text:
    Marie Schlehofer and Joseph Schlehofer, Appellees, v. United States Brewing Company of Chicago, Appellant.
    Gen. No. 19,927.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.

      Statement of the Case.
    Action was brought by Marie Schlehofer and Joseph Schlehofer against United States Brewing Company of Chicago, a corporation, to reform a lease by striking out a certain cancellation clause contained therein. From a decree for reformation in favor of the complainant, defendant appeals.
    Complainants were the owners of certain premises in Chicago, in which, for six years prior to the fall of 1910, they had conducted a saloon business. They were customers of the Bartholomae & Roesing Brewing & Malting Company. The president and vice-president of that company at that time were also president and vice-president, respectively, of the United States Brewing Company. One Philip Reisz was employed by the former company as a solicitor and collector, and called regularly on complainants at their place of business. In September, 1910, Joseph Schlehofer told Reisz that he would like to go out of the saloon business. Reisz offered to buy his license, but Schlehofer replied that he would not sell the license unless he could rent the saloon premises at the same time. He told Beisz that he wanted $2,000 for the license and $40 a month rent for the'saloon premises. Reisz said that he would “talk to Mr. Seitz about it.” Seitz was the manager of the Bartholomae & Roesing Brewing and Malting Company, and also had charge of the collection of rents for the United States Brewing Company. After talking the matter over with Seitz, Reisz offered, on behalf of the Bartholomae & Roesing Brewing & Malting Company to pay $1,500 for the license and to take a lease of the saloon for three years at $37.50 per month. This offer was accepted by complainants. They went to the office of Mr. Seitz, where a written agreement was prepared by Seitz and signed by complainants. This agreement was dated September 23, 1910, and recited that for the consideration of $50 paid to complainants by the Bartiiolomae & Roesing Brewing & Malting Company, and the further payment of $1,450 to be paid on or before November 2, 1910, complainants agreed to assign to Seitz “the right of reissue from and after this date, of City of Chicago saloon license No. 4886, issued for premises 2612 West 26th street, Chicago, Cook 'County, Illinois, for the period ending October 31, 1910.” Then followed this further provision: “Also in consideration of the above sum of Fifty Dollars ($50.00), we agree to lease to the said Brewing Company our building known as No. 2612 West 26th street, Chicago, Cook County, Illinois, for a period of three years commencing November 1, 1910, and ending October 31, 1913, at a rental of Thirty-seven Dollars and fifty cents ($37.50) per month. Said lease to be in the form used by said Brewing Company and to contain a clause giving the said Brewing Company the option for a further term after the expiration thereof, of two years at the same rental.” Seitz testified that after this agreement was signed, he verbally told the United States Brewing Company “what the man wanted”; that he “thinks” it was the president or vice-president he talked to; that a lease was then prepared in the “regular form used by the United States Brewing Company,” and sent by that company to him (Seitz) to be executed. The lease thus prepared was dated September 26, 1910, and named the complainants as lessors and the United States Brewing Company as lessee, and demised the premises of complainants to that company for a three-year term, beginning November 1, 1910, and ending October 31, 1913, at a monthly rental of $37.50. Following the formal words of demise in the lease are ten numbered, printed paragraphs. In a single line at the end of the fifth paragraph was printed the following sentence: “Said lessee has the right to cancel this lease at any time by giving the lessor thirty days’ notice of its intention so to do.” This sentence had no relation to anything else contained in the fifth paragraph, and was very inconspicuous. The lease is printed in the English language. Complainants are Bohemians and cannot read English. Seitz knew that this cancellation clause was in “the form used by the Brewing Company.” Complainants did not know it. Seitz sent the lease thus prepared to Reisz, telling him to have it executed by complainants.
    Abstract of the Decision.
    1. Reformation of instruments, § 25

      —when a lease may he reformed for fraud. In a suit in equity to reform a lease, By striking a cancellation clause inserted either by mistake or fraud, the lessee is estopped from asserting a defense which would, in effect, enable it to perpetrate a fraud upon a lessor complainant.

      About the same time, one Radnitzer called upon Seitz, said he was an old friend of complainants and had heard of the proposed sale, and threatened to “block the deal” unless he was paid a commission of $100. Seitz, at first, demurred to this, but finally agreed to allow Badnitzer a credit of $100 upon a bill he owed the Brewing Company, if the company secured the license. Thereupon Reisz and Radnitzer went together to complainants’ place of business. There the lease was produced and complainants were asked to sign it. Complainants said that if Badnitzer said the lease was all right, they would sign it. Badnitzer told them it was all right, and they signed it, believing it was an ordinary lease for a term of three years.
    Winston, Payne, Strawn & Shaw, for appellant; John C. Slade and James H. Winston, of counsel.
    Charles A. Churan for appellees.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. Reformation of instruments, § 2 —when a lease may be reformed for mutual mistake or fraud. Where a lease with a cancellation clause was executed by the owners who understood that it was according to an agreement to let the premises in question for a certain number of years, the use of a form essentially different from the one agreed upon was held to be either the result of mutual mistake, or the lessee corporation was guilty of fraud in its procurement, so that upon either ground the owners were entitled to reformation in equity by a decree striking the cancellation clause from the lease.


source: Caselaw Access Project

author: Mr. Presiding Justice Fitch

license: Public Domain

text:
    Bonner & Marshall Company, Appellee, v. Ernest F. Hansell, Appellant.
    Gen. No. 19,945.
    1. Frauds, statute of, § 2

      —when oral promise to answer for debt of another within statute. The provision of the statute of frauds, J. & A. T 5867, requiring a promise to answer for the debt of another to be in writing, applies to promises, the main purposes of which are to assume or guaranty the debt of another, and does not apply to promises, the object of which is to promote some interest or purpose of the promissor.
    2. Frauds, statute of, § 2

      —when oral promise to pay debt of another sufficiently evidenced by writing. An oral promise of an agent of the owner of a building to see that a party furnishing brick to the original contractor was paid, held to constitute a collateral promise to pay the debt of another, but a letter written by the owner and signed by him, held to constitute a sufficient “note or memorandum” in writing to meet the requirements of the statute of frauds.
    3. Frauds, statute of, § 126

      —evidence admissible to show collateral promise. Where a party promises to pay for goods furnished another, the fact that the latter was charged on the books of account for the same is evidence that the promise was collateral, but such evidence is not conclusive and may be rebutted and explained.

      4. Frauds, statute of, § 122

      —when statement of claim based on collateral promise. In an action against the owner of a building for materials furnished to a building contractor, the averments of plaintiff’s statement of claim construed as basing the right to recover on a collateral promise of defendant to pay rather than an original undertaking.
    5. Appeal and error, § 438

      —when objection to variance cannot be considered. The question of variance between the statement of claim and the proof cannot be raised on appeal where the alleged variance was not specifically pointed out in the trial court.
    6. Appeal and error, § 522

      —sufficiency of objection to variance. An objection for variance between statement of claim and proofs must be in such terms that the court may understand that the question of variance is raised.
    7. Evidence, § 361

      —when evidence to show meaning of words inadmissible. Refusal to permit a party to show that the word “protect” as used in an agreement, had a particular meaning among architects and material men, held not error where it appeared what the parties meant by the use of the word, and it also appeared that when the objection to the evidence was sustained no offer was made to prove that the word had a meaning different from its ordinary meaning.
    8. Evidence, § 80

      —when declarations of agent part of res gestae. In an action against an owner of a building to recover for materials furnished a building contractor, admissions made by the architect after the defendant had written letters to plaintiff concerning payment, held admissible as part of the res gestae, it appearing that no payment had been made up to that time and that the architect was still acting as defendant’s agent.
    9. Witnesses, § 279

      —when impeaching evidence may be refused. Refusal of court to permit impeaching evidence to be introduced, held not error where the witnesses sought to be impeached admitted what was sought to be introduced.
    10. Appeal and error, § 452

      —when objection to admission of documentary evidence not preserved for review. The admission of a copy of a letter in evidence cannot be urged as error, for the reason no notice to produce the original was shown, where no such objection was made in the trial court.
    Appeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.

