text:
    Mary Laski, Appellee, v. National Council, Knights and Ladies of Security, Appellant.
    Gen. No. 22,467.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in this court at the March term, .916.
    Reversed and remanded.
    Opinion filed November 27, 1916.
    Rehearing denied December 11, 1916.
    Statement of the Case.
    Action by Mary Laski, plaintiff, against the National Council, Knights and Ladies of Security, a corporation, defendant, on a benefit certificate of insurance. From a judgment for plaintiff, defendant appeals.
    A. W. Fulton, for appellant.
    J. Leonard Brill and Harold O. Mules, for appellee. *
    Abstract of the Decision.
    1. Insurance, § 897

      —when question whether insured violated terms of certificate is question for jury. In an action on a benefit certificate, the question whether the deceased had violated his agreement under the certificate or was intemperate in the use of liquors and had died directly or indirectly as a result thereof, which, if so, would under the terms of the certificate prevent a recovery, held for the jury.
    2. Insurance, § 895a*—when exclusion of evidence as to deceased’s habits and cause of death is erroneous. In an action on a benefit certificate, providing that it should become void if the insured became or was intemperate in the use of liquors after his admission, or if his death should result directly or indirectly from the intemperate use of intoxicating liquors, the exclusion of evidence hy a physician that he had examined the insured shortly before his death and that in his opinion the deceased had died of alcoholism, and of testimony of witnesses who worked with him as to his habits with reference to intoxication, held erroneous.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    Lester C. Seawell, Plaintiff in Error, v. Oregon Short Line Railroad Company, Defendant in Error.
    Gen. No. 22,807.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Weias, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.
    Statement of the.Case.
    Action by Lester C. Seawell, plaintiff, against the Oregon Short Line Railroad Company, defendant. From a judgment entered on a directed verdict for defendant, plaintiff prosecutes a writ of error.
    The facts and questions involved in this case appear in volume 192 Appellate Court reports at page 273,-where is the opinion of one of the branches of this court when the case was here before. It went to the Supreme Court consolidated with Looney v. Oregon Short Line R. Co., and that court reversed the judgment of the Appellate Court and the Municipal Court and remanded the cause. See 271 Ill., page 538. Upon the second trial in the Municipal Court the jury were directed to bring in a verdict in favor of the defendant.
    C. A. Butler, for plaintiff in error.
    John A. Sheean, for defendant in error.

      Abstract of the Decision.
    Appeal and error, § 1727

      —when affirmance required. The direction of a verdict by the trial court after remandment by the Supreme Court, held to be in accordance with the decision of that court and to require affirmance by the Appellate Court, as the Supreme Court’s decision settled the law of the case.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    F. W. Reid, Appellee, v. Frederick W. McKinney, Appellant.
    Gen. No. 22,336.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.
    Statement of the Case.
    Action of the first class by F. W. Eeid, plaintiff, against Frederick W. McKinney, defendant, in the Municipal Court of Chicago, to recover on a promissory note made by defendant and indorsed to plaintiff. From a judgment for plaintiff, defendant appeals.
    Charles Scribner Eaton, for appellant.
    Sonnenschein, Berkson & Fishell, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Bills and notes, § 333 —what claims maker cannot set off in action by indorsee. In an action by an indorsee of notes against the maker, claims not arising out of any transaction where a contractual relation existed between plaintiff and defendant, or matters or claims between them on which an independent action could have been maintained by defendant against plaintiff, are not properly set off against plaintiff’s claim.

2. Municipal Coubt of Chicago, § 13*—what is effect of striking defective affidavit of defense. In an action in the Municipal Court of Chicago, an affidavit of defense which fails to state facts in law constituting a defense, or facts which, if true, will establish a valid set-off, is properly stricken, and thereby all statements and pleas in defense and set-off are automatically eliminated, since in that court pleas are unavailing unless the facts in the affidavit constitute a defense in law to the action.

3. Municipal Coubt of Chicago, § 13*—what pleading unnecessary. Since in the Municipal Court of Chicago the merit of a defense is tested by the facts set up in the affidavit, it is not necessary to join issue on any pleas which may be filed.

4. Bills and notes, § 333*—when set-off by maker against indorsee not proper. In an action by an indorsee of a promissory note against the maker, a set-off claimed by defendant which is largely in excess of plaintiff’s claim is in violation of the Negotiable Instruments Act of 1895; sec. 12 (J. & A. jf 7633), providing that in actions on promissory notes, etc., where the instrument has been assigned or transferred by delivery to plaintiff after maturity, certain set-offs may be made to the amount of plaintiff’s claim.

5. Bills and notes, § 333*—what claims cannot be set off by maker. A defendant cannot set off claims for unliquidated damages against plaintiff’s demand.

6. Municipal Coubt of Chicago, § 13a*—when statement of claim on note justifies judgment including interest. A statement of claim in an action in the Municipal Court on a promissory note which attaches a copy of the note to the statement and makes it part thereof by reference is sufficient to authorize the inclusion of interest in the verdict and judgment although such inclusion causes the judgment to be for an amount exceeding that claimed in the statement.

7. Municipal Coubt of Chicago, § 28*—when judgment cannot be objected to on appeal. An objection that a judgment in the Municipal Court of Chicago exceeds the amount claimed in plaintiff’s statement of claim cannot be maintained where plaintiff stood by without objection when the verdict was rendered and the judgment entered, and where the objection is made for the first time on appeal.


text:
    Lillian Trafelet by Charles Trafelet, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,392.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with finding of fact.
    Opinion filed November 27, 1916.
    Statement of the Case.
    Action by Lillian Trafelet, by Charles Trafelet, her next friend, plaintiff, against the Chicago City Railway Company, a corporation, defendant, in the Superior Court of Cook county, to recover for personal injuries sustained as a result of being struck by one of defendant’s electric street cars. From a judgment for plaintiff for $7,000, defendant appeals.
    The accident occurred August 29,1912, about 4 p. m. The evidence tended to show that plaintiff, a child under the age of eight years, with a companion, was on the west side of Indiana avenue, in Chicago, about midway between 31st and 32nd streets and started to cross to the east side. At the southwest corner of 31st street a building was being constructed and the street for about one hundred and fifty feet south of 31st street was obstructed with building material. Plaintiff was struck by a northbound car as she and her companion suddenly ran into Indiana avenue when the car was about twenty feet south of the point where she left the sidewalk. The car was running at an ordinary rate of speed, and, on seeing plaintiff, the motorman shut off power and applied the air brake. Plaintiff ran into the west side of the car about eight feet to the rear of the front. The car stopped within seventy-five feet north of where plaintiff was picked up.
    Franklin B. Hussey and Charles Le Boy Brown, for appellant; John B. Guilliams, of counsel.
    Joseph B. Burres, for appellee; J. S. Dudley, of counsel.
    Abstract of the Decision.
    1. Street railroads, § 131

      —when allegation that car was running at excessive speed not sustained hy evidence. In an action to recover for personal injuries sustained as a result of being struck by defendant’s street railway car, an allegation that the car was running at an excessive rate of speed, held not sustained by the evidence.
    2. Street railroads, § 64*—when motorman not guilty of negligence. A street car motorman who was not running his car at an excessive rate of speed held not guilty of negligence in striking a pedestrian who suddenly dashed from the sidewalk to cross in front of the car, where the evidence showed that the motorman could not, by the exercise of extraordinary care and diligencé, have stopped the car in. time to avoid the accident, even though it took place at a street crossing and though the motorman saw the pedestrian when she started from the sidewalk. - .
    3. Street railroads, § 131*—when verdict for plaintiff contrary to evidence. In an action to recover for personal injuries sustained as a result of being struck by defendant’s street railway car, where plaintiff came out from behind an obstruction in the street in the middle of a block and started to cross in front of the car, and where there was evidence that the car was not running at an excessive rate of speed, and that when the motorman saw plaintiff, he shut off the power and applied the air brake, a verdict and judgment for plaintiff held clearly contrary to the weight of the evidence.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

4. Street railroads, § 63 —what is effect of stireet obstructions as to duty of motorman. The fact that there are obstructions in a street occasioned by the construction of a building does not operate to change the place of crossing for pedestrians from the crosswalk to the middle of the block, or to impose a duty on the servants of a street car company to anticipate that pedestrians would suddenly cross the street in the middle of the block.

