text:
    Torpedo Top Company, Appellee, v. Royal Insurance Company, Appellant.
    Gen. No. 15,512.
    1. Jurisdiction—of City Courts. The jurisdiction of City Courts in an action upon an insurance policy (such action being transitory) is not dependent upon the location of the property at the time of its destruction.
    2. Jurisdiction—when faiMire of court to convene not established. Held, that in view of the presumptions which support the jurisdiction of a court of record, that it did not appear that the City Court in this case had not duly convened.
    3. Pleading—when error in settling unavailing. To fail to sustain a demurrer to a declaration becomes unimportant if afterwards additional counts are filed upon which by issues duly formed a trial is had.
    4. Pleading—when insufficient to predicate defense of non-appraisal under insurance policy. A plea which relies upon the failure of the plaintiff in an action upon a fire insurance policy to cause an appraisal in the event of disagreement as to the amount of the loss, must allege a disagreement prior to the commencement of the action and require that an appraisal he made.
    5. Insurance—when suit commenced uñthin limitation period of policy. If the policy issued required that suit be commenced within a. specified period the issuance of a summons within the time limited is a compliance within the meaning of the policy.
    6. Trial—when affidavit for continuance defective. An affidavit for a continuance predicated upon the absence of a material witness must show diligence and state that what the affiant expected to prove by such witness is true or believed to he true.

      7. Trial—when consolidation of causes not error. The consolidation of actions at law is discretionary with the trial court and in the absence of abuse of discretion a consolidation will not reverse.
    8. Trial—what incompetent to sustain challenge to array. A certified copy of a memorandum of an order of the jury commissioners is not competent to establish a challenge to an array.
    9. Trial—when overruling challenge to array not error. In the absence of positive injury being shown it is not error to deny the challenge to an array.
    10. Trial—effect of decree as to special findings. If a party is entitled to an answer upon a special finding and the jury return the same with a general verdict accompanied by a statement to the effect that with respect to such special finding they have disagreed, the party cannot complain of the failure of the jury to answer such special interrogatory in the absence of his having made a motion to send the jury back to answer the same.
    11. Evidence—what memorandum competent to refresh recollection. A contemporaneous memorandum may be used by a witness to refresh his recollection if he is thereby enabled to testify from an independent recollection.
    12. Instructions—approved form in action upon fire insurance policy. The following instructions upon this subject approved:
    “The court instructs the jury that if they believe from the evidence that the fire in question preceded and caused the explosion in question, then the loss, if any, suffered by the plaintiff, either by fire or the explosion, or both, is within the intent and meaning of the policies in question, a loss resulting from fire.”
    “The court instructs the jury, as a matter of law, that if they believe from the evidence that, as a result of the explosion testified to by witnesses upon the witness stand in this cause, a portion of the walls of said building was blown down, or a portion of the roof of said building was blown off, and fire immediately ensued, then that such falling of a portion of the said walls, or such blowing off of a portion of the said roof by the said explosion, was not such a falling of the said building, or a part thereof, as would terminate the insurance under the policies sued upon.”
    13. Instructions—effect of special findings to cure. If a special finding indicates that a refused instruction was unimportant to the determination of the cause, its refusal will not constitute error.
    Appeal from the City Court of Chicago Heights; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 31, 1911.

      Statement by the Court. Appellee brought two separate actions in the City Court of Chicago Heights against appellant upon two several insurance policies issued by it, covering property located in a building known as 1175-93 West Eighteenth street, Chicago, and which was destroyed by fire on the 15th of March,' 1903. The cases were consolidated and tried before a jury on the 14th of September, 1908, the defendant protesting against such consolidation, and a trial at that time. The jury returned a verdict of $3039.59, upon which judgment was entered, and from which judgment the defendant appealed to this court.
    Appellant seeks a reversal of the judgment upon the fol- • lowing grounds:
    1. That the City Court of Chicago Heights was without jurisdiction of the subject-matter, because it did not arise within the territorial limits of that city, and that, therefore, the judgment is void.
    2. That the court erred in settling the pleadings.
    3. That the court erred in denying appellant’s motion for a continuance on the ground of the absence of a material witness.
    4. That the court erred in consolidating the cases.
    5. That the City Court of Chicago Heights, at the time of the trial, was not legally convened either in special or regular term, and had no authority to try the cases.
    6. The court erred in overruling appellant’s challenge to the array, and in proceeding to trial with a jury.
    7. The court erred in its rulings upon the admission of evidence.
    8. The court erred in overruling appellant’s motion for a new trial.
    Charles B. Obermeyer, for appellant.
    Louis E. Hart, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

Taking up the objections of appellant in their order, we first consider whether the City Court of Chicago Heights had jurisdiction of the suits in question. The City Court of Chicago Heights was created pursuant to section 1, article 6, of the Constitution of Illinois of 1870, which provides:

“The judicial powers, except as in this, article otherwise provided, shall be vested in one Supreme Court, Circuit Courts, County Courts, Justices of Peace, Police Magistrates, and in such courts as there may be created by law in and for cities and incorporated towns.”

Section 24, chapter 37, of Hurd’s Revised Statutes, referring to city courts, provides that they “shall have concurrent jurisdiction with the Circuit Courts within the City in which the same may be, in all civil cases and in all criminal cases arising in said City. * * * And the course of procedure and practice in such courts shall be the same as in the Circuit Courts, so far as may be.”

We think it clear that the action in this case is properly termed a transitory action, and that the jurisdiction of the court in no measure depends upon the location of the property at the time of its destruction. We cannot give assent to a construction of the law relating to the jurisdiction of this court which would require us to hold that the City Court of Chicago Heights would have no jurisdiction of the suit brought by one of its citizens against another upon a promissory note which happened to be executed and to be made payable outside of the city. In the year 1906 in the case of Knickerbocker Ice Co. v. Leyda, 128 Ill. App. 66, the Appellate Court for the Second District distinctly held that the City Court of Aurora had jurisdiction of the subject-matter of a suit brought to recover damages for an injury received in an accident which occurred in the city of Chicago, and the court said:

“We are of opinion that the City Court of Aurora did have jurisdiction of the subject-matter, and that the motion to dismiss was properly denied. Hercules Iron Works v. Elgin, Joliet and Eastern Ry. Co., 141 Ill. 491.”

Accordingly we are of opinion that in this case the court had jurisdiction, and was competent to proceed with the cause.

Considering the next contention of appellant, that the court below erred in settling the pleadings, we think the failure of that court to sustain the demurrer of appellant to the first counts of the original declarations is unimportant, because additional counts were filed upon which issues were taken and upon which the trial was had. To these amended counts appellant filed various pleas, and now claims that the court has erred in sustaining a demurrer to the second, sixth and seventh pleas filed by it. The second plea made the point that by the terms of the policy sued on, it was required that the suit should be brought within twelve months next after the fire, and appellant contends it was not a sufficient compliance with this provision that appellee began its suit, unless within that period it filed a declaration sufficiently setting up its cause of action, which it claims was not done by the first counts in the declaration to which it demurred. An inspection of the pleadings, however, shows that the policy required that suit should be begun within twelve months from date of the fire, and we hold that the suits in this case, having been begun by the issuance of summons within the time limit, were commenced within the meaning of the policy. Schroeder v. The Merchants’ & Mechanics’ Insurance Co., 104 Ill. 71; McKee v. Allen, 94 Ill. 147.

Appellant’s sixth plea averred a stipulation in the policy providing for an appraisement to determine the amount of loss or damages, in th.e event of disagreement between the company and the assured, and alleging that the plaintiff and defendant did disagree as to the amount of the loss, and that by reason of the failure of the plaintiff to cause an appraisal, no cause of action had accrued. An inspection of the record, however, shows the allegation in the plea to be “that the plaintiff and defendant differ and disagree as to the amount of said loss.” All pleadings are to be construed most strongly against the pleader. There is nothing in this plea showing that there was any disagreement between the parties as to the amount of the loss prior to the commencement of the suit. Therefore the plea is bad, and the demurrer was properly sustained to it. In addition the plea failed to require, on the part of the Company, that the appraisal should be had. This was necessary to constitute a good plea. Lancashire Fire Insurance Co. v. Lyon, 124 Ill. App. 491; Concordia Ins. Co. v. Bowen, 121 Ill. App. 35.

As appellant failed to argue the sufficiency of its 7th plea, we disregard the assignment of error in relation to it.

As to appellant’s contention that the court erred in refusing to grant a continuance because of the absence of a material witness on its behalf, we think the affidavit filed in support of the motion, though quite lengthy, yet fatally defective in not sufficiently showing diligence to procure the attendance of the witness. In applications of this character it is essential that the affidavit discloses diligence on the part of the moving party. City of Freeport v. Isbell, 93 Ill. 381. The affidavit is also defective in that the affiant fails to state that what he expects to prove by the witness is true, or that he believes it to be true. This was held essential in an affidavit of this character in Lichliter v. Russell, 89 Ill. App. 62; also in Wilhclm v. People, 72 Ill. 468.

