author: Mb. Presiding Justice Smith

text:
    S. Ross Parker, Defendant in Error, v. John M. Gartside and Charles Hudson, Plaintiffs in Error.
    Gen. No. 17,291.
    1. ATTORNEY and CLIENT — when finding that collection business was received from plaintiff is proper. A finding is pr.oper that defendant lawyers received certain collection business from plaintiff, a lawyer, where, though defendants learned of the claim in question and wrote to the claimant in the first instance, plaintiff at that time had the claim for collection and defendants were given the right to proceed to make the collection by reason of plaintiff’s direction and authority.
    2. Attorney and client — when evidence of general custom properly admitted. Where it appears that defendant lawyers received certain collection business from plaintiff a lawyer, in an action for a division of the fees, testimony is properly admitted which tends to prove a general custom in such cases to allow the lawyer sending the business one-third of the fees.
    3. Partnership — when parties cannot deny. Where defendants to whom plaintiff sent certain collection business represented themselves as partners and so acted, in an action for a division of the fees for the collections made, such defendants cannot claim that they were not partners and are not jointly liable.
    Error to the Municipal Court of Chicago; the Hon. Johh E>. Tubnbatjgh, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    S. E. Lambebt, for plaintiffs in error.
    S. ROSS PARKER, pro se.

   Mb. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought suit against the defendants, here the plaintiffs in error, to recover on a claim for a division of attorney’s fees. On a trial before the court judgment was entered against the defendants for $47.33, of which they here complain on this writ of error.

The plaintiff, a lawyer in Seattle, claims that he had for collection from one John Hale a claim against one Boyd and by him the defendants, lawyers in Chicago, were authorized to proceed to collect same; that the defendants collected thereon $284.49 and under an agreement for a contingent fee for services therein retained $142.24, of which the plaintiff was entitled to one-third. The defendants admit the collection of the said sum and the retention of the said fee and that the balance of the sum so collected was sent directly to said Hale. They insist, however, that the claim was not received through the plaintiff, but from Hale, and that the plaintiff is only entitled to compensation for certain services rendered therein and offered him ten dollars therefor, but the plaintiff declining to accept a sum less than twenty-five dollars, the parties indulge in a law suit.

The defendants urge that the court erred in admitting testimony tending to prove that where a lawyer sends a claim to another lawyer for collection, a general custom prevails of a division of the fees of one-third to the lawyer sending the business and two-thirds to the lawyer receiving same. Whether this evidence was admissible depends upon the determination of the next question, that is, did the defendants receive the said business from the plaintiff? While it is true that the defendants learned of Hale’s claim and wrote to him in the first instance, yet it also appears that at that time the plaintiff had this claim from Hale for collection, and it was by reason of the plaintiff’s direction and authority that the defendants were given the right to proceed to make the collection. Under such circumstances we think the court might properly find that the business was received by the defendants from the plaintiff. It follows that the evidence complained of was admissible.

The defendants represented themselves as partners and so acted in their dealings with the plaintiff in the transaction in question, and their claim that they were not in fact partners and not jointly liable herein is untenable.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    Margaret Foley, Defendant in Error, v. Herman F. Friestedt, Plaintiff in Error.
    Gen. No. 17,320.
    1. Guauanty — consideration. Where defendant’s wife sells a flat building and defendant, acting for her, simultaneously executes a lease for a flat therein in his own name, guaranties the payment of rent and assigns the lease to the purchaser, the rent guaranty is supported by sufficient consideration though the guaranty is not required by the contract of sale and the only consideration given is the contract price of the premises, which is given to the wife. ,

      2. Actions and defenses — when defense that guaranty was signed Si/ mistake not considered. In an action on a guaranty for rent, tlie defense tliat tlie guaranty was signed by mistake cannot be considered.
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at tbe March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    Delbert A. Clithero and James H. DtjNN, for plaintiff in error.
    Rice & 0 ’Neil, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought a suit of the fourth class in the Municipal Court to recover from the defendant, here the plaintiff in error, for four months’ rent of a flat on a guaranty of the defendant. On a trial of the case by the court without a jury, the issues were found for the plaintiff and judgment entered against the defendant, to reverse which he sued out this writ of error.

The defendant’s wife sold and conveyed to the plaintiff a six-flat building. On the day of the said conveyance the defendant, acting for his wife, made and executed in his own name' as lessor a lease for one of the said flats and thereupon assigned the same to the plaintiff and also guaranteed the payment of the rent and the performance of the covenants by the lessee as provided in the said lease. Mrs. Friestedt was paid the consideration for the said transfers and the defendant received no part thereof.

The defendant insists that, no consideration being received by him for the the execution of the said guaranty and the only consideration for the conveyance of the said premises and the assignments of the said leases being the contract price for the purchase of said premises paid by the plaintiff to Mrs. Friestedt, and the said guaranty not being required by tbe said contract, it was without consideration and there could he no recovery thereon. The guaranty was made by the defendant simultaneous with the conveyance of the said premises and the assignments of certain leases pertaining thereto’ to the plaintiff, for which she paid to Mrs. Friestedt the consideration of $23,750.00. We think that the case is controlled by the rule announced in Haven v. Chicago Sash Door & Blind Co., 96 Ill. App. 92, wherein the Court say on page 101: “The rule in regard to guaranty is, that if the guaranty is simultaneous with the execution of the contract guaranteed, the consideration for the contract is a consideration for the guaranty.”

The defense that the guaranty was signed by mistake can not be considered in this action. City of Chicago v. Sexton, 115 Ill. 230, 243.

The judgment is affirmed.

Affirmed.


text:
    George F. Getz, Defendant in Error, v. Thomson & Burton Company, Plaintiff in Error.
    Gen. No. 17,334.

      Sales — recoupment. In an action for a price of coal delivered defendant is not entitled to recoup on the ground that the coal was inferior to that ordered, where there was no warranty hy the seller and defendant after an opportunity for inspection received and used the coal.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    JohN E. VAN Natta, for plaintiff in error; Edward Maher, of counsel.
    Pomeroy & Martin, for defendant in error.
   Mr. Presiding Justice Smith

delivered tlie opinion of the court.

This was a suit brought to recover a balance due on a purchase by the defendant, here plaintiff in error, of eleven cars of coal from the Crawford Coal Co., who assigned its claim to the plaintiff below. On a hearing without a jury the court found the issues for the plaintiff and entered judgment on the finding against the defendant for one thousand dollars.

The defendant ordered ten cars of Brazil Block Lump coal and one car of Indiana Block, lower vein, coal at a price of two dollars per ton. The evidence on the part of the defendant tended to show that a portion of the coal shipped to the defendant on the said order was mine run coal, an inferior quality and less value than the price sought to be recovered of two dollars per ton, and by reason thereof claimed damages and that it was entitled to recoup therefor. There was no warranty by the seller, the Crawford Coal Co., and the defendant, after an opportunity for inspection, received and used the coal so shipped, thereby accepting same. In America Theatre Co. v. Siegel, Cooper & Co., 221 Ill. 145, the court say: “The law does not permit a person to receive goods under a contract, appropriate them to his own use, and then defeat an action for the purchase price on the ground that the goods were not of the exact quality or description called for by the contract. His remedy, in the absence of a warranty, is to refuse to accept the goods when delivered, or to return them within a reasonable time after the departure from the terms of the contract is discovered,” citing authorities. See also Barker v. Turnbull, 51 Ill. App. 226.

The judgment is affirmed.

Affirmed.


text:
    Peter Wozniak, Plaintiff in Error, v. International Harvester Company, Defendant in Error.
    Gen. No. 17,356.
    1. Master and servant — where employe has a right to assume there is protection from danger. Where an employer places a screen in front of a vise to prevent chips from flying when cut off rivets, an employe has a right to assume that the screen is a sufficient protection unless he knows that it is not, or under the circumstances should know.
    2. Master and servant — when evidence is not sufficient to justify conclusion that plaintiff should have known of risk. In a personal injury action based on the ground that defendants were negligent in not furnishing plaintiff with a reasonably safe place to work, the evidence not being sufficient to establish that a screen was manifestly such an insufficient protection as to justify the conclusion as a matter of law that all reasonably prudent and careful men under similar circumstances and with like experience of plaintiff would know there was danger, it is error to instruct the jury to find the defendant not guilty.
    Baker, J., dissenting.
    Error to the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed April 21, 1913.
    HeNby B. Spurlock, for plaintiff in error.
    F. J. Canty and J. C. M. Clow, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff brought suit against the defendant to recover damages for personal injuries. At the close of the evidence introduced on the trial by the plaintiff the court instructed the jury to find the defendant not guilty, and the verdict being so returned, entered judgment thereon, to reverse which the plaintiff sued out this writ of error.