5. Street railroads, § 73*—when failure to sound gong not negligent. No negligence can be imputed to a street car motorman as a matter of law in not sounding the gong or arresting the speed of the car in the middle of the block.

6. Street railroads, § 66*—when duty of motorman discharged after discovery of peril. In an action to recover for personal injuries sustained as a result of being struck by defendant’s street car, where defendant’s motorman was not running at an excessive rate of speed, there can be no liability- where all things possible to be done were done by the motorman to avoid the accident, the environment of the parties considered.

7. Appeal- and error, § 1778*—when Appellate Court m,ay reverse with finding of fact. The Appellate Court on review is not restrained, as is the trial court, from determining the probative force of the evidence, and may reverse a judgment with a finding of fact when in its opinion the evidence fails to sustain such judgment.


text:
    John E. Vos, Appellee, v. Frederick C. Franke, Appellant.
    Gen. No. 22,405.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.
    Statement of the Case.
    Action by John E. Vos, plaintiff, against Frederick O. Franke, defendant, in the Circuit Court of Cook county, to recover for personal injuries sustained by plaintiff as a result of being struck by defendant’s automobile. From a judgment for plaintiff for $1,500, defendant appeals.
    The evidence showed that plaintiff was crossing West 69th street in Chicago when injured, near the alley between Emerald and Union avenues. He was hurrying after another man, and sought to cross the street at a point which was not a regular crossing, but was south of the center of 69th street when struck. Defendant’s automobile was being driven south of the center of such street, without apparent necessity for its being out of the usual line of vehicular traffic. There was no congestion of traffic or street obstruction to account for its being there. The automobile at the time was proceeding' west.
    Willard C. McNitt and Joseph A. Bates, for appellant.
    Lewis B. Jacobs and Walter J. Heinemann, for appellee.
    Abstract of the Decision.
    1. Automobiles and gabages, § 2

      —when injured pedestrian not guilty of contributory negligence. In an action to recover for personal injuries sustained by a pedestrian by being struck by defendant’s automobile, held that plaintiff was not guilty of contributory negligence although when struck he was crossing a street at a point which was not a regular crossing, it also appearing that defendant’s automobile was at the time of the accident being recklessly driven out of the path of vehicular traffic in the street, so that if plaintiff was originally negligent in selecting a point for crossing, he had, when struck, escaped from the path where the automobile should have been driven.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Automobiles and gabages, § 3 —when evidence sustains judgment for injured pedestrian. In an action to recover for personal injuries sustained by a pedestrian by being struck by defendant’s automobile while plaintiff was crossing a street, where it appeared that, though plaintiff sought to cross at a point not a regular crossing, defendant’s automobile was being driven out of the regular path of vehicular traffic when it struck plaintiff, a judgment for plaintiff held sustained by the evidence.

3. Appeal and ebbor, § 1629*—when improper questions of counsel not reversible error. Improper questions asked by counsel for plaintiff are not reversible error where the evidence and the size of the verdict show that defendant was not prejudiced thereby, and where on prompt objection by defendant the court ruled the questions out, such ruling being a sufficient curative.

4. Trial, § 270*—when special interrogatories. Special interrogatories in an action for personal injuries which do not fulfil the legal requirement that they be single and direct and that they relate to an ultimate or controlling fact are properly refused.

5. Instructions, § 159*—how considered. Instructions must be taken and read as a whole.

6. Negligence, § 204*—when request for directed verdict properly denied. A request for a directed verdict in an action for personal injuries is properly denied where plaintiff’s case presents facts calling for a submission of the case to a jury.

7. Automobiles and garages, § 3*—when evidence of competency of driver admissible. In an action for personal injuries sustained by plaintiff as a result of being struck by defendant’s automobile, where one of the issues joined was the failure of defendant to employ a careful and skilful driver, and whether the driver employed lacked such qualities, evidence is competent as to the competency, reliability and reputation of the driver employed by defendant to drive his automobile at the time of the accident, since defendant cannot be heard to complain of evidence pertinent to the issues joined.

8. Automobiles and garages, § 3*—when evidence shows driver reckless and unfit. In an action to recover for personal injuries sustained by a pedestrian as a result of being struck by defendant’s automobile, where it appeared that the automobile was being driven by defendant’s servant at a point in the street away from the regular path of vehicular traffic, evidence held to show that the character and conduct of defendant’s driver was reckless, and that such driver was unfit to drive such automobile.


author: Mr. Justice Hpldom

text:
    Fennije Vondra, Appellee, v. Jozef Felcman, Appellant.
    Gen. No. 22,411.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hori. Marcus A. Kavanagh, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.
    Statement of the Case.
    Action of trespass by Fennije Vondra, plaintiff, against Jozef Felcman, defendant, in the Superior Court of Cook county. From a judgment for plaintiff for $150, defendant appeals.
    There was evidence that plaintiff, during the term of her lease, moved most of her property out of her flat, retaining the key, and on returning next day found much of the property missing. She found defendant, the landlord, in possession, making repairs, and there was evidence that when asked what had become of plaintiff’s property, defendant answered that he had thrown it into the alley. The action was for the loss of the property which plaintiff could not find.
    William Cullen Burns, for appellant.
    No appearance for appellee.
    Abstract of the Decision.
    1. Landlord and tenant, § 515

      —when evidence shows landlord guilty of trespass. In an action of trespass by a tenant against a landlord to recover property alleged to have been lost by reason of the wrongful entry of the landlord on the demised premises before the tenant had surrendered possession, where the evidence was conflicting, a verdict finding defendant guilty of the trespass alleged, held sustained by the evidence.

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

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

   Mr. Justice Hpldom

delivered the opinion of the court.

2. Landlord and tenant, § 517 —what damages landlord liable for in trespass. The entry by a landlord on demised premises during the term of a lease and while the tenant is in actual possession is a trespass which will render the landlord liable for such actual and also punitive damages as the evidence shows are assessable.

3. Landlord and tenant, § 515*—when evidence shows malicious entry by landlord. In an action of trespass by a tenant against a landlord to recover the value of property alleged to have been lost by reason of the wrongful- entry of the landlord upon the demised premises before the tenant had surrendered possession, evidence held to warrant the jury in finding that defendant acted maliciously in entering the premises.

4. Damages, § 250*—what is not evidence of prejudice of jury. In an action of trespass, where punitive damages were assessable, it cannot be said, merely because the trial court sanctions a remittitur, that the assessment of damages evidenced passion or prejudice on the part of the jury.

5. Damages, § 240*—when amount of punitive damages not disturbed on appeal. The amount of punitive damages to be awarded is, in the first instance, for the jury, and where such damages are properly assessable, the assessment will not be disturbed by a reviewing court when made within the bounds of reason.

6. Trespass, § 62*—when punitive damages not excessive. In an action of trespass, where punitive damages were assessable under the evidence, the assessment of such damages held not excessive.


text:
    William Hartman, Appellee, v. Samuel Gratch and Jacob Newman, Appellants.
    Gen. No. 22,414.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.
    Statement of the Case.
    Bill in chancery by William Hartman, complainant, against Samuel Gratch and Jacob Newman, defendants, in the Superior Court of Cook county, for the dissolution of a partnership, an accounting, etc. From a final decree finding that the assignment of a certain claim by defendant Gratch to defendant Newman was null and void, defendants appeal.
    By a prior decretal order the court had found that a sum of $533.66 was due from complainant to defendant Gratch, which claim was assigned by defendant Gratch to. defendant Newman.
    Lester L. Bauer and Rudolph Frankenstein, for appellants.
    Mather & Hutson, for appellee.
    Abstract of the Decision.
    1. Partnership, § 425

      —when findings in decree sustain decree for dissolution. On a bill for the dissolution of a partnership and for an accounting, the findings of fact in the decree held to sustain the relief decreed.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Equity, § 550 —when decree assumed on appeal to be supported by evidence. Since a decree comes to the Appellate Court with the presumption of its verity and correctness, and since the law requires such court, where the decree recites evidence omitted from the record, to assume that the decree is supported thereby, the Appellate Court will assume, where the decree recites a master’s report not set out in the record, that any lack of evidence to sustain the decree which may be claimed was supplied by such report, which was before the chancellor when the decree was entered, the law not requiring a search of the record for grounds of reversal.