Appellant also complains that the court erred in consolidating the two cases. Upon principle, it would seem as if these two cases should be consolidated. They were brought by the same plaintiff against the same defendant upon similar insurance policies issued by it, covering property located in one building, and destroyed by one fire; and it is difficult to see how appellant could have been harmed by the consolidation. In any event, the consolidation of like cases for trial is a matter of discretion with the trial court; and unless that discretion has been abused, it will not be reviewed. Woodburn v. Woodburn, 23 Ill. App. 289.

It is next contended by appellant that the court at Chicago Heights, at the time of the trial, was not then legally convened, either in regular or special term, and therefore had no authority to proceed to try the case. Various recitals in the bill of exceptions and in the affidavit of appellant, clearly indicate a recognition of regularity of proceeding. The City Court at Chicago Heights is a court of record, and, therefore, its records import verity. The regular terms of the City Court of Chicago Heights begin on the third Mondays of February, April, June, September and ¡November of each year. The cases were consolidated and tried on the 14th day of September, and appellant contended, and offered to show, that the record of the court did not show that it had been convened at any time after the third week in June, 1908, and that, in the interval between that date and the time of the trial, the presiding judge had sat continuously as an associate judge in the hearing and trying of cases in the Superior Court of Cook county. In view of the presumptions of law in favor of the regularity of the action of the court, we cannot say, upon the offer made, that the presiding judge did not sit some portion of each day in the City Court of Chicago Heights, which is accessible to the city of Chicago, in which the Superior Court of Cook county was being held. See Jasper v. Schlesinger, 22 Ill. App. 637, in which the court says (p. 639) : “The rule of law is that the court is open from the first convening at the commencement of the term as fixed by law till it is closed by the expiration of the term, or adjournment sine die, and the term, though running-through several weeks, and even months, is to be regarded as one day.” Citing Richardson v. Beldam, 18 Ill. App. 527, and other cases.

Appellant further contends that the court erred in overruling his challenge to the array, and proceeding to trial with the jury. In support of his challenge he produced what he referred to as a certified copy of the memorandum of an order appearing on the records of the Jury Commissioners, to the effect that, on the 27th day of August, 1908, on the order of Judge Homer Abbott, dated August 25, 1908, the clerk of the City Court of Chicago Heights, in the presence of the Jury Commissioners and the clerk, drew from the jury box seventy-five names for service for the September term, 1908, of said City Court, and appellant claims ^inferentially that the jurors thus shown to have been drawn for the September term of that court, were the jury which tried this particular case.

We do not think the certificate was properly admissible in evidence, but, in any event, there is no attempt to show any positive injury sustained by appellant in consequence of the refusal of the court to quash the panel. It has been clearly held that this is essential. Wilhelm v. People, 12 Ill. 468.

Appellant complains that the court erred in its rulings upon the admissibility of the testimony of one Frank G. Mason. The principal cause for complaint seems to be that when testifying, witness held in his hand a memorandum or inventory of the articles of merchandise covered by the policy. It appeared that the memorandum was made on the 15th of February, 1904, by the witness, in company with a Mr. Rand. The goods were then located at 66 West Van Burén street, from which place they were then removed to their location at the time of the fire. Mason testified that the memorandum or inventory was made for the purpose of showing just what property was moved into the new building, and he further stated that he saw the property after it had been moved in and knew that the goods inventoried were those destroyed by the fire. The witness did not attempt to read from his memorandum into the record, nor was it offered in evidence. The witness distinctly, and on several occasions, stated he was testifying from his own recollection, after having it refreshed by the inspection of his memorandum. If his testimony is to be believed, and we do not find anything in the record to justify us in refusing to believe it, these answers certainly made the evidence admissible. While the testimony of the witness is unsatisfactory in some respects, yet aided by the common knowledge which jurors are assumed to possess, we cannot say, that the testimony did not warrant a verdict.

Appellant complains of the following instruction given at the request of appellee:

“The court instructs the jury that if they believe from the evidence that the fire in question preceded and caused the explosion in question, then the loss, if any, suffered by the plaintiff, either by fire or the explosion, or both, is within the intent and meaning of the policies in question, a loss resulting from fire.”

As applied to the evidence in the case we think this instruction correctly stated the law. German American Ins. Co. v. Hyman, 94 Pac. Rep. 27; Heuer v. Northwestern Nat. Ins. Co., 144 Ill. 393. The cases cited by appellant in opposition to this view are not cases where the damage to the building was occasioned by the explosion on the property insured, and caused by the fire which destroyed the property.

The evidence in the present case justified the jury in finding that the fire preceded the explosion, and that the explosion, therefore, was but an incident in the destruction of the building.

Instruction number 4, given at the request of appellee, is as follows:

“4. The court instructs the jury, as a matter of law, that if they believe from the evidence that, as a result of the explosion testified to by witnesses upon the witness stand in this cause, a portion of the walls of said building was blown down, or a portion of the roof of said building was blown off, and fire immediately ensued, then that such falling of a portion of the said walls, or such blowing off of a portion of the said roof by the said explosion, was not such a falling of the said building, or a part thereof, as would terminate the insurance under the policies sued upon.”

We regard this instruction as right upon principle, and fully sustained in Leonard v. Orient Ins. Co., 109 Fed. Rep. 286.

Appellant further complains that the court refused to give the instruction asked for by it, which reads as follows:

“The jury is instructed that the policies of insurance set forth in evidence contain the following provision: Tf a building or any part thereof fall except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease,’ and if you believe from the evidence that the building described in the policies, occupied by the plaintiff at the time of the fire, alleged in the plaintiff’s declaration, or any part thereof, fell, and the fall of such building or any part thereof was not the result of the fire, and was before any fire occurred, then you should find a verdict for the defendant.”

If any error was committed in refusing to give this instruction, we regard it as having been cured by the special finding of the jury to the effect that the fire, which destroyed the property, preceded the explosion, and the same suggestion applies also to the refusal of the court to give the further instruction requested by appellant, which is as follows:

“The jury is instructed, that if you believe from the evidence that the explosion occurred in the building and premises occupied by the plaintiff, and that such explosion was not caused by fire in said premises, and that by reason of or on account of such explosion, the said building, or any part thereof, fell, then, in such case, under the terms of this policy, set forth in plaintiff’s declaration, all insurance under said policy immediately ceased, and the plaintiff is not entitled to recover in this case.”

At the request of appellant the court gave to the jury, and directed them to answer, two special interrogatories as follows:

“1. Did the building, or any part thereof, fall, except as a result of fire ?
2. Was there fire burning in the building before or at the time of the fall?”

The record shows that as to interrogatory number 1, the jury wrote underneath it and returned it with the general verdict, saying: “The jury disagree.” As to the second interrogatory, the jury returned the answer: “Yes.”

We think that appellant was entitled to an answer to the first interrogatory, but when the verdict was returned with the interrogatory not answered, it was the duty of the plaintiff to then move the court to send the jury back to make specific answer to this question. No such motion appears of record, and under the authorities, we are compelled to hold that the point was waived. C. & N. W. Ry. Co. v. Johnson, 27 Ill. App. 351; Lloyd et al. v. Kelly, 48 Ill. App. 554; Wabash R. R. Co. v. Speer, 156 Ill. 244.

After a careful examination of the whole record, we are of the opinion that it does not disclose any reversible error. Accordingly the judgment will be affirmed.

'Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baldwin

license: Public Domain

text:
    Clay R. Lawrence, Defendant in Error, v. Nyberg Automobile Works, Plaintiff in Error.
    Gen. No. 15,529.
    Assumpsit-when corporation not liable. A corporation is not liable upon a transaction (liability for which it has not assumed) which occurred long prior to its organization even though it has succeeded to the business of the concern which created the obligation.
    Error to the Municipal Court of Chicago; the Hon. Frank G. Plain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and judgment here.
    Opinion filed May 31, 1911.
    William A. Jennings, for plaintiff in error.
    Edward Maher and Robert E. Kolb, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

Defendant in error brought a suit of the fourth class in the Municipal Court of Chicago against plaintiff in error, on August 24, 1908, to recover $200, alleged to be due her as the proceeds of the sale of her automobile. A jury trial was had, resulting in a verdict and judgment iii hep favor,

It appears that in May and June, 1907, one Henry Nyberg was doing business in the city of Chicago under the name and style of Nyberg Automobile Works; that he had at that time in his employ, as a salesman, one W. Gr. Martin, and that pursuant to an advertisement, soliciting second hand automobiles to he bought and sold, said to have been inserted by Martin, with the knowledge of Nyberg, one Wen-ham, as agent for plaintiff, replied by letter to the advertisement stating that he had an automobile to sell. After some negotiations by correspondence and over the telephone Wenham had plaintiff’s second hand automobile delivered to Nyberg personally.