      Statement by the Court. Appellee recovered a judgment against appellant in the Municipal Court for $1,402.13, upon a statement of claim reading as follows:
    “Plaintiff’s claim is as follows: Cox Brothers, mason contractors in the erection of improvements for the defendant, Ernest F. Hansell, upon the premises hereinafter mentioned, ordered the plaintiff on or about August 1, 1911, to deliver about 60,000 brick at $22 per M to the premises at Sheridan road and Margate terrace owned by the said defendant, E. F. Hansell. Plaintiff then and there refused to deliver the said brick on the credit of said Cox Brothers, and thereupon, on or about August 7, 1911 (and on divers days subsequent thereto), one Frank M. Pray, as agent for the defendant, Ernest F. Hansell, agreed with the plaintiff to see that the plaintiff would be paid for all brick so delivered and to be delivered as aforesaid. That relying on said promises, the- plaintiff delivered to said Cox Brothers on their order 60,000 brick at $22 per M.
    That subsequently thereto, and on to wit, November 13, 1911, the defendant in writing acknowledged said undertaking and agreement, and then and there contracted and agreed to pay the plaintiff the said sum of $1,320, no- part or portion of which sum has ever been paid.”
    The affidavit of merits filed by appellant denied seriatim each of the allegations of fact in appellee’s statement of claim, and averred, “as a further defense,” that the agreement mentioned in the statement of claim “is a promise to answer for the debt, default °or miscarriage of another, to-wit: Cox Brothers, and that the said alleged agreement is not evidenced by a writing as required by statute.”
    The evidence introduced on behalf of appellee tends to prove that in the summer and fall of 1911, appellant was the owner of a tract of ground at the location mentioned in the statement of claim, upon which he was erecting an apartment building; that Frank M. Pray was his architect; that Pray prepared the plans and specifications let the contracts and superintended the work; that as the work progressed appellant placed in the hands of Pray various sums of money, aggregating about $20,000, with which to pay the contractors; that without further directions from appellant, Pray paid out this money, from time to time, to such contractors as, in his judgment, were entitled to it; that about August 1, 1911, Pray called at the office of appellee, whose business is the manufacture and sale of brick, said he was erecting a building for a man named Hansell, asked if appellee “had anything that cost about $20 or $22,” was given some samples, which he took away, saying he would submit them to appellant; that a day or two later, he returned and said to appellee’s salesman: “That is the brick we are going to use,” indicating a sample, the price of which was $22 a thousand; that the salesman asked who the contractors were; that Pray replied: “Cox Brothers,” whereupon the salesman said that they were irresponsible and that appellee had an outstanding account against them that remained unpaid; that Pray replied that he was acting as appellant’s agent, and would “guarantee Mr. Hansell’s account and see that it was paid,” and directed the salesman to go to Cox Brothers to ascertain the quantities desired, the manner of delivery, etc.; that soon after and before any brick were delivered, Charles Bonner, the president of appellee, called up Pray on the telephone and told him that appellee had an order from Cox Brothers for brick to be delivered to Margate terrace, that he did not consider them financially responsible and “would like some guarantee” of the account; that Pray replied that he “would see that the account was protected and paid;” that after these conversations with Pray, appellee delivered 60,000 of the brick to Cox Brothers, charged the amount of the .same in its account books to Cox Brothers and sent bills for the same from time to time to Cox Brothers; that these bills were not paid, and on November 11, 1911, appellee wrote to appellant calling attention to the fact that it had furnished the brick for appellant’s buildings to Cox Brothers, and concluding as follows:
    “There is due us on account of this delivery, the sum of thirteen hundred and twenty dollars ($1,320). This account is all due. A portion of it, past due.
    I might state the financial standing of Cox Brothers is none too good, and unless we can get protection from you as owner, we will be obliged to protect ourselves by lien on the buildings. Kindly let us know at once, the protection we may expect.
    Tour architects, Messrs. F. E. Pray & Son, have before delivering these'goods, stated that they would see our account was secured; but we do not wish to lose our lien rights, and would ask that you write us, guaranteeing this amount.
    Most truly yours,
    (Signed) Bonner & Marshall Company.”
    To this letter appellant replied as follows:
    “Chicago, Ill., November 13, 1911.
    “Bonner & Marshall Co.,
    Gentlemen:
    Yours of the 11th in reference to your claim of $1,320, against Cox Brothers for material delivered to them for my building at Sheridan road and Mar-gate terrace is received and in reply will say that your claim will be fully protected. Mr. Frank M. Pray, the architect, has full charge and is paying out all the bills. His office is with F. E. Pray & Son. He will take care of and protect you- in any claims you have on account of this job.
    Yours very truly,
    Ernest F. Hansell.”
    At the close of the plaintiffs evidence, appellant moved to instruct the jury to find for the defendant “upon the ground that the evidence shows that there was no original undertaking, but a collateral undertaking, void under the statute of frauds, and on the further ground that there has been no evidence showing that Frank M. Pray had any authority to bind the defendant in relation to the matters testified to.” This motion was denied and an exception preserved.
    On behalf of appellant, Frank M. Pray testified that he went to appellee’s office to make a selection of brick; that he inquired the price and told the salesman “we are figuring with a concern named Cox Bros.” He denied that he said anything to the salesman at any time “about guaranteeing the account” or “about protecting or paying” for the brick. He admitted that he had a conversation with Bonner over the telephone, but claimed this was after most of the brick had been delivered, and denied that he ever told Bonner that he would guaranty appellee’s account. He testified, however, that he also had a talk with Bonner in September, in which Bonner had requested payment for the brick, that his reply was that he did not have any money at that time, but that he had taken a “contractor’s statement” from Cox Brothers, in which appellee was “mentioned” for the sum of $1,200 or $1,300. During the examination of this witness he was asked: “Has the word ‘protect,’ according to the usage and customs of the architects and material men, any particular meaning?” An objection to this question was sustained, and the question was not answered.
    The evidence on behalf of appellant also tended to prove that the written contract of Cox Brothers with appellant required them to do the mason work on appellant’s building, and provide all materials for the same, “and deliver same free from mechanic’s .liens or claims arising out of the performance of this contract, ’ ’ that notwithstanding this provision in the contract of Cox Brothers, appellee, in November, 1911, served on appellant a formal notice stating that it had been employed by Cox Brothers to furnish brick for appellant’s buildings under their contract, that there was due it $1,320 for the same, and that appellee would hold the buildings and appellant’s interest in the ground, liable therefor; and that in February, 1912, appellee filed its bill in the Superior Court seeking to establish a mechanic’s lien upon appellant’s property.
    Appellant’s evidence further showed that in October, 1911, appellee wrote to Cox Brothers requesting them to give appellee “an order on the architect,” and later in the same month wrote to the architect stating that Cox Brothers had failed to give appellee such an order, and requesting the architect “to have check made for the amount to Cox Brothers and endorsed by them to ourselves.”
    Edwin Terwilliger, Jr. and Edward D. Pray, for appellant.
    Edmund W. Froehlich, for appellee.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

The main contentions of appellant upon this appeal may be stated as follows: Appellee’s statement of claim sets up an original undertaking, while the evidence shows only a collateral promise on the part of appellant, through his agent Pray, to answer for the debt of Cox Brothers; that appellant is not liable in this action upon the promise of Pray, first, because there is a variance between the allegations and the proofs; second, because Pray had no authority to make such a promise on behalf of appellant; and third, because the promise of Pray, even if made by him and authorized by appellant, was but an oral promise to answer for the debt of Cox Brothers, and therefore void, under the statute of frauds.

It is well settled that the portion of the statute of frauds which is relied on by appellant has reference only to collateral undertakings to answer for the debt or default of another. “Where the agreement is original and independent, it is not within the statute; if collateral, it is.” Resseter v. Waterman, 151 Ill. 169; Lusk v. Throop, 189 Ill. 127. The terms “original promise” and “collateral promise” are not used in the statute, but have been adopted by the courts as a convenient method of expressing the distinction between cases in which the direct and leading object of the promise is to promote some interest or purpose of the promisor, and cases in which the main purpose of the promise is to assume or guaranty the debt of another. Smith on the Law of Fraud, sec. 317. In any case within the former class, the promise is original and is good whether oral or in writing, even though the effect may be to. release or suspend the debt of another. In any case within the latter class, the promise is collateral to the obligation of another, and is void by the terms of the statute unless it, or some note or memorandum of it, is in writing and signed by the party to be charged therewith. In Stone v. Walker, 79 Mass. 613, Mr. Chief Justice Shaw illustrates this distinction as follows: “If the promise is made by one in his own name to pay for goods or money delivered to, or services done for another, that is original; it is his own contract on good consideration, and is called original, and is binding on him without writing. But if the language is ‘Let him have money or goods, or do service for him, and I will see you paid,’ or ‘I promise you that he will pay,’ or ‘If he do not pay, I will,’ this is collateral, and, though made on good consideration, it is void by the statute of frauds.” This statement of general principles is subject, however, to the qualification that the use of any particular set of words is not, of itself, necessarily controlling. “Whether an undertaking is original or collateral merely, is to be determined, not from the particular words used, but from all the circumstances attending the transaction.” Blank v. Dreher, 25 Ill. 331. In determining this question, one of the recognized tests is whether the credit is given to the person sought to be charged, or to someone else. Geary v. O’Neil, 73 Ill. 593; Schoenfeld v. Brown, 78 Ill. 487. Where the price of goods sold and delivered is charged upon the seller’s books to the person to whom they are delivered, that fact, if unexplained by other circumstances, is generally considered as strong evidence going to show that credit was given to such person; Lusk v. Throop, supra. “If one has a claim against another, and keeps books, it will so appear on the .books, and it will require very strong evidence to show the entry was made by mistake.” Hardman v. Bradley, 85 Ill. 162. Such evidence is not conclusive, however. It may be rebutted or explained, and therefore the whole question becomes a question of fact to be determined by the jury from all the circumstances, under proper instructions. Lusk v. Throop, supra; Ruggles v. Gatton, 50 Ill. 412.