3. Partnership, § 373*—what is effect of annulment of ancillary decretal order. Where in a chancery cause a decretal order adjudicates a certain claim in favor of one of the defendants against complainant, such claim arising out of a partnership between complainant and such defendant, such decretal order may be properly annulled on proof subsequently adduced in the cause, in which case an assignment of rights under such decretal order is merely an equitable assignment, subject to the further order of the court, subrogating the assignee to the rights of the assignor, so that when the claim is annulled by a subsequent decree, the rights of the assignee terminate automatically.


text:
    M. H. McGovern, Appellee, v. City of Chicago, Appellant.
    Gen. No. 22,420.
    1. Appeal and error, § 1682*—when' rulings on demurrers not reviewable. Error of the trial court in failing to enter judgment on demurrers to replications cannot be availed of on review where the defendant, instead of preserving for review the questions presented by the demurrers by standing by them, waived such error by rejoining to the replications.
    2. Appeal and error, § 864*—how questions must be preserved for review. The abstract is a pleading of the parties in a court of review and whatever is sought to be reviewed must be contained therein.
    3. Appeal and error, § 864*—what errors reviewable in absence of motion for new trial. Without a motion for a new trial in a cause tried by a jury, there can be no review except as to errors assigned on the common-law record, appearing in the abstract.
    4. Appeal and error, § 1060

      —When ruling on motion for new trial not presented for review. Though the abstract on appeal shows that a written motion for a new trial was filed, the question of the correctness of the ruling thereon is not presented for review where the reasons assigned in the motion for granting it are not preserved in the abstract.
    5. Appeal and error, § 864*—what Appellate Court trill not do to reverse. The Appellate Court will not go to the record to reverse the case although it will search the record to affirm regardless of the abstract.
    6. Appeal and error, § 887*—when errors assigned on refusal to grant new trial not reviewahle. Where an examination of the record showed that errors assigned on a refusal to grant a written motion for a new trial were different from the reasons urged in the motion, which was not included in the abstract of- record, held that such errors were not reviewable.
    7. Municipal corporations, § 377*—when contract for paving valid. A contract entered into by a city for the repairing of a pavement, held valid and binding on the parties thereto.
    8. Municipal corporations, § 409*—when city cannot evade payment for work done under contract. Where a contract with a city for repairing its pavement had been performed by the contractor to the satisfaction of the Commissioner of Public Works in accordance with the provisions of the contract, held that the city was estopped from evading payment for the work done.
    9. Contracts, § 360*—what prevents defendant from contesting validity of contract. The defense of payment for work done under a contract fully performed by the plaintiff amounts to an affirmance of the contract and prevents the defendant from contesting its validity.
    10. Municipal corporations, § 158*—what capacity in contracting for street repairs. A city in contracting for the repair of its streets acts in its business capacity and not in its governmental capacity.
    11. Municipal corporations, § 384*—when advertisement for Mds unnecessary. Advertisement for bids are not required before letting a contract for the repair of asphalt pavements of the City of Chicago which does not call for a specified sum in excess of $500.
    12. Municipal corporations, § 235*—what taxes available for paving streets of Chicago. The vehicle tax is both by statute and ordinance available, for the payment of work done in paving the streets of the City of Chicago.

      13. Municipal corporations, § 314

      —What does not invalidate ordinance appropriating money for improvement. Where it whs estimated that the fund that would be received by a tax available for street repairs would be more than sufficient to pay for work done under a contract, held that the uncertainty as to the amount to be realized from the tax in no way invalidated the appropriation ordinance.
    14. Municipal corporations, § 409*—When validity of contract for improvement cannot be challenged. Where street repairs were made by a contractor as directed by the Commissioner of Public Works, as provided by the contract, compensation being at a price ascertainable by measurement, held that the city could not in an action by the contractor, challenge the validity of the contract because of the omission of some preliminary formality, irrespective of the manner in which it was entered into.
    15. Municipal corporations, § 412*—when evidence shows price for paving done under contract. Where the contract price for paving done for the city was proved from original books kept by the city’s inspectors who inspected the work and approved it, held that the city could not be heard to challenge the sufficiency of such proof in an action for compensation for work done under the contract.
    16. Contracts, § 374*—Who has burden of proof of payment. In an action to recover for work done under a contract, held that under a plea of payment the burden of proof rested upon the defendant to prove payment by preponderance of the evidence.
    17. ¡Municipal corporations, § 412*—when evidence does not show payment under contract. In an action to recover for street repair work done for a city, held that the evidence introduced by the defendant failed to sustain its plea of payment.
    18. Pleading, § 161*—how defenses restricted by filing affidavit of meritorious defense. In an action on a contract where the plaintiff files with his declaration an affidavit as provided for in J. & A. f 8592, and the defendant files an affidavit of meritorious defense as therein provided for, the defendant is restricted to the defenses set up in his affidavit.
    19. Pleading, §. 152*—When municipality must file affidavit of meritorious defense. J. & A. If 8592, requiring an affidavit of meritorious defense to be filed with a plea where the plaintiff filed with his declaration an affidavit showing the nature of his demand, applies to municipal corporations.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.
    Rehearing denied December 11, 1916.
    Samuel A. Ettelson, for appellant; Leon Horn-stein and Chester E. Cleveland, of counsel.
    Benson Landon and Robert N. Holt, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of $114,714.80, rendered on the verdict of a jury against the City of Chicago and in favor of plaintiff, M. H. McGovern.

This action is grounded upon a contract entered into between the City of Chicago and M. H. McGovern Company, a corporation, for the repairing of asphalt pavements in the City of Chicago, and is dated June 1, 1908. The contract provides that work under it shall commence June 2, 1908, and be completed on or before the 1st day of July, 1909. Under this contract certain work was done in accord with its terms by the McGovern Company in repairing asphalt pavements of certain streets in the city, and recovery is sought of the amount due and unpaid at the contract rate for such work. The contract provided that all such repair work was to be done under the supervision of the Commissioner of Public Works of the city. Plaintiff is the assignee of the claim for money due under the contract.

The declaration consists of three counts, two declaring upon the contract specially and the-third being the common counts. With this declaration plaintiff filed an affidavit showing the nature of the demand to be for work done and materials furnished for repairing certain streets with asphalt, and stating as the amount due after allowing all just credits, deductions and set-offs, the sum of $117,394.22.' An itemized copy of the account representing the claim, showing the work done and the prices charged therefor, was attached to and filed with the declaration. To this declaration defendant interposed a plea of the general issue, supported by an affidavit of meritorious defense. This affidavit was made by an engineer of the city conversant with the facts regarding plaintiff’s claim, and he swears “that the defendant has a meritorious defense to the whole of plaintiff’s case; that M. H. McGovern Company was paid for all the paving work done under its contract with the city, for which it was justly entitled to compensation; that M. H. McGovern Company accepted and signed for a final voucher purporting to be and intended as the final payment for all moneys due to it for'asphalt paving work and material furnished or performed under its said contract with the city; and that there is no further money due to M. H. McGovern Company or to plaintiff.” By leave of court defendant subsequently filed seven additional pleas which severally set up lack of appropriation; that the contract was ultra vires; that it was void and contrary to law as being contrary to the advertisement for bids, and contrary to the specifications; that it was not let to the lowest bidder; that it exceeded the.appropriation, extended beyond the fiscal year; contained an unbalanced bid; and contending that no recovery could be had for extra work, accord and satisfaction, payment and set-off. No affidavit of merits was filed with any of these additional pleas nor any affidavit of merits other than the one mentioned above as‘filed with the plea of the general issue. To these pleas plaintiff replied. To the replications to the second, third and fourth special pleas, defendant demurred, which demurrers being overruled by the court, defendant joined issue on all the pleas by rejoining.