It appears that Martin’s letters were written upon Nyberg’s stationery, and, that copies of Martin’s letters to defendant in error, and to her agent, were filed and kept in Nyberg’s letter files.

The testimony on behalf of the plaintiff tends to show that Martin made an offer over the telephone to Wenham, as agent for plaintiff, of $200 for the automobile, based upon the assumption that it was in good condition as Wenham claimed it was, and that after the automobile had been delivered Wenham had an interview with Martin by telephone, and that Martin had replied to him over the telephone, “We will send a check for $200 for the automobile in question.”

Plaintiff herself testified, that she had talked with Martin in July, 1907, at Nyberg’s place of business, at which time she asked payment for her automobile, and Martin at first claimed that they had no such machine there, whereupon she explained it was the one that had been sent them by Wen-ham, and that Martin then stated, “that had been sold in Idaho, and the Nyberg Automobile Works would mail Wen-ham a check in a few days.” . She testified to a still later conversation with Martin, in which he had stated the check would be sent to Wenham.

The machine was delivered to Nyberg personally on the 17th day of May, 1907, and was never paid for, though from the time of its delivery until the trial, February 5, 1909, it was in his place of business, which was the same place of business occupied by the corporation after its organization, and Hyberg on the trial testified, that it was still on hand and unsold, and that defendant in error might have it whenever she wanted it. Hyberg claimed that the automobile was not purchased, but was only received by him to be sold, and that he had not been able to sell it.

On the 24th of August, 1908, plaintiff began her suit against Hyberg Automobile Works, a corporation, which, as the evidence shows, was not organized until January, 1908.

Plaintiff in error contends: First, that Martin was not shown to have authority to bind Hyberg in purchasing automobiles ; second, that the evidence did not show a sale of the automobile to the Hyberg Automobile Works, but rather that it was placed there for the purpose of having it sold; third, that, in any event, appellant, the Hyberg Automobile Works, a corporation, was not and could not be liable for transactions occurring in May, June or July of the year previous to its incorporation.

In answer to this contention, defendant in error insists that the concern with which she did business in May, June and July, 1907, held itself out to be a corporation, and that, therefore, it is estopped in this proceeding to deny such corporate existence.

In the brief filed on behalf of plaintiff in error two contentions are made: First, that the burden is on the plaintiff to show that the agent had authority to purchase. Second, that a corporation is not liable for debts created or existing prior to its organization unless it has agreed to pay them.

The brief and argument of defendant in error is based upon the proposition that, “where business is transacted under a name that implies corporate existence, and thereafter a corporation is organized by the persons transacting such business under the same name, and the assets of the old firm are transferred to the corporation, nothing appearing to show a change, the corporation is liable for the debts previously incurred.”

We have considered the briefs and arguments of counsel, and have examined the testimony as shown in the abstract and record, and we think it clear from such examination that plaintiff in error is not liable in this action.

Whatever may be the liability of ¡Nyberg personally we do not find any such conditions as would justify us in holding appellant corporation liable on account of a transaction which occurred more than six months prior to its organization.

Nyberg was doing business under the name and style of Nyberg Automobile Works, and we cannot say that this name implies a corporate existence. On the contrary, it is a matter of common knowledge, that individuals and firms often adopt for convenience, trade names similar to the one used here. It may be that a trade name ending in “Company” might be held to import corporate existence, but that is not the situation here..

The authorities cited by defendant in error to support her contention are not applicable. In Mutual Aid Association v. Hogan, 124 Ill. App. 447, the court said: “We think the appellant is estopped to deny that it was a corporation at the time it issued this certificate. Its name as set forth in the certificate imports that it is a corporation. It signed that contract by its President and by its Secretary, and attested the same with its seal.”

In the case of U. S. Express Co. v. Bedbury, 34 Ill. 459, the language of the court is: “It seems to comport with reason, that when an association of persons assume a name which implies a corporate body, and exercise corporate powers, they should not be heard to deny that they are a corporation.”

In Crystal White Soap Co. v. Rosebloom, 91 Ill. App. 551, the court said: “At the head of letters to the agent of defendant in error concerning rent of said premises, and promising to make payments on account of same, and signed in the name of plaintiff in error by said Mason as manager, appear the names of the president, vice-president, secretary and treasurer of plaintiff in error, besides that of said Mason as manager.”

Moreover, in this ease, the company after becoming incorporated actually moved into the premises occupied, and paid rent' thereon for a time at the rate mentioned in the lease.

In the case at bar it does not appear that upon the letterhead, or otherwise, ¡Nyberg used any such words as “president,” or “secretary,” or that he had any seal or issued any certificates, or that anyone was associated with him, or that there were any officers corresponding to president or secretary connected with the business. There was nothing in the transaction to in any way indicate that defendant in error even supposed she was dealing with a corporation, nor is there anything in the record to show that the corporation had or claimed to have any interest in the automobile.

In this state the law is well settled that a corporation is not ordinarily liable for debts created by the person or firm to whose business it succeeded, but which it did not assume.

In Rockford, R. I. & St. L. R. R. Co. v. Sage, 65 Ill. 328, it was held that a railroad corporation was not liable for services rendered before its organization, unless the company promised to pay after it was organized.

In Stowe v. Flagg et al., 72 Ill. 397, it was held that the agreement of parties intending to engage in and form a manufacturing corporation, and to put in property as stock, but which was never subscribed, did not bind the corporation, nor did the property become chat of the corporation, although it was used by the company.

In the case of Western Screw & Manufacturing Company v. Cousley, 72 Ill. 531, it was held, where the corporators, before the organization of the company was completed, employed a superintendent, and he entered upon the duties of the place and rendered services for the inchoate company, it, when organized, was not liable to pay for such services. See also Gent v. Mfg. & Mer. Mut. Ins. Co., 107 Ill. 652.

We are clear, therefore, that plaintiff in error was not indebted to defendant in error on account of the transaction complained of, and, accordingly, the judgment must be reversed and judgment entered here upon a finding of facts.

Reversed and judgment here.


author: Mr. Justice Clark

text:
    White Walnut Coal Company, Appellee, v. Crescent Coal & Mining Company, Appellant.
    Gen. No. 15,480.
    1. Accord and satisfaction—when not established. Even if a check be tendered in full its acceptance will not constitute an accord and satisfaction in the absence of an existing dispute as to the amount due.
    2. Accord and satisfaction—effect of waiver. Even though an accord and satisfaction has taken place the same may be waived by subsequent conduct.
    3. Sales—remedies of vendor upon refusal of vendee to accept. Where the vendee of goods sold at a specified price refuses to take and pay for them, the vendor has three courses open to him. He may store the goods, notify the vendee that he has done so and then recover the full contract price; second, he may keep the goods and recover the excess of the contract price over and above the market price of the goods at the time and place of the delivery, provided the market price is lower than the contract price; or third, he may, upon notice to the vendee, proceed to sell the goods to the best advantage, and recover the loss provided they fail to bring the contract price.
    4. Sales—what not essential to recovery by vendor upon refusal of vendee to accept. In order to recover in such an action it is not necessary that the vendor -actually have on hand the merchandise ready for delivery.
    5. Instructions—upon what complaint cannot be predicated. An instruction will not reverse though erroneous if more favorable to the complaining party than the law required.
    Assumpsit. Appeal from the Circuit Court of Court county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 31, 1911.
    Ullmann & Hoag, for appellant.
    Tenney, Coffeen, Harding & Sherman, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

On March 4, 1905, the Orescent Coal & Mining Company, the appellant, entered into a contract with the White Walnut Coal Company, the appellee, by which the appellee agreed to load at its Pinckneyville mines a minimum of 5,000 and a maximum of 7,000 tons per month, for the year ending April 1, 1906, of standard screenings, containing nut, pea and slack as per sample shipped for test, and to deliver the same to the appellant f. o. b. cars Illinois Central tracks, Chicago, for $1.32-¡- per ton of 2,000 pounds, with the understanding that if there were any reduction in the freight rate there should be a corresponding reduction in the price. Appellant agreed to accept the coal as stated, and to pay for the same on the 20th of each month following shipments. Mine weights were to govern settlement, and it was agreed that the appellee should not be required to furnish the coal in case of break-downs, strikes or other causes beyond its control. Prior to the making of the contract 25 carloads had been shipped to Chicago, only three of which, however, had been inspected. There is a disagreement between the parties as to what was meant by the language in the contract, “as per sample,” the plaintiff below claiming that the full 25 cars shipped should be regarded as the sample, while the defendant claimed that the coal should all have measured up to the standard of the three cars inspected.

