text:
    Daniel Sloan, Appellee, v. Hanson Manufacturing Company, Appellant.
    Gen. No. 5,208.
    1. Interest—when recoverable upon loan made for indefinite period. Upon a loan made for an indefinite period interest commences to run from the time of the commencement of the suit to recover the principal.
    2. Corporations—when directors must fix salaries. As to one having knowledge of the by-laws which require that all salaries shall be passed upon by the directors, a salary fixed otherwise than by the directors cannot be recovered of the corporation.
    Assumpsit. Appeal from the Circuit Court of Lake county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Lander & King, for appellant.

      Orvis & Beaubien, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action in assumpsit brought by appellee against appellant to recover $1,380 paid for capital stock, for $1,000 of which he held a certificate, and to recover $750 loaned, and $478 salary from August 5, 1906, to December 6, 1906. The declaration contained only the consolidated common counts, to which the plea of non-assumpsit was interposed. There was a trial and a verdict for $1,275. A new trial was granted. On a second trial appellee had a verdict and a judgment for $965. A motion for a new trial was denied, and the company appealed.

C. A. Hanson was the promoter, president and manager of the appellant company, and appellee was a stockholder, director and bookkeeper of appellant. Appellee claimed Hanson told him in February, 1906, that if he would subscribe for $1,000 worth of stock which another party had subscribed for, and failed to take, and come into the factory, and give his entire time there, he should receive whatever salary was fixed for Hanson. Hanson claimed that appellee subscribed for $1,000 worth of stock in February, 1906, which a Mr. Paul had subscribed for and failed to take; that there was no conversation at that time with reference to appellee’s employment in the factory; that the first that was said about appellee’s employment was the last of June or the first of July, 1906, at appellee’s home; that, at that time, they talked about increasing the capital stock, and enlarging the business and in that talk appellee said he would be willing to make a further subscription, and if he put in the same amount of money and time as Hanson, he supposed he ought to have about the same salary; that Hanson said, “I suppose so, if conditions will warrant it;” but that Hanson thought it a matter for the directors. Hanson’s wages were fixed at $150 per month. Appellee paid $1,380 and received a certificate for $1,000 for capital stock of appellant company. September 19, 1906, he deposited in a bank at Waukegan $750 to appellant’s credit, and worked for appellant from August 5, 1906, to November 15, 1906. On the last date he was taken sick and went west. On his return December 5, 1906, he received a letter from appellant that his services were no longer desired. Appellee, while employed by appellant, had sole charge of its books, and reorganized its system of bookkeeping. He was a director and knew that the by-laws required that all salaries should be submitted to the board of directors for ratification. He charged appellant with $150 for his salary at the end of each month, but it was never submitted to the board of directors for their approval. There is some evidence that one or two of the directors knew that appellee claimed that his wages were to be at the rate of $150 per month and that one or two may have seen the entry for the same on the books, but it was not called to the attention of the board of directors until the November meeting. It is upon such knowledge that appellee relies to recover for his services to appellant at $150 per month. If the board had known that he was charging this salary and had continued him in their employ, it may be that appellant might be liable for that sum without formal ratification; but if one or two of the members of the board did know, and the others did not, and they never saw the books, and knew nothing about it until the November meeting, he was not entitled to recover on his alleged contract for $150 per month. Appellee introduced evidence of the value of his services which ranged from $150 to $200 per month, and appellant, that his services were worth much less. The preponderance of the proof is, that appellee’s services were reasonably worth approximately $12 per week, and it is evident that this was the bases of the verdict of the jury on that feature of the case.

The $750 was advanced or loaned appellant on September 19, 1906, a time when it was in great need of money to pay its bills. Appellant’s contention is that instead of its being a loan, it was to pay for additional capital stock, but there is no written or documentary evidence supporting this claim. We are satisfied that appellee did not make a binding additional subscription, and that the conversation testified to did not create a binding contract on the part of appellee to take the stock.

It is urged that if the $750 is a loan, interest is not recoverable thereon, because, there being no fixed date of payment, interest did not commence to run until after demand was made. No definite time was named for payment, but there is some proof that a demand of payment was made before suit was commenced. Appellant had the use of the money, and, in our opinion, appellee ought to recover interest at 5% per annum from the commencement of the suit.

Appellee’s seventh given instruction was as follows:

“The jury are instructed that under the law of the State of Illinois, interest at the rate of five per cent, per annum may be allowed on money loaned or advanced for the use of another, and on money due and withheld by an unreasonable and vexatious delay of payment, and in this case if you believe from the evidence that the plaintiff did advance money to the defendant company as a loan, and that there is money due the plaintiff on account of salary or wages, and that there has been an unreasonable and vexatious delay in the payment thereof to the plaintiff, then you have the legal right to find in your verdict, interest on the money advánced at the rate of five per cent, per annum on the sum or sums, if any, you may find by your verdict, there is or are due the plaintiff during the period on such money advanced, if any.”

This instruction was erroneous and might readily have led the jury to allow interest on the salary as well as on the $750 and there was no unreasonable and vexatious delay of payment to authorize that.

Plaintiff claims pay for the three weeks he was sick and absent, but we find nothing in the record to warrant a recovery for that. He worked 14% weeks, for which, at $12 per week, he was entitled to $174. He was paid $147, leaving $27 dne on salary. This suit was begun February 1, 1907, and the second verdict was rendered on December 14, 1908, one year, nine months and twenty-three days thereafter. Interest at 5% upon the $750 advanced for that period, amounts to $69.35, making a total of $846.35 which is the amount he is entitled to recover.

This opinion will be lodged with the clerk, and if within seven days appellee will file a remittitur for $118.65, the judgment will be affirmed for $846.35 at •the cost of appellee. Otherwise, the judgment will be reversed and the cause remanded.

Afterwards appellee remitted $118.65 of the judgment. The judgment is therefore affirmed in the sum of $846.35 at appellee’s costs.

Affirmed upon remittitur.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    M. H. Hussey, Appellee, v. John Gourley, Appellant, Impleaded with David Q. Hart and Arthur Gourley.
    Gen. No. 5,214.
    1. Appeals and ebboes—when sufficiency of evidence not saved for review. If the hill of exceptions shown in the transcript contains no certificate by the trial judge that it contains all the evidence, nor any exception to the overruling of a motion for a new trial, nor any exception to the entry of the judgment by the court, the sufficiency of the evidence to support the verdict is not presented for review.
    2. Appeals and ebboes—what abstract should contain. In the second district by rule of court, the abstract should among other things set out every instruction given, modified or refused, and a failure to observe such rule justifies the Appellate Court in refusing to consider assignments of error predicated upon instructions.

      Action commenced before justice of the peace. Appeal from the Circuit Court of Lake county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Cooke, Pope & Pope, for appellant.
    E. V. Orvis, for appellee.
   Mr. Justice Willis

delivered the opinion of the

court.

This was an action brought by appellee against appellant before a justice of the peace of Lake county to recover damages for lumber taken from a scow at Waukegan. Judgment was rendered for defendants. On appeal to the Circuit Court of said county the suit was dismissed as to all defendants except John Grourley against whom appellee, Hussey, obtained a verdict and a judgment for $20 from which the defendant appeals.

It is contended that the verdict is against the preponderance of the evidence, that the court erred in giving certain instructions for appellee, and in refusing certain instructions for appellant.

The bill of exceptions contains no certificate by the trial judge that it contains all the evidence, nor does it contain any exception to the overruling of the motion for a new trial, or to the judgment of the court. The sufficiency of the evidence to support the verdict is not presented where there is no exception to overruling the motion for a new trial, in a case tried by a jury, and no exception to the judgment of the court. Yarber v. Chicago & Alton Ry. Co., 235 Ill. 589; Climax Tag Co. v. American Tag Co., 234 Ill. 179.

Bule 16 of this court requires that the abstract shall among other things set out every instruction given, modified or refused. The abstract in this case omits seven instructions requested by appellant. It may be that some of the instructions omitted from the abstract justified' the court in the action it took on the instructions that were set out or would preclude appellant from raising any question of the trial court’s ruling upon them. Under a similar rule the Supreme Court has often refused to consider the rulings of trial courts upon questions omitted from abstracts. Gibler v. City of Mattoon, 167 Ill. 18; Traeger v. Mutual Building Assn., 189 Ill. 314; Kellogg Newspaper Co. v. Bldg. Assn., 210 Ill. 419. It is the duty of parties bringing cases here for review to prepare and file a complete abstract of the record in accordance with the rules, and such abstracts as we can safely rely upon. It is not our duty to perform this work of counsel, which, in detail, as to them is inconsiderable, but when imposed upon us is, in the aggregate, extremely burdensome. The abstract presents no question for our consideration. We have however examined the record sufficiently to reach the conclusion that the judgment does not fail to do substantial justice, and it is therefore affirmed.