The ground of negligence relied upon by the plaintiff is that the defendant did not furnish him a reasonably safe place to work. The plaintiff was working for the defendant in a large room two hundred feet long east and west and fifty feet wide. A gangway abont twenty feet wide extended through the center of the room its entire length. On each side of the gangway was a row of grindstones, all covered and guarded excepting a space of about six inches, where the grinding was done. In this room were three “dryers,” a combination of steam pipes, in which knives were placed to dry. One was at each end of the room and one about the middle of the room on the north side of the gangway. On the south side of the gangway about thirty-five or forty feet southeast of the dryer was a vise, in which corn sickles were fastened and the ends of certain rivets on the said com sickles were then cut off by a man with a hammer and chisel. An iron screen or shield about five feet high and three feet wide stood about four feet in front of the vise, between the vise and gangway, for the purpose of preventing the metal chips flying in that direction out into the room. These conditions had existed during all the time the plaintiff had worked there, some seven or eight years. On the day in question one of the metal chips, struck from one of the sickles or knives, flew past the said screen about fifteen feet to the northwest and struck the plaintiff in the eye, destroying same. At the time the plaintiff was in the gangway carrying knives to put on a dryer and had been so employed for about three weeks. Before that time he had been straightening knives and plates and grinding rivets and knives. When he worked at grinding he had worked at the east end of the building. The plaintiff said he had worked all over the building and for the first five years at a dryer, but in just what way is not clear from the evidence. He also had worked at chipping the rivets for about fifteen minutes, but was unable to do the work of chipping.

Whether the defendant exercised ordinary care in * tlie placing of a screen of that size and in that position as a protection against the flying metal chips, and whether the plaintiff was guilty of contributory negligence, we think are clearly questions of fact for the jury. The serious question presented on this record, and the one upon which the defendant principally relies, and upon which it is said the court instructed the jury, is the assumption of risk by the plaintiff. "We agree with the defendant that the danger from metal chips flying about like those struck from the knives in the vise, as shown in this ease, is so obvious a danger that we would he obliged to hold that all reasonably prudent and careful men would be bound to know and appreciate the same; and this danger was sought to he avoided by placing the iron screen in front of the vise, as indicated. The plaintiff knew that ip the work in question the metal chips would fly out from the knives when cut off in the manner indicated, and must have known that such chips flying about were dangerous. He also knew that the screen was put up to stop the chips. The question therefore is, did he know that the screen did not protect against the said chips, or, if he did not, shall we hold that he should have so known?

Under well settled rules of law, the plaintiff had a right to presume that the placing of the screen by the defendant was' a sufficient protection from danger from flying chips unless the plaintiff knew that it was not, or under all the circumstances should have so known. The plaintiff testified that he did not know that the screen did not stop all of the chips; that he had never seen any fly past the screen, and had never been told that they did or heard any talk about them going past the screen; that he had never heard of any one being hurt in that manner (although the evidence shows that others had been so hurt) and the few moments he worked at chipping the chips went downward toward the screen. This evidence, accepting it as true on the motion to instruct, establishes the fact that the plaintiff did not know that the screen was not sufficient protection from the danger of flying chips. The remaining question, and upon which depends the determination of the case here, is whether the said screen was so manifestly an insufficient protection from the flying chips that we should hold as a matter of law that it was open and obvious to all reasonably prudent and careful men under similar circumstances and with like experience of plaintiff. On this question the court is unable to agree.

The testimony is that the room in question was at times so dark that it was difficult to see, and there was - much dust and noise therein. The floor was of cement and “kind of dark.” The witnesses, Ciciera and Seradski, called by the plaintiff, testified on cross-examination that a great many of these chips were scattered about on the floor, even over to the north wall, and that the floor was swept every night. Serad-ski had done chipping there for many years and testified that he had never seen but one chip pass the screen, but a great many did; that they were about three-eighths of an inch in diameter and coiled over and were black except the side chipped off, which was white; that “as a rule these chips flew like bullets and you could not see them at all.” The evidence is also that there would be months that no chipping was done. It was usual to do this work in the spring and fall and then at irregular intervals. Sometimes an hour a day, sometimes several hours and sometimes two or three days a week. The plaintiff had taken knives away from the vise and had worked all about the room and it cannot be determined from the record with any certainty how much opportunity he had for observing the insufficiency of the screen to stop the chips from flying about. Under all the circumstances the majority of the court are of the opinion that the question that the plaintiff should have known that the screen was not sufficient protection from the flying chips was a question of fact “upon which reasonable men of fair intelligence may draw different conclusions,” and that .the canse should have been submitted to the jury.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Baker dissenting.


author: Mr. Justice Baker

text:
    Theodore Dahms, Plaintiff in Error, v. Marshall E. Sampsell, Receiver of Chicago Union Traction Company, Defendant in Error.
    Gen. No. 17,286.
    1. Appeals and errors — when bill of exceptions does not purport to contain all the evidence. Tlie action of tlie trial court in giving certain instructions may lie reviewed though the hill of exceptions does not purport to contain all the evidence.
    2. Street railroads — instruction as to breach of duty in failing to ring gong on street car. In a personal injury action, where plaintiff an employe of defendant, while sweeping the tracks, was struck by a car, an instruction to the effect that the only purpose of ringing a gong is to notify persons on or near the track of the approach of a car and if plaintiff saw the car in time to avoid injury by the exercise of ordinary care, then defendant is guilty of no breach of duty in failing to ring the gong, is proper.
    3. Street railroads — where plaintiff steps on track, after seeing car. In a personal injury action, where plaintiff, an employe of defendant, while sweeping the track, was struck by a car, an instruction to the effect that if plaintiff saw the car approaching and stepped to a place of safety and then stepped towards the track and in front of the car, and the car could not be stopped by the exercise of ordinary care in time to avoid striking plaintiff, then defendant should be found not guilty, though subject to criticism, is not reversible error.
    4. Street railroads — contributory negligence. In a personal injury action, where plaintiff, an employe of defendant, while sweeping the track, was struck by a car, an instruction to the effect that if plaintiff saw the car approaching and stepped to a place of safety and then stepped so near the track that he was struck by the car and that in so stepping towards the track he failed to exercise ordinary care for his own safety and thereby caused or proximately contributed to cause the accident, he cannot recover, is not erroneous.

      5. Steeet railroads — where plaintiff does not tools and listen. In a personal injury action, where plaintiff, an employe of defendant, while sweeping the track was struck by a car an instruction to the effect that if plaintiff knew cars were frequently passing at the place where he was working and that ordinary care for his own safety required him to look and listen and that he did not and thereby caused or proximately contributed to cause the accident, he cannot recover, is not erroneous.
    6. Master ahíd servant — where plaintiff could have performed his worts without standing on tracts. In a personal injury action, where plaintiff, an employe of defendant, while sweeping the track, was struck by a car, an instruction to the effect that if plaintiff in performing the work could as well have stood outside of the track, and that ordinary care for his own safety required him to do so and that his failure to do so caused or proximately contributed to cause the accident, he cannot recover, is not erroneous.
    Error to the Superior Court of Cook county; the Hon. Arthur H. Chetlaih, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    Walter A. Brehdecke, for plaintiff in error.
    Ira C. Wood and FraNK L. Kriete, for defendant in error; JohN B. Gtutlliams, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

The defendant receiver operated a street railway in Chicago and plaintiff was employed by him as a laborer. He was, while sweeping into a pile sand and gravel that had been scattered along defendant’s tracks, struck by one of defendant’s street cars and injured. He brought suit in the Superior Court and the trial resulted in a verdict of not guilty. A motion for new trial was overruled and judgment nil capiat entered, to reverse which plaintiff prosecutes this writ of error. The hill of exceptions states what the evidence for the respective parties tended to prove, and the ground of reversal urged is that the giving of instructions 10, 11, .12, 13 and 15, given for defendant, was erroneous. The negligence alleged is, that the defendant negligently, etc., without reasonable or timely warning to plaintiff, caused one of the street cars to be run along said tracks near to and beyond tbe place where plaintiff was at work and to come in contact with tbe plaintiff, whereby be, while in tbe exercise of ordinary care, etc., was injured.

We think the question whether the court erred in giving the instructions complained of is properly before us, although the bill of exceptions does not purport to contain all the evidence. Illinois Cent. R. Co. v. O’Keefe, 154 Ill. 508.

The following are the instructions complained of:

“10. The court instructs you that the only purpose of ringing a gong or bell is to notify persons on or near the track of the approach of a car. And if you believe from the evidence, under the instructions of the court, that the plaintiff saw said car approaching in time to avoid injury therefrom by the exercise of ordinary care, then the defendant was guilty of no breach of duty in failing to ring the bell on the car, if they did so fail.

“11. If you believe from the evidence, under the instructions of the court, that the plaintiff saw said ear approaching at the time and place in question, and that when said car was so approaching and near to him he stepped away from the track and to a place of safety, and that he then turned or stepped towards the track and in front of the car, and that the said car could •not then be stopped by the exercise of ordinary care in time to avoid striking plaintiff, then you should find the defendant not guilty.