During May and June 9,000 tons of screenings were delivered and paid for. During the month of July 24 cars were rejected, on the claim by the appellant that the quality was not equal to the sample. The appellee claims that this rejection was not made in good faith, but that it was due to the fact that the Chicago market was glutted and the price of all kinds of coal had gone down. Appellee continued to ship to Chicago, but constant complaint was made by the appellant as to the quality of the screenings, and many cars were rejected. On October 27, 1905, the appellant wrote appellee as follows:

“Since you are evidently not disposed to give ns merchantable screenings, such as the sample cars upon which we made our contract, we have decided to and hereby notify you that we have rescinded your contract for failure to comply with same, and that we shall hold you for all damages sustained by us by reason of such default upon your part, and you may govern yourselves accordingly.”

On November 3, 1905, the appellee wrote in reply as follows:

“Tours of October 27th received. We must decline to accept your order rescinding our contract and we most emphatically dispute your right to do so, for the reason that there is no occasion for the same by any act of ours. We have had the coal shipped to you carefuly inspected, and we know that it is standard and the same as sample submitted. However, as you refuse to accept my screenings under this contract, it of course would be idle for us to go through the form of shipping the cars to you simply to have them rejected. We shall, accordingly, dispose of the coal at the best price we can get in the market, and whatever damage we may suffer by your refusal to accept it, we shall expect you to pay to us.”

Thereafter the appellee continued to produce screenings at its mines and to sell the same in Chicago, St. Louis and Minneapolis. About $20,000 was credited to appellant’s account as the proceeds on these sales, although the coal was sold at a very low price. In some instances not enough to pay the freight charges was received, and in others a sufficient price to pay 40 cents per ton at the mines. The appellee rendered to the appellant a statement each month of the amount of the shipments and the receipts, and advising it of the balance claimed to be due. The gross amount of this balance at the termination of the contract was $10,-638.90. For this sum a verdict was rendered by a jury and judgment entered thereon. From the judgment this appeal is taken.

The first contention of the appellant is that the record shows that the screenings shipped after August 8, 1905, did not substantially correspond to the sample shipped for a test, at the same time insisting that the only sample which should be considered was the coal in the three cars inspected by two employees of the appellant. Whether or not the screenings shipped equalled the sample, and what the sample consisted of, are pure questions of fact which have been passed upon by a jury, and have received the attention of the trial judge on a motion made for a new trial. We think the conclusion reached was not erroneous.

The second point made is based upon the acceptance of the check made by the appellant to the appellee on August 18, 1905, for $871.87, it being claimed by the appellant that this acceptance should be treated as an accord and satisfaction, and that therefore there should be no recovery allowed for shipments during the month of July, 1905. The point is raised particularly in connection with the refusal of the court to give an instruction requested by the appellant, and which read as follows:

“The jury are instructed that if they find from, the evidence that there was a dispute between the plaintiff and the defendant as to the amount due for July, 1905, shipments, and if you further find from the evidence that the defendant sent to the plaintiff a check or money, purporting to be in full payment for July, 1905, shipments, and said check or money was received or retained by the plaintiff, then the plaintiff is estopped from recovering from the defendant any balance that it may claim is due and owing to it from said defendant for shipments during the month of July, 1905.”

The record shows that accompanying the check was a voucher in which appellant places the amount of shipments for July, 1905, at 6,340,900 pounds, the amount due therefor being carried 'out at the contract price and aggregating $4,042.32. From this was deducted “freight estimated,” $3,170.45, and underneath was a form of release which read, “in full of above account.” Appellee retained the check but returned the voucher unsigned, and there was considerable correspondence between the parties in regard to the matter, the appellee insisting that the voucher did not include all shipments for July. The record shows that the appellee was correct in its contention, because the appellant afterwards paid for two cars shipped on July 25th and claimed from the appellee credit for freight bills paid by it on shipments made in July. While the voucher recites that it was for July shipments, it does not state that it covered all of such shipments, and the frank admission is made that the freight is estimated. This voucher was not signed by appellee, but in our opinion even if it had been signed it would not have constituted an accord and satisfaction under the circumstances. The record does not disclose that there had been any dispute as to the July shipments. Indeed, subsequent occurrences show that in all probability some of the July shipments had not reached appellant at the time it made out the voucher. It also was uncertain as to the amount to which it would be entitled for freight, and later on demanded and received credit for four freight items, all on July shipments. We think therefore that the court did not err in refusing to give the instruction as requested. American F. & M. Co. v. Lindsay Chair Co., 129 Ill. App. 548; Canton Coal Co. v. Parlin, 215 Ill. 244. In the case last cited the court said:

“The defendant had the right to have its check received as offered, if received at all, unless there was a subsequent waiver of that condition: We do not regard the evidence as tending to show that there was such a waiver.”

In the case before us the evidence appears conclusive as against the appellant that if it intended to insist as a condition upon which the appellee should receive the check that it was to be regarded as an accord and satisfaction, it by its conduct subsequently waived that condition. The instruction, however, should not have been given in the form presented, for another reason, namely, that it read: “and said check or money was received or retained by the plaintiff.” Manifestly the language should have been: “and said check or money was received and retained by the plaintiff.”

The next contention of the appellant is that the correct measure of damages in this case is the difference between the contract price and the market price at the place of delivery specified in the contract, viz., Chicago. The appellee, however, on the other hand, tried the case upon the theory that it was entitled to recover the difference between what it obtained for the coal on a resale and the contract price, it appearing that the amount that it did so receive was less than the contract price. In the case of Bagley v. Findlay, 82 Ill. 524, it was held that where the vendee of goods sold at a specified price refuses to take and pay for them, the vendor has three courses open to him. He may store the goods, notify the vendee that he.has done so and then recover the full contract price; second, he may keep the goods and recover the excess of the contract price over and above the market price of the goods at the time and place of the delivery, provided the market price is lower than the contract price; or third, he may, upon notice to the vendee, proceed to sell the.goods to the best advantage, and recover the loss provided they fail to bring the contract price. See Olson v. Wabash Coal Co., 126 Ill. App. 253, and cases cited. In the case before us this last method was pursued by the vendor and, in our opinion, the record shows good faith in its conduct in that regard. A vendee in default is not the one to determine what course shall be pursued by the vendor.

It is next urged upon us that the plaintiff did not prove that it was ready, willing and able to furnish the defendant with 5,000 tons of screenings per month, in accordance with the contract; that because plaintiff declined to accept defendant’s rescission and kept the contract open, it cannot recover unless it has shown its ability to furnish to the appellant the minimum amount of 5,000 tons per month. We do not so understand the law. In the case of Franklin v. Krum, 70 Ill. App. 649, the following language is used in a case very similar to the one before us:

“Apparently from the course of the trial, it seems that appellant’s contention was that from the making of this contract to the refusal of the appellant to carry out the same, it was obligatory upon appellees to have had all the lumber on hand ready for delivery, guch is not the law, It was sufficient for the purposes of the contract if appellees had and were ready to deliver the lumber whenever appellant wished for it.”

Whether or not the appellee was ready, able and willing to perform the agreement after receipt of the letter of appellant claiming rescission, was a question of fact to be determined by the jury from all the circumstances in the case. Roebling’s Sons’ Co. v. Lock Stitch Fence Co., 130 Ill. 660. It also appears that the average price obtained by the appellee on the resale of the screenings was so much less than the contract price that if it had resold all that it was entitled to do under the contract, the amount of the recovery now would have been much greater. Appellant should not be heard to complain of something that works to its advantage.

It is further argued by appellant that errors were made in the admission of testimony. In several instances no exceptions appear to have been taken to the alleged objectionable testimony; but treating the matter as though all the points raised had been preserved by exceptions, we are of the opinion that the court made no errors in the admission' of rejection of testimony, such as should call for a reversal of the judgment.

The court gave at the request of the plaintiff 'the following instruction:

“If you find from the evidence that the plaintiff sold the coal which it shipped under the contract and which was not accepted by the defendant, to the best advantage possible under the circumstances, then the measure of plaintiff’s damages is the difference between the contract price of the coal so shipped by plaintiff and the net amount realized by plaintiff from the sale of same.”

Appellant insists that this instruction was erroneous, but for the reasons heretofore stated we think that it correctly advised the jury as to the law governing the measure of damages in the case.

The appellant further objects because of the modification of an instruction given at its request. The instruction as tendered read as follows:

“The jury are instructed, that the rule of law is, that when a purchaser of personal property which, by the terms' of the purchase, is to be delivered at a specified time and place, and at a stipulated price, refuses to receive and pay for the property, and no part of the purchase price has been paid, and if the price has, in the meantime, declined, then, in an action by the vendor against the vendee for refusing to comply with the contract, the proper rule of damages is the difference between the contract price and the current price at the time and place for delivery, as fixed by the contract of sale and purchase.”

And the modification consisted in the following:

“provided the jury believe from the evidence there was at the time of delivery a market price in such place of delivery. The jury are instructed that in such case as is above herein stated the vendor upon notice to the vendee would have a right to sell the property in the place of delivery as fixed by the contract, or elsewhere, in good faith for the highest and best price obtainable—and the price obtained upon such sale so made in good faith would be evidence for the consideration of the jury as to what was such market price.”