The errors assigned and argued are encompassed within the following statement, viz.: That the trial court erred in failing to enter judgment on the demurrers to the replications to certain additional pleas, and in holding that the city was, by reason of its own wrong, estopped from availing of the defenses set up in the pleas replied nnto; errors in the admission and exclusion of evidence; in failing to direct a verdict for defendant for the reason that there was no basis upon which a verdict for plaintiff could stand; that the plea of accord and satisfaction was sustained by the proofs; error in the giving and refusing to give certain instructions and in rulings on procedure during the trial.

Passing upon the initial error above set out, suffice it to say that it cannot be availed of on review because defendant, instead of preserving for review the questions presented by the demurrers, by standing by them, waived such questions by rejoining to the replications demurred to. Bennet v. Gilbert, 94 Ill. App. 505, in which the court say: “The appellee, by replying is•suably to appellant’s special plea, waived his demurrer to the plea. The rule that pleading issuably to a declaration or other pleading is a waiver of a prior demurrer to such declaration or pleading, is too familiar to require citation of authorities.” By like reasoning, the filing of rejoinders to the replications demurred to waived the demurrers.

The abstract is the pleading of the parties in a court of review, and whatever is sought to be reviewed must be contained in that pleading. Without a motion for a new trial in a cause tried by jury, there can be no review except as to errors, assigned on the common-law record appearing in the abstract. An examination of the abstract develops the fact that a written motion for a new trial was filed, and it is stated that the grounds for such motion are substantially the same as the errors assigned on the record. This is not sufficient to bring to this court for review the questions presented to the trial court as reasons for granting a new trial. To avail of such written motion, that portion relied upon for reversal must appear in the abstract. This court will not go to the record to reverse, although it will search the record, regardless of the abstract, to affirm. In an endeavor to verify the statement that the reasons in the written motion for a new trial are substantially the same as the matters assigned for error, we have gone to the record and find therefrom that such statement is unsupported. Twelve distinct reasons were assigned in the written motion for a new trial, while twenty-one errors, some of them in many essential particulars different from the reasons appearing in the written motion for a new trial, are assigned on the record. It therefore follows that the errors assigned which involve the bill of exceptions are not reviewable. As said in People v. Paul, 167 Ill. App. 557:

“The abstract of the record is the pleading of the party seeking to have such record reviewed' upon appeal or by writ of error, and the error relied upon to effect a reversal of the judgment must be made to appear by such abstract. Gage v. City of Chicago, 211 Ill. 109.”

And the court said in Gibler v. City of Mattoon, 167 Dl. 18:

“It is the duty of parties bringing cases here for review to prepare and file complete abstracts of the record in accordance with the rules, and such abstracts as we can safely rely upon. It is not our duty to perform this work of counsel, which, in detail, as to them" is inconsiderable, but when imposed upon us is, in the aggregate, extremely burdensome. * * * The rule is the same in all cases and should not be relaxed. ’ ’

In Rehfuss v. Hill, 243 Ill. 140, the court, in disposing of the question of the admission of copies of certain exhibits, said:

“Be that as it may, appellant is in no position to raise this question. Copies of these exhibits were not made a part of appellant’s abstract. Our rules require that an abstract ‘must be sufficient to fully present every error and exception relied upon.’ (235 Ill. p. 14.) It is impossible from the abstract, without copies of the plats, to say whether there is any merit in the objections of appellant as to the admission of these plats. It is the duty of parties bringing cases here for review to file complete abstracts of the record, in accordance with the rules, of every point which they wish to present to this court. Gibler v. City of Mattoon, 167 Ill. 18; Lasher v. Colton, 225 id. 234,”

In Village of Des Plaines v. Winkelmam,, 270 Ill. 149, on petition for a rehearing, where an objection made was not abstracted and where counsel charged that the court misapprehended the state of the record, the court said:

‘ ‘ Our apprehension of the record is derived from the abstract prepared by the appellant and accepted as correct by the appellee. That abstract does not show the objection above quoted, and the appellee did not supply the omission, if it was an omission. Under such circumstances the court does not search the record to ascertain the issues but acts entirely upon the abstract. The court did not misapprehend the record and a rehearing is denied.”

Applying these salutary rules of procedure to the instant case, the record stands before us in the same position as if no motion for a new trial had been made. The resulting consequence is that that part of the record not embraced within the common-law record cannot be reviewed by this court on this appeal. However, notwithstanding the conclusion as to our right to review the record in the condition in which we find the abstract, as above noted, we will nevertheless review briefly a few of the salient and controlling points argued by counsel.

As to the contention that the contract was illegally let, it is our opinion that the city had the power to make the contract and that it is binding upon the parties. The McGovern Company having performed the contract on its part and having dose the work under it to the satisfaction of the Commissioner of Public Works, after inspection by inspectors appointed by the city for that purpose, and nothing remaining to be done under the contract but to pay for the work done under it, the contract is an executed one and the city is estopped from evading its binding force. Furthermore, the defense of payment was an affirmance of the contract, and such defense cut off defendant from the right to contest its validity.

The City of Chicago in its repair of streets acts in its business capacity and not in its governmental capacity, and as the contract was not for a specific sum in excess of $500, advertisements for bids were not required. Whatever may he said about the contract exceeding the $50,000 specifically mentioned in the appropriation ordinance, the vehicle tax, both by statute and ordinance, is available for repair work, and was included in the appropriation ordinance. Item 96, sec. 62, ch. 24, Rev. St. [J. & A. ft 1334 (96).] It was estimated that the fund raised from such vehicle tax would exceed half a million of dollars annually. This amount, if raised, would be more than sufficient to pay for all asphalt pavement repairs under the McGovern contract. The uncertainty of the amount to be realized in no way invalidated the appropriation ordinance. People ex rel. Becker v. Miner, 46 Ill. 384.

•Under the contract repairs were made by the contractor as directed by the Commissioner of Public Works and in different quantities, the compensation being at a price ascertainable by measurement, by the yard for repairs and by the ton for material (Sanitary District v. George F. Blake Mfg. Co., 179 Ill. 167), and irrespective of the manner in which the contract was entered into, it having been performed by the contractor, the city cannot challenge its validity because of the omission of some preliminary formality. City of Chicago v. Pittsburg, C., C. & St. L. Ry. Co., 244 Ill. 220; County of Coles v. Goehring, 209 Ill. 142.

There is no proof of accord and satisfaction in this record. What was paid by the warrant in evidence had nothing whatever to do with the asphalt repairing sued for in this action. It related to another account for other work and was in payment of fifteen per cent, retained from the amount due and agreed upon between the city and the McGovern Company.

The contract price, which controls, was proven by plaintiff from the original entry books kept by the city’s inspectors who inspected the work and approved it, and all of it was accepted by the city. In other words, proof of the amount due for work done was established by the city’s employees and by its own books kept for that purpose, and we fail to find any .evidence contradictory of that furnished by the city’s employees and books. We think the fact that proof of the amount due was made from the books and by the evidence of the servants of the city was the best proof available, which the city cannot be heard to challenge for sufficiency.

Under defendant’s plea of payment, the burden rested upon it to prove payment by a preponderance of the evidence. Greeman Bros. Mfg. Co. for use of National Trust & Credit Co. v. M. L. Nelson Furniture Co., 191 Ill. App. 494. This the defendant failed to do by any evidence of any payment made upon the account in suit.

By section 55 of chapter 110, Rev. St. (J. & A. 8592), and the decisions of our courts of review construing this section, a defendant is restricted to the defense set up in his affidavit of meritorious defense. The defense in the city’s affidavit of merits was that of payment, and if objections had been made upon the trial to all evidence tendered in defense other than that of payment, it would have been the duty of the court to have sustained such objections. Notwithstanding all the pleadings in the record, the only defetise available to defendant was the one of payment made in its affidavit of merits. A municipal corporation is governed by the same rules as natural persons, and section 55, supra, requiring an affidavit of meritorious defense to be filed with pleas, where plaintiff files with his declaration an affidavit showing the nature of his demand, is binding upon municipal corporations. City of Chicago v. Peck, 196 Ill. 260. Section 55, supra, is by rule, as the - statute permits, adopted as a rule of practice in the Municipal Court. In Walter Cabinet Co. v. Russell, 250 Ill. 416, the court said:

“While the formalities of pleading have been abolished by statute, it is still the law in the Municipal Court, as in other courts, that a party is limited, in his evidence, to the claim he has made; that he cannot make one claim in his statement and recover upon proof of another without amendment. The issue is made by the statement of claim, and the evidence must be limited by that statement. The issue cannot be enlarged by oral claims.”