“12. If you believe from the evidence, under the instructions of the court, that plaintiff saw said car approaching at the time and place in question, and stepped away from the track and to a place of safety, and then turned or stepped towards the track and so near thereto that he was struck by the car, and that in so stepping or turning towards the track, if he did so, he failed to exercise ordinary care for his own safety, and thereby caused or proximately contributed tó cause the accident, then he cannot recover in this case and you should find the defendant not guilty.

“13. If you believe from the evidence, under the instructions of the court, that plaintiff knew at the time and place in question that cars were frequently passing, on the tracks at the place where he was working’, and that ordinary care on his part for his own safety under all the circumstances of the case, as shown by the evidence, required him to look and listen for the approach of cars, and that he did not, at the time and place in question, look or listen_ for the approach of cars, and thereby caused or proximately contributed to cause the accident, then the plaintiff can not recover in this case, and you should find the defendant not guilty. ’ ’

“15. If you believe from the evidence under the instructions of the court that the plaintiff at the time and place in question in performing the work he was then doing could as well have stood outside of and away from the car track, and in a position of safety, and that ordinary care for his own safety on his part required him while doing such work to stand outside of and away from said track, and that his failure to stand away from and outside of the track, if he did so fail, caused or proximately contributed to cause the accident, then the plaintiff cannot recover in this case, and you should find the defendant not guilty.”

Clearly the court did not err in giving instructions 10, 12 and 15. Instruction 11 is subject to criticism, but we do not think that the judgment should be reversed for the giving of that instruction. The objection urged against instruction 13 is that it assumes that cars were frequently passing on the tracks where plaintiff was working. In the opinion of the majority of the court the instruction does not contain such an assumption, and we all agree that whether cars were frequently passing, as defendant’s evidence tended to show, or no north-bound car had passed for twenty minutes or half an hour, as plaintiff’s evidence tended to show, the giving of said instruction is not reversible error.

The record is, in our opinion, free from reversible error, and the judgment of the Superior Court is affirmed. .

'Judgment affirmed.


text:
    Sophie Duenser, Administratrix, Appellee, v. Supreme Council of Royal Arcanum, Appellant.
    Gen. No. 17,300.
    Fbaternaii BENEEtT sooieties — who is “dependent” on member. A member of a fraternal benefit society designated tbe beneficiary as bis wife. Tbe person so designated bad married the member with knowledge that be bad a wife then living. Sucb person lived with bim twelve years before tbe certificate was issued and twenty-six years thereafter until bis death. She was supported during tbe whole period as bis wife and was dependent upon bim for support. Tbe constitution and laws of tbe society provided that tbe benefit might be paid to “persons dependent upon sucb member,” and further “to any person who is dependent on sucb member for maintenance.” Section 1 of tbe statute relating to such societies provides that payment may be made to persons dependent on tbe member. Held, that tbe beneficiary named was “dependent” within tbe constitution and laws of tbe society and tbe statute, and tbe benefit certificate was payable to her.
    Appeal from tbe Circuit Court of Cook county; tbe Hon. Charles M. Walker, Judge, presiding. Heard in this court at tbe March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    Rehearing denied April 28, 1913.
    Statement by tlie Court. The defendant society issued to William Bandlion October 5, 1880, a benefit certificate for $3,000, in which, “Mary Eve Bandlion (wife),” was named as beneficiary. William Bandlion died May 14, 1906. Mary Eve Bandlion submitted proofs. of death and the defendant society paid the amount of the benefit certificate to her July 5, 1906.
    The assured married Mary Anne Schiel, plaintiff’s intestate, in 1853 or 1854. In 1858 he and Mary Ann, his wife, with their children removed to Dubuque, Iowa. He left his family and came to Chicago in April, 1864, but his wife, Mary Ann, lived at Dubuque until after his death.
    Mary Eve Bandlion, born Roth, the beneficiary designated in the benefit certificate sued on, lived in Du-buque for several years prior to 1864 and there knew the Bandlions and knew that they were living together as hnsband and wife. In 1864 she came to Chicago and here met the assured. March 12, 1868, they were married in Chicago by the Pastor of the German Lutheran Church. They lived together as husband and wife from the time of their marriage until the death of the assured May 14, 1906. In 1871 a daughter was born to them and lived with them as their child until her marriage in 1890. November 19, 1906, Mary Anne Bandlion brought an action of assumpsit against the defendant society to recover the amount of said benefit certificate. She died August 11, 1907, and her daughter, Sophie Duenser, the administratrix of her estate, was substituted as plaintiff. There was a verdict and judgment for the plaintiff for $3,000 and the defendant appealed.
    W. S. OppeNheim and George H. Miller, for appellant.
    TiNSMAN, RaNkiN and NeltNor, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

The court instructed the jury that if they found that William Bandlion was a member of the defendant society in good standing when he died, and was married to Mary Anne Bandlion, that she survived bim and their marriage was never dissolved or anulled by law; that he lived in Chicago with Mary Eve Roth as her husband, and that she knew March 12, 1868 (the day of her marriage) that he had a living wife, then that Mary Anne Bandlion was entitled to the $3,000 insurance from the defendant and the fact that the defendant had paid said money to Mary Eve Roth did not release the defendant from paying said sum to plaintiff as administratrix of the estate of Mary Anne Bandlion; and further instructed the jury as follows:

“The court instructs the jury that if you find from a preponderance of all the evidence in this case that Mary Eve Roth knew that William Bandlion had a wife and family living in Dubuque, Iowa, and that she lived and cohabited with him as his wife in the City of Chicago prior to March 12, 1868, and that on that day she knew that the said William Bandlion still had a wife living, then yon are instructed that in no event was or is the said Mary Eve Roth entitled to the proceeds of the certificate in question in this case and your verdict in this case should be for the plaintiff and against the defendant.”

From the evidence the jury might properly find both that Mary Eve Roth knew at and for at least four years before her formal marriage to the assured that he had a wife living, and that she lived and cohabited with him as his wife prior to such formal marriag’e.

During the twelve years that intervened between this formal marriage and the admission of the assured to membership in the defendant society,- he and Mary Eve Roth lived together in Chicago as husband and wife. They lived among and associated with respectable people. He treated her as his wife, supported her as such, she passed in society as such, and she was dependent on him for support as such. He treated their daughter as his child and supported her as such.

The constitution of the defendant society gives express power to provide that on the death of a member a sum not exceeding three thousand dollars be paid to, “persons dependent upon such member,” and the laws provide that a benefit may be made payable, “to any person who is dependent upon the member for maintenance (food, clothing, lodging or education).”

Section 1 of our statute relating to Fraternal Benefit Societies provides that death benefits shall be paid only to the families “# * * or to persons dependent on the member.”

In James v. Supreme Council R. A., 130 Fed. 1014, it was held that where in a similar certificate “Ella J. Palmer, wife,” was named as beneficiary, the term “wife” was merely descriptio personae and her dependency was not controlled by tbe legality of tbe marital relation existing- between berself and tbe assured.

Tbe laws of tbe defendant provide that if tbe dependency required by tbe laws shall be found not to bave existed, or if any designation shall fail for illegality or otherwise, tbe benefit shall be paid to tbe member’s widow if there be one. • Tbe evidence shows that Mary Anne Bandlion was tbe widow of tbe assured, but it fails to show that Mary Eve Bandlion was not dependent on tbe assured for maintenance. On tbe contrary it shows that for thirty-eight years, from their marriage in 1868 to bis death in 1906, she was at all times dependent on him for maintenance and support and was supported by bbn. Admitting that tbe marriage of tbe assured to Mary Eve Both was void, they had lived together as husband and wife .twelve years before tbe certificate sued on was issued. She, from tbe time of the formal marriage to bis death, was held out and recognized by him as bis wife. They bad a child dependent on them for support. "While it was not lawful for him to live with her as her husband, it was lawful and proper and bis duty to provide for them and the provision be made was in accord with tbe objects of tbe defendant society and tbe provisions of our statute. In Ballou v. Gfile, 50 Wis. 614, tbe Supreme Court defined dependent as follows: “We think tbe true meaning of tbe word ‘dependent,’ in this connection, means some person or persons dependent for support in some way upon tbe deceased.” In Bacon on Benefit Societies, Sec. 261, it is said:

“In accordance with tbe liberal view of tbe Supreme Court of Michigan, in defining who are included in tbe term family, we should say that if any person, relative of tbe member or not, was supported by him, directly or indirectly, or wholly or in part, at bis home or abroad, because of a legal or moral obligation, or merely from affection, such person might be called a dependent and be designated as tbe beneficiary of sncb member. But in all cases it would appear essential to apply tbe test of good faitb, for mere capricious liking or temporary liberality in tbe way of gifts would not make tbe recipient a dependent.”