Affirmed.


text:
    Emma Saucerman, Appellee, v. The Court of Honor, Appellant.
    Gen. No. 5,217.
    1. Fraternal benefit societies—status of officers of subordinate lodges. The relation of subordinate lodges to the grand lodge of a fraternal benefit society is one of agency and the officers of such a subordinate lodge are the agents of the supreme lodge.
    2. Fraternal benefit societies—who may waive forfeitures. An officer of a subordinate lodge is empowered, in the absence of by-law, to waive a forfeiture resulting from the failure of the member to pay a premium when due.
    3. Fraternal benefit societies—when forfeiture waived. If an officer of a subordinate lodge by pre-arrangement with a member credits payment of a premium as made when due, though it was not actually paid, and afterwards accepts payment of such premium and retains the money with knowledge of the fact of the member’s prior death, a waiver of the forfeiture is effectuated.
    Assumpsit. Appeal from the Circuit Court of Stephenson county; the Hon. R. S. Farrand, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    R. R. Tiffany, for appellant; William B. Risse, of counsel.
    J. A. Crain, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

The Court of Honor, a beneficiary society, on November 8, 1899, issued to Dr. J. M. Saucerman, a certificate of insurance for $2,000 wherein his wife, Emma Saucerman, was named beneficiary. Dr. Saucerman died October 5, 1907, and upon the refusal of the society to pay the amount of the certificate, his wife brought suit in assumpsit to recover the same. The issue made by the pleadings was whether or not the failure of Dr. Saucerman to pay to the recorder of the local lodge, during the month of September, 1907, the assessment and dues for that month, forfeited the certificate. The jury found that issue for plaintiff and returned a verdict for $2,091.67. A motion for a new trial was denied, judgment was entered on the verdict and the society prosecutes this appeal.

Appellant contends that the court erred in the admission of incompetent evidence, and in ruling on the instructions and that the evidence does not support the verdict.

There was no substantial error in the admission of evidence and the instructions fairly stated the law bearing on the issue.

The constitution and by-laws of the society provided that the general fund dues and benefit assessments be paid to the recorder of the local lodge within the month they were due; if not, the member stood suspended. The evidence shows that Mrs. Kehler, the recorder of the local lodge of which Dr. Saueerman was a member, had an arrangement with a number of members, including Saueerman, by which, if their assessments were not paid by the last day of the month, she credited them as paid, and afterwards collected them. Dr. Saueerman did not pay the assessment for September, 1907, and on the last day of the month she credited his September assessment as paid. On the day of Dr. Saueerman’s death, "Mrs. Kehler went to his house and said his “insurance was not paid,” whereupon a neighbor advanced money to pay his September and October assessments. The money for his September assessment was received by appellant, October 11, 1907, with the recorder’s report of the business of the previous month, which was audited and approved. Proof of Saueerman’s death was received by appellant October 21, 1907. The money for Saueerman’s October assessments was received by appellant November 15, 1907, with the recorder’s report of the business of the previous month, which was audited and approved. Appellant retained the money and made no offer to repay the amount of the September and October assessments until after the trial.

There was no provision in the constitution or bylaws preventing the society from waiving a default on the part of any of its members, and the appellant was not bound to insist upon a forfeiture though incurred, but might waive it, as a party always has the option to waive a condition or stipulation made in his own favor. “Conduct on the part of the society which amounts to a recognition of a member’s claim to the continuing rights of membership will relieve him from the consequences of his default.” Railway Conductor’s Benefit Assn. v. Tucker, 157 Ill. 194; Grand Lodge A. O. U. W. v. Lachmann, 199 Ill. 140. Moreover, it is well settled that the relation of subordinate lodges to the grand lodge in societies of this kind, is one of agency (Grand Lodge A. O. U. W. v. Lachmann, supra; Ind. Order of Foresters v. Schweitzer, 171 Ill. 325), and that in a fraternal benefit association, the officers of a subordinate lodge are the agents of the Supreme Lodge (Court of Honor v. Dinger, 221 Ill. 176; Jones v. Supreme Lodge Knights of Honor, 140 Ill. App. 227), and that the conditions of forfeiture or suspension upon failure to pay assessments and dues promptly may be waived by the officers authorized to receive and forward the same. Jones v. Supreme Lodge Knights of Honor, supra; Conductors Benefit Assn. v. Tucker, supra; Grand Lodge A. O. U. W. v. Lachmann, supra; Illinois Life Assn. v. Wells, 200 Ill. 445. We therefore hold that when the recorder of the' subordinate lodge credited Dr. Saucerman’s September 1907 assessment as paid, her act and her knowledge of the fact were in law imputed to, and became the act and knowledge of appellant; and that appellant with full knowledge of all the facts as to the death of Saucerman, and the time and manner of the payments, accepted the September and October assessments and retained- the money. This, in our opinion, clearly amounted to waiver of the forfeiture, if one had occurred. Joliffe v. Madison Mutual Ins. Co., 39 Wis. 111; Erdmann v. The Mutual Ins. Co., 44 Wis. 376.

The undisputed evidence warranted a verdict for appellee, and the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Holdom

text:
    Mary Raab, Defendant in Error, v. Henry Raab, Plaintiff in Error.
    Gen. No. 14,399.
    1. Appeals and eerobs—how chancellor compelled to sign certificate of evidence. The absen.ce of a certificate of evidence cannot be justified by affidavits, nor can the propriety of the court’s refusal to sign and seal a certificate of evidence be determined upon writ of error; mandamus is the remedy.
    2. Separate maintenance—impropriety of allowance of alimony in gross. An allowance of alimony in gross in a separate maintenance proceeding is not authorized by the statute.
    3. Separate maintenance—what sufficiently establishes residence of husband. The statute governing separate maintenance confers the right to seek the remedy “in the county where the husband resides.” The return of the sheriff upon the summons of service upon the defendant, lacking contradiction, sufficiently establishes the residence of the defendant in the county in which the suit is instituted and the service had.
    4. Separate maintenance—what does not establish right to. The right to separate maintenance does not arise from the mere fact of the husband failing to support his wife and a decree of separate maintenance will not be sustained unless the evidence shows or such decree finds that the complainant is living separate and apart from her husband without her fault.
    5. Separate maintenance—how statute construed. The statute awarding separate maintenance being in derogation of the common law is to be strictly construed.

      Separate maintenance. Error to the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    Albert Wesley Gottschalk, for plaintiff in error.
    James C. O’Brier, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

In this case complainant filed her petition, under the statute, for a separate maintenance, averring, in effect, inter alia, that she was living separate and apart from her husband without her fault. Defendant, the husband, filed a cross-bill for a divorce, alleging as a cause for divorce his wife’s adultery-subsequent to the marriage. On a hearing complainant was decreed separate maintenance and an allowance of the gross sum of thirteen hundred dollars, with costs and allowances for solicitor’s fees, and the husband’s cross-bill for divorce was dismissed for want of equity. The wife was also awarded the custody of the two minor children, the issue of the marriage. The only finding in the decree touching the cause of the parties living separate and apart is: The court “doth find * * * the said Henry Baab to have been guilty of wilfully neglecting to provide for the necessary and proper support and maintenance of the said Mary Baab, his wife, and Irving and Gilbert Baab, their children, said offense having continued since the 12th day of July, A. D. 1906, as charged in the bill of complaint.” Ño certificate of evidence is found in the record, which defendant seeks to excuse by setting forth in affidavits an unreasonable refusal of the chancellor to sign and seal a document purporting to fill that office, tendered to him for that purpose, and our ruling thereon is sought. Suffice it to say, on this point, that with the chancellor’s reasons for not certifying the documents tendered as a certificate of evidence, we have no concern. The correctness of the chancellor’s conduct in this regard is not to be tested by this court on a writ of error. The hand of the chancellor can only be forced, if at all, by a mandamus proceeding.

It is contended that the chancellor had no authority to decree a sum in gross as an allowance in a proceeding for separate maintenance, and further, that the sum allowed is excessive, taking into consideration the property and means of defendant. It is averred by complainant in her bill that defendant’s whole financial means did not exceed the sum of $6,000, and the allowance decreed is $1,300. Were a sum in gross permissible, we think the allowance excessive in view of the limited means of defendant and his continued legal liability to support his wife and children in the event of the allowance becoming ¿xhausted for any reason. Moreover, the marital relation not being sundered, the rights and interests in the property of the husband accruing to the wife in force of the statute were unaffected by the decree. Complainant cites no case which upholds the contention that a sum in gross is allowable to a wife in an action for separate maintenance. Cole v. Cole, 142 Ill. 19, was a bill seeking to evade allowances of alimony made in a divorce decree; and Harding v. Harding, 180 Ill. 481, while a separate maintenance cause, did not involve the question of an allowance in gross, for on the contrary the allowances primarily and ultimately decreed were payable in instalments.