We think that this instruction should not have been given, either as originally tendered or as modified by the court. In our opinion, however, the appellant was not injured by this action of the court. A large amount of testimony had been offered by appellant on the question of market value, and this could have been important only as bearing upon the question of whether or not good faith was used by the appellee in making a resale. The modified instruction was more favorable to the appellant than it had a right to ask.

Objection is made to the refusal of the court to give other instructions asked by appellant, many of them being on the measure of damages, based upon the theory of the appellant. We think no error was committed in this regard, nor in refusing to give certain other instructions which, in our judgment, were fully covered by instructions that were given.

We are next asked to reverse the judgment because the verdict of the jury is excessive. Careful reading of the record convinces us that the appellee used good faith in its endeavor to dispose of the screenings called for in the contract, and obtained the best price it was able to get for the same. In our opinion the amount of the verdict is not excessive, and was fully warranted by the evidence in the case.

Affirmed.


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    Nellie F. Henderson, Appellant, v. William J. Henderson et. al., Appellees.
    Gen. No. 15,531.
    1. Partition—when taxation of complainant’s solicitors fees property denied. If a petition filed in partition did not correctly set forth the interests of the parties the solicitor’s fees of the complainant should not be taxed as costs.
    2. Appeals and error—when record does not present alleged error. Meld, that the record in this case did not show any order of court refusing to tax solicitor’s fees as costs in the partition proceeding and that therefore the action of the court in that regard was not reviewable.
    3. Appeals and errors—when assignment of error insufficient. Assignments of error which are too general in averment will not avail.
    Partition. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 31, 1911.
    George M. Boyd, for appellant.
    Flynn & Lyon and Thomas B. Lantey, for appellees; George W, Lyons, Jr., of counsel,
   Mr. Justice Clark

delivered the opinion of the court.

The record in this case shows that a bill was filed by the complainant against four brothers and sisters for the partition of certain lands in Cook county, the bill alleging that at the death of the parents, both of whom had died prior to the filing of the bill, the five children were their only heirs at law. The property which was the subject of partition had been owned in equal shares by the two parents in their lifetime. The bill recites that each of the heirs at law, namely, the complainant and the four defendants, was seized in fee simple by descent of an equal undivided one-fifth part of said land.

Answers were filed by the defendants after demurrer and exceptions to the bill of complaint had been overruled. By the answers it appeared that the other three defendants had conveyed to Maude Henderson by quit-claim deeds their interest in the property. The wife of the defendant William J. Henderson and the husband of the defendant Catherine L. Wellenwraiter joined in the deeds. Edwin A. Henderson, the other defendant, was not married.

A cross-bill was filed by Maude Henderson, and on a hearing on the bill of complaint, the amendments and supplements to the bill of complaint, the answers of the defendants thereto and the replications to said answers, the cross-bill of the defendant, Maude Henderson, the answer of the complainant to the cross-bill, and the replication to the answer, and the evidence taken in open court, a decree of partition was entered, in which the court found that certain amounts were due to the creditors of the estate of Edward Henderson, including the complainant and the defendant, Maude Henderson, all of which claims had been allowed by the Probate Court; that no claims had been filed against the estate of Sarah E. Henderson. Commissioners were appointed and there was a sale by a master in chancery. The evidence at the hearing which resulted in the decree of partition is not before us, no certificate of the evidence appearing in the record. The property was sold by the master in chancery to Eva Anna Henderson, and the master’s report of sale approved, the order reserving for further consideration the distribution of the proceeds of the sale. Subsequently, on June 25, 1908, on motion of the solicitors for the complainant and defendants, an order was entered directing the master to pay out of the proceeds of the sale certain sums to George W. Lyon, Jr., solicitor for Maude Henderson, being amounts advanced by her for taxes, and by Lyon for repairs on the premises and for abstract of title to the premises. The master was further ordered to pay certain claims against the estate of Edward Henderson, and the sum of $625 to George M. Boyd, solicitor for complainant, Hellie F. Henderson, for her share of the award allowed against the estate of Edward Henderson; also the sum of $625 to Mr. Lyon, solicitor for Maude Henderson, as her share of said award; also the fees of the commissioners.

Upon the coming in of the report of the master, a decree was entered in which it was recited that the master had paid out of the proceeds of sale, pursuant to an order theretofore granted, the amounts provided to be paid including the children’s award. It further stated the amount of the expenses and fees to which the master in chancery was entitled, and ordered that he retain the'same and pay the balance to William J. Henderson, one of the defendants, as administrator of the estates of Edward Henderson, deceased, and Sarah E. Henderson, deceased, the amount belonging to each estate being set forth.

In the abstract, following the recital of the provisions of this decree, appears the following language:

“To the entry of which order the complainant objects, which objection is overruled by the court.”

Then follows the prayer of the complainant for an appeal to this court, which was allowed upon the filing of an appeal bond.

The errors assigned are:

“Said court erred in directing a decree that said complainant is entitled to no costs, or attorney’s fees herein.
Said court erred in refusing to tax the solicitor’s fees of the complainant herein.
Said court erred in refusing to tax as costs, the amount paid by complainant for certified copies of the decree rendered by the Probate Court of said county.
Said court erred in rendering said decree, and said decree is otherwise irregular, illegal, and not in accordance with the requirements of equity.”

We do not find in this record any ground for reversal. The record does not show any order of court refusing to tax the solicitor’s fees of the complainant; it does not find in terms that the complainant is entitled to no costs or attorney’s fees; there is nothing in the record to show that the complainant moved that costs be taxed in her favor, or that the amount alleged to have been paid by her for certain copies of the decree rendered by the Probate Court be repaid her. It is apparent from the record that the interests of the parties were not correctly set forth in the bill. It follows, therefore, that even if we were at liberty to treat the alleged error as properly presented, the complainant would not be entitled to solicitor’s fees. (Wachter v. Doerr, 210 Ill. 242.) The fourth assignment of error is so general, that under repeated decisions of the Supreme Court and this court, nothing is presented hy it for our consideration. (Berry v. City of Chicago, 192 Ill. 154.)

Affirmed.


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    Fred C. Roxburgh, Plaintiff in Error, v. James A. Roxburgh, Defendant in Error.
    Gen. No. 15,535.
    1. Husband and WIFE—when latter incompetent as witness. After marriage a wife is incompetent to testify for her husband even as to a transaction which occurred before marriage.

      2. Municipal court—when judgment not reversed. If substantial justice has been done a judgment of the Municipal Court will not be reversed even though an incompetent witness has been permitted to testify.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed May 31, 1911.
    Frank B. Murray and McGoorty & Pollock, for plaintiff in error.
    Boyle, Mott & Haight, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the plaintiff in error against his brother, the defendant in error, for labor performed. The record shows that in 1904 the plaintiff in error, Fred C. Roxburgh, and Arthur H. Roxburgh, assisted the defendant in error in building a house. At that time James was not married but expected to be, and it was suggested to him by the two brothers that he should build a house. The brothers testified that they offered to assist him and told him that he could pay them out of wages which he might earn after-wards. The defendant in error, on the other hand, testified that the two brothers were living with him during the summer of 1904, while the house was being constructed, and that he paid all of the household expenses except gas bills; that neither the plaintiff in error nor the brother Arthur H. Roxburgh was employed during the summer of 1904 except on the building of the house; that the plaintiff in error told him that business was quiet and that if he would build plaintiff in error would help him; that it was the least they could do for him; and that it was no more than one brother should do for another; that the plaintiff in error said that he did not expect to be paid for his services.

At the trial the wife of the defendant in error was permitted to testify. Her testimony was to the effect that she was present when the conversation occurred between the two brothers; that it was before her marriage to the defendant in error, and she corroborates her husband in his statement of the substance of the conversation. The only ground upon which a reversal is asked is based upon the proposition that her testimony was incompetent. Defendant in error, on the other hand, insists that it was competent. This contention of the defendant, in error is based upon the provisions of chapter 51 of the Revised Statutes, the first section of which reads as follows:

“That no person shall be disqualified as a witness in any civil action, suit or proceeding, except as hereinafter stated, by reason of his or her interest in the event thereof, as a party or otherwise,” etc.,

and section 5, which reads:

“Ho husband or wife shall, by virtue of section 1 of this act, be rendered competent to testify for or against each other as to any transaction or conversation occurring during, the marriage, whether called as a witness during the existence of the marriage, or after its dissolution, except in cases where the wife would, if unmarried, be plaintiff or defendant,” etc.
In the case of Mitchinson v. Cross, 58 Ill. 366, it was held that the rule of law prohibiting a husband or wife from testifying either for or against the other’s interest is based largely upon public policy, independent of interest, and should not be departed from even if the reason therefor in any particular case is not apparent.
Our attention is called by the defendant in error to the cases of Miller v. Redham, 94 Ill. 142, and Otis v. Spencer, 102 Ill. 622. The language used in these cases, particularly in the one last referred to, would seem at first glance to support the contention of the defendant in error, but reference to each of the cases will show that the subject-matter of litigation was the separate property of the wife, and the language used by the court was not necessary to a decision of the case. However, in the case of Fearn v. Postlethwaite, 240 Ill. 626, the court reaffirmed-the doctrine "expressed in Mitchinson v. Cross, supra, and, as we read the decision, held that neither section 1 nor section 5 of chapter 51 removed the inhibition by which under the common law the wife was precluded from testifying in a suit for or against her husband, for reasons of public policy, and that this inhibition still exists except in those cases specifically set forth in said section 5. The case before us is not one that comes under the exceptions set forth in said section. In our opinion, therefore, the court below erred in admitting the testimony of Mrs. Roxburgh.