In this case, it was admitted that appellee did not enter upon its books of account any charge against appellant for the price of the brick that were delivered. It charged the price of the brick directly to Cox Brothers. A copy of appellee’s ledger account was offered in evidence and shows that the items charged for brick furnished to appellant were charged to the account of Cox Brothers in precisely the same manner as other sales, previously made by appellee to Cox Brothers, were charged. • No attempt was made to rebut the inference naturally arising from this .fact, ' and this evidence, unexplained, tends strongly to prove that at the time of the delivery of the brick, appellee did not consider appellant as primarily its debtor, but intended to collect its claim from Cox Brothers if it could, and regarded the promise of Pray as a guaranty only. The special findings of the jury show that the jury took this view of the matter, and in our opinion, this is the only- reasonable conclusion from all the facts and circumstances in evidence. This being so, it must be held that the promise of Pray, on behalf of appellant, “to see that the account was paid,” or “to guarantee the account,” was a collateral undertaking to answer for the debt or default of Cox Brothers. It was not essential, however, to the validity of this promise, that the promise itself should be in writing. It was sufficient, under the statute, that the promise be evidenced by “some note or memorandum thereof” in writing, signed by appellant. We think that appellant’s letter of November 13, 1911, was a sufficient “note or memorandum” in writing to meet this requirement of the statute. We are also of the opinion that the same letter, when read in connection with the letter of November 11, 1911, clearly shows that Pray had full authority to make the promise in question for and on behalf of appellant. Appellant’s letter of November 13, 1911, refers specifically to appellee’s claim “against Cox Brothers for material delivered to them for my building.” It is addressed to appellee and states that, “your claim will be fully protected,” that Pray “has full charge and is paying out all the bills,” and that “he will take care of and protect you.” Bearing in mind that this letter was written in reply to a letter from appellee in which, notwithstanding the promise of Pray, which is mentioned in the letter, appellee insists upon some assurance from appellant himself regarding the matter, and asks for his personal guaranty, there does not seem to be any reasonable doubt that appellant, with full knowledge of all the facts, intended by his letter to ratify, approve and confirm all that Pray had done and promised to do on his behalf.

These conclusions bring us naturally to the only part of appellant’s contention that, in our judgment, presents any serious difficulty, viz.: Is there a variance between the plaintiff’s statement of claim and the proofs, and is appellant in a position to urge that objection? It will be noticed that the statement of claim says, in effect, that when Cox Brothers first ordered appellee to deliver the brick in question to appellant (which was “on or about August 1, 1911”) appellee “then and there refused to deliver the said brick on the credit of said Cox Brothers.” The statement of claim does not, however, allege that appellee persisted in its refusal after the promise of Pray was made. On the contrary, the next averment of the statement of claim is that “on or about August 7, 1911” (seven days later), Frank M. Pray, as the agent for appellant, “agreed with the plaintiff to see that the plaintiff would be paid for all brick so delivered and to be delivered as aforesaid,” and “that relying on said promises, the plaintiff delivered to said Cox Brothers on their order, 60,000 brick at $22 per M.” This is not an averment of an absolute promise on the part of appellant to pay for the brick, but amounts to an allegation that the plaintiff was induced, by the promise of appellant’s agent, to withdraw its refusal and to deliver the brick to Cox Brothers on their order, that is, to extend credit to them in reliance upon appellant’s collateral promise “to see the plaintiff paid” for all brick ordered by them. Under this construction of the statement of claim, there is no variance between its allegations and the proofs. This was the construction placed upon the statement of claim by appellant himself in his pleadings; for in his affidavit of merits (which, in the Municipal Court, takes the place of a plea), appellant states “that the said alleged agreement in said amended statement of claim is a promise to answer for the debt, default, or miscarriage of another, to-wit: Cox Brothers, and that the said alleged agreement is not evidenced by a writing as required by statute.” Manifestly, this defense is wholly inapplicable if, as appellant now contends, the statement of claim sets up an original undertaking instead of a collateral promise to answer for the debt of another. Furthermore, even if it could be held that the statement of claim is a statement of an original promise, we think that appellant is not in a position to raise the question of .variance in this court, for the reason that the alleged variance was not specifically pointed out in the trial court, where the statement of claim could have been amended. It is true that at the close of the plaintiff’s evidence, appellant made a motion to instruct the jury to find the issues for the defendant, upon the ground “that the evidence shows that there was no original undertaking, but a collateral undertaking, void under the statute of frauds but there is no reference in this motion to the statement of claim. If appellant’s counsel intended by this language to call the attention of the court and opposing counsel to the alleged variance between the statement of claim and the evidence, they were unfortunate in the choice of words by which they expressed that intention. A reading of the record convinces us that the trial court did not so understand the motion, and did not, in fact, rule on any question of variance. An objection of that character must be presented to the trial court in more unmistakable terms than the motion made in this case, so that, if necessary, the proper amendment to the pleadings may be made.

It is urged that the court erred in refusing to permit appellant to show that the word “protect” had a “particular meaning” among architects and material men. We think there was no error in this ruling. The two November letters, taken together, leave no room to doubt what the parties themselves meant by the word “protect,” and it was therefore not material whether it had a different meaning as generally used by architects and material men. Furthermore, when the objection to the question was sustained no offer was made to prove by the architect that the word has a special meaning among architects and material men which is different from the ordinary well-understood meaning of the word itself.

Nor do we think there was any error in permitting the plaintiff’s witnesses to testify to admissions made by the architect after the November letters were written. No payment had been made up to that time, and Pray was still acting as appellant’s agent. We think the evidence was admissible as part of the res gestae.

The contention that the court erred in refusing to permit alleged impeaching evidence to be introduced is also without merit. The witnesses who were sought to be impeached admitted that they had testified upon the former trial as was claimed, and there was therefore nothing to impeach. Moreover, the form in which the impeaching questions were put to the stenographers who reported the former trial was clearly improper.

As to the alleged error in admitting a copy of the letter of November 11, 1911, the objection that no notice to produce the original had been shown, was not made at the time, and cannot be made here for the first time.

Finding no reversible error in the record, the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    George H. Fischer, Appellee, v. Midland Casualty Company, Appellant.
    Gen. No. 19,959.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 19, 1914.

