff guilty of contributory negligence.

The issues herein are practically limited to the two questions—1, was the motorman guilty of negligence, and 2, was the plaintiff guilty of contributory negligence. These questions the jury answered favorably to the defendant, and we cannot say they were wrong.

In view of our conclusion that under the evidence no other verdict could have been returned, we do not discuss the other assignments of error, except to say that such errors, if any, are not of sufficient importance to justify a disturbance of the verdict.

Therefore the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Baldwin

text:
    Albert L. Reichert, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 16,248.
    1. Notices—how sufficiency of, to city, of personal injury, determined. The sufficiency of a notice required by a city is a question of law for the court and its sufficiency must be determined from the notice itself.
    2. Notices—what exactitude required of, to city, of personal injury. Notice required by the statute need not be so full and exact as is required of a declaration, yet in determining the sufficiency of a notice the • court must take into account all its essentials.
    3. Notices—when, to city, of personal injury, not sufficient. Held, that a notice which designated the place of an accident as having occurred "at or near” a certain specified street intersection is not sufficiently specific and does not comply with the statute.
    Action in case for personal injuries. 'Error to the Superior Court of Cook county; the Hon. Wm. H. McSurely, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Elmer M. Leissman, for plaintiff in error.
    Edward J. Brundage and John R. Caverly, for defendant in error; Edward C. Fitch, of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Plaintiff in error, by next friend, brought an action in the Superior Court of Cook county against the city of Chicago for injuries claimed to have been received through the negligence of the city. Upon a trial before a jury, when plaintiff offered the notice required to be served upon the city by Chapter 70 of the Bevised Statutes of Illinois, the city objected to the notice as being insufficient, which objection the court sustained and dismissed the suit; whereupon plaintiff brought the cause here to reverse the action of the court below.

Upon this record, the only question before us is whether or not the notice offered, and which the court excluded, was and is sufficient to meet the requirements of Sections 7 and 8, Chapter 70, Revised Statutes of Illinois. The material part of the notice was and is as follows: That the injured person “was injured by a defective street lamp of the said city, by the negligent care of the said lamp by the said city, by the misfeasance of said city with regard to its construction, operation, equipment, location, position, management, control; the management, care and control of a street lamp of the street and sidewalk and of each of them, possessed by and controlled by the said city, and by the misfeasance, malfeasance and nonfeasance of the said city in and about its property and of property under its operation, management and control, * * * at and near the intersection of La Salle street with Madison street, in the said city of Chicago.”

The city objected to the notice specifically upon the ground that it did not state the place the accident occurred.

Section 7 of Chapter 70, R. S., requires that there shall be filed, "a statement in writing, * * * giving (1) the name of the person to whom such cause of action has accrued; (2) the name and residence of the person injured; (3) the date and about the hour of the accident; (4) the place or location where such accident occurred; (5) the name and address of the attending physician, (if any).” And section 8 provides that if the notice thus required shall not be filed, then any suit brought on said claim against a city or village shall be dismissed and the cause of action for personal injury shall be barred.

Both upon authority and upon principle, we think it clear that the sufficiency of the notice required by the city is a question of law for the court, and that its sufficiency must be determined from the notice itself. Wikel v. City of Decatur, 146 Ill. App. 51; Barribeau v. City of Detroit, 147 Mich. 119; Benson v. City of Madison, 101 Wis. 312.

In determining the sufficiency of the notice, we must take into account the fact that a city is primarily a govermental agency, organized for the benefit and advantage of the communitv at large,, and that all reasonable means should be used to enable it to protect itself against a loss of public funds by the paying of false claims on account of personal injuries received, or otherwise. As one of the means to that end, the statute requiring the notice was adopted.

It is now well settled that the service of an adequate notice is a condition precedent to recovery, which the plaintiff must allege and prove. Erford v. City of Peoria, 229 Ill. 546; Walters v. City of Ottawa, 240 Ill. 259. And it has been expressly held that the Legislature may prescribe the conditions precedent under which cities shall be held liable to persons injured by using streets and sidewalks. Ouimette v. City of Chicago, 242 Ill. 501.

It is not sufficient that the plaintiff allege and prove the service of some kind of a notice, but it must be of such a notice as the statute requires. In determining whether the notice is in compliance with the statute, the court must have regard not only to the phraseology of the statute itself, but also to the purpose for which it was enacted.