We quote from the opinion in Hunter v. Hunter, 121 Ill. App. 380, as it expresses our view on this branch of the case and comports with the law governing that subject:

“It is further contended that it was error to render a decree for $600 in gross. We think there is merit in such contention. While in cases of absolute divorce alimony is occasionally decreed to be paid in gross, such order is invariably made upon condition that it is to be in full satisfaction of all future claims for support. Where the bonds of matrimony are perpetually severed and the parties are henceforth as ntter strangers, or where other special reasons exist therefor, it may be desirable and proper that such order be made. The practice, however, should not pertain in suits for separate maintenance. The reasons are obvious. Notwithstanding the decree of separation, the marital relations still exist and will continue, in the absence of a subsequent decree of absolute divorce, until the death of one of the parties. The sole effect of the decree is to permit the wife to live apart from her husband without forfeiting her right to be supported by him. The duty of the husband to support his wife continues as it was prior to the separation, the only difference being that he is compelled by law to pay her a determined fixed amount for that purpose. In all other respects the rights and duties of the parties remain unchanged. If a wife, after receiving a gross sum for her future support, should through theft, sickness or other misfortune, lose, or be compelled to expend, or should even squander the same, the result would often be to impose the burden of her support upon the public. If, in that event her husband is no longer liable for her support, the consideration of public policy alone would render such a decree as that in question improper. On the other hand, to compel the husband to further contribute to her support, would be unjust and inequitable. Again, if at any time subsequent to a decree for separate maintenance the wife should determine to return to and live with her husband, which she would clearly have a right to do at any time, he would be bound in law to support her, notwithstanding he may have already paid to her a large sum in gross for her future support. We are satisfied that, such gross allowance is manifestly not within the intendment of the statute and that in so far as the decree provides therefor, it is erroneous.” Chapman v. Chapman, 104 N. W. R. 880.

The jurisdiction of the court is challenged, but we think the court had jurisdiction of the parties, because there is nothing in the separate maintenance provisions of the statute which requires any time residence as a condition precedent to confer jurisdiction. In this respect it differs from the one year residence required by the divorce statute. The statute confers the right to seek the remedy “in the county where the husband resides.” The return of the sheriff upon the summons of service upon defendant, lacking contradiction, sufficiently establishes the residence of defendant in Cook county to fulfil the statutory requirements in that regard.

The right to separate maintenance does not arise from the mere fact of the husband failing to support his wife, because, notwithstanding such dereliction, he may otherwise be a very acceptable husband of exemplary habits and conduct, and the wife may have ample means to support herself and family. She must be living separate and apart without her fault, and needing the support which her husband is able, although unwilling, to supply. The difficulty with the decree is that it makes no finding that complainant is living separate and apart from defendant without her fault. Without such fact being found, the chancellor had no jurisdiction to decree a separate maintenance or make any allowance. It is the policy of the law that the husband and wife shall live together and living apart will not be tolerated without lawful excuse. The statute, being in derogation of the common law, must be strictly construed and nothing by way of intendment will be presumed. The wife seeking separate maintenance must by proof, supplemented with a finding, demonstrate that her case is within the statute and that she is living separate and apart from her husband without her fault, before the court has jurisdiction to decree a separate maintenance. Jenkins v. Jenkins, 104 Ill. 134; Johnson v. Johnson, 125 ibid. 510.

For the errors indicated the decree of the Superior Court is reversed and the cause remanded for further proceedings conformable to the views in this opinion expressed.

Reversed and remanded.


text:
    Gustav Horn, Plaintiff in Error, v. Arnold Schwinn & Company, Defendant in Error.
    Gen. No. 14,446.
    1. Master and servant—when former owes no duty to latter. If a servant voluntarily assumes without any order to remedy a defect in a machine, such not being part of his employment, his master owes him no duty while he is engaged in such act.
    2. Appeals and errors—when errors will not reverse. Notwithstanding the court may have erroneously ruled, a reversal will not be awarded if the evidence was not such • as would have justified the upholding of a verdict in favor of the complaining party.
    Baker, J., dissenting.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. George A. Duptjt, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed October 25, 1909.
    Daniel V. Gallery, for plaintiff in error.
    E. E. Gray, F. J. Canty, and J. C. M. Clow, for defendant in error:
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff sues out this writ of error in an attempt to reverse a judgment against him for costs rendered on the verdict of a jury finding defendant not guilty of the negligence charged in an action for personal injuries. The parties, at the time plaintiff suffered the injuries complained about, sustained to each other the relation of master and servant. Five juries have heard and found verdicts in this case, and for the third time the record is before us for review. Three' times plaintiff secured a verdict in his favor. The fourth jury impaneled, however, were directed by the court to render their verdict against plaintiff. On the last trial, notwithstanding the issues of fact were left to the jury to find, he failed to secure a verdict favorable to him. This defect he seems to think violative of the ample precedent set by the three preceding most intelligent juries. In this court, on the first appeal, the verdict of the jury was in effect held not to find sufficient support in the evidence. On the second appeal the directed verdict was held to have been erroneous, and that the case should have been submitted to the jury for its finding of the facts in dispute without the direction of the court. For a statement of the case we refer to Horn v. Arnold Schwinn & Company, 124 Ill. App. 185, and to the opinion, not published, in case No. 9724.

"Whether or not the machine stopped and then started again without his knowledge, as plaintiff testified in the trials subsequent to the first, or did not stop at all from the time he started to probe for the difficulty in the machine until after he lost his fingers, aside from tending to affect the veracity of plaintiff, is not of controlling importance. The ground authorizing a recovery rests in the averments of the declaration that the belt shifter and the other parts of the machine were defective; that plaintiff was wrongfully and negligently ordered by his superior officer to set up and operate the machine; that he who gave the order knew of the dangers and that plaintiff did not; that inspection would have developed the defect of which plaintiff was unaware; that no inspection was made, and that such failure to inspect constituted negligence, and that as a result of such negligence plaintiff was injured.

The difficulty with the contention of plaintiff lies in the fact that his proof fails to support such averment. No pretense is made that on the occasion of the accident plaintiff was ordered to work upon the machine, or to remedy the defect which caused it to work improperly. He was ordered to have the machine set np. He put his own interpretation upon that order by sending for a machinist named Meffert to do the work. Meffert did set up the machine. However, after it was set up by Meffert it did not work properly, and Meffert failing to remedy the trouble, plaintiff voluntarily and without suggestion from any other person, tampered with the mechanical part of the machine, and in so doing lost some of his fingers. Plaintiff testified that he did not set up the machine, and that he did not get hurt in the process of setting it up. It is patent and beyond contradiction that the injury to plaintiff occurred after the machine was set up and while he was endeavoring to remedy the defect in its operation—a task which he voluntarily assumed. Moreover, it was not in the line of plaintiff’s employment either to set up the machine or operate it. Neither was it his duty to remedy any defects which might develop. Plaintiff was not a machinist; he was a foreman in that particular department, overseeing the workman there engaged. As said by Mr. Justice Freeman in the opinion of the Branch Appellate Court in case general number 9,724, speaking for that court: “Then when Meffert told appellee— plaintiff—it did not work properly, appellee, without stopping it in order to examine it, undertook to find out what the matter was by operating it, which he had not been ordered to do at all. This he undertook to do of his own volition and in his own way. He was not injured in obeying any order of the master, but apparently by reason of his own lack of care in handling a machine which he had just been told was not working properly and which was entirely subject to his supervision and control.”

While there is some evidence to support the contention that the shifter stick should have been so hung that when on the tight pulley it would be diagonal, and when on the loose pulley perpendicular, so that if the belt slipped it would stop and not start the machine, and that the slipping of the stick started the machine and caused the accident, still such fact would not make the master liable for the resulting accident, because plaintiff voluntarily exposed himself to the hazard which his employment did not necessitate or the orders of the master or vice principal make necessary. In other words, the master owed plaintiff no duty in relation to the construction or working of such machine. The duty of the master toward the servant to inspect and repair machinery does not extend beyond the servants hired to work with and operate such machinery, and not to one who meddles with such machinery contrary to his employment, or who is not directly ordered by one in authority over him to work with such machinery or handle some part of it. So in this case, plaintiff voluntarily assuming, without any order,, to remedy a defect in the machine, such not being a part of his employment, defendant owed him no duty in relation thereto. If there was anything wrong with the machine, plaintiff’s duty was to call upon the machine foreman to remedy the trouble, whatever it may have been, and not attempt to do so himself. His employment did not require him to assume any risk attendant upon an unskilled person’s attempt to fix a machine with the intricacies of which he was unfamiliar. Mr. Justice Freeman in case supra also said: “But it was appellee’s business as foreman to know; he is chargeable in law with knowledge of the conditions in his department which he had full opportunity to know. The employer had a right to assume that as foreman appellee would observe the condition of the machine and appliances, and would act with reasonable care and caution in performing his duties. As foreman in charge of men and machinery in his department, he cannot complain of defects in a machine under his control, for the condition of which he was by virtue of his duties responsible.” Toohey v. Equitable Gas Co., 36 Atl. Rep. 314; Erskine v. Chino Valley Beet Sugar Co., 71 Fed. Rep. 270; Bibby v. The Wausau Lumber Co., 80 Wis. 367.

We are satisfied that the evidence in this record fails to sustain the charge of negligence made against defendant, and that plaintiff is not entitled to prevail and that such evidence is impotent to sustain a verdict in favor of plaintiff if one had been obtained. In this condition of the record the other questions argued become of no controlling importance. Even were the rulings, of the court on the cross-examination of Schwinn erroneous, as claimed, or the instructions criticised vulnerable to the attack made upon them, still the evidence not being of such preponderating weight as to justify the upholding of a verdict in plaintiff’s favor, such errors, if errors they are, do not affect the merits of the case, and therefore do not constitute reversible error. W. C. St. Ry. v. Maday, 188 Ill. 308; Crown Coal and Tow Co. v. Taylor, 184 ibid. 250.

As the court say in the Taylor case, supra, so say we here,—“Even if, however, the court erred in making the modification complained of, a reversal on that ground would not be justified, inasmuch as it appears that by the verdict and judgment below substantial justice has been done, and the jury could have reached no other result from the evidence.”