      Statement of the Case.
    Action by George H. Fischer against Midland Casualty Company on an accident insurance policy issued by the defendant. To reverse a judgment in favor of plaintiff, defendant appeals.
    The policy insured George H. Fischer, Jr., the son of plaintiff, against death by accident, and was made payable to plaintiff. While the policy was in force, the insured was accidently killed by a collision between two motorcycles, one of which he was riding, at the intersection of 116th street and Stewart avenue, in Chicago. At the time the deceased was approaching this intersection from the west, a man named Efting, also on a motorcycle, was approaching it from the north on the west side of Stewart avenue. Efting did not see Fischer coming until they were within twenty feet of each other. He turned his motorcycle east to avoid a collision, but Fischer’s motorcycle ran directly into Efting’s, and both riders were thrown to the ground. Fischer struck his head on a curbstone and received injuries from which he died.
    The policy provides that in case of the death of the insured by accident, three hundred dollars shall be paid to plaintiff, except that in the event of injury, fatal or otherwise, “resulting, directly or indirectly, * * * from exposure to obvious risk of injury or known danger, * * * or while violating law, * * * the limit of the Company’s liability shall be one-fifth of the amount that would be otherwise payable under this policy.”
    Defendant filed a special plea setting up these provisions of the policy as a defense to all but sixty dollars of the amount claimed, alleging that at the time the insured received the injuries resulting in his death he was exposing himself to “obvious risk of injury or known danger,” and was also “violating law,” in this, that he was the owner of the motorcycle that he was riding at the time of the accident, and was then driving the same at an unlawful rate of speed and without having procured from the Secretary of State any certificate of registration, or number, or number plate, as required by law.
    Abstract of the Decision.
    1. Insurance, § 408

      —effect of provision in policy limiting liability when injury results while violating law. A clause in an accident insurance policy limiting liability in case of injury or death “resulting, directly or indirectly, * * * from exposure to obvious risk of injury or known danger, * * * or while violating law,” held to apply only when the injury results from the causes named and not to limit liability where the insured was killed in a collision between a motorcycle which he was riding and another motorcycle, though he had not procured a registration certificate or license number as required by law.
    2. Insurance, § 12

      -—rule as to construction of policy. Clauses in an insurance policy must be given a reasonable construction, and any uncertainty in the language employed must be construed most strongly against the insurance company.
    3. Trial, § 124

      —when improper statements of counsel prejudicial. In an action on an insurance policy, a statement made by plaintiff’s counsel in his argument to the jury, unsupported by the evidence, that plaintiff was a member of a union, and a statement characterizing insurance companies generally: “That is the game, gentlemen—That is the game they all play. Beat it,” held reversible error.
    McKenzie Cleland, for appellant.
    John C. Trainor, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Nellie Carlin, Administratrix, Appellee, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 19,985.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Action by Nellie Carlin, administratrix of the estate of Hans P. Schmidt, deceased, against Grand Trunk Western Railway Company to recover damages for wrongfully causing the death of plaintiff’s intestate.
    On October 12, 1907, appellee recovered a judgment against appellant in the Circuit Court of Cook county in an action on the case for wrongfully causing the death of Hans P. Schmidt. On December 22, 1909, this judgment was reversed and remanded by. the Supreme Court (see 243 Ill. 64), and on July 20, 1911, the mandate of the Supreme Court was filed in the Circuit Court. On the next day an order was entered by the Circuit Court, on the petition of the attorney for appellee, and apparently without notice to appellant, that the cause “be reinstated and re-docketed.” No appearaifce was entered by appellant after the filing of such mandate, and no notice that .the mandate had been filed or that the cause had been redocketed was ever served on appellant. On February 19, 1913, the case came on for trial and was tried in appellant’s absence and a verdict and judgment were rendered in favor of appellee for $1,975. To reverse the judgment, defendant appeals.
    Kretzinger & Kretzinger, and L. L. Smith, for appellant.

      Abstract of the Decision.
    1. Appeal and error, § 1826

      —jurisdiction of trial court after remandment by Supreme Court. Where a cause is remanded by the Supreme Court to the Circuit Court, the latter court obtains jurisdiction of the subject-matter on the filing of the transcript but does not obtain jurisdiction of the person of the appellant until the statutory ten days’ notice is given as required by section 113 of the Practice Act, J. & A.- jf 8650.
    2. Appeal and error, § 1827*—effect of failure to give statutory notice after remandment. Where -the Circuit Court after remandment of a cause to it by the Supreme Court reinstates the cause without the statutory tefi days’ notice being given to appellant as required by section 113 of the Practice Act, J. & A. If 8650 and proceeds with the trial to judgment against the appellant without any appearance by him, the judgment will be reversed for want of the trial court’s jurisdiction of appellant, but will not be reversed without remandment where the transcript of the order remanding the cause was filed within two years from the time of the making of the order.
    Roy D. Keehn, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Frank J. Wende, Appellee, v. Michael Zimmer, Sheriff, et al., Eli S. Warner, Appellant.
    Gen. No. 20,714.
    (Not to be reported in full.)
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed November 19, 1914.

      Abstract of the Decision.
    1. Execution, § 120

      —right of third person to enjoin wrongful seizure and removal of his property. Where a sheriff and judgment creditor wrongfully levy an execution on the property of a person other than the judgment debtor, the owner of the property is not precluded from maintaining a hill to enjoin the removal of the property from his possession for the reason he has a remedy at law in an action for trespass or replevin, where trespass would afford him no remedy for the consequent injury to his business and his loss of prospective profits, and in replevin the determination of the real issue in the suit would require the production of the books of a company which would not be a party to the suit, and a subpoena duces tecum would be ineffective.

      Statement of the Case.
    Bill by Frank J. Wende against Michael Zimmer, sheriff, Eli S. Warner, August F. Osterlind, Louis Becker and Osterlind-Ford Company, a corporation, to restrain the sheriff and Warner from proceeding to enforce payment of a judgment obtained by said Warner against the Osterlind-Ford Company out of certain personal property claimed by complainant and levied on by said sheriff. To reverse an order granting an interlocutory injunction, defendant Warner appeals.
    The injunction was issued upon motion of 'complainant based solely upon his verified bill, after notice to the sheriff and said Warner, who were represented by counsel. No counter-affidavits were filed and no answer to the bill had been filed at the time the motion was heard and the preliminary injunction issued.
    Buell, Abbey & Williams, for appellant.
    Vincent G. Gallagher and Ernest Messner, for appellee.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. Execution, § 122 —trial of right of property as precluding equitable relief. The proceeding in the County Court for the trial of the right of property is a purely statutory proceeding, and does not, in any event, oust a court of equity of jurisdiction.

3. Fraudulent conveyances, § 15 —validity of sales made in violation of Bulk Sales Act. Sales made in violation of the Bulk Sales Act of 1913 are not void, but only voidable as to creditors.


author: Mr. Justice Pam

text:
    Joseph Fisher, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,803.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Action on the case by Joseph Fisher against the Chicago City Railway Company for personal injuries received from falling from a street car. From a judgment for nine hundred dollars against the defendant in favor of the plaintiff, defendant appeals.
    A. C. Wild, Benjamin F. Richolson and Alfred B. Davis, for appellant; John R. Guilliams and Frank L. Kriete, of counsel.
    Forest Garfield Smith, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.

1. Carriers, § 476 —sufficiency of evidence. Where it appeared that the jury by their verdict of guilty were evidently of the opinion that the plaintiff, having the care of his child of five and one-half years and' burdened with a suit case, was not likely to step or fall off of a car running at the rate of fifteen to twenty-five miles per hour, midway between intersections, after notifying the conductor at one corner that he wished to stop at the next corner, the verdict was not against the weight of the evidence upon the contention of the plaintiff that he was thrown from the car by its suddenly Starting up.

2. Damages, § 115 —when not excessive. In an action for personal injuries due to a fall from a street car, a verdict for nine hundred dollars is held not to be excessive, since the amount of the damages is peculiarly within the province of the jury.

3. Carriers, § 278 —when an instruction as to degree of care not misleading. An instruction that while a street railway company is not an insurer of absolute safe carriage to its passengers, yet it is held to exercise the highest degree of care, skill and diligence practically consistent with the operation of its road, held not to be erroneous because the word “practically” appears to govern the word “consistent” rather than the word “operation,” where an instruction covering the same subject-matter in which the law was correctly stated was given at the request of the defendant, so that the jury were not misled.

4. Instructions, § 120 -—when requested instruction properly refused. Where an instruction assumed that what occurred was unusual and there was nothing in the facts which made the principle of law for the instruction applicable, it was properly refused by the trial court.

5. Witnesses, § 239 —when expert testimony admissible on redirect examination. Where defendant objected to questions asked on redirect examination of the attending physician by the attorney for the plaintiff, it was held not to be erroneous, since the testimony of the physician showed that counsel subjected the witness to a lengthy cross-examination wherein he clearly distinguished between objective and subjective symptoms, and the distinction as applicable to the condition of the defendant was clearly developed, and since moreover there was nothing in the questions which permitted 'the jury to speculate as to the character of the injuries and the condition of the plaintiff, because they had clearly before them what they were through the testimony of the plaintiff and the physician.


text:
    S. Maeder, Appellee, v. Kary E. Stephens and Leroy Hanna, Appellants.
    Gen. No. 19,816.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1410

      —when verdict against the weight of the evidence. Where the verdict of the jury is clearly and manifestly against the weight of the evidence, the failure of a trial court to grant a new trial upon a proper motion constitutes reversible error.