While the notice is not technically a pleading, nor governed by the strict rules of pleading, yet it is a prerequisite and must, in itself, meet the conditions required by the statute. The notice required by the statute need not be so full and exact as is required of a declaration, yet, in determining the sufficiency of a notice, the court must take into account all its essentials. The purpose of the notice is not only to enable the city to intelligently investigate the alleged claim, but that it may prepare its defense thereto. It is impossible to say that this notice furnished such particulars. If the accident was due to a defective lamp “at or near” the intersection of two streets, must the city be prepared, at its peril, to meet proof of an accident occurring by reason of some defective street lamp on or near anv one of the four corners of the street intersection in question? We do not thi-nit so. It cannot be deemed “technical” to require that the plaintiff shall meet the plain conditions required by the statute with respect to the notice, any more than it would be to require that the plaintiff allege and prove an actual injury as a result of the city’s negligence.

A notice which fails to correctly describe the date of the accident, has been held insufficient. Ouimette v. City of Chicago, supra. In the case at bar it is apparent that the allegation in the notice, as to the place of the accident, would be met by proof that it occurred “at and near” any one of the four corners at the intersection of La Salle and Madison streets. Can a description which applies equally to one of four several places accurately be said to specify the place or location of the accident? In Barribeau v. City of Detroit, supra, the notice stated that the plaintiff was injured by falling on a defective and improperly constructed sidewalk “at the corner of Howard and Twenty-first streets.” The trial court directed a verdict for the defendant upon the ground that the place of injury was not adequately specified in the notice. This action was affirmed in the Supreme Court, which used the following language:

“The requirement that a notice be given is not alone for the purpose of affording the officers of the city opportunity for investigation. It is also for the purpose of confining the plaintiff to a particular ‘venue’ of the injury. In determining the sufficiency of the notice, excepting perhaps as to the time of the injury, the whole notice and all of the facts stated therein may be used and be considered to determine whether it reasonably apprises the officer upon whom it is required to be served of the place and the cause of the alleged injury. The nature of the defect stated may aid in locating the place, and the place may be stated with such particularity that a very general statement of the place of the defect (cause of injury) may be aided. Sargent v. City of Lynn, 138 Mass. 599. But to be legally sufficient, a notice must contain a description of the place of the accident so definite as to enable the interested parties to identify it from the notice itself. Benson v. City of Madison, 101 Wis. 312, 77 N. W. 161; Carr v. Ashland, 62 N. H. 665; Larkin v. Boston, 128 Mass. 521; Rogers v. Shirley, 74 Me. 144; Lee v. Village of Greenwich, 48 App. Div. 391, 63 N. Y. Supp. 160. This rule permits a construction of the statutory provision which does not emasculate it and one which is in accord with the opinions of this court in Brown v. City of Owosso, 126 Mich. 91, 85 N. W. 256; Tatlan v. City of Detroit, supra, and Oesterreich v. City of Detroit, supra. When parol evidence is required to determine both the place and nature of the defect, a reasonable notice has not been given to the city.”

In Benson v. City of Madison, supra, cited in the Barribeau case, the notice described the place as being “on the south side of State street at the intersection of State street and Fairchild street,” the Supreme Court reversed the trial court, and held that the notice was insufficient. It said in part:

“To be legally sufficient, a notice must contain a sufficiently definite description of the place of the accident to enable the interested parties to identify it from the notice itself. It should also describe the alleged insufficiency with such clearness as to enable the authorities to ascertain therefrom the grounds upon which the claim was based.

“This court has been very liberal in upholding such notices when it was evident that the municipal authorities had not been deceived or misled thereby (citing cases). But there is a limit beyond which we cannot pass. The notice in this case is most vague, uncertain and indefinite when applied to the facts proven on the trial and found by the jury. The recovery sought is based upon alleged imperfections in a crosswalk ‘on the south side of State street at the intersection of State street and Fairchild street. ’ This description of the location might have been sufficient if the remainder of the notice had described the insufficiency in such terms as to enable the city authorities to determine on which side of Fairchild street it was to be found.”

While it is true that, under the laws of Wisconsin, it is required that not only the place and location where the accident occurred shall be given, but also a description of the defect, yet this does not weaken the authority of the case upon the point for which we are quoting its language.

In Lee v. Village of Greenwich, 48 N. Y. App. Div. 391, 394, the court says:

“If the notice is designed to serve any useful purpose by way of calling the attention of the authorities to the actual facts and conditions which existed at the time and place which caused the accident, and so aid them in forming a judgment as to settlement, it is plain that such a notice as to accidents of that nature should be, as to ‘time’ and ‘place’, specific and not general, and should be as definite and exact as the claimant can reasonably make it. Such a notice is conclusive upon the claimant in any action afterwards brought for injuries sustained; the time and place cannot be shifted to suit conditions on other days and at other places.”

Concurring, as we do, with the views expressed in these opinions, we think the court below did not err in holding that the notice was insufficient under the statute, and its action will, therefore, be affirmed.