We next come to the question as to whether the judgment in this case should be reversed because of the error complained of. It is provided in subsection ? of section 23 of the act creating the Municipal Court that:

“Ro order or judgment so sought to be reviewed shall be reversed unless the Supreme Court or Appellate Court, as the case may be, shall be satisfied' from said statement or stenographic report, or reports, signed by said judge, that such order or judgment is contrary to the law and the evidence, or that such order or judgment resulted from substantial errors of said Municipal Court • directly affecting the matters at issue between the parties, in which last mentioned case the Supreme Court or Appellate Court, as the case may be, may enter such order or judgment as, in its opinion, the Municipal Court ought to have entered, or it may reverse the said order of judgment and remand the case to the Municipal Court for further proceedings.”

We have carefully read the record in this case, and have come to the conclusion that without the testimony of Mrs. Roxburgh the court below would have been justified in entering the judgment from which the appeal is taken. It appears uncontradicted that no claim was made by the plaintiff in error for compensation until nearly four years after the work had been done, and that then he and. his brother Arthur endeavored to procure a loan of $200 from the defendant in error, which the defendant in error offered to make them provided they would give him a note for the amount loaned, payable at such time as suited their convenience; that thereupon they demanded pay for doing work on the house in question. It also appears that the defendant in error during the four years was an engineer at a hotel in Chicago. He undoubtedly was in receipt of fair wages, and we think the fact that the plaintiff in error did not demand any portion of the pay for his services during these four years tended very strongly to corroborate the testimony of the defendant in error that there was no contract between the parties under and by which the plaintiff in error was to receive compensation.

Affirmed.


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    William L. Goggin et. al., Appellees, v. City of Chicago, Appellant.
    Gen. No. 15,536.
    1. Eminent domain—-extent of municipal liability. If an abutting property owner is injured by reason of changes made in a street by a railroad company under authority of the city, the city is liable.
    2. Eminent Domain—when assessment of damages mil not be reversed. If a judgment rendered in an action for injury to real property appears to do substantial justice and if it seems obvious that no decision more favorable would result from another trial, a reversal because of errors in procedure will .not be awarded.
    3. Pleading—what not variance. Held, that there was no material variance between the allegations and the proof as to an ordinance authorizing track elevation.
    4. Evidence—when testimony of expert on values properly not stricken. Even though it appear from cross-examination that an expert on values has included in his estimates an improper element, it is proper not to strike out his entire testimony.
    Action in case. Appeal from the Circuit Court of Cook county; the Hon. Harry Higbee, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 31, 1911.

      Edward J. Brukdage, Robert N. Holt and Franklin A. Denison, for appellant.
    Charles H. Mitchell and Wm. M. & Wm. S. Johnston, for appellees.
   Mr. Justice Clark

delivered the opinion of the court.

In 1898 the appellees were the owners of certain property-fronting north on West Sixty-third street in the city of Chicago, and lying about 200 feet east of Wentworth avenue and west of the Chicago, Rock Island & Pacific Railway Company’s tracks and near the tracks of the Pittsburgh, Fort Wayne & Chicago Railway Company and the Lake Shore & Michigan Southern Railway Company. During that year the tracks of these companies were elevated, under authority of and pursuant to an ordinance passed by the city requiring such elevation: The improvement required that Sixty-third street be depressed in front of appellees’ property and property adjacent thereto, and this was done by the Pittsburgh, Fort Wayne & Chicago Railway Company during the said year 1898. Thereafter the appellees brought suit against the city, making the railway companies parties. Subsequently the railway companies were dismissed from the case and the suit prosecuted against the city alone. There was a verdict of $5,000 and judgment thereon.

We are asked to reverse the judgment on the grounds that the court erred in the admission and rejection of testimony; in giving certain instructions at the request of the appellees, and in refusing to give certain instructions as requested by the appellant; in overruling a motion for a new trial, and denying the motion of appellant in arrest of judgment. It is also insisted that the verdict of the jury is excessive and is not sustained by the evidence.

The first point made by the appellant in its brief is that a city is not liable in damage to an abutting property owner for changes which it “authorizes or permits” a railroad company to make in a street, in the absence of negligence, but the liability for all damages must fall upon the railroad company. The only Illinois case to which our attention has been called in support of this contention is City of Olney v. Wharf, 115 Ill. 519. In that case the city granted to a railroad company the right and privilege of constructing and operating its railroad in a street, the fee of which was in the city, and the case has no bearing on the point before us. In the cases of City of Chicago v. Jackson, 196 Ill. 496, and City of Chicago v. Lonergan, 196 Ill. 518, the Supreme Court held that the city is liable if an abutting property owner is injured by the depressing of a street, made necessary by the elevation of railroad tracks, whether the work is done by the municipality itself or by the railroad company.

Claim is made by the appellant that the declaration is based upon an alleged ordinance authorizing sundry railroad companies to elevate their tracks, and that consequently there is a substantial variance between the proofs and the allegations in the declaration. The declaration is much more voluminous than it needed to have been. We think, however, that it contained at least all the averments necessary to comply with the rules laid down in the two cases heretofore referred to.

H. O. Wilson, one of the appellees, testified that the damages to the property were $15,000. In cross-examination he stated that he included in that amount loss of rents or half rents for a year and a half, aggregating $3,000. Later on he apparently became confused and stated that he included $1,-800 for loss of rent, in addition to the $3,000. Motion was made by the appellant to strike out all his testimony on the question of damages on the ground that he included in his estimate elements that should not have been considered. It will be notéd in this connection that the court gave an instruction that the plaintiffs could not recover for loss of rents. However, depreciation in rental value is proper evidence as bearing upon the contention that there has been depreciation in the market value of the premises. Lewis v. Englewood El. R. R. Co., 223 Ill. 223. The cross-examination was proper as tending to weaken the effect of the witness’ estimate of the damages given on direct examination, but the motion to strike from the record all of his testimony on this subject was too broad. The amount of the verdict is such that it could easily be accounted for without including the improper elements of damage stated by this witness to have been included in his estimate. The same considerations apply, in a measure, to the testimony of other witnesses, which testimony appellant moved to strike from the record. We think the motion was properly overruled. Illinois Central R. R. Co. v. Trustees of School, 212 Ill. 406.

Complaint is also made of instructions other than the one referred to, given at the request of appellee, and of the refusal to give certain instructions asked by the city. The court gave eleven instructions at the instance of the appellant, and eight at the instance of the appellee, many of them being of considerable length. As a whole we think they correctly advised the jury of the law which should govern them in arriving at their verdict. We do not think the amount of the verdict against the weight of the evidence.

It has béen held by our Supreme Court that if substantial justice seems to have been done in a ease of this nature, and if it seems obvious that no decision more favorable to the appellant would result from another trial, the judgment should not be reversed because of errors, if any there are, in the procedure. City of Chicago v. Jackson, supra.

Affirmed.


text:
    Eli Brandt et al., Appellants, v. The West Chicago Park Commissioners, Appellee.
    Gen. No. 15,547.
    1. Eminent domain—liability of parlo commissioners. While park commissioners may not be liable for damages in eases where the doctrine of respondeat superior must be invoked, they are liable and may be sued for the value of property appropriated by them to their use, and for the damage done to property abutting boulevards, avenues and streets, where such taking or damage is rendered necessary by improvements in the boulevard, avenue or street, properly made by the park commissioners in pursuance of the corporate powers and functions with which they are vested.
    2. Pleading—when irregularity waived. A defect in pleading not raised in the trial court cannot be availed of on review.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed May 31, 1911.
    R. S. Thompson and F. M. Lowe, for appellants.
    B. F. Richolson and N. B. Berg, for appellees.
   Mr. Justice Clark

delivered the opinion of the court.