      Appeal from the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Action on the case by S. Maeder against Kary E. Stephens and Leroy Hanna to recover damages arising out of an alleged conspiracy to accuse her of the crimes of disorderly conduct- and larceny for the purpose of extorting from her certain letters written and mailed to her by defendant Stephens which she claimed as her property. It was charged that the acts of the defendants constituting the alleged conspiracy were in violation of the Criminal Code, (Hurd’s Rev. St., ch. 38, §§ 46, 93, J. & A. ¶¶ 3547, 3647). The jury found the defendants guilty and assessed the damages of the plaintiff in the sum of five thousand dollars. From a judgment entered on the verdict in favor of plaintiff, defendants appeal.
    Ayers & Ayers and Hart, Fleming & Pratt, for appellants.
    James R. Ward and Guy Guernsey, for appellee.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

2. Evidence, § 476 —determination of the weight of the evidence. While a preponderance of evidence is not necessarily determined by the number of witnesses testifying on either side of a case, yet such may be considered by the court as an important factor.

3. Appeal and error, § 1810 —when court may not reverse with a finding of facts. A reviewing court, although finding a verdict for plaintiff against the weight of the evidence, cannot enter a reversal with a finding of facts where the question is not properly preserved.

4. Conspiracy, § 14 —when evidence insufficient to show. Where, in an action on the case, plaintiff stands alone in her testimony without corroboration with reference to acts of an alleged conspiracy to accuse her of crimes for the purpose of extorting certain letters from her, and where her testimony as to her physical condition, alleged to be due to the result of acts of the defendants, was not supported by the testimony of the attending physician, and where the circumstances of her meeting one of the defendants was contradicted by three witnesses and the acts charged against the defendants constituting the basis of the action were categorically denied by one of the defendants, and her testimony failed to offer proper explanation of the return of certain letters and the payment of five hundred dollars by one of the defendants, the preponderance and weight of the evidence is held to be with the defendants, and the verdict of the jury in favor of the plaintiff is held to be against the weight of the evidence.


text:
    The People of the State of Illinois ex rel. Anna Hewes, Appellee, v. Leo W. Michael, Appellant.
    Gen. No. 19,880.
    1. Evidence, § 476

      —determination of weight of the evidence. While the number of witnesses is a factor that may be properly taken into consideration in determining where the weight or preponderance of the evidence lies, yet it is not necessarily determinative of that fact.
    2. Bastards, § 62

      —when a finding sustained by the evidence. In a bastardy proceeding, where the record shows that there was a sharp conflict in the evidence and it appeared that the trial court who saw and heard the witnesses evidently believed the testimony on behalf of the relatrix, an Appellate Court will not say that the finding of the court was against the weight of the evidence.
    3. Bastards, § 25

      —when cross-examination of defendant proper. In a bastardy proceeding, questions asked of defendant on cross-examination as to whether he had been convicted of several crimes, held proper where defendant in answer to several questions admitted that he had pleaded guilty to certain offenses and denied guilt as to another charge, and the questions were only directed as affecting the credibility of his testimony.
    4. Municipal Court of Chicago, § 8

      —jurisdiction of bastardy proceeding. Under section 50 of the Municipal Court Act, Hurd’s Rev. St. 1911, ch. 37, § 313a, J. & A. ¶ 3364, the Municipal Court has jurisdiction of a bastardy proceeding, if the accused is found and arrested within the city of Chicago, though the child was begotten and delivered without the city.
    5. Arrest, § 5

      —when a warrant presumed served within jurisdiction. It may be presumed that an officer in executing a warrant did not exceed his authority by arresting an accused outside of his jurisdiction, on the contrary the presumption must be that he acted strictly within the scope of his authority and within his jurisdiction.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Joel C. Carlson for appellant.
    Maclay Hoyne, for appellee; Edward E. Wilson, of counsel.

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

   Mr. Justice Pam

delivered the opinion of the court.

This is a bastardy proceeding brought by Anna Hewes, relatrix, against the appellant, Leo W. Michael, who, will hereafter be referred to as the defendant. The proceedings in this case were had in the Municipal Court of Chicago under section 313a, ch. 37, p. 728, Hurd’s Revised Statutes of Illinois for 1911. (J. & A. ¶ 3364.)

Defendant in the trial below waived a jury, and upon a hearing of the cause, the court found defendant was the real father of the bastard child of which relatrix was delivered on December 20, 1912; motion for a new trial was overruled and judgment was entered, from which judgment this appeal has been prosecuted.

Defendant relies upon three points to reverse the judgment:

(1) That the finding and judgment of the court is against the weight of the evidence; (2) that the court admitted on cross-examination of the defendant questions as to whether the defendant had been convicted of certain crimes which were not infamous; (3) the Municipal Court of Chicago was without jurisdiction of the subject-matter, because the alleged acts of intercourse, the residences of both parties and the birth of the child were not within the city of Chicago.

On January 5, 1912, relatrix resided in Hammond, Indiana, with her mother and father. Defendant also lived in Hammond and was a teacher of occult science; to use his language; he “was teaching the occult work —hypnotism and mental science.”

The relatrix arranged to take a course of instruction from him, and commenced her studies with him at his home, in January, 1912, to learn hypnotism, for which she paid defendant the sum of fifty dollars. Relatrix testified that in March, 1912, while taking instructions from defendant at his home in Hammond, she sustained an illicit relationship with him, as a result of which a child was begotten. In this testimony she was corroborated by her mother, who testified that defendant admitted to her these charges of the relatrix, and that the defendant advised her to go to the home of a Madam Costello, who was a follower of the defendant, and who at that time lived in Hammond. The evidence shows that this Madam Costello was a midwife, and also a clairvoyant spiritualist.

The defendant categorically denied the charges of the relatrix, and also the statements of her mother. He further testified that the relatrix, while at his house in Hammond, and apparently in trouble, stated to him that a colored lawyer in Hammond was the father of her child. Defendant’s housekeeper testified that relatrix made the same confession to her; and two other women who were studying occultism with defendant claimed to have heard the girl’s confession to the housekeeper.

Defendant urges that by reason of the number of witnesses called by him, the preponderance is clearly with the defense. While the number of witnesses is a factor that may be properly taken into consideration in determining’ where the weight or preponderance of the evidence lies, yet it is not determinative of that fact.

The record of the. proceedings shows that there was a sharp conflict in the evidence. The court below who saw and heard the witnesses evidently believed the testimony on behalf of the relatrix, and entered a finding against the defendant. We cannot say that the finding’ of the court was clearly and manifestly against the weight of the evidence.

Defendant contends further that the court erred in permitting certain questions to be directed to the defendant on cross-examination, as to whether defendant had been convicted of certain crimes. Defendant, in answer to several questions, admitted the fact that he had been convicted, or rather, that he pleaded guilty to certain offenses, while he denied guilt as to another charge. These questions were only directed as affecting the credibility of defendant’s testimony, and were proper in a civil case.

The only remaining question in the case is whether or not the court had jurisdiction. Section 313a, ch. 37, p. 728, Hurd’s Revised Statutes of Illinois for 1911, first paragraph, provides as follows:

“Whenever an unmarried woman, who shall be pregnant or delivered of a child, which by law would be deemed a bastard, shall file in the municipal court, if she be pregnant, or so delivered in the city of Chicago or the person accused be found in said city of Chicago, her complaint in writing, under oath or affirmation, accusing a person of being the father of such child, the court shall order a warrant to issue against the person so accused and cause him to be brought forthwith before the court.” (J. & A. ¶ 3364.)

From the foregoing it will be seen that in order to confer jurisdiction on the Municipal Court of Chicago, one of three conditions must appear in the evidence, namely, the relatrix must be pregnant in the city of Chicago, or delivered of a child in the city of Chicago, or the person accused must be found in the city of Chicago.

The evidence of the plaintiff shows that the child was begotten in Hammond, Indiana, and that she was delivered of a child at Globe Station, Illinois, which she stated was in the country. Notwithstanding that the complaint and amended complaint of the relatrix state that she was pregnant with and delivered of a child in the city of Chicago, the evidence does not prove these facts. But the evidence does show that the accused was found in the city of Chicago.

Defendant, in contending that the court was without jurisdiction, claims that he did not reside in the city of Chicago. There is evidence in the case by a witness for the defense, who was housekeeper for the defendant in Hammond, that at the time of the trial below she lived at 424 Oakley boulevard, Chicago, and that when defendant was in the city he made that residence his home. The warrant in the case, which is a part of the record, gave the address of the defendant at 424 South Oakley boulevard.