Three judges at nisi prius have granted new trials; one judge directed a verdict; this court reversed a judgment based upon the verdict of a jury. This would seem to mark a strong unanimity of judicial opinion that plaintiff is not entitled to recover, notwithstanding the verdicts of juries to the contrary. It would seem to us, regardless of the technicalities of procedure, that the verdict of the jury and the judgment of the court in the record before us correctly dispose, upon the merits, of plaintiff’s action. The judgment of the Superior Court is therefore affirmed.

Affirmed.

Mr. Justice Baker dissenting.


text:
    Chicago Medical Society et al., Plaintiff in Error, v. South Park Commissioners, Defendant in Error.
    Gen. No. 14,596.

      Pabks—what not within jurisdiction of city. A city which reserves the right to locate in park territory a boulder of” a particular size, cannot, over objection of the park commissioners, erect in such park a boulder of any other size, and with respect to the erection of such a boulder, cannot delegate its authority.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Wijxabd M. McEwbn, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed October 25, 1909.
    Harry M. Fisher, for plaintiffs in error.
    Hollett, Sauter & Henkel, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal by the city of Chicago from a decree dismissing a bill to which it was a party defendant, and its cross-bill, in which it was cross-complainant, for want of equity. On the hearing under the issues joined, the Chicago Medical Society and its president and secretary as complainants in the original bill offered no proofs, but the cause was heard on proofs introduced by the city of Chicago under its cross-bill against original complainants and the South Park Commissioners, together with the proofs of such cross-defendants.

In the conclusion to which we have arrived we think it unnecessary to follow counsel in the many phases of the case which they have presented in their briefs.

The land under the jurisdiction of the South Park Commissioners, and entrusted to its care and control by an ordinance of the city of Chicago, has been, from the earliest history of Chicago, public property for the use and enjoyment of its citizens as a park. We do not think it at all essential in solving the rights of the parties to this controversy, to search for authority of either municipality to hold, control and maintain such land as a park; nor is it pertinent to inquire as to the powers and limitations of the city of Chicago in parting with its jurisdiction and conferring the same upon the South Park Commissoners.

It seems from the record, that the Chicago Medical Society, and some of the descendants in the third generation of Dr. Samuel Guthrie, were desirous of perpetuating his fame as the discoverer of the pain-easing anesthetic known as chloroform, by erecting to his memory in Grant Park a monument with an inscription detailing that fact. In furtherance of such object the co-operation of the city of Chicago was secured, and in the ordinance transferring jurisdiction from the city of Chicago to the South Park Commissioners was this attempted reservation, viz:

“Fifth. A reservation by the city of Chicago of the right to place and maintain in the portion of the park hereinbefore described a boulder twenty-five feet square as a monument to Dr. Samuel Guthrie, inventor of chloroform.”

The hostility of the Park Commissioners to the placing of a boulder of the character selected by the Medical Society and the Guthries was known to them, and their attempt to so place the boulder thwarted. This boulder is of the dimensions of “11 feet the longest way and 7 feet by 5 feet.” The Park Commissioners would not approve of this boulder or consent to its being placed upon the Grant Park property. The Medical Society, in an attempt to frustrate the hostility of the Park Commissioners and to land this boulder in the Park, procured on “Christmas day” 1905, from a judge of the Circuit Court, without notice and without bond, an injunction restraining the Park Commissioners from interfering with the dumping upon the park of such “boulder.” Under cover of this extra-judicial protection, the “boulder” was transported into the Park and left on that part of it which would be just east of Michigan avenue and north of the north line of Jackson Boulevard if that thoroughfare was projected east of Michigan avenue. The injunction so inopportunely granted was afterwards dissolved and the proceedings here under review instituted although the bill in the Circuit Court was neither withdrawn nor a final hearing thereon had.

It is self-evident that the “boulder,” the subject of this dispute, in no way meets the requirements of the one permitted by the city ordinance. It is evidently much inferior and not of the measurements required by the ordinance. The offending boulder is not 25 feet square, and if any right exists in the Medical Society to place any boulder in the park—which we by no manner of means intend to be understood as conceding —it must conform substantially at least to the dimensions fixed by the ordinance.

We do not think that the city of Chicago, much less the Medical Society, has any lawful right to instal or maintain any monument or other structure which would in any way interfere with or tend to obstruct the plans of the Park Commissioners for the improvement or adornment of the park. The care and maintenance of the parks are entrusted to the commissioners by law, and their judgment must control. With such control no one has the lawful right to interfere. The Chicago Medical Society has no standing in this controversy. The city of Chicago has no power to delegate its authority. Its attempt so to do was a nullity. City of E. St. Louis v. Wehrung, 50 Ill. 28; Same v. Thomas, 11 Ill. App. 283; Foss v. City of Chicago, 56 Ill. 354.

The decree of the Superior Court is affirmed.

Affirmed.


text:
    Davenport Vinegar & Pickling Works, Defendant in Error, v. Glaser, Kohn & Company, Plaintiff in Error.
    Gen. No. 14,608.

      Contracts—right to sue for installment. Upon the non-payment of an installment due on a contract, the party entitled to the payment may abandon the same and sue for and recover the amount due thereunder, according to the contract terms, and for such purpose a contract entire and single will be held severable where the price paid is clearly apportioned.
    Baker, J., dissenting.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed on remittitur.

    Opinion filed October 25, 1909.
    Newman, Northrup, Levinson & Becker, for plaintiff in error.
    Guerin & Guerin, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action of the fourth class, in the Municipal Court, tried in that court without the intervention of a jury. Plaintiff sued to recover the contract price of certain pickles delivered to defendant under a written contract, which provided for other deliveries. Defendant put in as a defense a claim for damages for non-delivery of the balance of the pickles covered by the contract, the market price for pickles having advanced in the meantime. While there is not much contention over the fact that the market price did advance, yet plaintiff rests its defense to such claim by defendant for damages upon the contention that defendant having failed to pay for the pickles delivered according to the terms of the contract, such contract might be treated by plaintiff as terminated and the rights of defendant thereunder ended, and that such contract was so treated by plaintiff, and defendant’s default having given rise to that condition, it has no further rights thereunder. The trial judge seems to have agreed with plaintiff’s contention, and gave judgment for so much of the amount of its claim as he found from the evidence due. The contract in controversy was made for plaintiff, who had the works at Davenport, Iowa, by its Chicago brokers, defendant being established in business at Chicago. The contract is evidenced by the broker’s ticket, so-called, which is in the record as part of plaintiff’s proof without objection, and is in the following form, viz:

“ Order 1563. Chic. 5/1, 1907.
Davenport Vinegar & Pickling Works, Davenport. Sold to Glaser, Kohn Co.
Chicago, Illinois.
How Ship Bail .When 1 c/1 when approved.
1 c/1 in 30 days.
1 c/1 in 60 days.
Terms net cash on arrival.
240 casks gherkins in brine to count 4/6000 to 45 gal.
per bu....................................1.10
Oak cooperage extra..........................1.00
Overage charged for and underage credited. 6 bu. 45 gal. Nubs not exceed 1%. All F. O. B. Chicago, in c/1 of about 80 casks each. Subject to 5 casks for sample to be shipped at once, and c/1 rate allowed on same. 1905 stock to be separate from 1906.
Grant Beall & Co.,
42 Biver St. Brokers. ’ ’

The rights of the parties rest in the legal interpretation of this contract, making the controversy here involved one more largely of law than of fact. The construction of the contract being of law for the court in the first instance, the legal rights of- the parties resting upon such construction must he admeasured from the facts. It is evident to us that the sale was by sample; that on the approval of the samples forwarded to and received by defendant, which approval may be inferred from the subsequent uri contradicted actions of the parties in relation to the matter, the contract became a complete transaction.

According to the literal terms of the contract the gherkins were to be shipped in three separate shipments in specific quantities, plaintiff to pay the freight to Chicago. “Net cash on arrival” means in contemplation of law that each separate shipment was to be paid for in cash on arrival in Chicago. This being the law of the contract, what are the facts? Five barrels were shipped as samples, and while there is no specific evidence of defendant’s actual approval of the samples, yet 69 other casks were forwarded by rail and received and accepted by defendant without objection. True it is that there was some disturbance in the market price subsequent to such shipment and an upward tendency or increase in price prevailed. There was also some correspondence between the parties in relation to market conditions and an intimation from plaintiff that it would like to be relieved from further deliveries, although at no time did plaintiff refuse or suggest that it would decline to carry out its contract by not making the remaining two shipments called for by the contract. Plaintiff, however, did insist on defendant’s paying for the 74 casks already shipped to and received by defendant, in compliance with the terms of the contract. To make such payment to plaintiff defendant absolutely refused. Defendant did not actually dispute the right of plaintiff to demand payment or its liability to make the same, but, on the contrary, there was some talk of putting the money due into the hands of some third person to await the delivery of the remainder of the order. To such proposition plaintiff declined to yield its assent. Defendant, however, did finally insist that by the terms of the contract it was not obligated to pay for any of the gherkins until the whole quantity under contract was shipped to and received by it in Chicago. Defendant refused to pay for the first shipment before the second shipment was due under the contract. Defendant was therefore in default in its performance of a material part of the contract, and consequently in no position to demand that plaintiff make further shipments thereunder. In this situation plaintiff had a right to treat the contract as concluded through the failure of defendant to pay according to its terms for the 74 casks already delivered and to decline to make any further shipments. It was held in Keeler v. Clifford, 165 Ill. 544, that upon the non-payment of an instalment due under a contract, the party entitled to the payment may abandon the same and sue for and recover the amount due thereunder, according to the contract terms, and that for such purpose a contract entire and single will be held severable where the price to be paid is clearly apportioned. Patten v. Iroquois Furnace Co., 124 Ill. App. 1.