And in applying this dicta of the Supreme Court in the case of Isbitz v. Chicago City Ry. Co., 192 Ill. App. 487, this court said:

“What was thére said was sufficient for the disposition of the question there presented, but we see no reason why for a like reason it should not be held that the issues to be tried and upon which evidence must be introduced are those made by the statement of claim and the affidavit of meritorious defense, and that when in an affidavit of meritorious defense the defendant places its defense on particular grounds therein specified, proof of all other averments in the statement of claim either of substance or of inducement are waived. ’ ’

In Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276, the court say:

“By section 55 of the Practice Act (J. & A. ft 8592), it is provided that when the plaintiff shall file with his declaration an affidavit of claim, the defendant, in order to prevent a judgment as by default, shall file with his plea an affidavit, ‘ stating that he verily believes the defendant has a good defense to said suit upon the merits to the whole or portion of the plaintiff’s demand and specifying the nature of such defense, and if a portion, specifying the amount.’
“The affidavit of merits in this case was filed in compliance with the provisions of said section 55, so made part of the rules of practice in the Municipal Court. The part of section 55 above quoted has been in force for many years with the exception of the words in italics. Those words were added in a revision of the Practice Act that went in force July 1st, just before that section was adopted by the Municipal Court as part of its rules of practice. Prior to the addition of these words, it was held that an affidavit, stating that the defendant had a good defense to the suit upon the merits, was sufficient to entitle the defendant to prove any defense he had that was well pleaded. The addition of the words ‘and specify the nature of such defense’ was not inadvertently made. The purpose of requiring the affidavit of merits to set out the nature of the defense relied on was to give the plaintiff notice of the real defense to be presented and to limit the issues to be tried to the defense set out in the affidavit. All defenses, the nature of which are'not set up in the affidavit, are considered waived and are unavailable on the trial.”

Greeman Bros. Mfg. Co. for use of National Trust & Credit Co. v. M. L. Nelson Furniture Co., supra, in which it was held that the only defense set forth in the affidavit of merits was that of payment and that the defense was limited to that issue. Hamill v. Watts, 180 Ill. App. 279; Weil v. Federal Life Ins. Co., 182 Ill App. 322.

In Clinton Co. v. Stiles, 197 Ill. App. 505, in this court, we said:

“In defendant’s affidavit of defense he did not claim that the circulars were not satisfactory or that they were not in accord with the contract. Such defenses, therefore, could not he availed of upon the trial. Defendant is limited to the defenses made by his pleading. Kadison v. Fortune Bros. Brg. Co., 163 Ill. App. 276.”

No sufficient reason appearing why the judgment of the Superior Court should be disturbed, it is affirmed.

Affirmed.


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    The People of the State of Illinois ex rel. E. L. Garey, Appellant, v. Mascot Copper Company, T. N. McCauley, President, J. C. Knapp, Secretary, and D. S. Stevenson, Treasurer, Appellees.
    Gen. No. 22,431.
    1. Corporations, § 179

      —what essential to mandamus to inspect books. A demand on a corporation by a stockholder for permission to examine the corporation books is an essential prerequisite to the award of a writ of mandamus to compel the corporation to permit such examination.
    2. Corporations, § 179*—who has burden of proof of demand on mandamus to inspect books. In a proceeding for mandamus to compel a corporation to permit an examination of its books by a stockholder, the burden of proof of a demand on the corporation is upon the relator.
    3. Corporations, § 179*—when evidence shows no demand to inspect books. In a proceeding for mandamus to compel a corporation to permit an examination of its books by a stockholder, a finding of the trial court that there had been no demand made by the relator on the corporation for such examination, held not contrary to the manifest weight of the evidence.
    4. Appear and error, § 1414*—when finding of fact not disturbed on appeal. Where a finding of fact by the trial court is not contrary to the manifest weight of the evidence, the Appellate Court is not at liberty to disturb the findings.

      5. Corporations, § 76

      —what corporations not required to Jceep booJcs for inspection. J. & A. If 2430, requiring corporations to keep books at their principal offices or places of. business and to allow inspection thereof by their stockholders, does not apply to foreign corporations not doing business in this State.
    6. Corporations, § 708*—when foreign corporation not doing business in State. A foreign mining corporation, owning mines and transacting business in a foreign State, merely maintaining for convenience in the conduct of its internal affairs an office in this State, leased in the name of its treasurer, and owning no property in the State, aside from some office furniture, the greater part of its directors residing outside the State, is not doing business within the State, within the meaning of the act entitled “Corporations.”
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Fulton, Garey & Deutschman, for appellant.
    Tenney, Harding & Sherman, for appellees.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is a mandamus proceeding to compel the respondents to permit the relator, Garey, to examine all records, books of account, papers, minute books, stock books, and everything pertaining to the transaction of the business of the respondent corporation. On the hearing in the trial court the writ was denied and relator seeks this review and asks a reversal of the judgment of the Circuit Court.

The relator, on June 2, 1915, became the owner of twenty-five shares of the capital stock of the Mascot Copper Company, said to be of the aggregate value of about $75, and within two days thereafter sought an examination of the company’s books, etc., which, being denied, as he claims, relator seeks to compel by this mandamus proceeding.

Respondents interpose two answers as bars to relator’s right to the writ: First. That no demand for such examination was made on the respondent company or its officers; and second, that the respondent company is a foreign corporation existing in virtue of the laws of the State of Arizona and is neither licensed to nor is it doing business in this State, and consequently the courts of this State' have no jurisdiction to grant a writ of mandamus against it.

A demand is an essential prerequisite to the award of the writ, and the burden of proving such demand rests upon the relator in the first instance. People v. Town of Mt. Morris, 137 Ill. 576; People v. Village of Hyde Park, 117 Ill. 462; People v. Board of Education, 127 Ill. 613; and Venner v. Chicago City Ry. Co., 152 Ill. App. 398.

The question of demand was in dispute. It was asserted by relator and denied by the respondents. We are unable to say that the conclusion at which the court arrived is contrary to the manifest weight of the evidence, and therefore we are_ not at liberty to disturb such finding, as the trial judge, seeing and observing the several witnesses and their manner upon the witness stand, had advantages not possessed by a reviewing court where the unresponsive record only is available. However, it is our opinion that the evidence in the record concerning a demand justifies and supports the finding of the trial court. While it is true a demand not having been proven defeats the right of relator to an award of the writ, yet we feel inclined, in furtherance of justice and to avoid future litigation, to decide the second question raised, viz.: Whether the courts of this State have jurisdiction to award a writ of mandamus against a foreign corporation. If we fail to decide this point at this time, but rest the case on the lack of a demand, relator may make the necessary demand and upon it again petition for a writ of mandamus.