The warrant issued by the Municipal Court of Chicago showed this return:

“Executed this writ by arresting the within ..............LEO W. MICHAELS.............. and bringing his body into court this ........ 25th day of..........July____A. D.....1912.....
Bailiff.
Louis Graham
Deputy, 12th Prect.”

It is fair to presume that the officer executing this warrant did not exceed his authority by arresting the defendant outside of his jurisdiction; on the contrary, the presumption must be that he acted strictly within the scope of his authority and within his jurisdiction.

The defendant, when upon the stand, did not deny that at the time he was arrested he was in the city of Chicago, or that he was a resident of Chicago. His testimony, when asked where he lived, was: “At the present time, Aurora, Illinois;” namely, at the time of the trial, which began March 5, 1913, nearly a year after the time he was arrested.

This evidence warranted the court in arriving at the conclusion that defendant was found in the city of Chicago within the intent and meaning of section 313a, etc., supra. We are therefore of the Opinion that the trial court properly ruled that it did have jurisdiction of the subject-matter.

Finding no reversible error, the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Jonathan Ade, Appellee, v. Bertha Ade et al., Appellants.
    Gen. No. 19,860.
    (Not to be reported in full.)
    Abstract of the Decision.
    Creditor’s suit, § 56

      —when evidence sufficient to show valid consideration for conveyance. On creditor’s bill to reach property conveyed by defendant to her children, where- the defendant claimed that the conveyance was made pursuant to an express agreement to reimburse the children for money advanced and support furnished, and the complainant claimed that the moneys advanced were in the form of a gratuity and in the performance of a natural duty owing from children to their parents, held that a finding in favor of complainant was against the weight of the evidence, it appearing that the evidence to establish the contract was uncontradicted and that the children had advanced sums pursuant to the agreement, for taxes, insurance premiums and ordinary household expenses, which amounted to more than twice the value of the property conveyed.
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Creditor’s bill filed by Jonathan Ade against Bertha Ade, William H. Ade, Hazel Ade and Theodore J. Ade, based on a judgment of the Municipal Court of Chicago in favor of complainant and against Bertha Ade. Answers were filed by all the defendants and, on issue joined, the case was referred to a master. The master found in favor of complainant and against the defendants. To reverse a decree confirming the findings of the master, defendants appeal.
    Albert H. Fry, for appellants.
    Bither, Goff & Francis, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    John F. Devine, Administrator, Appellee, v. Sherman Hotel Company, Appellant.
    Gen. No. 19,870.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with finding of facts.
    Opinion filed November 19, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of George W. Moore, deceased, against Sherman Hotel Company to recover damages for the death of deceased. The deceased was employed by defendant as a night watchman whose duties were to patrol the hotel from the eighth to the thirteenth floor and to relieve a night watchman or detective on the first floor while the latter went to lunch after midnight. When deceased was thus in the performance of his duties on the first floor, the electric signal system of one of the freight elevators was reported out of order by its operator and defendant’s electrician was called to fix it. While the car of the elevator was on the first floor and the electrician was testing the signals by having the operator move the car several feet above the first floor, the deceased was either sitting in a chair back of where the electrician was working or standing back of him. After the signal system had been repaired and the electrician ordered the operator to raise the car for the final test, the deceased unexpectedly attempted to step in the car.
    There was but one count in the declaration and the gravamen of the charge was that deceased, an employee of the appellant, was about to enter said elevator which was in charge of and operated by another servant of the appellant, and who was not a fellow-servant; and which said elevator was then and there standing at the first floor landing of said building ; and while the elevator door was open and the dome light on, the deceased, while in the exercise of due care for his own safety, was in the act of stepping into said elevator, or about to place his right foot on the platform, appellant, by its servant operating the elevator, negligently caused the same to start suddenly upward without warning to the deceased, before he had time to place his other foot within the elevator, by means whereof the deceased was caused to stumble, fall and be thrown down violently, and that his left leg was lacerated, between the floor of the elevator and the framework above; that he sustained internal injuries, as a result of which he died a short time afterwards. To this count the appellant filed a plea of not guilty.
    Abstract of the Decision.
    1. Master and servant, § 705

      —when evidence insufficient to show negligence in operating elevator. In. an action to recover for the death of a watchman employed hy defendant alleged to have been caused hy the negligence of defendant in starting an elevator when the deceased was attempting to enter the same, held that the court erred in refusing to direct a verdict for defendant, where it appeared that at the time of the accident the signal system of the elevator was being tested, that the deceased was present and knew such test was being made, and that while the - final test was being made by raising the elevator a short distance, the deceased, at a time not expected and in an unexpected manner, attempted to enter the elevator.

      At the trial there were but two witnesses called, namely, the electrician on behalf of the plaintiff, and the elevator operator on behalf of the defendant. A verdict was returned in favor of plaintiff. To reverse the judgment entered on the verdict, defendant appeals.
    Ralph F. Potter, for appellant.
    Pain, Campbell & Kasper, for appellee.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

2. Appeal and error, § 842 —necessity of certificate of judge to additional till of exceptions. An additional bill of exceptions cannot be considered as such where it does not contain a certificate of the judge.


text:
    Frank Stoecker, Appellant, v. J. E. Thoren, Appellee.
    Gen. No. 19,893.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Action by Frank Stoecker against J. E. .Thoren to recover a sum paid by plaintiff towards the satisfaction of a judgment recovered against both plaintiff and defendant in a suit for personal injuries, and also the amount paid by an insurance company in plaintiff’s behalf under an insurance contract. The court found the issues against plaintiff and entered judgment against him for costs. To reverse the judgment, plaintiff appeals.
    It appeared that prior to this suit an action was brought by one Ludwik Kowalski against plaintiff and defendant for damages resulting from personal injuries sustained by him by falling into an unguarded excavation on certain premises, that a judgment was recovered against Stoecker and Thoren for twenty-two hundred dollars and costs, and that plaintiff and defendant each paid one-half thereof and Kowalski executed a release running to both.
    Abstract of the Decision.
    1. Judgment, § 471

      —when res adjudicata on question whether codefendant was an independent contractor. A judgment against two defendants jointly in an action for personal injuries resulting from plaintiff falling into an excavation on certain premises, held res adjudicata on the question whether one of said defendants was an independent contractor having exclusive control of the premises, where the acts of negligence were charged against both defendants and the declaration contained the allegations that they were in joint possession of the premises at the time of the accident.
    2. Idemnity, § 14

      —what does not show implied contract of. Where a mason contractor at the request of a general building contractor procured another to do excavating work and afterwards was requested to submit bids for the mason and brick work and a definite figure was arrived at as to the contract price including the excavation done, held that the conversations of the parties and the acts done pursuant thereto were not in the nature of an implied agreement on the part of the mason contractor to indemnify the building contractor against liability for injuries sustained by third persons on account of the condition of the premises, it appearing that the mason contractor, in procuring the excavation work acted as agent of the building contractor, and that there was no absolute agreement that the mason contractor was to have the contract for the brick and mason work.
    3. Indemnity, § 11

      —when does not cover liabilities existing before execution of contract. A contract between a mason contractor and a building contractor containing a provision that: “It is further agreed the second party shall not in any manner be answerable or accountable for any loss or damage arising from negligence or carelessness of the first party to any person or persons and their property,” held not to constitute a contract to indemnify the building contractor against liability for injuries resulting to a third person by falling into an unguarded excavation on the premises before the ' contract was signed.