We do not quite agree with the amount of damages assessed by the trial judge. We do not find any evidence of excess above the estimate of 6 bushels or 45 gallons to, each cask by the terms of the contract. For the 74 casks this would be, at $1.10 per bushel, specified as the price in the contract, $488.40, which plus $74 for cooperage, minus $48.11 for freight paid by defendant, would total $51.29, the amount rightfully payable to plaintiff and assessable as its damages. The judgment is therefore excessive to the amount of $32.45.

The judgment of the Municipal Court will be affirmed on plaintiff’s remitting from the judgment within five days the sum of $32.45; otherwise the judgment will be reversed and the cause remanded.

Affirmed on remittitur.

October 28, 1909, remittitur filed . and judgment affirmed.

Me. Justice Bakes, dissenting.


text:
    The People of the State of Illinois, Defendant in Error, v. Thomas Kennedy et al., Plaintiff in Error.
    Gen. No. 14,844.

      Evidence—when confession insufficient to establish corpus delicti. Confessions, unsupported by evidence or by circumstances tending to corroborate the facts contained in such confessions (but on the contrary denied in toto by each defendant), do not constitute prima facie proof of the corpus delicti without which no conviction can be sustained.
    Criminal prosecution for arson. Error to the Criminal Court of Cook county; the Hon. William H. McSubely, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    W. G. Anderson, for plaintiffs in error; George H. Sugrue, of counsel.
    John J. Healy, for defendant in error; John T. Fleming and James J. Barbour, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The writ of error sued out in this cause brings before us for review a judgment of conviction against all the plaintiffs in error and one Dempsey, and we are asked to reverse such judgment as to plaintiffs in error. The defendants were jointly indicted, with said Dempsey, for a conspiracy to commit arson. The indictment charges, inter alia, that defendants “did unlawfully, feloniously, fraudulently and wilfully, with the fraudulent and malicious intent to then and there wrongfully and wickedly commit a felony, to-wit, arson, conspire and agree together with each other to set fire to and bum a certain building known and described as No. 762 West Lake street, in the city of Chicago, there situated, the property of Oscar M. Brady and Oscar F. Brady, owners in common of said building, contrary to the statute and against the peace and dignity of the same people of the state of Illinois.” Motions for a new trial and in arrest of judgment were made and overruled. Dempsey was summarily disposed of with a fine, which he paid, and his co-defendants, now before us, were sentenced to serve an indeterminate term in the penitentiary, according to the statutory provisions for those found guilty of such crime. The State concedes that the defendant Mack should have been granted a new trial, and makes no objection to the reversal of the judgment of the Criminal Court as to him. We have no disposition to thwart the purpose of the State as to the defendant Mack and shall therefore, in this opinion, treat him as eliminated from the case, notwithstanding it will clearly appear hereafter that were the State pressing for an affirmance as to Mack, still the judgment as to him must be reversed.

Three grounds are urged as necessitating a reversal of the convictions: First, that the indictment is defective, second, that the evidence is insufficient to establish the corpus delicti, and, third, error in instructions to the jury. A careful analysis of the indictment convinces us that it sufficiently charges a conspiracy to commit a felony. The testimony of the State is limited to the alleged confessions of the defendants, made to certain police officers who swore to them categorically, but all of which the defendants firmly, positively and unequivocally denied when testifying in their own defense. There was no independent evidence of the conspiracy to support these confessions sworn to have been made by them to the police officers. Nor is there any evidence aside from these confessions that any conspiracy was entered into at any time or place by the defendants, or any two of them. There is testimony as to two fires at the building set forth in the indictment, one each in the months of October and December, 1907, but there is no proof of any character that either of the defendants were in the vicinity of the burned premises at any date near or remote from the times when the fires occurred, and no evidence as to the origin or cause of either of the fires. Nor are there any circumstances inferable from any proof, aside from the claimed confessions, that any conspiracy was entered into or that either of the defendants had any part in causing the fires which took place on the premises mentioned in the indictment. No criminality is imputable to any of the defendants from the mere fact that fires occurred, without any evidence connecting them in some way or manner, directly or inferably, with those occurrences. Lacking proof of a conspiracy, the evidence is insufficient to support the conviction.

. The confessions, unsupported by evidence or by circumstances tending to corroborate the facts contained in such confessions (but on the contrary denied in toto by. each defendant), do not constitute prima facie proof of the corpus delicti, without' which no conviction can be sustained. The court say in Campbell v. The People, 159 Ill. 24: “It is, however, familiar law, frequently recognized by this court, that extra-judicial confessions of the commission of crimes, where such confessions are relied on to establish guilt, are not sufficient to authorize a judgment of conviction without other proof of the corpus delicti; but the corpus delicti should first be otherwise established, not, however, necessarily by direct evidence.” We regard this as a clear statement of the rule obtaining in this jurisdiction. Applying the test of such rule to the evidence in the record, it is apparently insufficient to support the judgment of conviction. South v. People, 98 ibid. 261; Williams v. People, 101 ibid. 382, 386; Bergen v. People, 17 ibid. 426.

So far as concerns these instructions which had in them some reference to the confessions of the defendants as proof of their guilt, or as tending to prove their guilt, they are erroneous, because they lacked supporting proof and were therefore improperly admitted in evidence.

The conviction of the plaintiffs in error not being warranted by the evidence, the judgment of the Criminal Court is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: Mr Justice Baker

text:
    Illinois Industrial Home For The Blind, Plaintiff in Error, v. Edward S. Dreyer et al., Defendants in Error.
    Gen. No. 14,327.
    1. Bonds—when sureties liable for acts of hold-over. If a treasurer is elected for a period of two years and until his successor is elected and his bond correctly recites the terms of his election, if he holds over after such period of two years and no successor is elected and during such hold-over period makes default, the sureties are liable.
    2. Bonds—statute concerning suits upon, of public officers, construed. A treasurer of an institution whose trustees are appointed by the governor by and with the advice and consent of the senate and whose property is held in trust for the state, is a public officer within the meaning of section 13 of chapter 103.
    Action of debt. Error to the Circuit Court of Cook county; the Hon. Richabd W. Clutobd, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed with finding of facts and judgment here.
    Opinion filed October 25, 1909.
    Statement by the Court. Plaintiff in error brought an action of debt in the Circuit Court against defendants in error and George A. Weiss and George Schneider, as obligors on the official bond of defendant Dreyer as treasurer of plaintiff, to recover $3103.66 damages for the breach of the condition of said bond. May 10, 1907, plaintiff dismissed as to the defendants Weiss and Schneider, the cause was submitted to the court on the issues joined between plaintiff and the other defendants, and plaintiff had judgment against defendant Dreyer for $200,000, the penalty of the bond as debt and $3,103.36 damages, but the court gave judgment against the plaintiff in favor of the defendants Dickman, Demling and Berger. Berger pleaded his discharge in bankruptcy and the propriety of the judgment in his favor is not questioned. The bill of exceptions states that the parties agreed as to the facts established by the evidence, and sets out the facts so agreed on.
    Plaintiff was created by special law passed June 13, 1887. Hurd’s Stat. 1908, p. 258. Its charter provides for a board of trustees to be appointed by the governor, with the consent of the Senate, and that said board shall have power to elect a president, secretary and treasurer, and shall “fix the terms of service of said officers of said board.” The board of trustees did not, by by-law or other regulation, fix the term of office of the treasurer. August 12, 1893, defendant Dreyer was elected by the board of trustees treasurer of said corporation, “for the period of two years and until his successor should be elected.” On the same day the bond sued on was executed, delivered and approved. It is in common form. The condition recites the election of Dreyer as treasurer of said corporation August 12,1893, “for the period of two years and until his successor is elected.” Dreyer entered on his duties as treasurer, and there was no election of a successor until June 4,1897, when Fred M. Blount was elected treasurer. Dreyer, from the time of his election up to the election of Blount as his successor, “filled and occupied” the office of treasurer. He failed to account for or turn over to Blount $3,103.36 of the amount received by him as treasurer.
    Bowersock & Stilwell and Jacob H. Hopkins, for plaintiff in error.
    Mayer, Meyer & Austrian, for defendants in error.
   Mr Justice Baker

delivered the opinion of the court.

The condition of the bond is that Dreyer shall truly account for all moneys, etc., coming to his hands as treasurer “during his term of office, and at the expiration of his term of office shall pay over to his successor in office, ’ ’ etc., all such moneys, etc. By the terms of this condition, the obligation is unlimited in time and undertakes for the faithful conduct of Dreyer as treasurer during his term of office, and that at the expiration of his term he shall pay over the funds in his hands to his successor in office. The power to fix the term of the treasurer was by the charter vested in the board of trustees. . The board elected Dreyer treasurer “for the period of two years and until his successor should be elected,” and the bond correctly recites the terms of his election. For the duration of Dreyer’s term of office we must look alone to the terms of his election, for there is no general statute, charter, by-law or regulation limiting or affecting the term of his office.