We tbink that taking tbe testimony tending to prove the contentions of tbe plaintiff as true and drawing therefrom tbe inferences most favorable to tbe plaintiff which may properly be drawn therefrom, Mary Eve Bandlion was dependent on tbe assured for maintenance, within tbe meaning of tbe term “dependent” as used in tbe constitution and laws of tbe defendant society, and in tbe statute, and that tbe benefit certificate sued on was payable to Mary Eve Bandlion and not to plaintiff’s intestate.

Tbe judgment of tbe Circuit Court will be reversed, but tbe cause will not be remanded.

i-Judgment reversed.


text:
    Thomas Horan et al., Plaintiffs in Error, v. Cooke Brewing Company and John Flynn, Defendants in Error.
    Gen. No. 17,328.
    1. DbamshopS' — proximate cause. Where action is brought for injury to means of support because of habitual intoxication, an instruction is calculated to confuse the jury and should not be given, which states that the meaning of the term “proximate cause” as used in the instructions is the “cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury complained of and without which that result would not have occurred.”
    2. Deamshops — instructions as'to injury to means of support. In an action for injury, to means of support because of habitual intoxication, it is error to instruct that the selling of intoxicating liquors is recognized by law as a legitimate business, that the fact that plaintiffs are minors and defendants are dramshop keepers should make no difference, and that sympathy for and prejudice against any of the parties should not control the verdict.

      3. Dbamshops — instructions as to services and, earnings of minor children contributing to support of family. In an action by minors for injury to tbeir means of support because of tbe habitual intoxication of tbeir father, it is error to instruct that tbe father is entitled to tbe earnings and services of bis minor children, that any services performed by them in the interest of tbe family or earnings required are a means of support furnished by him, and if any of such children while living under the father’s roof contributed to the support of the family by services or earnings, such earnings and services must be considered as coming directly from the father.
    Error to the Circuit Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed April 21, 1913.
    Carl A. Ross, for plaintiffs in error.
    Harry A. Daugherty, for defendant in error, Cooke Brewing Company.
   Mr. Justice Baker

delivered the opinion of the court.

In an action brought hy plaintiffs in error, five of the eight minor children of Maurice Horan, against defendants in error to recover for injury to their means of support in consequence of the habitual intoxication of Maurice Horan, there was a verdict of not guilty and judgment for the defendants, to reverse which the plaintiffs prosecute this writ of error. The first count of the declaration avers that defendants in error sold Maurice Horan intoxicating liquors, causing his habitual intoxication, etc., and that the Cooke Brewing Company was the owner of certain premises wherein intoxicating liquors were sold and rented the same for saloon premises, and knowingly permitted the sale of intoxicating liquors therein, which caused the said intoxication, whereby, etc.

The bill of exceptions states what the evidence for the respective parties tended to prove and sets out all the instructions given and refused. We think the objection to the sufficiency of the bill to present for review the rulings of tlie court on the instructions is without merit. Illinois Cent. R. Co. v. O’Keefe, 154 Ill. 508.

Among the instructions given for the defendants were the following:

“No. 6. The term ‘proximate canse’ as used in these instructions means that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury complained of and without which that result would not have occurred. ’ ’

“No. 7. The selling of intoxicating liquor at retail, and the manufacture of beer by brewers, and the sale thereof, is recognized by the laws of the State of Illinois as a legitimate business, and you are instructed that dramshop keepers and brewers are entitled to the same fair and unprejudiced treatment in courts of law as any other business man would be under like circumstances, and also that the fact that the plaintiffs are minors of tender years and one of the defendants is a dramshop keeper and a brewing company should make no difference with you, and you are further instructed that sympathy for, nor prejudice against any of the parties in this case, should have no influence upon you in determining whether or not the defendants, or either of them, are liable, nor if liable, control in any way your verdict. ’ ’

“No. 15. You are instructed as a matter of law that the father is entitled to the earnings and to the services of bis minor children during the term of their minority, and that any services performed in the interest of the family, or earnings acquired by the minor children of the father during their minority is, in contemplation of the law, the property of the father, and is considered under the law as a means of support furnished by the father in the maintenance of the family ; and if from the evidence in this case you find that any of the minor children while living under the father’s roof, contributed to the support of the family, either by services rendered to the family in any capacity, or by earnings acquired by them and devoted to the support of the family, such services and earnings must be considered as coming direct from the father.”

The statute makes no distinction between cases in which injury to the means of support is the direct result of the intoxication and those in which it is the remote result thereof. It only requires that the injury in the means of support be shown to have been sustained in consequence of the intoxication, habitual or otherwise, of another. It is plain and requires no construction or interpretation. We think that instruction 6 was calculated to confuse rather than enlighten the jury and that it should not have been given.

That the selling of intoxicating liquor at retail is recognized by the laws of the State of Illinois as a legitimate business is a matter which the jury had no right to take into consideration in their deliberations. The business is a recognized subject for regulation by the police power of the State. People v. Harrison, 256 Ill. 102. We think that the court erred in giving instruction 7.

We think it was reversible error to give instruction 15.

Hackett v. Smelsley, 77 Ill. 109, was an action by the wife on the statute on which this action was brought, and it was said: “Because the wife may be ablebodied, and can earn a livelihood, it does not follow that she does not suffer injury in means of support by loss of her legal supporter. Nor does it so follow where she may have independent means of support of her own. There are always independent means of support. No one is absolutely dependent on another for support, for, where there is the absence of other means of support, it is provided by public authority.” Applying this doctrine to the facts of this case, it must be held that because the minor children are ablebodied and can earn a livelihood, it does not follow that they do not suffer injury in means of support by reason of the intoxication of their legal supporter. Under the rule stated in the instruction in question, taken in connection with the instruction that the father was only required to furnish his children with such support and comforts as would reasonably be required to be furnished for means of support of persons similarly situated, if minor children are kept in school and supported by their father in comfort up to the time he acquires the habit of becoming intoxicated, and thereafter he contributes nothing! to their support, still if they, by leaving school and going to work, are able to provide themselves with such support and comfort as is reasonably required for persons in their situation, the jury must find the defendants, who caused such intoxication, “not guilty of injury to plaintiffs’ means of support.”

For the errors indicated the judgment is reversed and the cause remanded.

Reversed cmd remanded.


text:
    Arabell S. Hopkins, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,390.
    1. Evidence — written report of doctor. In a personal injury action a report made by an ambulance doctor on the night of the accident is properly excluded where the doctor is called as a witness.
    2. Instructions — number of witnesses alone does not determine preponderance of evidence. In a personal injury action an instruction that the preponderance of evidence is not alone determined by the number of witnesses and that the number should be considered in connection with their opportunities of seeing and knowing the things about which they testify, their conduct and demeanor, their interest or lack of interest and the probability or improbability of the truth of their statements, is not erroneous.
    3. Damases — loss of business as a result of personal injury. Where plaintiff, a dressmaker, is injured in getting off defendant’s street car, an instruction that plaintiff cannot recover on account of loss of business or earnings in and revenues from business is properly refused. .

      4. Damages — effect of injury upon plaintiff’s ability to attend to business. Where plaintiff, a dressmaker, is injured in getting off defendant’s street ear, an instruction that in assessing damages the jury has a right to consider the effect of the injury upon plaintiff’s ability to attend to her business is sustained.
    Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    S. S. Page and C. LeRoy Brown, for appellant; Leonard A. Busby, of counsel.
    James C. McShane, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant railway company from a judgment for $8,000 recovered by the plaintiff for personal injuries. Plaintiff was a passenger on an open electric street car of defendant running east in 43rd street, and fell from the car while alighting from it on the west side of Cottage Grove avenue, where she intended to leave the car. The negligence alleged is that defendant, after it had stopped the car, and knew that plaintiff was in the act of alighting from it, wrongs fully and negligently started the car forward without warning to the plaintiff, whereby she was thrown from the car and injured.

The contention of defendant was that the car was stopped at the usual and proper place on the west side of Cottage Grove avenue, with the front end of the car on the west line of the west cross-walk and was not again started forward before the accident; that before the car stopped the plaintiff attempted to leave the car and that her fall was caused wholly by her alighting from the moving car before it had stopped. The question whether the defendant was guilty of negligence turns on the question whether the car was stopped and then started while defendant was in the act of alighting from it, or had not stopped, but was moving when plaintiff attempted to alight from it. The accident happened about midnight and it was dark where it occurred. The plaintiff sat on the south end of a seat which ran across the car. To her left were two ladies with whom she had spent the evening, and the three intended to leave the car at Cottage Grove avenue. The witnesses who testified that the car stopped at Cottage Grove avenue and then started forward as the plaintiff was alighting from it, were the plaintiff, Mrs. Wilson, and Mrs. Komorowski, who sat on the seat with plaintiff and testified that they stood up when she did; Horn, who testified that he was on the comer waiting to take the car from which plaintiff fell, and Hiland, who testified that he sat in the car behind the plaintiff facing east. The contention of the defendant was supported by the testimony of seven witnesses, each of whom testified that he saw what occurred, and by the testimony of Dr. Rastall, an ambulance doctor, who stated that-on the night of the occurrence plaintiff told him that her fall was caused by her stepping off a moving car before it came to a stop. We cannot say that on the evidence in the record the jury might not properly find the defendant guilty of the negligence alleged in the declaration.