      Frederick K. Warne, for appellant.
    Ringquist & Williams, for appellee; Guedon Williams, of counsel.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Carrie M. Herr, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 19,907.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Action by Carrie M. Herr against Chicago, Rock Island & Pacific Railway Company for injuries received by a fall upon an alleged slippery platform while getting off of one of defendant’s suburban trains. From a judgment for two thousand dollars in favor of plaintiff, defendant appeals.
    Plaintiff testified positively that she boarded the train at 63rd street; that she entered by the front door of the car and took a seat at the rear; that after the train reached its destination she went to the rear platform to get off the car; that there was a strip of ice six inches long and five inches wide frozen to the wood, located about a foot from the edge of the step, and that just as she turned to go down from the platform she stepped on it and slipped; that she had not seen it prior to that time; that when thrown to the station platform her feet went out first; that just after she fell she was assisted by a man who came along; that a wheel chair was procured wherein she was conveyed to the waiting room, whence she was taken to St. Luke’s hospital, and from there to her home in an ambulance, and later to the Washington Park hospital, at which place she received medical attention.
    Another witness for the plaintiff, who was a passenger on the same train, testified that he had just gotten off the train and had reached the cement walk between the two coaches, when he heard a cry; that he saw a young lady (the plaintiff) falling, and caught her; that he asked some gentlemen to assist him in taking her to the ladies’ waiting room. This was all the evidence offered by plaintiff as to how the accident occurred.
    On behalf- of the defendant there was only one witness who testified that he saw the plaintiff prior to the happening of the accident. That witness was the conductor of the train. He testified that he noticed plaintiff in the car, and remembered her because she was the only one who paid a cash fare; that after the train reached its destination in Chicago, he stood between this coach and the one immediately to the rear, helping the passengers alight, and that he remembered the plaintiff’s alighting from the car; that he later heard someone say a lady had fallen, and that he then noticed plaintiff being supported on the station platform by a gentleman, about ten or twelve feet away towards the middle of the car in which plaintiff had been riding; that he went to where she was, and sent an usher for a wheel chair; that after she had been placed therein, he asked plaintiff for her name and address, and that she said “it was not necessary, that she did not wish to have any commotion about it, and that it was nobody’s fault but her own.”
    The collector who took up tickets in the first four cars of the train, and the flagman testified that they saw the plaintiff in the wheel chair, and also heard her make the. aforesaid statement to the conductor.
    Defendant further offered testimony that plaintiff was taken to the waiting room, and while there it was discovered that she wore a sort of slipper with a high French heel. This was testified to by the conductor and the matron in the waiting room, Mrs. Edna Wolf, and a stenographer of the defendant, a Miss Lora M. Barber. Mrs. Wolf further testified. that when she asked plaintiff how the accident occurred, whether she slipped on anything in the train, or in the train shed, or on the waiting room floor, that plaintiff answered “No,” that her foot had turned, and that she, the matron, then said: “It is no wonder, wearing such a high heel shoe.” Miss Barber claims that in going to the wash room, which was off the rest room, she noticed plaintiff and heard her say to Mrs. Wolf: “Yes, I think it was my high heels.”
    Defendant also offered testimony of there being no snow or ice on the ground that morning and the previous day. The testimony further shows that the temperature on the day of the accident was between seventeen and thirty-three degrees; that there was no snow or rainfall that day; that on January 29th, Sunday, there had been a light rain or mist about eight o’clock in the morning for about one hour.
    Defendant, in its brief, lays great stress upon the evidence of the conductor and collector of the train in question; that they made an examination of the station platform and the platform and steps of car 43, which was the car upon which plaintiff was a passenger. Both these witnesses testified that they made this examination because it was customary to do so after the happening of an accident.
    There is nothing in the testimony for the defendant to show what directed their attention to this particular car and the rear platform of the car; nor does any witness for the defendant state that plaintiff claimed to have slipped on the platform of the car and fallen to the station platform. Furthermore,, the evidence shows that this was the only car whose platform and steps were examined.
    Abstract of the Decision.
    1. Carriers, § 480

      —questions for jury. The weight of the testimony of railroad employees to the effect that after an injury a passenger stated that it was nobody’s fault but her own and that it was due to the high heels of her shoes, is for the jury, as against the positive testimony of such passenger.
    2. Carriers, § 360

      —sufficiency of evidence. In an action by a female passenger on a railroad train for recovery for injuries received from a fall upon an icy, slippery platform, as she was stepping from the car, the evidence is held, sufficient to sustain a verdict in favor of the plaintiff.
    3. Damages, § 120

      —where a verdict not excessive for complicated injuries. Where a femalé passenger sustained a fracture of an ankle, the ligaments of which were torn and lacerated, causing her to be absent from work for more than five months, at which she could have earned ten dollars per week, and she suffered great pain from her ankle, which at the time of the trial was still weak and subject to pains under certain weather conditions, and she was compelled to wear a brace in her shoe, a verdict for two thousand dollars is held not to be excessive.
    The plaintiff was corroborated by the testimony of the witness, Butenschoen, that he saw her fall as he was between the ends of the two cars. To offset this positive testimony of the plaintiff and the witness Butenschoen, defendant offered the testimony as to alleged statements made by the plaintiff to the various employees of the defendant.
    M. L. Bell and A. B. Enoch, for appellant.
    Bolton & Moriarty, for appellee; Maurice J. Moriarty, of counsel.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Eva Tanguay, Appellee, v. Lew Fields, Appellant.
    Gen. No. 19,923.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    . Action by Eva Tanguay against Lew Fields for services rendered by her as an actress under a contract made in New York on September 4, 1912. From a judgment in favor of the plaintiff for two thousand dollars, defendant appeals.
    The contract of employment admitted in evidence upon which plaintiff predicated her claim, reads as follows :
    “New York, Sept. 4, 1912.
    “Dear Miss Tanguay:
    I hereby engage you to play the leading female part in ‘The Sun Dodgers,’ which is to open on or about October 1st. I agree to pay you the sum of Two Thousand Dollars ($2000) a week. I also agree to bill you in all advertisement matter, electric . signs and newspapers in the following manner:
    EVA TANGUAY
    in
    THE SUN DODGERS
    Your signed acceptance to this letter will be binding.
    Eva Tanguay. Lew Fields.”
    C. F. Zittel.
    It was admitted that the plaintiff performed for one and one-half weeks and was paid only one-half week’s salary.
    Defendant contended that according to the established custom and usage in the theatrical profession, where an actor or actress is engaged to render services for a new play, and no date is specified in the agreement, the engagement is for the season "or run of the play; that the contract offered in evidence was of that character, and that the established custom and usage must be considered a part of the contract; and that consequently plaintiff’s engagement was for the theatrical season of 1912-1913, or for the run of the play.
    It was admitted by plaintiff that she left the company that was presenting the play one and one-half weeks after it opened. Defendant contended that she left without his consent and over his protest; that the engagement having been for the entire season or run of the play, plaintiff committed a breach of her contract and was therefore not entitled to recover; and furthermore, that by reason of the breach by plaintiff of her contract, defendant was damaged in a sum greater than the amount claimed by the plaintiff.
    Plaintiff maintained that before the play opened she had notified defendant that she was dissatisfied with her part and would leave the company, and that defendant made no objection and consented to her doing so; further, that in leaving the company when she did, she did not breach her contract, but had a right to do so; and having rendered services for one week, she was entitled to payment therefor.
    Plaintiff denied that there was an established custom and usage in the theatrical profession, with reference to the contract in question, as contended for by defendant.
    To support his contention as to the alleged custom and usage, defendant testified that he had been a theatrical manager for many years; that he had made many contracts of this kind, not only with plaintiff but with other well-known actors and actresses; that there was a custom in the theatrical business in the city of New York, where this contract was made, and elsewhere throughout, the United States, that where an actor or actress engages to render services in a new play, and no time is specified in the agreement, the actor is supposed to play for the entire,season or run of the play; that the custom is long established and as well known among actors and artists engaged to perform as among managers and producers.
    Frank C. Langley, witness on behalf of the defendant, testified that he had been engaged in the theatrical business for many years, and corroborated defendant as to the existence of the custom as contended for by defendant.
    Plaintiff testified that she had been an actress for nearly twenty-five years; that she was familiar with the established custom and usage pertaining to the theatrical business; that there was no well-established custom and usage whereby a contract of this kind was binding on the parties for the whole season or run of the play.
    Arthur Klein, also called by the plaintiff, testified that he was a theatrical manager and that he was acquainted with the methods and customs prevailing in the theatrical business; that there was no well-established custom whereby the period of service in the contract offered in evidence would be construed as extending over the entire season or run of the play.
    Another witness for the plaintiff was Lew Krause, who testified that he was familiar with the theatrical business in general, and that there was absolutely no custom whereby the contract in question would be considered as covering the theatrical season of the year in which the contract was made, or for the run of the play.
    Frank & Lurie, for appellant.
    Adolph Marks, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.

Abstract of the Decision.

1. Customs and usages, § 24 —burden of proving existence of a custom. When a defendant 'relies on a failure to comply with an alleged established custom or usage as part of a contract of employment of an actress, the burden is upon him to prove the existence of such custom or usage.