In the leading case of Lord Arlington v. Merricke, 2 Saunders, 404, a certain person was appointed “deputy post master of the stage at Oxon” for the term of six months. The condition of the bond was that if the said deputy should “for and during all the time” that he should continue deputy, etc., then, etc., the obligation should be void, and it was held that it was the fair understanding that the surety intended to be bound only for six months, the ground of the judgment being the manifest intent to that purpose of the contracting parties.

The appointment in that case was for a determinate period, with no provision that the person appointed should under any circumstances continue in office after the expiration of that period. In this case, by the terms of Dreyer’s election, he was to continue treasurer, not alone fo-r two years, but for two years “and until his successor should be elected.” Under the terms of the appointment of the deputy in that case a new appointment was necessary to continue the deputy in office after the expiration of six. months. Under the terms of Dreyer’s election no new election was necessary to continue him in office after the expiration of two years, but he was, by the very terms of his election, to continue in office after the expiration of two years until his successor should be elected. In Chelmsford Co. v. Demarest, 7 Gray, 1, the statute, after directing that the clerk and treasurer should be chosen annually, added that they should hold their offices until others should be chosen and qualified in their stead. It was held, that a surety on a bond of an officer so chosen was not liable for the act of the officer committed after the next annual election, although no successor was then elected. The ground of the decision was that when the office is annual, the parties to the bond are presumed by law to bind themselves accordingly if there are no words inserted in the bond clearly extending it to a future election. Other cases cited by counsel for defendants in error announce the same rule in cases where the statute provided for the annual or biennial election of an officer, with the provision that he should hold his office until his successor should be elected.

In Amherst Bank v. Root, 2 Met. 522, the law gave the directors of the bank power to appoint a cashier, who should hold his office until his successor should be elected. Boot was elected cashier October 3, 1831, “for the year ensuing,” and re-elected each year thereafter until 1838. The breaches occurred from 1836 to 1838. It was held that the office was not an annual office, and that the sureties on the bond given in 1831 were liable.

We do not think that in the absence of any provision of statute, charter, by-law, or regulation, making the office of treasurer biennial, Dreyer’s term expired at the end of two years from his election, or that it then became the duty of the board of trustees to elect his successor, or that the sureties on his bond, given on his election, had any ground to suppose that the board would, at the end of two years, elect a successor; but think that under the terms of Dreyer’s election his office of treasurer was a continuing office until another treasurer was elected and, therefore, that the sureties on his bond are liable for the breach proven, although that breach occurred nearly four years after his election.

Plaintiff dismissed as to defendants Weiss and Schneider, and the case therefore stands as if they had never been sued. No rule is better settled than that at common law a suit on a joint and several bond can be maintained only against one or all of the obligors who are living, but not against an intermediate number, except when one of the obligors makes a defense personal to himself, such as a discharge in bankruptcy. This rule has been changed in this State in the case of actions on bonds of public officers by a statute, section 13, chapter 103, E. S., which provides: “Whenever the condition of the bond of any public officer shall be violated, suit may be instituted on such bond, and prosecuted to final judgment against such officer, and any or all of the sureties, or against one or more of them, jointly and severally, without first establishing the liability of the principal by obtaining judgment against him alone.” Is the office of treasurer of the plaintiff a public office; is its incumbent a “public officer” within the meaning of the term as used in the statute?

The statute is remedial and its provisions are to be liberally construed in advancement of the remedy. The charter of the plaintiff corporation provides (section 1) that the property of the corporation “shall be held in trust as the property of the state;” section 3, “that the trustees shall be appointed by the governor with the advice and consent of the senate; ’ ’ section 4, that the traveling expenses of the trustees shall be paid by the state; section 11, that the auditor of public accounts shall, on the order of the board of trustees, draw warrants on the state treasurer for all sums which shall be appropriated for the use of said institution by the General Assembly, and section 12 appropriates $100,000 for the purchase of lands, erection of buildings for said institution and for defraying the expenses of conducting the same.

The office of treasurer of the plaintiff is clearly an office, not an employment. The property of the plaintiff is held in trust as the property of the state. The treasurer is elected in the manner prescribed by law, with a title given to him by law, and exercises functions concerning the public assigned to him by law.

We think that Dreyer was a public officer within the meaning of the term as used in the statute, and therefore that this action can be maintained against him and his co-defendants Dickmann and Demling.

The judgment of the Circuit Court will be reversed and judgment entered here in favor of the plaintiff in the Circuit Court, plaintiff in error here, and against Edward S. Dreyer, Emil Dickmann and Joseph Dem-ling, defendants in the Circuit Court and defendants in error here, for the sum of $200,000 debt and $3,138.36 and costs of this court and of the Circuit Court, said judgment for debt to be discharged on the payment of the judgment for damages and costs.

Judgment reversed and judgment here against certain of the defendants in the Circuit Court, with finding of facts.


author: Mr. Justice Baker

text:
    Frank Sausis, Plaintiff in Error, v. G. H. Hammond Company, Defendant in Error.
    Gen. No. 14,378.
    Master and servant—when former not liable for injury to latter occurring in freight elevator. If the proximate cause of the injury to a servant was the position which he unnecessarily assumed in the elevator in which he was injured, the master is not liable.

      Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Axel Chytbatjs, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinon filed October 25, 1909.
    Statement by the Court. In an action on the case for personal injuries brought by plaintiff in error against defendant in error, the verdict was not guilty, a motion for new trial was denied and judgment entered on the verdict, to reverse which this writ of error is prosecuted.
    Plaintiff when injured was forty years old, was in the service of the defendant and was injured when riding, in the course of his employment, on a freight elevator of defendant. He went on such elevator at the first floor and was injured when the platform on which he stood reached the second floor. The elevator was at the northwest corner of the room and the north and west walls of the room formed the north and west sides of the elevator shaft. The south and east sides of the elevator shaft, from the ceiling down to within seven feet of the floor, were made of wire netting. On said south and east sides were doors extending from the lower edge of the wire netting to the floor. The shaft was eight feet and three or four inches square on the inside, and at each corner was a post which served as a guide in raising or lowering the platform. Each of the doors above mentioned consisted of two parts, each four feet wide, and hung to one of said posts in such manner that they opened outward. The .elevator platform was eight feet square, with solid sides or railings three feet high on the north and west sides, and with no railing on either of the other two sides. The elevator was used to carry beef products from the first floor to upper floors of the building. Such products were placed in boxes attached to trucks, and the trucks were wheeled onto the platform, carried, with the truckmen, to an upper floor and then wheeled from the platform by the truck-men. The doors were made of boards four inches wide placed about an inch apart. The doors were a part of the elevator shaft, and not a part of, or attached in any way to, the platform of the elevator. When products were to be taken to an upper floor of the elevator, both parts of the door on either the east or south side were thrown open and the trucks wheeled through the open door onto the platform. When the trucks and truckmen were on the platform, the door was closed and the platform raised. On the day in question the east door was thrown open, and two trucks, each about three feet wide and four or five feet long, including handles, placed on the platform. With one were two truckmen, with the other only plaintiff as truckman, so that with the elevator man there were on the platform two trucks and four men. An incandescent electric light hung about seven feet above the platform. When the platform reached the ceiling of the room the heel of plaintiff was caught between the elevator platform and the side of the elevator shaft, and thereby plaintiff sustained the injuries complained of.
    Theodore Proulx and Cyrus J. Wood, for plaintiff in error.
    Frank M. Cox and R. J. Fellingham, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The case was submitted to the jury on a declaration consisting of three counts and a plea of not guilty. The first of said counts averred that the defendant negligently, etc., ran the platform of the elevator so close to the side of the elevator shaft that plaintiff’s foot was caught between the platform and the side of the shaft, and thereby he was injured. The second averred that defendant negligently constructed said elevator platform without guards along the edge of the same, and that by reason thereof plaintiff’s foot was caught between said platform and the side of the shaft, and thereby he was injured; the third averred that the defendant negligently, etc., ordered the plaintiff to ride on said elevator, and that his foot was caught as alleged in the other counts, and thereby he was injured.

In the course of his employment plaintiff was required to ride on the elevator. The duty of the defendant was to use reasonable care to have, keep and manage the elevator so that it should be reasonably safe for the carriage and conveyance of the plaintiff.

It is manifest from the evidence that a part of plaintiff’s foot, including the heel, extended out from and beyond the south edge of the platform on which he stood, and that it was because it so extended beyond the edge of the platform that his heel was caught between the platform and the south side of the shaft and injured. There was a space of one to two inches between the platform and the sides of the elevator shaft. Defendant was not bound to so construct the elevator as to make the space between the platform and the sides of the shaft greater than was necessary to permit the platform to move up and down freely without rubbing or striking against the side of the shaft. The platform did not strike against the side of the shaft, but plaintiff’s foot, because it extended beyond the edge of the platform, was caught between the edge of the platform and the side of the shaft and injured. There is, in our opinion, in the record no evidence tending to prove the negligence alleged in the first count.