In this case there is brought up for review the action of the Circuit Court in sustaining a general demurrer to a declaration in a suit brought by the appellants against the appellee. The declaration alleges that the appellee is a municipal corporation, created under the constitution and laws of the State of Illinois, and vested with exclusive ownership, title, control and jurisdiction of Central Park boulevard, a public thoroughfare in the city of Chicago, and with the intersection of said Central Park boulevard with West Chicago avenue, also a public thoroughfare in Chicago; that the appellants are the owners of the property situated at the northwest corner of this boulevard and avenue, the property being rectangular in shape and having a frontage on the boulevard of 125 feet, and on the avenue of 148.9 feet; that prior to the commission of the act complained of the boulevard and avenue were so graded and improved that they were level with the ground of appellants’ property, so that there were free, easy, natural and unobstructed access and egress to and from the thoroughfares and said property; that on November 1, 1896, the appellee erected upon the boulevard an embankment of earth, sand, stone, iron and other materials, in the form of a viaduct, having a width of about one hundred feet and a height of four feet above the last former grade of said thoroughfare at a point opposite the north line of appellants’ property and thence gradually rising in height on an even gradient to a height of about eight feet above the last former grade of the thoroughfare opposite the south line of the appellants’ property; that it lowered the grade on the avenue opposite the west line of the appellants’ property two feet, the new grade descending so that at a point opposite the east line of the property the grade became about four feet lower than the former grade at that point; that by such action of the appellee the free, easy, natural and unobstructed access and egress of said property to and from the boulevard and avenue were injured and destroyed, and the property injured in its market value and rendered undesirable and the market value thereof destroyed, to the great injury of the appellants.

The contention of the appellee is that it is a public, involuntary, quasi-municipal corporation, as distinguished from such municipal corporations as cities, towns and villages, which are incorporated by special charters or under the general laws; that because it is so organized it is not liable in damages for the acts complained of in the declaration.

On the other hand, the appellants insist that the appellee is a municipal corporation, with power to make the improvement mentioned in the declaration, that it was acting within the scope of its corporate authority when it caused the damage complained of, and that it became liable to them for such damage under the constitution and laws of the state.

In the 4th edition of Dillon on Municipal Corporations, section 21, it is stated that there is nothing in the law more complex and abstruse than the question as to what constitutes an American municipal corporation, and nothing more difficult than the conveyence of an adequate idea of the exact nature and properties of a municipal corporation.

Many cases are cited by appellee from the courts of other states and some cases decided by the Supreme Court of Illinois, which it is claimed support its contention that it is an agency of the state, by which in part the people of the state carry on the government; that the commissioners are public officers, and that a suit against it in tort or otherwise is practically a suit against the state, and therefore not maintainable. In West Chicago Park Commissioners v. Sweet, 167 Ill. 326, Mr. Justice Cartwright, speaking for the court, says:

“By the act in force February 27, 1869, the West Chicago Park Commissioners were constituted a board of public park commissioners for the town of West Chicago, and were given full and exclusive power to govern, manage and direct all parks, boulevards and ways authorized by the act, and to levy special assessments on all property by them deemed benefited by the purchase, opening and improvement of such parks, boulevards and ways as limited by the act. This act was adopted by a vote of the people of the town. By the act of 1871 the commissioners appointed under said former act, which had been submitted to the legal voters of the town and adopted, were declared to be corporate authorities of the town for the purposes named in the act. Tinder this and other legislation appellants compose a municipal corporation, with all the corporate powers and functions in respect to the parks and streets of the city under its control that are conferred by law upon the city of Chicago. West Chicago Park Commissioners v. City of Chicago, 152 Ill. 392.”

The act creating the West Park Board was passed prior to the adoption of the constitution of 1870, and the appellants base their right to recover upon section 13, article 2, Bill of Bights,—“Private property shall not be taken or damaged for public use without just compensation. Such compensation when not made by the state shall be ascertained by a jury as shall be prescribed by law.” It is insisted that the word “damaged” was added to the section quoted for the express purpose of making actionable such injuries as those complained of in the case before us, and the right of the appellant to recover is claimed as a constitutional right.

In Wilcox v. The People, 90 Ill. 186, it is said:

“But this court has decided it to be competent for the legislature to pass amendatory acts affecting these parks, although not submitted to a, vofe of the people. People v. Brislin, 80 Ill. 423; Andrews v. People, 83 id. 529; and surely a com stitution may do as much

The italics are ours.

Undoubtedly the appellee is a municipal corporation of such limited powers and created in such a way as to render it immune from liability for damages resulting from the negligence of its officers. (Backer v. West Chicago Park Commissioners, 66 Ill. App. 507.) In ordinary cases where negligence is charged, the constitutional guaranty against the taking of private property for public use without compensation is not available to the party injured.

In the case before us, however, there is no charge of negligence of the kind to which our attention is called in cases cited by appellee. The charge is that a change was made in the boulevard and avenue upon which appellants’ property abutted; that such change was made, not in a negligent way, but in such a manner that the necessary consequence was to lessen, if not to destroy, the value of the property; that under the constitution of the state the appellants thereupon became entitled to damages; that this right of the appellants is as specifically guaranteed to them as would have been their right to compensation if the property had itself been appropriated by the appellee for its use, by means of condemnation proceedings.'

Instead of the act of the commissioners being one of negligence, it was an act made necessary by the nature of one of the duties which they are called upon to perform, namely, to make proper improvement of the boulevard and avenue which are included in the property over which the board has control. It was in perfect consonance with the spirit and purposes of the law by which appellee was established.

The Eminent Domain Law passed in 1872 provided means by which these damages could be ascertained. The constitutional provision heretofore referred to is made the first section of the act. In City of Elgin v. Eaton, 83 Ill. 535, it is said:

“It is first urged, that a municipal corporation is not liable for damages gpowing out of grading their streets. This was, no doubt, true, before the adoption of our present constitution. Article 2, Sec. 13, declares that ‘private property shall not be taken or damaged for public use without just compensation.’ How, this was private property, and the improvement was being made for public use, and if the property was damaged thereby, appellee is entitled to just compensation for such damage. If injury was sustained, it was for public use. See City of Pekin v. Brereton, 67 Ill. 477, and City of Shawneetown v. Mason, 82 Ill. 337. These cases fully establish the rule that if a person is damaged in making such improvement, he may recover.
“In this case the city entered upon the improvement of the street after the adoption of our present constitution, and before the passage of the Eminent Domain Law. The rights of the parties were then fixed, and cannot be altered by subsequent legislation, and the right to recover damages was given by the constitution; and inasmuch as the city failed to have them assessed as they might have been under the Eminent Domain Law, then in force, the action will lie for their recovery. See The People v. McRoberts, 62 Ill. 38. Failing to provide compensation for the damages, the city became liable to an action. Clayburgh v. City of Chicago, 25 Ill. 440. The failure to have the damages ascertained, if there were any, and provide the means to pay the same, was an omission of duty which rendered the body liable to an action.”

The act creating the corporation known as the West Chicago Park Commissioners, gave it the power to condemn lands for park or boulevard purposes. May it indirectly destroy the use of adjoining properL and render it valueless, neglect to condemn it in the manner provided by statute, and then shelter itself under the contention that it is only an arm of the state, and that therefore the state only may be looked to by the injured property owner for the damage he has suffered? We think not.

As stated by Mr. Justice Walker in the case last referred to, the failure to have the damages ascertained, if there were any, and provide the means to pay the same, was an omission of duty which rendered the body liable to an action.

If, as stated by Mr. Justice Cartwright in the case of West Chicago Park Commissioners v. Sweet, supra, appellee is a municipal corporation with all the corporate powers and functions in respect to the parks and streets in the city under its control that are conferred by law upon the City of Chicago and if the corporate powers and functions in respect to the parks and streets carry with them the obligation created by the constitution when applied to the City of Chicago in its relation to the owners of property abutting streets upon which changes have been made, then there can be no question as to the liability of appellee, provided the allegations of the declaration are sustained by the proof at the trial.

It was held in City of Chicago v. Jackson, 196 Ill. 496, that under the provisions of our present constitution a city is liable for any injury and damage occasioned to the property of the citizen by changes in the grade of the street on which such property abuts, whether such change is made by the city directly or by some corporation in obedience to a track elevation ordinance.

It is equally liable for the damage, if any, to abutting owners, occasioned by the placing of a viaduct upon the street.

Our conclusion is that while the appellee may be not liable for damages in cases where the doctrine of respondeat superior must be invoked, it is liable and may be sued for the value of property appropriated by it to its use, and for the damage done to property abutting boulevards, avenues and streets, where such taking or damage is rendered necessary by improvements in the boulevard, avenue or street, properly made by the appellee in pursuance of the corporate powers and functions -with which it is vested.

It is contended by appellee that the demurrer was properly sustained, because the declaration does not allege that the grade of the boulevard and avenue had been established before the change of grade complained of took place. It will be noted that the declaration alleges that the damage complained of was caused by the erection of a viaduct which cut off access to and egress from the property of the appellants, and it is asserted by the appellants that the point now made was not made in the court below. We think that the declaration was not obnoxious to a general demurrer on the ground now asserted.