We do not think that the court erred in excluding Dr. Rastall’s report of the accident, made the night it occurred. Dr. Rastall was called as a witness by defendant, but there was no charge made by plaintiff’s counsel nor evidence given for the plaintiff to show that his account of the transaction was a fabrication of recent date.

It is insisted that it was error to give for the plaintiff this instruction:

“29. The preponderance of evidence in a case is not alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining on which side the preponderance of evidence is, the jury should take into consideration the number of witnesses testifying to a particular fact or state of facts; and they should also take into consideration, so far as shown by the evidence, the opportunities of the several witnesses for seeing or knowing the things about which they testify; their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the' suit; the probability or improbability of the truth of their several statements, in view of all the evidence, facts and circumstances proved on the trial; and from all these facts and circumstances, and a full consideration of all the evidence, determine upon which side is the greater weight or preponderance of the evidence.”

We see no substantial objection to this instruction.

It is further insisted that the rulings on instructions as to damages were erroneous. The court refused to instruct the jury for the defendant that plaintiff could not recover on account of loss of business or earnings in and revenues from business, but did instruct, at the request of plaintiff, that in assessing the damages the jury had a right to consider the effect of the injury upon plaintiff’s ability to attend to her business. At the time of her injury plaintiff was a dressmaker, had a down town shop, employed from three to twenty people and superintended their work. Her principal injury was an impacted fracture of the neck of the femur. She was in bed in a hospital for three months, and there was no bony, but only a fibrous union. She is unable to walk without a crutch and probably will be compelled to use one all her life. She testified that after her injury she employed few people because she could not do anything herself. That at the time of the trial she was not carrying on her dressmaking-business. It was proper for the jury in assessing plaintiff’s damages to take into consideration the effect of her injuries on her ability to pursue her ordinary trade or calling. The instructions given did not authorize the jury to consider the effect of her injuries on her business or on the profits of her business.

We think that the record is free from reversible error, and the judgment of the Superior Court is affirmed,

Judgment affirmed.


text:
    Oscar Lox and Oscar Lox, Plaintiffs in Error, v. E. R. Bradley, Defendant in Error.
    Gen. No. 17,350.
    L Judgments—power to open. Municipal Court Act, § 21, gives power and authority to vacate a judgment after thirty days on-petition setting forth facts which would be sufficient to vacate it in a court of equity.
    2. Judgments—where objection to judgment being opened is waived. Where a judgment in the municipal court is opened on motion of defendants after more than thirty days from its entry, plaintiffs, by appearing and taking part in the trial, waived their right to except to the order, and it is not reviewable on appeal.
    3. Jurisdiction—waiver of objection to. An objection to the jurisdiction, in order to be available on appeal or writ of error, must be persisted in and solely relied on.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Tor-bison, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    J. W. Beckstrom and H. Waldmah, for plaintiffs in error.
    Robert F. Kolb, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiffs Lox and Lox brought an action of the fourth class in the Municipal Court to recover $234.37 for a smoke burner alleged to have been furnished by plaintiffs to defendants Bradley and McLean, and for labor done and materials furnished in installing the burner. The defendants entered their appearance and filed an affidavit of defense, but failed to appear when the cause was reached for trial June 15, 1910, and plaintiffs had judgment for $234.27 and costs. August 5, 1910, the defendants filed their petition that the judgment be vacated. August 13 an order was made that .on payment by defendants of $50.00 attorney’s fees leave be granted to them to make defences, that a trial of the cause be had, the judgment to stand as security. The plaintiffs employed new attorneys and moved to vacate the order of August 13, and their motion was denied. They then moved to vacate the last mentioned order and their motion was denied. January 25, 1912, the cause was on motion of plaintiffs discontinued as to defendant McLean, and, ‘ ‘ after hearing the evidence and the arguments of counsel, the Court finds the issues against the plaintiffs.” Plaintiffs then moved for a new trial and their motion was denied and judgment nil capiat entered. The record contains neither a statement of facts nor a stenographic report.

Section 21 of the Municipal Court Act gives to that court power and authority, after the lapse of thirty days from the entry of a judgment, to vacate it on petition setting forth facts which would be sufficient to cause the same to be vacated in a court of equity.

Whether the order opening the judgment and giving the defendants leave to make a defense and have a trial of the cause was, or was not, proper on the petition, it is not necessary to decide. After the judgment was opened the plaintiffs appeared, took part in the trial and moved for a new trial. They thereby waived their right to except to the order. After the cause was so opened, the plaintiffs should not have appeared at all, or at most, should have confined themselves to the resistance of any action proposed by the defendant. Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61. Herrington v. McCollum, 73 Ill. 476; Wilson v. Chandler, 133 Ill. App. 622.

The' objection to the jurisdiction, it was said in Schafer v. Moe, 72 Ill. App. 50, “must be persisted in and solely relied on, in order to he available.”

The judgment is affirmed.

Judgment affirmed.


text:
    H. B. & S. K. Walker, Trading as Chicago Heat Proof Table Mat Co., Appellees, v. Marshall Field & Company, Appellant.
    Gen. No. 17,406.
    1. Agency—when purchase must he regarded as made for principal. Where an agreement by the seller with a department manager of the buyer to sell goods at a certain maximum price is a proposal which may be withdrawn and a sale is made thereunder when an order is given while the proposal is open, purchases made by orders of one employed in a section controlled by such manager, who is authorized to give such orders, must be regarded as purchases made for the buyer.
    2. Set-off-—secret commissions to agent. In an action for the price of goods sold, the buyer is entitled to set oft secret commissions paid by the seller to the agent of the buyer which were included in the price charged for the goods.
    3. Set-off—when claim sufficiently certain. A claim is sufficiently certain to be the subject of set off where it is for a certain per cent, of the price of goods, which can he readily ascertained by computation.
    Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Fosteb, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed with judgment here.
    Opinion filed April 21, 1913.

      Frank P. Leeeingwell and Egbert J. Folonie, for appellant.
    Delbert A. Clithero and Will J. Bell, for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

The claim of the plaintiffs in this case is for goods sold and delivered by them to the defendant corporation, Marshall Field & Co., at the price of $4046.60. The indebtedness of the defendant in the sum claimed is conceded and the only question in the case is as to the right of the defendant to set off against such claim $200 paid by plaintiffs to Cummings, and $3,112 paid to Davis, while Cummings and Davis were in the employ of defendant. The trial Court held that the defendant was not entitled to set off the moneys so paid against plaintiffs’ demand and gave judgment for the plaintiffs for $4046.60 and costs. The evidence fails to show the circumstances or agreement between plaintiffs and Cummings under which the $200 was paid to Cummings, and fails to show a right in the defendant to set off such sum against the claim of the plaintiffs.

The contention of defendant was that the moneys paid to Davis were secret commissions paid to him on the sale of goods bought by him of plaintiffs as the agent of the defendant.

In the retail store of the defendant James A. Leask was department manager and buyer of a department which embraced Section 12, in which Davis was employed. Leask and plaintiffs agreed on the maximum prices plaintiffs were to charge for their goods. Davis had authority to order goods for his section from the plaintiffs at a price not greater than that agreed on between plaintiffs and Leask, and in case he, in Leask’s absence, might buy such goods at a lower price, he had authority to do so. Davis made no bargain with plain,tiffs as to the price of any of the goods ordered, hut gave orders to plaintiffs and the goods were hilled at the prices agreed on between Least and plaintiffs.

The agreement between plaintiffs and Least was, in substance, only a proposal on the part of plaintiffs to sell to defendant the goods mentioned, at the prices agreed on. The plaintiffs might withdraw their offer so long as it was not accepted and a sale was made when the defendant, while the proposal was still open, gave plaintiffs an order for goods. Such orders Davis was authorized to give and did give. The purchases thereby made must be regarded as purchases made for the defendant by the giving of such orders. Plaintiffs paid to Davis ten per cent, on the amount of such purchases, and such payments must be regarded as commissions paid to him on the purchases made by him for defendant. The facts are, then, that the seller and the buyer’s agent, known to the seller to be such, agreed on a price to be paid by the buyer, one-tenth of which was to go to the buyer’s agent. To put it in plain language, it was a bribe paid by the seller to the agent of the buyer.

The rule that an agent for sale or purchase must not act for the other party at the same time or take a secret commission from him has long been settled law, and the later cases if anything increase the wholesome strictness of the law. In such a case it is also well settled that the principal may, “claim the money from his agent; or he may avoid the sale and recover the money which has been paid under it; or he may sue the agent and the other party jointly or severally to recover damages for the fraud in inducing the sale.” Leake Law of Contracts (4th Ed.) 410.