There was on the platform, along its north and west edges, a solid railing three feet high. The trucks were taken onto the platform from either the east or south side, and such railing on the north and west edges of the platform prevented the trucks from going back beyond the edge of the platform. But it was necessary that the approach to the platform from the east and south sides should be unobstructed by any guard or railing, so that trucks might be taken onto and off from the platform from those sides. We do not think that the defendant was bound to anticipate that one of its employes riding in the elevator would extend a part of his foot beyond the edge of the platform, and to provide and use movable guards or railings on the east and south sides so as to render it impossible for a person riding on the elevator to extend his foot beyond the edge thereof. The elevator was a freight, not a passenger, elevator. There was an abundance of room on the platform for the men and trucks which were on the elevator when plaintiff was injured. An electric light was suspended about seven feet above the platform. Plaintiff went onto the platform through a door in the elevator shaft. We think that the elevator as constructed and as used on the day of the accident was reasonably safe, and that there is no evidence from which the jury might properly find the defendant guilty of the negligence alleged in the second count.

The conclusion last stated disposes of the question whether from the evidence the jury might properly find that defendant’s act of ordering the plaintiff to ride on the elevator constituted and was negligence. Plaintiff’s duties required him to ride on the elevator in order to wheel his truck from the platform when he reached the proper floor, and there unload the product with which it was loaded. If the elevator was reasonably safe, the defendant was not guilty of negligence in ordering the plaintiff to ride on it.

There is in the record, in our opinion, no evidence from which the jury might properly find the defendant guilty, and if it be admitted that some of the instructions given for the defendant should not have been given, the plaintiff was not prejudiced thereby. W. C. St. Ry. Co. v. Maday, 188 Ill. 308; Crown C. & T. Co. v. Taylor, 184 id. 250.

The judgment of the Superior Court will be affirmed.

Affirmed.


text:
    A. Booth & Company, Defendant in Error, v. David R. Steffey, Plaintiff in Error.
    Gen. No. 14,400.
    1. Municipal Court—when sufficiency of evidence not subject to review. If the substitute for a bill of exceptions contained in the transcript contains no finding of fact and does not purport to show all the evidence, the Appellate Court will not consider an assignment of error challenging the sufficiency of the evidence to sustain the judgment.
    2. Evidence—when copy of letter inadmissible. A copy of a letter by one party to an action addressed to the other party thereto, the original of which was not shown to have been mailed or received, is only an ex parte declaration and not admissible in evidence.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    Pease, Smietahka & Polkey, for plaintiff in error.
    Edward A. Biggs and William R. Fetzer, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The document certified by the trial judge to be “a true and correct statement of the facts appearing on the trial of this cause,” and “of the questions of law involved in said case and of the decisions upon such questions of law by the court,” is neither “a correct statement of the facts appearing upon the trial and of all questions of law involved in said case,” nor “a correct stenographic report of the proceedings of the trial,” within the meaning of said words as used in the Municipal Court Act. It contains no finding of fact. It only sets forth certain evidence and certain rulings of the court on questions of evidence, and it is not certified that it-contains all of the evidence. We therefore cannot consider the assignment of error that the finding is contrary to the evidence. Bnt we think that the document so certified by the trial judge is sufficient to bring before us for review certain rulings of the court on questions of evidence.

Defendant in error had in Chicago a cold storage warehouse. It sued for and recovered from the plaintiff in error storage charges on a carcass of veal stored in said warehouse from July 19, 1904, to June 16, 1907, and on eighty-four boxes of cheese stored in said warehouse from August 13, 1904, to June 13, 1907. It appears from the evidence set forth in the document signed by the trial judge that plaintiff had in storage for defendant September 27,1904, 477 boxes of cheese; that on said day defendant gave an order for the delivery of 512 boxes of cheese; that plaintiff on said order delivered only 393 boxes, leaving 84 boxes undelivered; that soon after September 27, 1904, and repeatedly thereafter, defendant demanded said 84 boxes of cheese from plaintiff, and that plaintiff refused to deliver the same on the ground that it had no cheese in storage for the plaintiff; that plaintiff did not deliver to defendant said 84 boxes until June 13, 1907; that said cheese greatly depreciated in value between the time the delivery thereof was demanded in 1904 and the delivery in 1907.

The evidence for the plaintiff tended to show that to the order of defendant to plaintiff to deliver 512 boxes of cheese on September 27, 1904, were pinned two negotiable warehouse receipts, issued by plaintiff to defendant, one, No. 6149, dated August 17, 1904, for 305 boxes of cheese, the other, No. 6150, bearing the same date, for 173 boxes, making a total of 478 boxes; that 108 of the boxes for which receipt No. 6150 was given, and 77 of the boxes for which receipt No. 6149 was given, had been delivered prior to September 27, 1904, and such deliveries endorsed on said receipts, leaving but 393 of the boxes mentioned in said receipts Nos. 6149 and 6150 in storage; that said warehouse receipts provided, “that warehouse receipts must accompany delivery orders,” and that the reason why plaintiff refused to deliver said 84 boxes of cheese remaining in storage after the delivery of said 393 boxes, was that no warehouse receipt for said 84 boxes, •or any part thereof, accompanied said order.

The evidence for the defendant further tended to show that said warehouse receipts Nos. 6149 and 6150 were never delivered to the defendant; that no such receipts were ever issued to defendant for the cheese in question, and no such receipts were attached to the order of September 27, 1904, for the delivery of 512 boxes of cheese. The question whether the warehouse receipts 6149 and 6150, put in evidence by the plaintiff, had been delivered by plaintiff to defendant was a controverted and material question on the trial of the case. In rebuttal a witness for the plaintiff was asked by plaintiff’s counsel to produce, and did produce, a carbon copy of the following letter:

“Aug. 17,1904.
Messes. Steeeet Beos.
Gentlemen: We hand you herewith negotiable warehouse receipts Nos. 6149 and 6150, which have been issued to you as per your request over the phone on even date.
“Tours truly,
“Cold Stobage Dept.,
E. D. M. A. Booth & Go., Mgr.”

The defendant objected, and we think it appears from said document that the same was admitted in evidence over such objection, and that the defendant excepted. The only notice to produce was a verbal notice given by plaintiff to defendant at the trial and just before the copy was offered. The witness who produced the copy testified that he did not know whether the original letter was ever mailed to defendant or not; that he had no personal knowledge of the transaction, and there was no evidence tending to show that the original letter was ever received by the defendant, or that it was ever mailed to him.

The copy of a letter by the plaintiff addressed to the defendant, the original of which was not shown to have been mailed to defendant or to have been received by him, was only an ex parte declaration of the plaintiff and was not admissible in evidence against the defendant. Huckestein v. Kelly & Jones Co., 139 Pa. S. 201.

For the error indicated the judgment of the Municipal Court will be reversed and the cause remanded.

jReversed and remanded.


text:
    J. Walker Smith, Trustee, et al., Defendants in Error, v. Western Trust & Guaranty Company et al., Plaintiffs in Error.
    Gen. No. 14,493.
    1. Negotiable instruments—what not failure of consideration. If a note is executed upon the faith of a promise or covenant of the maker which promise is not performed, there is no failure of consideration so far as the note is concerned, but a breach of covenant.
    2. Negotiable instruments—who bona fide assignee for value. If a note is transferred before maturity to trustees for various banks severally holding obligations against the assignor, such trustees are bona fide purchasers for value.
    3. Pleading—what defense may be made under general issue. The defense of the failure of consideration of a promissory note may be made under the general issue.
    Assumpsit. Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed October 25, 1909.
    Statement by the Court. Originally three banks were joined with the defendants in error, as plaintiffs, in an action of assumpsit against plaintiffs in error in the Superior Court. Subsequently the pleadings in the cause were amended by striking out the names of said banks. The declaration consists of two special counts and the common counts, with a copy of the instrument sued on. That instrument was a promissory note made by said defendant Trust Company September 28, 1903, for $5,000, payable to the order of the Kenmare Dry Coal & Manufacturing Company ninety days after date, and endorsed by said Coal Company and the defendants, Everett and Day. Both special counts averred, that said note was endorsed by Everett and Day before delivery to the Coal Company, and that before maturity the plaintiffs purchased the same, etc. The first count declared against all the defendants as makers of said note. The second declared against the Trust Company as maker and against Everett and Day as guarantors. The Trust Company pleaded non assumpsit and a special plea. Everett and Day joined in a plea of non assumpsit and in a special plea which was the same as the special plea of the Trust Company. Each special plea set up that the note had been given to the Coal Company by the Trust Company contemporaneously with, and as a part of, a certain written contract which was made a part of the plea; that this contract as amended provided for the issuance of $200,-000 of bonds by the Coal Company, constituting a first lien upon its entire property, and appointed the Trust Company fiscal agent for the Coal Company; that it further provided:
    “4. The Coal Company shall arrange with its creditors to release their present obligations so far as the same may be liens of record against the property of the Coal Company, with the understanding that the said creditors are to receive, upon the issuance of the said bonds, an equivalent amount of same as collateral to cover their obligations.
    “5. The Trust Company at the time of the making of this contract shall execute and deliver to the Coal Company its promissory note in the sum of Five Thousand Dollars ($5,000), maturing ninety days from date, bearing interest at the rate of six per cent per annum, said amount, when paid, to be applied by the Coal Company in the liquidation of a like amount of indebtedness of the said Coal Company.”
    The plea then avers that the Coal Company “did not and could not make its said bond issue a first lien on its said property, and did not arrange with its creditors to release their obligations so far as the same were liens of record against the said property. That among the liens so standing of record against the property of the said Kenmare Dry Coal & Manufacturing Company was the mortgage referred to in the said contract as the Birkholtz mortgage; that the lien of said mortgage has never been released so as to make the aforesaid bond issue a first lien on the property of the said Kenmare Dry Coal & Manufacturing Company; that the failure of the said Ken-mare Dry Coal & Manufacturing Company to perform its said promises prevented this defendant from carrying out its agreement under the said contract, or deriving any advantage or benefit therefrom; and so this defendant says that the consideration upon which the said note was executed has wholly failed.”
    The pl„ea further set up that the plaintiffs were not holders in due course, but received title to the note as trustees under the following agreement:
    “Grand Forks, N. D., October 19, 1903.
    “We, G. B. Jacobi and J. Walker Smith, acting as Trustees for the benefit of the First National Bank, the Northern State Bank and the Union National Bank, all of Grand Forks, N. D., hereby receipt to the Kenmare Dry Coal & Manufacturing Company for a certain promissory note payable to said company for $5,000, dated September 28, 1903, due in ninety (90) days after date; executed by the Western Trust & Guaranty Co. of Chicago and endorsed by Wm. B. Everett and.Frank T. Day.
    “The conditions of this receipt and trusteeship are as follows:
    “The title and ownership of the note hereby receipted for passes to the said Jacobi and Smith as trustees for the benefit of said banks; the proceeds of the said $5,000 note as collected are to be applied pro