That the respondent company is a foreign corporation created by the laws of the State of Arizona is not in dispute; neither are the facts that the respondent company was organized and is doing business as a mining corporation, and that the scene of its activities is in Cochise county, Arizona, where it owns and operates a copper mine and has between fifty and sixty mining camps upon between nine hundred and one thousand acres of land. It also has interests in a townsite company adjacent to its mines, which town-site is tenanted by its employees, and owns substantially all the stock in a railroad operated between Wilcox and Masco, Arizona. It likewise owns and operates tramways in connection with its mines, seventy-five to one hundred buildings near its mines, a store and warehouse and company offices, in which latter are situate the offices of the company’s engineering department, its local counsel and its general office force, and where the books relating to its business are also kept. In fact, all of its affairs and business are conducted in the State of Arizona and not in the State of Illinois. For convenience in the conduct of the internal affairs of the company, an office is maintained in the City of Chicago, the lease of which stands in the name of its treasurer. All the company’s contracts for material, supplies and employment are made in Arizona and not in Illinois. Out of eleven directors only three reside in Chicago, and aside from some office furniture the company has no property in this State. We hold that section 13, ch. 32 (J. & A. ft 2430) title “Corporations,” which reads,: “It shall be the duty of the directors or trustees of every stock corporation to cause to be kept at its principal office or place of business in this State, correct books of account of all its business, and every stockholder in such corporation shall have the right, at all reasonable times, by himself or by his attorney, to examine the records and books of account of the corporation,” has no application to foreign corporations, but relates solely to domestic corporations, and we find that the respondent company was not doing business in the State of Illinois at or before the filing of the petition for mandamus in this case. The Corporation Act, supra, has no application to foreign corporations, except as therein specifically mentioned or designated, or where by necessary implication from the context it is clear that a foreign corporation is intended to be brought within some provision of the act. Section 13, supra, does not fall within any of these exceptions. If the respondent company was doing business in this State, then, conforming to the foregoing dicta, section 26 of the act (J. & A. ¶ 2443) would apply and make it amenable to the provisions of section 13, supra; but, as we have already pointed out, it is not. We think Wincock v. Turpin, 96 Ill. 135, and Mead v. Davies, 84 Ill. App. 558, which decide that section 25 of the Corporation Act (J. & A. ¶ 2442) does not apply to foreign corporations, may by parity of reasoning be made equally to foreshadow a rule applicable to section 13, supra;, at least we so hold.

On fact and principle, Bradbury v. Waukegan & W. Mining & Smelting Co., 113 Ill. App. 600, is analogous to the instant case. The situation there is similar in all its controlling features to the case at bar. In the Bradbury case, supra, it was held that the corporation was not doing business in Illinois and that therefore the court had no jurisdiction over it in virtue of the Corporation Act, supra, and such is our conclusion in this case. Having an office within this State for the convenience of the corporation in mapaging some of its internal affairs, all of its property, together with its chief offices and place of business, being situate and its business carried on in the State of its creation, where most of its officers also resided, does not constitute the doing of business in this State. A. H. Woods Production Co. v. Chicago, C. & L. R. Co., 147 Ill. App. 568; Booz v. Texas & P. Ry. Co., 250 Ill. 376.

The judgment of the Circuit Court, being right, is affirmed.

Affirmed.


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    Eugene Buckmaster, Appellee, v. Monighan Machine Company, Appellant.
    Gen. No. 22,447.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with judgment of nil capiat and for costs.
    Opinion filed November 27, 1916.
    Statement of the Case.
    Action by Eugene Buckmaster, plaintiff, against the Monighan Machine Company, defendant, in the Municipal' Court of Chicago, to recover commissions for the sale of certain machines belonging to defendant. From a judgment for plaintiff for $865, defendant appeals.
    C. T. B. G-oodspeed, for appellant; J. M. Peoudfit, of counsel.
    Enos W. Shaw and Will C. Moody, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 90 —when evidence does not justify verdict for commissions. In an action to recover commissions for the sale of a machine by the defendant, alleged to have been made on information given him by the plaintiff, evidence held not to justify a verdict for the plaintiff.

2. Costs, § 76*—what judgment for costs entered against plaintiff on reversal and nil capiat. Where on the evidence the finding of the trial court should have been for the defendant, a judgment for the plaintiff was reversed and a judgment of nil capiat and for costs to be taxed against the plaintiff, both in the trial court and in the Appellate Court, was entered in the Appellate Court.


text:
    Estella Akin, Appellant, v. Rose Alice Nolan et al., Appellees.
    Gen. No. 22,450.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas Taylor, Jr., Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.
    Statement of the Case.
    Bill in equity by Estella Akin, plaintiff, against Bose Alice Nolan et al., defendants, seeking to have decreed as her property certain shares of stock made out in the name of the defendant Bose Alice Nolan, and delivered to her by the complainant in pursuance of an alleged agreement that if the said defendant should live with and take care of the complainant during her lifetime, the latter would on her death leave her property to the said defendant, and for an accounting for money spent for and gifts made by the complainant to the said defendant. From a decree for defendant, complainant appeals.

      Voss & Page, for appellant; Delbert A. Clithero, of counsel.
    William D. Doggett, for appellee Bose Alice Nolan.
    Abstract of the Decision.
    1. Appeal and ekrob, § 1744

      —when findings of chancellor not disturbed on appeal. Where the only witnesses on a hearing before a chancellor are the parties to the proceeding and their testimony is sharply conflicting, the findings of the chancellor will not be disturbed on appeal unless manifestly contrary to the preponderating force of the evidence.
    2. Equity, § 305*—what degree of proof required. To entitle a complainant to relief "in a court of equity, he must establish his right thereto by a preponderance of the evidence.
    3. Gifts, § 29*—when evidence does not show that gift was made under agreement. In a suit to recover shares of stock alleged to have been given by the complainant to the defendant in accordance with an agreement between the parties, evidence held not to establish the existence of the agreement.
    4. Gifts, § 23*—what has no bearing on right of recovery. In a suit to recover voluntary gifts, the expectations of the donor of having them returned is of no importance in the absence of some expressed agreement or understanding that they should be returned.
    5. Guts, § 29*—when evidence shows gift voluntarily made. In a suit to recover gifts, evidence held to show that they were voluntarily made and hence not recoverable.
    6. Gifts, § 27*—what assumed in suit by lawyer to recover. In a suit by a lawyer to recover gifts alleged to have been made in pursuance of an agreement that if the donee should live with and take care of donor during her lifetime, the latter would on her death leave her property to the donee, held that it must be assumed that the donor knew that written evidence of such agreement was a legal necessity to the enforcement thereof.
    7. Gifts, § 27*—what assumed in suit by lawyer to recover. In a suit by a lawyer to recover gifts of stock alleged to have been made in pursuance, of an agreement that the donee should live with and take care of the donor during her lifetime, held that it must be assumed that the donor knew, as a matter of law, that the shares, being made out in the name of the donee and delivered to her, became her absolute property.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

8. Gifts, § 27 —what assumed in suit ly lawyer to recover. In a suit by a lawyer to recover shares of stock made out in the name of the defendant and alleged to have been given her for safe keeping but not with the intention of passing title, held that it must be assumed that the complainant knew that an "indorsement was necessary to pass title to complainant.


text:
    David Joseph, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,464.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walkeb, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with finding of fact.
    Opinion filed November 27, 1916.
    Statement of the Case.
    Action by David Joseph, plaintiff, against the Chicago City Railway Company, defendant, for personal injuries alleged to have resulted from the defendant’s starting its car suddenly while the plaintiff was in the act of alighting therefrom. From a judgment for plaintiff, defendant appeals.
    Benjamin F. Richolson and Charles Le Rot Brown, for appellant; John R. Gtjilliams, of counsel.
    Albert Schaffner, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Negligence, § 196 —when manner of occurrence of accident question for jury. Where the evidence is in inextricable conflict as to the manner of the occurrence of an accident, and the credibility of the witnesses is a strong factor in the solution of the questions in dispute, it becomes in the first instance the province of the jury' to reconcile the evidence, if possible, and to determine the facts therefrom.

2. Appeal and ebbo|¡, § 1778*—when incumbent on Appellate Court to reverse jury’s findings of fact. Where it is patent' that the verdict of a jury is manifestly contrary to the preponderating force of the evidence, it is incumbent on the Appellate Court to reverse with findings of fact.