The question whether a buyer of goods may recover, as money had and received, from the seller, secret commissions paid'by the seller to the agent of the buyer, does not appear to have been expressly decided in this country; but the doctrine that he may so recover must be regarded as settled in England by recent cases. In Salford v. Lever, 63 L. T. Rep. 658, 1 Q. B. 168, it was held by the Court of Appeal (1891) that where an agent, who had been bribed to do so, induces his principal to enter into a contract with the person who has paid the bribe, and the contract is disadvantageous to the principal, the principal may recover from the vendor damages for any loss he has sustained by reason of entering into the contract. The plaintiff in that case claimed the money either by way of damages for the defendant’s fraud, or, alternatively, as a liquidated sum wrongfully in the defendant’s hands; in other words, as money had and received for the plaintiff’s use. In Grant v. Gold Exploration Syndicate, 82 L. T. Rep. 5, 1 Q. B. 233 (Court of Appeal 1899), Grant, the owner of mineral property in British Columbia, gave to Govan, an agent of the defendant syndicate, an option as to his property, to enable Govan to form a company in London to purchase the property, and agreed to give Govan ten per cent, of the amount of stock and money he should receive for the property. The amount of cash commission to which Govan would be entitled was £2,500, but in consideration of payment before it was due he agreed to accept and was paid by the plaintiff £2,000. Grant sued the syndicate on their note for £5,000 and they counterclaimed the sum of £500, in respect of commission agreed to be paid by the plaintiff to defendant’s agent. In his opinion Smith, L. J., said: “A great deal of argument was addressed to us whether an action for money had and received would lie at the suit of the defendants against the plaintiff in this case. Lord Esher (in Salford v. Lever, supra) said, it signifies not what it may be called, whether damages or money had and received; and Lindley, L. J. said: ‘It is obvious that in some form of action the corporation have a right to recover. Under the old practice I think they could have recovered by an action for money had and received; probably they conld have recovered in more ways than one.’ ” In Hoveden v. Mithoff, 83 L. T. Rep. 41 (Court of Appeal 1900), the buyer of the plaintiffs had bought of the defendant cigars .and cigarettes, for which plaintiffs had paid upwards of £28,000. They then discovered that defendant had made gifts of money in the nature of bribes to plaintiffs’ buyers amounting to £710, or about 2% per cent, on the invoice price of the goods sold to the plaintiffs. Plaintiffs then brought an action against the seller and it was held that they were entitled to recover the amount of the bribes as money had and received. In his opinion Smith, L. J., said: “If a vendor bribes a purchaser’s agent of course the purchase money is loaded by the amount of the bribe. It cannot be denied. In this case the purchase money was £28,000, in which was the £700 given to the purchaser’s agent. Of course the vendor would have sold the goods for £28,000 less £700. Therefore he has in his pocket £700 money of the purchasers;” and Bomer, L. J., said (83 L. T. Rep. 43): “If a gift be made to a confidential agent with the view of inducing the agent to act in favor of the donor in relation to transactions between the donor and the agent’s principal, and that gift is secret as between the donor and the agent—that is to say, without the knowledge and consent of the principal—then the gift is a bribe in the view of the law. If a bribe be once established to the court’s satisfaction, then certain rules apply. Amongst them the following are now established, and, in my opinion, rightly established, in the interests of morality with the view of discouraging the practice of bribery. First, the court will not inquire into the donor’s motive in giving the bribe, nor allow evidence to be gone into as to the motive. Secondly, the court will presume in favor of the principal and against the briber and the agent bribed, that the agent was influenced by the bribe; and this presumption is irrebuttable. Thirdly, if the agent be a confidential buyer of goods for his principal from the briber, the court will assume as against the briber that the true price of the goods as between him and the purchaser must be taken to be less than the price paid to, or charged by, the vendor by, at any rate, the amount or value of the bribe. If the purchaser alleges loss or damage beyond this, he must prove it.” In Cohen v. Kuske & Co., 83 L. T. Rep. 102 (Q. B. Div. 1900), it was held that where a secret commission is paid to a buyer acting for his principal, the amount of such commission can be recovered at the suit of the principal from the donor, although there is no evidence that the price of the goods has been enhanced by the amount of the commission. In that case it was said by Bruce, J.: “I think it matters not whether a different price would have obtained had there been no bargain for a commission. In this sale it was a term, it entered into the bargain, that a sum of money which was part of the apparent or pretended price of the goods was paid over to Koenig (plaintiff’s buyer) for his own use. That money was in law not Koenig’s money, but the money of the plaintiff. And if the defendant paid over to Koenig, with knowledge of the circumstances, money which was the plaintiff’s money, intending that Koenig should keep it for his own use and that the plaintiffs should be kept in ignorance of the payment, I think they are liable to the plaintiffs for the amount.”

“But an agent is entitled to retain for his own use allowances which are customary in the business and known to the principal as a recognized mode of remuneration; as the customary commissions and discounts received by an insurance broker in dealing with underwriters.” Leake on Contracts (4th Ed.), 410; Aetna Ins. Co. v. Church, 21 Ohio St. 492.

A claim is sufficiently certain to be the subject of set-off if it is capable of being reduced to a certainty by computation or calculation. Kelley, Maus & Co. v. Caffrey, 79 Ill. App. 278. In this case plaintiffs paid Davis ten per cent, on the goods purchased hy him for the defendant. The amount so paid could be readily ascertained by computation or calculation and was a proper subject of set-off.

The goods bought of Walker and sold in section 12 between January 1,1907, and March 1,1910, amounted to $31,120.25, on which Davis was paid a commission of $3,112. The plaintiffs are entitled to judgment here for $934.60, the difference between $4,046.60 and $3,112. Judgment reversed with judgment here for $934.60.

Reversed with judgment here.

Finding of facts. The Court finds as facts in this case that the plaintiffs in the Municipal Court, H. B. and S. K. Walker, paid to Fred S. Davis, the agent of the defendant, Marshall Field & Co., who purchased goods of the plaintiffs for the defendant to the amount of $31,120.25, moneys amounting to thirty-one hundred and twelve dollars ($3,112) without the knowledge of the defendant as secret commissions on the goods so purchased by Davis for the defendant, intending that Davis should keep said moneys for his own use, and that the defendant should be kept in ignorance of such payments; and that. the sums of money so paid to Davis were a part of the apparent or pretended prices of the goods.


text:
    Thomas Foulkes, Appellee, v. Francis M. Steward, Appellant.
    Gen. No. 17,433.
    1. Appeals and ebrors—what order is final. Where an order is entered setting aside an order entered on stipulation of the parties vacating a judgment, such order is a final order.
    2. Assignments—judgments. The assignee of a judgment has the right to use his name in any motion or proceeding relating to the judgment, and the assignor has no power to stipulate that the judgment be vacated.
    3. Forgery—evidence. Meld, that a conclusion reached by the court without a jury that an assignment of a judgment was not a forgery might properly be reached on the evidence.
    4. Appeals and ebbobs—presumption as to what evidence was considered by court. Where a trial was by the court, it will be presumed on appeal that only competent evidence was considered.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    Statement by the Court. December 29, 1899, appellee Foulkes recovered a judgment against Steward in the Circuit Court in tort for $2,274.00, and Steward appealed to this court. June 13, 1910, while the appeal was pending, Foulkes and Steward filed in said cause in this.court their stipulation to dismiss the appeal. They also' personally appeared before the court and moved that on such stipulation the appeal be dismissed and an order was entered dismissing the appeal. On the same day they filed in said cause in the Circuit Court their stipulation to vacate the judgment of December 23,1909, and an order was entered that on such stipulation the judgment be vacated and the cause dismissed. June 18, 1910, there was filed in the Circuit Court a motion signed “ J. Marion Miller, Attorney for Plaintiff,” to set aside the order of June 13 vacating the judgment. George A. Durant claims that plaintiff Foulkes, December 24, 1899, executed and delivered to him an assignment of the judgment. Miller was the attorney of the plaintiff up to the time the judgment was recovered and afterwards represented Durant. His right to move in the name of the plaintiff to vacate the order of June 13, 1900, is based on the contention that the plaintiff had assigned the judgment to Durant. The motion to set aside the order of the Circuit Court vacating the judgment was heard before Judge Baldwin on affidavits and the testimony of witnesses, and an order was entered vacating and setting aside the said order. From that order the defendant Steward prosecutes this appeal.
    Edwin L. Harpham and C. W. Greenfield, for appellant.
    Charles B. Whitman, for appellee. .
   Mr. Justice Baker

delivered the opinion of the court.

A motion to dismiss the appeal on the ground that the order appealed from is not a final order has been reserved to the hearing. We think the order is a final order and the niotion to dismiss is denied.