      rata on the following described notes, all owned by the respective banks mentioned; all executed by the Kenmare Dry Coal & Manufacturing Company and all endorsed by sundry persons and described more particularly as follows:
    “One note for $10,000 in favor of the First National Bank of Grand Forks, N. D., dated September 15, 1902, due December 31, 1902, and bearing 8 per cent interest after maturity.
    “One note for $5,000 in favor of the Northern State Bank of Grand Forks, N. D., dated April 14, 1903, due on demand and bearing 10 per cent interest from date.
    “One note for $10,000 in favor of the Union National Bank of Grand Forks, N. D., dated March 16,
    1903, due May 15, 1903, endorsed $4,000 and bearing 8 per cent interest after maturity.
    • “G. B. Jacobi,
    “J. Walker Smith.”
    To the special pleas demurrers were interposed by the plaintiffs, which were sustained. The cause was submitted to the jury on issues joined on the pleas of non assumpsit, and there was a verdict for the plaintiff for $6,206.66, and judgment on the verdict, to reverse which the defendants prosecute this writ of error.
    Aldrich & McAuley, for plaintiffs in error.
    Wheeler, Silber & Isaacs, for defendants in error; Frederick D. Silber, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

The contention of plaintiffs in error is that said special pleas are good pleas of failure of consideration, and that the plaintiffs, under the facts averred in said pleas, did not acquire said note in the ordinary course of business, and therefore the same, in their hands, is subject to all the defenses available against the original payee. The pleas aver that the note was given contemporaneously with and as a part of a certain written contract between the Trust Company and the Coal Company; that the Coal Company in and by said written contract agreed with the Trust Company that it would arrange with certain of its creditors to release their liens against the property of the Coal Company, so that certain bonds, which were to be issued by the Coal Company pursuant to the said written contract, should be a first lien on the property of the Coal Company; that the said Coal Company failed to keep its agreement in that it failed to procure the release of a certain mortgage on its property so as to make the bonds a first lien thereon; that such failure prevented the Trust Company “from carrying out its agreement under the said contract, or deriving any benefit or advantage therefrom; and so this defendant says that the consideration upon which the said note was executed has wholly failed.”

The covenant of the Trust Company to make and deliver to the Coal Company the note sued on and the covenant of the Coal Company to arrange with certain of its creditors to release their liens on the property of dm Coal Company, are independent covenants. Conceding that the pleas sufficiently aver that the promise of the Coal Company was the consideration for the note, the Coal Company is liable to the Trust Company on its covenant. Its failure to keep such covenant does not constitute a failure of consideration, but a failure of benefit resulting from the covenant which was the consideration of its note.

Gage v. Lewis, 68 Ill. 604, was an action on a bond, and there was a plea of failure of consideration, to which a demurrer was sustained. In the opinion in that case Mr. Justice Schofield said, pp. 616-17: “Treating the representations alleged in the plea as amounting to a contract between the plaintiff and the defendant, we fail to perceive a want or failure of consideration. The allegation is, that, relying upon these representations and promises, and for no other consideration, the defendant did, etc. These representations and promises, then, were the consideration, and the misfortune with the defendant is, not that he did not have them, or that anything has since transpired whereby he is not permitted to resort to them, but merely that he has not received the benefit from them which he was authorized to expect. In other words, he signed the bond upon the faith of a contract with the plaintiff, which the plaintiff has since failed to keep. The case would, in principle, have been nowise different had plaintiff agreed to have paid him a sum of money by a given day, in consideration of his signing the bond, and when the day arrived failed to make payment. It could scarcely be claimed in such a case, while the defendant would have had his remedy upon his contract, that there was no consideration, or that it had failed. This case is plainly distinguishable from the class of cases where, in the sale and delivery of personal property, or the purchase of real estate, the title fails, it is held that such failure may be interposed as a defense to a suit brought for the recovery of the purchase money. In those cases the consideration is the title to the property, while here it is the representation and promise of the party to do an act in the future. The principle is clearly and concisely stated in 1 Parsons on Notes and Bills, 203, thus: ‘We must, however, discriminate between a failure of consideration and a failure of benefit resulting from it. A promises B to do a certain thing, and B makes his note to A in consideration of this promise. Then A fails entirely to perform his promise, but sues B on his note. If B retains A’s promise, or if the contract is such that A is always and permanently held on his promise, B cannot defend against the note on the ground of a failure of consideration; but if B cancels A’s promise, and A accepts this, the contract is so far canceled and annulled, and then the consideration for the note fails.’ See, also, Willets v. Burgess, 34 Ill. 498.”

There is no allegation in the pleas that the contract between the Trust Company and the Coal Company was cancelled or rescinded. We think that the facts averred in the pleas do not show any failure of consideration, and that therefore the demurrers to the pleas were properly sustained.

If the plaintiffs were bona fide assignees of the note in question before maturity, then, under the provisions of section 9 of the Negotiable Instrument Statute, their rights are not affeced by any failure of consideraion as between the makers or guarantors of the note and the payee. The contention of plaintiffs in error is that the transfer, under the facts and circumstances stated in the pleas, was not in the usual course of business, and therefore the plaintiffs were not “bona fide assignees” of said note. In Roberts v. Hall, 37 Conn. 205, the note was transferred to a trustee for the benefit of certain creditors of the payee and endorser, and a part of the proceeds of the note, when it should be paid, were to be applied to the liquidation of the debts of the creditors as specified, and the remainder paid to the wife of the assignor. It was held that the transaction was not in the usual course of business, and the note was open to the defenses which would have been available had the suit been brought by the payee. In this case, according to the averments of the pleas, the Coal Company was indebted to three banks on notes long past due, amounting in the aggregate to $25,000, and transferred, before maturity, the note for $5,000, sued on in the case, to the plaintiffs as trustees for the benefit of said banks, the proceeds when collected to be applied pro rata on the notes so held by said banks. We think that the facts averred in the pleas do not show that the transfer of said note was a transaction not in the usual course of business, or that the plaintiffs were not bona fide assignees of said note, and therefore that the demurrers to the pleas were properly sustained.

Plaintiff filed with its special counts on the note the common counts, and defendants pleaded with their special pleas the general issue. In the opinion of the majority of the court the defense of failure of consideration could be made by defendants under the general issue, and therefore the defendants were not prejudiced by the order sustaining the demurrers to their special pleas.

In this conclusion the writer of this opinion cannot concur. When the declaration contains only the common counts, or when the note sued on is admitted under the common counts, the defendant may show a failure of consideration under the general issue. Wilson v. King, 83 Ill. 232; Clarke v. Newton, 235 id. 530.

In Wilson v. King supra, Keith v. Mafit, 38 Ill. 304, and Leggat v. Sands Brewing Co., 60 id. 158, were cited in the opinion, and the court referring to section 9 of the Negotiable Instrument Act, said, p. 236: “According to the provisions of this section, when the action is on such an instrument, to be available such a defense (partial failure of consideration) must be pleaded, and these cases so hold. * * * Where the declaration counts on such an instrument, the defense, of course, must be made by plea.” Both in Keith v. Mafit and Leggat v. The Sands Brewing Company, the declaration contained a special count on the note and the common counts. The special plea in this case avers that the supposed causes of action, etc., are one and the same, to wit, the cause of action in the first count mentioned. In the opinion of the writer the declaration counts on the promissory note mentioned in the first count, and the defense of failure of consideration must be made by special plea.

The judgment of the Superior Court will be affirmed.

Affirmed.

Mr. Justice Baker concurring in the judgment, but not in the third ground of affirmance stated in the opinion.