2. Customs and usages, § 27 —when evidence insufficient to establish custom in theatrical profession. Where defendant contended that according to an established custom or usage in the theatrical profession, where an actress is engaged to render services for a new play and no date is specified in the agreement, the engagement is Tor the season or the run of the play, in an action for services rendered, the evidence is held to fail to show the existence of such a custom or usage.


text:
    Mayme G. Burgess, Appellee, v. Benjamin H. Burgess et al., on appeal of Morris Cohen, Petitioner, Appellant.
    Gen. No. 19,939.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Bill for separate maintenance by Mayme G. Burgess against Benjamin H. Burgess alleging inter alia, that a certain fund on deposit in the Austin State Bank was her separate property and asking that a receiver be appointed for such fund. •
    Service was had by publication, and defendant failing to appear, default was entered. The case proceeded to a hearing on May 1, 1913. The testimony of the complainant and her mother was taken and the court ordered the solicitor for the complainant to prepare a decree.
    On May 12, 1913, before the decree was entered, a motion was made by the defendant to enter his appearance, and on the 9th day of June, the husband, Benjamin H. Burgess, was given leave to file an answer; further, that the testimony previously heard should stand, and leave given to the defendant to cross-examine. An order was entered allowing $740 to the complainant for alimony and solicitor’s fees pendente lite, and a certain amount as receiver’s fees, from which order no appeal has ever been prayed, and which was not again made the subject-matter of any finding in the final decree.
    On June 13, 1913, defendant, Benjamin H. Burgess, filed his answer to the bill, denying the allegations of the complainant as to her living apart from him without fault of her own, as also the allegations with reference to her interest in the fund on deposit in the Austin State Bank.
    On the 16th of July, 1913, one Morris Cohen made motion for leave and authority to garnishee the receiver, H. P. Tuchscherer, and in support of said motion, filed an affidavit. In this affidavit it was alleged by the said Morris Cohen that he had obtained a judgment against the defendant for $1,110.40 and costs; that execution had been issued on the judgment, which was returned, no property found; and that the receiver appointed in this cause had funds belonging to the said defendant. The motion was denied.
    Leave was then granted the said Morris Cohen to file an intervening petition instanter and a rule entered upon the receiver to answer within ten days. The petition was then filed. This petition claimed that the money in the hands of the receiver was the individual property of the defendant, and that the complainant, Mayme G. Burgess, had no interest in said fnnd; that this fund should be subjected to the payment of the judgment obtained by the petitioner against the defendant, Benjamin H. Burgess.
    On July 18th complainant filed replication to the answer of the defendant. The hearing was then proceeded with, complainant and her mother again taking the stand, and the depositions of the defendant and other witnesses were read in evidence. This hearing was had on July 23, 1913.
    On the 31st day of July, documents purporting to be demurrers were filed by the complainant and the receiver, to the intervening petition of Morris Cohen. On August 2nd an order was entered that the petition of Morris Cohen be dismissed on demurrer for want of equity, and the demurrers sustained. Appeal was prayed from the order sustaining the demurrers and dismissing the intervening petition and also for refusing permission to the said intervener to amend his petition.
    On the same day, a decree was entered by the court finding that the complainant was living apart from defendant without fault of her own, and among other things, finding that the money deposited in the Austin State Bank in the name of Benjamin H. Burgess was the individual property of the complainant. To the entry of this decree, defendant. Burgess, and the intervening petitioner, Morris Cohen, objected and prayed an appeal to this court.
    The appeal of the defendant Burgess was not perfected, but the intervening petitioner perfected his appeal, both from the order of the court dismissing his petition on demurrer for want of equity and from the decree.
    The complainant testified in detail as to her right to the particular fund in issue. She testified that the furniture in the hotel at Valencin was her individual property; that she had previously conducted a rooming house in San Francisco, and at the time the hotel was opened, her furniture, which included some crockery, glassware, silverware and linen, was brought to the hotel and used therein; that the value of this property was between $500 and $600; that in addition thereto there was other property, viz., her personal wearing apparel and jewelry.
    Petitioner relies upon the testimony of the defendant, as to his contention that this was the property of the defendant. Defendant’s testimony was by way of deposition. His evidence showed that there had been insurance to the amount of $11,500 on the hotel and its contents, which was distributed as follows:
    $ 8,000 on the hotel
    1.500 on the dance hall
    500 on the piano
    1.500 on the contents of the hotel
    $11,500
    All the insurance, he claims, was in his name. Defendant admitted that the contents of the complainant’s rooming house in San Francisco were used in the hotel, but fixed their entire value at only $250.
    Defendant, while he admitted the furniture to be complainant’s property, testified further that he had loaned her money before their marriage, and that part of the money loaned to her was used in buying the furniture. This fact was denied by the complainant.
    There is no testimony on his part that there was any furniture in this hotel, save what she brought down from San Francisco. He placed an insurable value upon the furniture and contents of the hotel, including the wearing apparel and jewelry owned by complainant, of $1,500.
    When the property was destroyed by fire, defendant collected the sum of $10,250,—practically a full recovery. All this money the defendant received and kept, except $500, which he gave complainant, and was deposited in a bank in San Francisco, and the $2,000 deposited in the Austin State Bank. This $500 complainant maintained was given her in payment of a loan made by her to defendant, with money borrowed by her from her mother. This fact was denied by the defendant. The mother corroborated complainant to the extent that she loaned her daughter the money.
    Abstract of the Decision.
    1. Husband and wife, § 264

      —when evidence shows wife living apart without fault. In an action for separate maintenance, the evidence is held to warrant the trial court’s finding that complainant was living apart from her husband without her fault.
    2. Equity, § 110

      —when judgment creditor of husband may intervene in suit for separate maintenance. In an action for separate maintenance, where an intervening petitioner set out that he had recovered a judgment against the defendant, that an execution had been returned, no property found, that a certain sum on deposit in a bank was the property of the defendant and should be subjected to the payment of the lien created by the judgment, and that otherwise the judgment would remain unsatisfied, held that the petitioner’s interest, as alleged, was substantial and such as to entitle him to intervene.
    3. Husband and wife, § 267

      —right of intervening petitioner in suit for separate maintenance to complain of sufficiency of evidence to sustain decree. The question as to the sufficiency of the evidence to sustain a decree for separate maintenance is personal to the defendant, and, if he fails to perfect his appeal, an intervening petitioner, claiming a lien upon a certain fund, as a judgment creditor of the defendant, cannot complain of the sufficiency of the evidence to support the decree.

      Adams, Follansbee, Hawley & Shorey, for appellant; Melvin M. Hawley and John E. Gavin, of counsel.
    Thomas J. Lynch and Rudolph Frankenstein, for appellee.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

4. Husband and wife, § 255 —matters which may be determined in suit for separate maintenance. Where a court of equity finds sufficient evidence to warrant a decree of separate maintenance, it retains jurisdiction to grant complete relief between the parties, such as to establish, as between complainant and defendant, the ownership of a fund on deposit in a bank.

5. Appeal and error, § 1211 —when variance not available to intervenor on appeal. In a separate maintenance proceeding complainant claimed that a fund on deposit in a certain bank was in fact her separate property, the bill alleging in one place that the fund w^s the property of both complainant and defendant, but in other places it repeatedly referred to it as her individual property. A receiver was appointed, and upon a default being opened, defendant filed an answer denying the allegations of the bill and alleging title to the fund to be in defendant, to which complainant filed a replication. After the filing of the answer a judgment creditor of the defendant filed a petition in intervention averring that complainant had no interest in the fund and that it should be subjected to the payment of his judgment. Upon hearing the evidence the court sustained complainant’s demurrer to the intervening petition and dismissed same for want of equity, entering a decree finding that the fund in question was the individual property of complainant, from which defendant did not appeal. It was held on appeal by the intervenor, that it is only where a decree interferes with his interest in a fund that an intervenor has a right to have an issue formed, and in the present case that issue had been heard and determined; that the intervenor could not complain that no formal answer was filed to his petition by either the receiver or the complainant, since the issues having been formed and the parties having proceeded to trial thereon, and the court having heard the evidence presented by both sides and by the petitioner, such proceeding could continue only upon the theory that the hearing was upon answer ore tenus, or that the intervenor waived the formality of an answer, and that, therefore upon the issues formed upon the petition in intervention the question of a variance between the allegations and the prayer in the original bill and the testimony was immaterial, and in any event the benefit of such a variance could be claimed only by the defendant and was not available to the intervenor.

6. Husband and wife, § 264 —when finding as to wife’s ownership of insurance money sustained by the evidence. In a suit for separate maintenance where the evidence tended to show that insurance money recovered by the husband covered the wife’s furniture, wearing apparel and jewelry, held that the trial court was justified in decreeing that a portion of such money on deposit in a bank was her property.