The question presented by the record is whether the instrument purporting to be an assignment of the judgment was executed by Foulkes, or is a forgery. If Foulkes had assigned the judgment to Durant, Durant had the right to use his name in any motion or proceeding relating to the ■ judgment, and Foulkes had no power or authority to stipulate that the judgment be vacated. The court did not err in refusing to dismiss or strike from the files the motion filed, on behalf of Durant, but in the name of Foulkes.

The witnesses called by Durant to prove that the assignment was executed by Foulkes were Anderson, Miller and Durant, each of whom testified that he was present when the assignment was executed by Foulkes, Miss Crownover, a stenographer in Miller’s office, who testified that Miller dictated the assignment to her and she wrote it on a typewriter, and five experts in handwriting, who, on comparison of the signature to the assignment with signatures of Foulkes to instruments in,.evidence, admitted to be genuine, testified to the opinion that the signature to the assignment was the genuine signature of Foulkes. The witnesses called by Steward to prove that the purported assignment was a forgery were Foulkes, who so testified, and five experts in handwriting who, on the same comparisons testified to by the experts called by Durant, testified to the opinion that the signature in question was not that of Foulkes. On the question whether notice was given to Steward of the assignment soon after it is claimed that it was executed, the testimony is also conflicting. The testimony of the witnesses, other than the experts, cannot be reconciled on the hypothesis that all of such witnesses intended to tell the truth. Giving to the finding of the trial judge, who saw and heard the witnesses, the weight which the law gives it, we cannot say that the conclusion reached by him was not one that might properly be reached on the evidence. As the, trial was by the court, it will be presumed that only competent evidence was considered, and if any incompetent evidence was received, its admission was not harmful to the defendant.

The order appealed from is affirmed.

Order affirmed.


author: Mr. Justice Brown*

text:
    John Gibbons, Appellee, v. William Adams Company and Chapin & Gore, Appellants.
    Gen. No. 16,949.
    1. Appeals and ebeoes—where on second trial evidence Tacking at first trial is supplied. Where plaintiff was injured by falling through a hole in the fifth floor of a certain building and a judgment in his favor is reversed and remanded because there was not sufficient evidence that defendants had control or supervision of the building, and at the second trial sufficient evidence is supplied, the judgment rendered at this trial is affirmed.
    2. Negligence—question of fact for jury. In a personal injury action the question whether plaintiff exercised due care for his own safety is a question of fact for the jury to determine from the evidence.
    3. Joint liability—for personal injuries. Where plaintiff is injured by falling through an unguarded hole in a building, the contractor who is liable because of a common-law obligation, or one imposed by both the common-law and an ordinance, and the owner who is liable under an ordinance only, are jointly liable.
    4. Peesonaí injuries—when owner of building is liable. Where the architect who superintends all work done on a building is the agent of the owners, the owners have “a control or supervision” sufficient to .make them liable for personal injuries resulting from failure to protect openings as required by ordinance.
    5. Joint liabilits*—of owner and contractor for violation of same duty. Where an owner and a contractor violate the same duty in failing to protect an opening in the floor of a building, they are jointly liable, and it is immaterial that the duty of the owner arises merely by ordinance while the contractor is bound by the common-law as well as by the ordinance.
    6. Damages—when judgment for personal injuries is not excessive. A judgment for $4,000 as damages for injuries from falling through a hole in the fifth floor of a building is sustained, the verdict for $7,500 having been cut down by remittitur.
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 21, 1913.
    Rehearing denied May 5, 1913.
    Hortoh, Wickett, Miller & Meier, for appellant William Adams Company.
    Lewis, Folsom & Streeter, for appellants Chapin & Gore; Johh H. Miller and Bichard S. Folsom, of counsel.
    No appearance for appellee.
   Mr. Justice Brown*

delivered the opinion of the court.

The plaintiff and appellee in this case on the evening of April 28, 1905, fell through an unguarded, uncovered and unprotected hole in the fifth floor of a building at 16 to 22 Adams street, belonging to and in process of construction for the corporation of Chapin & Gore, one of the appellants. He received thereby somewhat severe injuries and in January, 1906, he brought suit in the Superior Court against Chapin & Gore, joining with that corporation as defendant another, the William Adams Company, alleging in his declaration that the William Adams Company was a contractor in charge of the construction of the building, that Chapin & Gore owned it, and that both defendants had the control or supervision of said building, which was in course of erection and was more than thirty feet high. He further alleged that as an employe of McNulty Brothers he was working in said building on April 28, 1905. In each of the first two counts of his declaration he set out, after these preliminary averments, two sections of an ordinance of the City of Chicago then in force, the material part being:

“It shall be the duty of all owners, contractors, builders or persons having control or supervision of all buildings in course of erection which shall be more than thirty feet high, to see that all stairways, elevator openings, flues and all other openings in the floors shall be covered or properly protected.”

In said two counts he averred that by reason of the premises it became the duty of the defendants to see that all openings in the floors were covered or properly protected, but that they nevertheless negligently permitted an opening in the fifth floor to be and remain in an uncovered and improperly protected condition, so that the plaintiff, while in the exercise of ordinary care for his safety and while employed in said building, fell through said opening to his great injury and damage.

In a third count of the declaration he omitted to plead the ordinance, but alleging that he was employed on the fifth floor of said building in course of erection with the consent and permission of the defendants and was in the exercise of ordinary care for his own safety, averred that the two defendant corporations had possession and control of and supervision over said floor; that it was therefore their duty to exercise reasonable care and diligence to keep the said floor in reasonably safe repair and condition and to allow no unprotected and unguarded openings to remain therein; that they neglected said duty, in consequence of which he fell through the opening and was injured.

The defendants each filed a plea of not guilty. On the trial of the cause in July, 1907, the jury returned a verdict in favor of the plaintiff for $5,000, on which a judgment was entered. The defendants brought the case to this court, which on March 22, 1909, reversed. the judgment and remanded the cause to the Circuit Court, filing an opinion which may be found in 147 Ill. App. 575.

This court held that there was in the record no sufficient evidence that Chapin & Gore owned the building where the accident occurred, or that the Adams Company had a contract connected with the erection of the building at the time plaintiff was injured, “or that the hole through which plaintiff fell was negligently permitted to exist by either of the defendants.” The quotation is from the opinion of the court. -

The opinion, however, further says that even assuming that Chapin & Gore were the owners of the premises and the Adams Company were contractors connected with the erection of the building, there was no evidence in the record that at the time of the accident they or either of them had “control or supervision” of the building. Such control or supervision the court held must exist to make the owner or contractor liable. It had been maintained by the appellee that on “owners,” “contractors” and “builders” of all buildings in course of erection a duty was imposed by the ordinance to see that openings in the floors should be “covered or properly protected,” and that the words “having control or supervision” in the ordinance limited only the word “persons” immediately preceding. This construction the court repudiated, and indeed the opinion says that the ordinance did not by itself “create any liability against ah owner or contractor where no liability existed before its passage.”

The opinion further declares the refusal by the court below of two instructions tendered by the defendant was reversible error.

On the question of the contributory negligence on the part of the plaintiff, which was mooted below, the court declined to pass, saying that it was “a question of fact primarily for the determination of the jury under the evidence when next tried, with pertinent instructions upon the law to aid them in solving what the evidence proves in this regard.”

The cause was redocketed in the Superior Court in June, 1909, and retried in June, 1910. Before trial Chapin & G-ore gave notice to the plaintiff that it would under the general issue offer evidence regarding its ownership, and its lack of supervision and control, and after the plaintiff rested and before introducing evidence, filed said notice.

A motion had been previously made by each of the defendants for a peremptory instruction in its favor. The motions were denied.

The Wm. Adams Company offered ho evidence. Chapin & Core introduced in connection with the testimony of Bichard E. Schmidt, the architect, a contract between Chapin & Core as owners and one Thomas J. McNulty, doing business as McNulty Bros., as contractor for the plastering ■ of the building in question, after which each defendant renewed its motion for a peremptory instruction, which was again denied. The jury found the defendants guilty and assessed the plaintiff’s damages at seven thousand five hundred dollars. Motions for a new trial were made by each defendant, on various grounds, one of which was that the damages were excessive.

The plaintiff remitted the sum of thirty-five hundred dollars, and thereupon the court overruled the motions for a new trial. Motions in arrest of judgment were denied, and judgment was entered for four thousand dollars. From this judgment the defendants appealed to this court. They have argued in this court that the court below should have sustained the"defendants ’ motions for a peremptory instruction, that the verdict was so excessive as to show passion and prejudice, and that certain instructions tendered by the defendant, the William Adams Company, which should have been given were refused by the court.

The appellee entered no appearance in this court and we are unadvised of the views of his counsel on these matters and have been deprived of the assistance which the court desires to have and should have in all such cases. But we have made a very careful scrutiny of the record made on this last trial and do not feel justified in disturbing the judgment entered on this second finding against the defendants.