3. Carriers, § 476*—when evidence does not justify verdict for passenger thrown from street car. In an action for personal injuries alleged to have been caused by the plaintiff’s being thrown from the steps of a street car as a result of its being started with a violent jerk while he was in the act of alighting, evidence as to the manner of the occurrence of the accident, held not to justify a verdict for the plaintiff.


text:
    Lawrence W. Ferguson et al., Appellees, v. White Oak Coal Company, Appellant.
    Gen. No. 22,470.
    1. Pleading, § 123*—when plea stands confessed. A good plea without challenge by answer or replication stands confessed as to matters therein set forth by way of defense.
    2. Trespass, § 41*—when declaration disposed of by verified pleas. A count in a declaration in an action in trespass on the case, held disposed of adversely to the plaintiffs by verified pleas constituting a bar which were neither demurred, answered nor replied to.
    3. Trespass, § 49*—when evidence shows ownership in defendant. In an action of trespass on the case for the removal of coal from the plaintiffs’ yard, evidence, including a contract executed by the defendant and the plaintiffs, held to show that the coal was the property of the defendant, consigned to the plaintiffs to be sold by them for the defendant on commission.
    4. Tbespass, § 19

      —when taking justified. A count in a declaration in trespass on the case, alleging that the defendant entered the plaintiffs’ coal yard, took coal therefrom and converted it to its own use, held not sustained where the evidence showed that in the absence of the plaintiffs the defendant’s agent was admitted to the yard, took away some of the coal and the defendant later caused the remainder to be taken away by a sheriff under a writ of replevin.
    5. Tbespass, § 55*—what not material on appeal when property taken under replevin. On appeal from a judgment in an action of trespass on the case for the taking of the plaintiffs’ property by the defendant, who set up as a defense that it was taken under a writ of replevin, held that the outcome of the replevin suit which was not in evidence was immaterial to the disposition of the appeal.
    6. Tbespass, § 49*—when evidence does not sustain declaration. In an action of trespass on the case for the taking and converting of books and papers of the plaintiffs, evidence held not to sustain plaintiffs’ allegation.
    7. Trespass, § 49*—when evidence shows property taken peaceably. In an action of trespass on the case for the taking of coal by the defendant from the plaintiffs’ yard, evidence held to show that the coal was taken peaceably and that the defendant had the right to the possession thereof.
    8. Trespass, § IS*—what is defense to action. It is a defense to an action of trespass on the case for the taking of property of the plaintiffs that such property was peaceably taken and that the defendant had the right to the possession thereof.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with finding of fact.
    Opinion filed November 27, 1916.
    H. G-. Townsend, for appellant.
    William J. Doyle and William J. Dillon, for appellees.

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

   Mr. Justice Holdom

delivered the opinion of the court.

The action here is trespass on the case, and on a trial before court and jury plaintiffs had a verdict and judgment against defendant for $2,000, from which defendant prosecutes this appeal.

The declaration consists of two counts, the first of which charges that defendant, between April 15th and 20th, 1911, took 900 tons of coal belonging to plaintiffs, with certain papers and books and disposed of and converted them to their own use. The second count charges that defendant, on April 15, 1911, and during the week thereafter, broke and entered plaintiffs ’ close and carried away plaintiffs’ coal and converted it to its own use, blocked ingress to and egress from plaintiffs’ coal yard and remained in possession thereof for one week, stopped plaintiffs’ business and ruined their credit and reputation.

To both counts defendant pleaded the general issue and gave notice of special matter of defense under the general issue plea to the first count. Among these defenses was set up a contract of agency between the parties, in which plaintiffs were constituted sales agents for coal of defendant consigned to them for sale on defendant’s account, the coal remaining the property of defendant until sold by plaintiffs, and that the coal in that count mentioned was the property of defendant; that on April 14,1911, defendant revoked the plaintiffs’ authority over the coal and on the day thereafter attempted at plaintiffs’ yard to remove the coal, and, with the consent of plaintiffs by their yard manager, took and removed a part thereof; that plaintiffs, while defendant was in the peaceful possession of the coal, forcibly took the same and converted and disposed of 687 odd tons thereof; that the yard in which the coal was situated was not the yard, property or freehold of the plaintiffs, but of the Swift Fuel Company, who gave defendant permission to keep a watchman on the premises to keep possession of its coal; that the plaintiffs forcibly expelled said watchman, and converted said remaining coal to their own use; that on April 17th defendant caused the sheriff to replevin the last mentioned coal under a writ issued out of the Circuit Court of Cook county; that in taking said' coal the defendant in the first instance and the sheriff in the second instance used no force or violence whatever, but took the same peacefully and quietly, as they lawfully might.

To the second count defendant interposed five special pleas, the first of which averred its ownership of the coal in that count mentioned, and that at the time of entry into plaintiffs ’ premises, where said coal was, it entered peaceably for the purpose of removing such coal therefrom; that the coal was the property of defendant and that possession thereof was taken and the same removed under the direction of its agents, as it lawfully might, and that no more force was used than was reasonably necessary for the removal of said coal.

The four other pleas aver as follows: By the third plea, that the premises were the freehold and close of the Swift Fuel Company, by whose permission defendant entered, took possession of and carried away the coal; and by the fourth plea averred that the coal was not a part of the freehold, but the goods and chattels of defendant stored there, and that by leave and license of plaintiffs, defendant entered to take possession of the coal. The fifth plea avers the taking of the coal under a writ of replevin by the sheriff of the county. Each plea concludes with a verification, and none of them was demurred to, answered or replied unto by plaintiffs.

It is the rule of the common law that one good plea without challenge by answer or replication stands confessed as to the matters therein set forth by way of defense. In the early case of Ward v. Stout, 32 Ill. 399, it was held that:

“Whatever might be the fate of the other pleas or issues, this plea barred the action against this defendant. One good plea in bar being confessed, for that is the effect when it is not replied to or traversed, operates as a complete bar to the action, and the action being barred, the plaintiff could not by any possibility get a judgment over and in spite of this bar, whether the other pleas were good or bad.
“Where the defendant’s plea goes to bar the action, if the plaintiff demurs to it and the demurrer is determined in favor of the plea, judgment of ml capiat shall be entered, notwithstanding there may be also one or more issues of fact; for the reason that upon the whole, it appears the plaintiff had no cause of action.”

In this condition of the pleadings, plaintiffs’ claim under the second count was effectually disposed of, for, as said in Wende v. Chicago City Ry. Co., 271 Ill. 437:

“When defendant in error elected to stand by her demurrer the court should have rendered judgment in favor of plaintiff in error as to the entire third count of the amended declaration as amended.”

And in Lowenstein v. Franklin Life Ins. Co., 122 Ill. App. 632, the court said:

“It is insisted by plaintiff in error that the court below erred in rendering judgment in bar of the action while the plea of the general issue remained undisposed of. The special plea filed by defendant in error presented a complete defense to the entire cause of action upon the policy, and when the court sustained a demurrer to the several replications thereto and plaintiff in error abided his replications, • no issue of fact remained to be tried.”

In Miles v. Danforth, 37 Ill. 157, the court said:

“This demurrer was overruled, the effect of which was to decide that those pleas presented a bar to the action of those counts. Those pleas were no further answered, consequently they stand as a bar to a recovery on those counts. The defendants in error having abided by their demurrer, no evidence could be received under those counts. They were as though they never existed for the purpose of a recovery on them. A complete bar was interposed which shut out all evidence in their support.” Bissell v. City of Kankakee, 64 Ill. 249.

In passing on a similar question of pleading, the court said in People v. Walker Opera House Co., 249 Ill. 106:

“If either of the three pleas as to the additional count was a good defense, defendant in error was entitled to a judgment as to that count.”

In People v. Bug River Spec. Drain. Dist., 189 Ill. 55, the court said:

“The pleas answered the information, and their averments being admitted there was nothing left to try. When a defendant succeeds on one plea which is a complete answer to a declaration, he is entitled to judgment in his favor in bar of the action. (Dana v. Bryant, 1 Gilm. 104; 2 Tidd’s Pr. 741.) The judgment being entered upon the pleas in bar, replications to the second plea were of no avail.”

In Adams v. Bruner, 152 Ill. App. 123, the court said:

“The additional plea in question answered the whole declaration, and the plaintiffs having abided by their demurrer thereto, it would have been proper for the court to enter final judgment upon the plea in bar of the action and for costs.”