Inasmuch as we hold that the appellee is liable to the appellants if the allegations of the declaration are proved upon the trial, it is unnecessary for us to consider the third point suggested by the appellee, that the court of claims is the proper tribunal with jurisdiction in the premises.

While the declaration might have been couched in different language, and such expressions as “the defendant wickedly and wrongfully contriving how it might injure and destroy the said free, easy, natural and unobstructed, access and egress of said property,” etc., left out, we think it does show in other ways the basic right of the appellants to recover, provided the proofs accord substantially with its allegations.

Reversed and remanded.


text:
    Anna M. Ser Vis, Appellee, v. William E. Ser Vis, et al., on appeal of Nicholas Speropulos, Appellant.
    Gen. No. 16,090.
    Appeals and errors—how appeal from interlocutory order must he perfected. In order to appeal from an interlocutory order the amount of the bond must be fixed by the clerk and the same approved by' him; even in the absence of a motion to dismiss, an appeal of this kind not perfected as required by statute will be dismissed.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Appeal dismissed.
    Opinion filed May 31, 1911.
    Certiorari denied by Supreme Court (making opinion final),

      A. L. Gettys, for appellant.
    Ammen, Humphrey & Joyner, for appellee.
   Mr. Justice Clark

delivered the opinion of the court

On August 7, 1909, an order was entered in this cause by the Circuit Court, which reads as follows:

“It is Therefore Ordered, Adjudicated and Decreed by the court that the Chicago Title and Trust Company, an Illinois corporation duly authorized by the laws of this state to act as receiver in such cases, be and it is hereby appointed as receiver in this cause of the said stock of candies and furniture and fixtures of the said store at Mo. 108 South Clark street, in Chicago, Illinois, to take possession thereof and sell and dispose of the same under the directions of the court, with the usual powers of a receiver in such cases, and upon the said receiver filing herein its acceptance of such appointment, pursuant to the statute in and for such cases made and provided, the said Mick Speropulos is hereby ordered and required to deliver the said property to the said receiver upon demand of the said receiver. after filing of the said acceptance herein, and the said receiver and the said complainant herein are hereby authorized to apply to this court, from time to time, if need be, for further direction in the premises.”

The record shows that upon the entry of said order, the appellant, Micholas Speropulos, by his solicitor, objected and excepted “to the order of the court entered in this case on this day, appointing a receiver herein, and entirely for the purpose of appointing a receiver in said cause as against said Speropulos, and requests the court that certain findings be inserted in said order or decree, marked Speropulos Exhibit 1 of August 7, 1909, and the court refused and denied said request. Speropulos duly excepted. Speropulos then and there prayed an appeal from the said order entered on this day to the Appellate Court to the First District of Illinois, which appeal was allowed upon the said Speropulos filing a bond, in the sum of $1,500 in twenty days, to be approved by the court. Bill of exceptions to be filed on or before September 15, 1909.”

On the same day a bond in the sum of $1,500 was filed and approved by the court.

Clearly this is an appeal from an interlocutory order. The objection of counsel for appellant was “to the order of the court entered in this case on this day, and entirely for the purpose of appointing a receiver in said cause as against said Speropulos,” and the appeal prayed is “from the said order.” The bond was approved by the court.

This court is without jurisdiction. A motion was made by the appellee that the appeal be dismissed, and this motion was reserved to the hearing. It would have been our duty to dismiss the appeal on an examination of the record, even if such motion had not been made.

The point has been decided so many dimes that it seems unnecessary to refer to the cases. In the case of Hartzell v. Warren, 77 Ill. App. 274, it was held:

“The right of appeal from such an interlocutory order is purely statutory, and in order to give this court jurisdiction of the case, the statute must be followed. The statute of this State (Ch. 22, See. 52) provides that The party taking such appeal shall give bond, to be approved by the clerk of the court below’, etc. The court below has nothing to do by way of granting the appeal nor fixing the time within which the bond shall be given, its amount or approval. The statute fixes the time and manner of taking the appeal, and the bond must be approved by the clerk of the court below. Unless the statute in these respects is followed, .this court acquires no jurisdiction, and cannot, therefore, legally give any consideration to the questions argued by counsel. Alles Plumbing Co. v. Alles, 67 Ill. App. 252, and cases cited; Sidway v. Amer. Mort. Co., id. 24; Commerce Vault Co. v. Hurd, 73 Ill. App. 107.
“When it appears the court is without jurisdiction, it becomes its duty, sua sponte, to dismiss the appeal, which is done. Wright v. People, 92 Ill. 596; Hart v. Burch, 31 Ill. App. 22.”

We again hold that an appeal from an interlocutory order appointing a receiver is statutory; that the amount of the bond must be fixed by the clerk of the court below and the bond must be approved by him; that no prayer for an appeal is necessary and that an order of the court below allowing an appeal has no efficacy.

Appeal dismissed.


author: Mr. Presiding Justice Baker

text:
    Frank Prox Company, Defendant in Error, v. Edward A. Bryan, Plaintiff in Error.
    Gen. No. 15,588.
    1. Municipal court—what not essential to review. Exceptions to rulings made against the objections of a party are not essential to a review of such rulings.
    2. Municipal court—section 33 of act construed. The fact that an officer of the adverse party corporation has been cross-examined does not preclude the right again to call and examine him under section 33 of the Municipal Court Act.
    3. Foreign corporations—what materal to determine issue of “doing business.” Whether a corporation has bought materials and employed labor in Illinois in connection with its business, are facts material to the determination of the issue as to whether its business is intrastate or interstate.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed June 1, 1911.
    L. D. Condee and James M. Given, for plaintiff in error.
    Eastman, Eastman & White, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The plaintiff in error brought an action of the fourth class in the Municipal Court to recover the price of certain articles sold and delivered by the plaintiff to the defendant, and recovered judgment for the amount claimed.

The defense interposed was that plaintiff was a foreign corporation, not authorized to do business in Illinois; that it had done business in Illinois, and therefore could not maintain this action.

The plaintiff is an Indiana corporation, doing business at Terre Haute, and the defendant was engaged in business at Paris, Illinois. The plaintiff had, prior to the transaction involved in this action, done business in Illinois. The contention of the plaintiff was that the business done by it in Illinois was interstate commerce, and therefore not within the prohibition of the statute relating to foreign corporations, and the contention of the defendant was that the plainiff had been and was doing business in Illinois which was intrastate in character, and therefore could not maintain this suit.

We shall consider only the question whether the trial court erred in restricting the examination of Herman C. Prox, the vice-president and general manager of the plaintiff, under section 33 of the Municipal Court Act, which is as follows:

“That upon the trial or hearing of any suit in the Municipal Court any party thereto, or any person for whose immediate benefit such suit is prosecuted or defended, or the directors, officers, superintendent or managing agents of any corporation which is a party to the record in such suit, may be examined upon the trial thereof as if under cross-examination at the instance of the adverse party or parties or any of them, and for that purpose may be compelled, in the same manner and subject to the same rules for examination as any other witness, to testify, but the party calling for such examination shall not be concluded thereby, but may rebut the testimony thus given by counter testimony.”

Prox was called and examined as a witness by the plaintiff and cross-examined by the defendant.

After plaintiff rested, defendant’s counsel called Prox as a witness and examined him at some length. He then asked to examine him as on cross-examination under the statute, and the court ruled that while defendant’s counsel might examine the witness further, he could not call him under the statute. The witness then testified in answer to questions put to him by defendant’s counsel, that the plaintiff had done several hundred thousand dollars’ worth of business in Illinois; that it had erected at Tower Hill, Illinois, apparatus for screening coal as it came from the mine, using steel and rivets that came from Pittsburg and lumber that came from the South. He was asked whether plaintiff had bought any other goods in Illinois and whether it had employed labor in Illinois, and the court sustained plaintiff’s objection to both questions.

The contention of defendant in error that the rulings of the court above set forth are not saved for review because the defendant failed to preserve formal exceptions to such rulings, cannot be sustained. It clearly appears from the record that such rulings were made against the objection of the defendant, and Clause 8 of section 23 of the Municipal Court Act provides that no “exceptions to the rulings and decisions of the Municipal Court upon the trial, which appear to have been made against the objection of the party complaining thereof, shall be necessary to the right of either party to a review of such rulings and decisions by the Supreme Court or Appellate Court upon their merits.”

Whether the plaintiff had bought materials or employed labor in doing the business it had done in Illinois were matters material to the inquiry whether the business it had done in Illinois was interstate or intrastate in character. Oakland Co. v. Fred W. Wolf Co., 55 C. C. A. 93.

We think that the fact that defendant had cross-examined Prox after he had been examined by the plaintiff and had called him as his own witness and examined him on direct examination, did not deprive defendant of the right to call and examine him under the statute; that the rulings of the court sustaining plaintiff’s objection to the question whether plaintiff had purchased materials or employed labor in IIlinois, constitute reversible error, and for that error the judgment will be reversed and the cause remanded.

Reversed and remanded.