The defect of proof in relation to the ownership of the building by Chapin & Core found by this court to exist on the first trial of this case was supplied on the second. The contract between Chapin & Core and the Adams Co. “for the wrecking, piles and driving same, the mason work, excavating, fire proofing, concrete work, carpenter work and roofing’ ’ of the building and a contract between Chapin & Core and McNulty (the employer of the plaintiff) for the plastering of the building were put in evidence, and the jury were instructed in accordance with the construction of the ordinance adopted by this court, that even if the plaintiff was injured by the failure of the servants or agents of the defendant William Adams Co. to properly protect and guard the opening in question, Chapin & Core could not be found guilty unless the jury believed from a preponderance of the evidence that Chapin & Core had control or supervision of the said building at the time the accident occurred.

The identical instructions refused on the first trial which this court says should have been given, were both given at the second trial with only slight and immaterial changes."

Much is said in the argument of appellants concerning the absence of proof that the plaintiff was in the exercise of due care for his own safety, at the time the accident occurred, but we think on a thorough consideration of all the evidence, which it would not be useful to discuss at length here, that this was, as the court when the cause was here before said it was, a question of fact for the determination of the jury under proper instructions. We think that the instructions given on this question were correct.

The absence in the transcript of any means, by numbers or otherwise, of identification in this opinion of the instructions tendered, given or refused, except by setting them out in full, would render too prolix a description and comparison of them should we attempt to point out the reasons for our conclusion, that as applied to the evidence in this case the jury were fully and fairly instructed on the defendants ’ theory of the case without the giving of the four, the refusal of which is complained of by the defendants.

The actual questions in this case were: Did the defendant the William Adams Company in violation of a duty imposed on it either by the common law or by ordinance, or by both, leave uncovered an opening in a floor which it was building and which it was still concerned with, through which hole the plaintiff, without contributory negligence, fell? And: Did Chapin & Gore, the owner, have “control or supervision” of such building at the time? These were mixed questions of law and fact. To these questions may be added one of law purely, namely: If both defendants were liable, the one defendant because of a common-law. obligation, or of one imposed by both the common law and an ordinance, and the other defendant because of ah obligation imposed by an ordinance only, could they be held jointly liable in this action? We tbink that all these questions under the evidence and the law can be and should be answered affirmatively.

It is clear that the Adams Company were engaged in the carpenter work in the building at the time of the accident—not indeed at that precise minute when this plasterer, who was working overtime, fell, but during the usual working hours of the period in which the accident occurred, and that this company had built the floor and left the opening.

It is equally clear from the evidence that Chapin & Gore had retained “a control or supervision” of the building through the architect, who was its ag’ent and superintendent for all the work in the building, a part only of the construction of which was in the hands of the Adams Company. The liability of Chapin & Gore does not spring from the order given to the plaintiff by the representative of the architect to go through the practically unlighted building on the errand which led to his fall through the unguarded opening; but that order and all the attendant circumstances emphasize the fact that there was “control or supervision” by Chapin & Gore through their architect of the building while in process of construction.

As to the joint liability as “joint tort feasors,” we are of opinion that even if it cannot be held that both parties were jointly liable under the common law, because both jointly were in control of the building and both were negligent in leaving the opening unprotected, yet it must be held under our view of the facts and the law that each were liable for a violation of the same duty, namely, to protect the hole or opening. The Adams Company was bound to perform that duty by the common law as well as by ordinance—Chapin & Gore by virtue merely of the ordinance perhaps. But if the sources of the duty were different, the duty was exactly the same, which differentiates the case from those like Dutton v. Borough of Lansdowne, 198 Pa. St. 563, in which courts have held that a municipality and an abutting property owner cannot be sued jointly to recover damages for injuries caused by a defective sidewalk, because the duties violated were different.

Complaint is made of the amount of damages assessed by the jury, which it is said was so excessive as to show passion and prejudice, and to make the error shown by it irremediable by remittitur. Even after the remittitur the amount of the judgment, it is maintained, is much too large for the injuries proven.

The damages assessed by the jury do seem very large to us; hut it must not be ignored in considering this case, that with the man before them, two juries in succession have given to him damages greater than the amount of the present judgment, and that the second one increased by twenty-five per cent, the amount agreed on by the first. We can hardly suppose that “passion and prejudice,” for which there would seem no ostensible cause, controlled twenty-four jurors during the hearing’s of this cause. The judgment was very drastically cut down below the amount of the verdict by the remittitur, and the doctrine that by this means error, solely shown by the excessiveness of the verdict, may be remedied, is too firmly established in this state to require citation of authority. We do not think that we should send this cause back for a retrial on this ground. The judgment is not too large if the statements of the plaintiff himself, with their legitimate inferences, are to be given full credence.

The judgment of the Superior Court is affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    George T. Foster, Plaintiff in Error, v. The Frank Parmelee Company, Defendant in Error.
    Gen. No. 17,293.
    1. Personal injuries—effect of regulation of traffic by crossing officer. In an action for personal injuries received through collision with defendant’s cab, the attempted regulation of traffic by a crossing policeman does not place or release legal obligations of plaintiff or defendant, but is of importance in determining negligence of defendant and due care of plaintiff.
    2. Nesligence—when evidence sustains directed verdict. In a personal injury action, where plaintiff, in crossing the street on foot was struck by the shaft of defendant’s cab and the evidence shows that the cabman moved as directed by the crossing policeman, at a slow speed and without negligence, a judgment on an instructed verdict for the defendant is sustained.
    Error to the Municipal Court of Chicago; the Hon. Max Ebebhabdt. Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    Steer®, Williams & Steer® and Joseph B. Fahy, for plaintiff in error.
    Willis G. Shockey and Wiley W. Mills, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

George T. Foster, the plaintiff below, and plaintiff in error here, brought suit against the Frank Parmelee Company, defendant below and defendant in error here, because of injuries .received by him through a collision with a cab belonging to the defendant and driven by one of the defendant’s servants. Mr. Foster was attempting on foot to cross a much traveled east and west thoroughfare in the city of Chicago (Jackson Boulevard) from south to north just east of an intersecting north and south street (Dearborn street). The cab was driven from west to east. As usual at street intersections in the business portions of Chicago, there is an attempt to regulate the movement of both vehicles and pedestrians at this crossing, and on this occasion a police officer in charge had given by a whistle the signal for carriages and pedestrians to cross from east to west and west to east, and for the intermission of the north and south movement. This attempted regulation of course neither placed nor released legal obligations- of the plaintiff or defendant, but it is of importance in considering the only questions which were litigated in this cause—the negligence of the defendant’s servant and the due care of the plaintiff.

The plaintiff had a companion on his left. According to what we deem the weight of the evidence, a line of vehicles—some of them automobiles—was moving from east to west on the north side of Jackson Boulevard, and a line of vehicles, of which the cab in question was in the lead, was passing on the south side from the west to the east. The left shaft or thill of the cab passed behind the back of the plaintiff’s companion and struck the plaintiff and knocked him down and injured him. There seems to be some uncertainty in the testimony as to just where it was with reference to the cross walk that the plaintiff was knocked down, one witness placing it fifteen or twenty feet east of the cross walk, while the implication of other evidence seems to be that it was on or very near to the cross walk. But there is substantial agreement that it was probably not more than ten feet north of the curb and certainly between the center of the street and the south curb.

There were several eyewitnesses of the accident, but while there is a variation in their account, we cannot find, on an analysis of all the testimony, that there is evidence that the defendant was negligent or that the plaintiff was in the exercise of due care just then. The court below evidently took this view and peremptorily instructed the jury for the defendant. The judgment entered on the directed verdict is attacked by this writ of error.

The evidence leaves it much in doubt whether the occurrence was not one of those pure accidents which in the crowded streets of a great city may and do happen without the fault or negligence of any one. Such testimony as exists concerning the speed at which the cab was moving, is to the effect that it was not great nor improper, but judiciously slow. Nor is there any fair inference to be drawn from the circumstances shown that, as counsel for plaintiff contends, this testimony is false or mistaken. It does not appear how far across Dearborn street the cab had gone before the plaintiff and his friend stepped from the sidewalk into the street. If we were at liberty to indulge in guessing we should not consider it unlikely that the theory suggested by the defendant was correct, that “dodging the traffic,” like the man who preceded them in crossing, these two companions undertook to pass over (taking chances that all pedestrians are obliged to in Chicago streets) while vehicles were coming and going, and that to shun one going west plaintiff stepped almost unconsciously back and was hit by the shaft of the cab which had passed safely by Ms companion to Ms left.

There are, however, portions of the testimony adduced wMch are inconsistent with this, and we do not mean to be understood as giving it as our theory of the accident. We are not at liberty to speculate or guess on these matters and on them base a finding. But we are bound not to interfere with the instructed verdict and the judgment thereon unless we find in the evidence something to prove negligence on the part of the defendant, and tMs we do not find. We think the trial judge was right. So far as appears the cabman was moving as he was directed and without recklessness.

No verdict rendered for the plaintiff could have been allowed to stand.

The judgment of the Mumcipal Court is affirmed.

Affirmed.