Judgment affirmed.


text:
    John Lambert, Appellee, v. The Bell, Appellant.
    Gen. No. 16,492.

      Evidence—when pleading not admissible as an admission. An original declaration not sworn to and prepared by an attorney under a misapprehension of the facts is not competent against a plaintiff to overthrow an amended declaration and the evidence introduced in support thereof.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Royal W. Irwin and Frank W. Koraleski, for appellant.
    Emil A. Meyer, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Appellee, Lambert, recovered a verdict and judgment for $1,200 against appellant, The Bell, a corporation, in the Superior Court of Cook county, upon an amended declaration, consisting of the common counts in assumpsit, and we are asked to reverse the judgment upon the grounds that the verdict is against the clear weight of the evidence and because of alleged errors of the court below in its rulings upon the evidence.

Appellee claims to have paid over, or loaned, to appellant, in June, 1906, the sum of $1,000, upon the agreement that he should receive a judgment note therefor, bearing six per cent interest, and should also be employed by the company as a salesman at $18 per week,—and that after it had received the money it kept putting off the giving of the note, and in fact never did give it, and also, laid him off after three weeks.

Appellant admits that, at the time, it needed more money in its business, and concedes having received the money in question. It contends, however, that the transaction was not a loan of the money to it but was in fact a purchase by appellee of stock in the company, for which it claims to have issued and delivered to him a certificate for 100 shares of its stock, of the par value of $10 per share.

It appears that the suit was originally brought in December, 1906, in case against appellant and two of its officers or employes, and charged that appellee was induced by fraudulent representations as to its value, and that he should be employed by the company, to purchase stock in the company of the par value of $1,000, and claiming damages in the sum of $1,200. In October, 1909, the suit was dismissed as to the other two defendants,—the form of action was changed and the amended declaration filed. Upon this amended declaration the trial was had. Upon the trial appellant offered, but the court excluded, the original declaration; and appellant contends that this action constitutes reversible error. It appeared that the declaration was not sworn to or even signed by appellee, and he testified on the trial that he never told his attorney that he had agreed to buy stock in the company, and the attorney who drew the original declaration, testified that he got most of the information upon which it was based from the wife of appellee.

In Wenegar v. Bollenback, 180 Ill. 222, on page 234, Mr. Justice Magruder says:

“The learned author of the article on ‘Evidence’ in the Encyclopedia of Pleading and Practice says: ‘The conflict of authority as regards the admissibility of an original pleading, which has been superseded -by amendment, renders the statement of a settled rule impossible. The majority of the decisions hold that such a pleading, duly verified, when necessary, is admissible in evidence as proof of the admissions made therein by the pleader. But the contrary view has been sanctioned by the courts in several of the jurisdictions in the United States.’ (8 Ency. of Pl. & Pr., p. 27.) Here, the original bill was not verified, but was prepared by an attorney who either misunderstood, or had forgotten, the facts as stated to him by his client. The allowance or disallowance of amendments to pleadings is, as a general thing, discretionary with the court, but, after their allowance, the pleadings stand, as amended, in the place of, or supplemental to, those originally filed. ‘The object of amendment is to correct mistaken, improvident or imperfect allegations and to allow the pleader to stand on grounds better considered.’ If a party so amends his pleadings as to state the facts differently, he would derive no benefit from his amendment, if the adverse party were at liberty to use the first pleadings as an admission to overthrow the amended pleadings. (Holland v. Rogers, 33 Ark. 251; Mechan v. McKay, 37 Cal. 154.) Without definitely laying down the rule, that an original pleading, which has been supplanted by an amended pleading cannot be introduced in the same suit where both have been filed, as evidence of admissions made by the pleader, where such original pleading is verified by the oath of the party himself, we yet are of the opinion that when such pleading is not sworn to by the party, and is prepared by his attorney under a misapprehension of facts, as the evidence shows to have been the case here, such original unsworn pleading' ought not to be admitted in evidence against the pleader.”

Under this authority and the circumstances shown in the case at bar, we do not think the court below committed prejudicial error in its ruling.

Aside from this question, the controversy was essentially one of fact, upon which the jury and the court below saw and heard the witnesses and were better able to judge of the weight to be given to their testimony than we can be. Appellee expressly denies having received the certificate of stock in question, and the fact that, though appellant produced the receipts •of the owners for the six certificates immediately preceding and the ten immediately following the one claimed to have been issued to appellee, may well have been considered significant by the jury.

In any event, we do not find the verdict to be against the clear preponderance of the evidence, and the judgment will be affirmed.

Judgment affirmed.