And in LaMonte v. Kent, 163 Ill. 1, the court said:

“In the view we take of the matter it is unnecessary for us to discuss, the assignments of error based upon the action of the court in overruling a demurrer to this plea, because it is the established law of this State that where a demurrer to one of several pleas is overruled (which plea answers the whole declaration) and the plaintiff elects to stand by his demurrer, the defendant is entitled to judgment. * * * The overruling of the demurrer to the sixth plea and the election of the plaintiff to stand by the demurrer, disposed of the case.”

Under the law as thus expounded, the second count of plaintiffs’ declaration is, under the pleadings, out of the case. We will now proceed to consider and dispose of the issues joined under the first count.

The contract in evidence is not disputed. Counsel for plaintiffs in their brief say: ‘1 The parties entered into business on this vague and uncertain instrument.” In this characterization of the agreement we are not able to concur. By the contract defendant reserved to itself the right at all times to 'fix the price for which the coal should be sold, also to pass upon the credit of the purchasers, and where the contracts of sale of such coal extended over a period of time, the approval of defendant to such contracts was made necessary. Under this contract the coal until sold was the property of defendant, and the moneys received and credits extended in the sale of any of the coal were the money and property of the defendant. By the contract defendant retained control over the consigned coal until plaintiffs sold the same.

The evidence conclusively establishes as a fact that defendant was not guilty of the trespass charged against it in the first count of the declaration; that in the absence of plaintiffs, defendant’s agent was admitted to the yard where its coal was stored and took away 9 6/10 tons of the coal in two wagons. Plaintiffs then appeared upon the scene, ejected defendant’s representative and prevented defendant from taking away any more of the coal. The remaining coal of defendant was taken away by the sheriff in virtue of a replevin writ issued out' of the Circuit Court of this county at the suit of defendant. While the result of that replevin suit is stated in defendant’s brief, it is not in evidence, and we have no right to, nor do we, consider the result of the trial of that suit; and it is immaterial to the consideration and disposition of this appeal what the result of the trial of the replevin suit was.

The first count of the declaration charges the defendant took the coal “and certain papers and books and converted and disposed of the same.” The testimony of the plaintiff L. W. Ferguson on this-subject was that in the office he found papers scattered about the desk and floor, that the files and papers were disturbed, and when he was asked if any of them were lost he answered, “They have not been found yet,”— not one jot of testimony as to who scattered the papers or as to what they consisted of or whose papers they were. There was certainly nothing in this testimony upon which damages could be predicated.

The verdict and judgment are not supported by the evidence, but are contrary to its probative force. The 9 6/10 tons of coal taken away from plaintiffs’ possession by defendant was its coal under its contract with plaintiffs. Therefore, it had a right to take possession of it peaceably.

The testimony clearly establishes that the 9 6/10 tons of coal were taken without the use of any force, and that entrance to the yard in which it was stored was obtained by the consent of a party in possession having the right to accord such consent, and that when plaintiffs came along and protested, defendant retired from the yard and took the balance of its coal under a writ of replevin, as it lawfully might.

There is no evidence applicable to the first count of the declaration which is sufficient to convict defendant of the trespass in that count charged, consequently the judgment of the Circuit Court is reversed with a finding of fact.

Reversed with finding of fact.

Finding of Fact. That defendant is not proven by the record to be guilty of the trespass as charged against it in plaintiffs’ declaration or any count thereof.


author: Mr. Presiding Justice O’Connor

text:
    Otto Miller et al., Appellees, v. Gustave Anderson, Appellant.
    Gen. No. 19,849.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 13, 1916.
    Statement of the Case.
    Action by Otto Miller et al., plaintiffs, against Gustave Anderson, defendant, to recover a commission for the sale of real estate belonging to the defendant. From a judgment for plaintiffs for $1,291.87, defendant appeals.
    Bathje & Weseman, for appellant.
    _ Charles A. Williams, for appellees.
    Abstract of the Decision.
    Bbokebs, § 90

      —when evidence shows broker was procuring cause of sale. In an action by real estate brokers for a commission for the sale of real estate owned by the defendant, evidence held to justify a finding that the party, to whom the sale was made through the instrumentality of a broker other than the plaintiffs, and who had been introduced to the defendant by the plaintiffs, had not ■ abandoned negotiations with the latter before the sale was made, and to justify a judgment for the plaintiffs.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    John Gleason, Plaintiff in Error, v. M. P. Byrne Construction Company, Defendant in Error.
    Gen. No. 21,245.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honoke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 13, 1916.
    Statement of the Case.
    Action by John Gleason, plaintiff, against the M. P. Byrne Construction Company, defendant, for damages for personal injuries. From a judgment entered on a directed verdict for defendant, plaintiff brings error.
    At the time of the injury complained of, the defendant was engaged in constructing a sewer. Plaintiff was employed by the defendant as a bricklayer. In the prosecution of the work a trench was dug about seventeen feet deep and ten feet wide. The sides of the trench were lined with sheeting to prevent the walls from caving in, and about three feet below the surface of the ground a stringer ran lengthwise of the trench which held the sheeting in place. The stringers were held firmly against the sheeting by braces placed about eight feet apart, which extended across the trench from side to side. Planks were laid upon these braces forming a scaffold upon which some of the men stood while doing their work. As the sewer was constructed these scaffolds were moved forward in the trench. Four gangs of men were used in the prosecution of the work known as brick tossers, scaffold men, tenders and bricklayers. The brick tossers stood on the back and tossed to the scaffold men; the scaffold men passed the brick to the tenders who were below in the trench, and the tenders in turn passed the brick to the bricklayers who were working in the bottom of the trench and directly under the scaffold men. Just before the accident the men had constructed a new section of the scaffold, and in doing so a plank was handed down which was too short. The foreman who was in charge of the material was informed of this and he instructed the scaffold men to place a short piece of wood known as a shoe diagonally across from the brace to the stringer and placed the end of the plank on this, which was done. The men then proceeded with the work for about ten or fifteen minutes when a man named Martine, a tender working in the bottom of the trench, who was also a representative of a labor union, got out of the trench on account of a dispute with some nonunion men who were hauling material in connection with the work. A few minutes later, as he was returning to his work in the trench, he stepped or jumped on the plank causing it to slip off the shoe and fall on the plaintiff, who was engaged in laying brick in the bottom of the trench. The injury thus received by plaintiff is the basis of this suit.
    John W. Sutton, for plaintiff in error; Martin L. Wilburn, of counsel.
    Thomas F. Burke, for defendant in error.
    Abstract of the Decision.
    1. Tbial, § 216

      —how evidence must he considered on directing verdict. In passing upon the correctness of a directed verdict for the defendant, the evidence which contradicts that in favor of the plaintiff must be disregarded, and all reasonable inferences must be drawn most favorable to the plaintiff. The evidence cannot be weighed, and if the facts are capable of a construction favorable to the plaintiff, such construction must be adopted.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

2. Trial, § 215 —when rule as to directing verdict applies. The rule that if there is evidence from which, if it stood alone, the jury could, without acting unreasonably in the eyes of the law, find that the material allegations of the declaration have been proved, the case should be submitted to the jury, applies whether the motion for a peremptory instruction is made at the close of the plaintiff’s evidence or at the close of all the evidence, except where the defendant has produced uncontradicted evidence of an affirmative defense.

3. Master and servant, § 760*—when cause of injury a question for jury. In an action for personal injuries sustained by a bricklayer as the result of part of a scaffold falling upon him, held that there was sufficient evidence to require the submission to the jury of the question whether the negligent construction of the scaffold was a contributing cause of the injury.

4. Master and servant, § 108*—what duty of master cannot he delegated. The duty of a master to use reasonable care to furnish a servant a safe place in which to do his work is one owing directly by the master to the servant, of which the master cannot divest himself by delegation to others.

5. Master and servant, § 312*—when rule as to liability where servant is creating place to worlc does not apply. The rule that the duty of a master to furnish his servant a reasonably safe place to work is not imposed where the servant is creating the place and it becomes dangerous in the course of work, has no application where a servant is injured as the result of the falling of a scaffold, with the construction of which he had nothing to do.


text:
    Peter Herdien, Trustee, Defendant in Error, v. A. L. Jones, Plaintiff in Error.
    Gen. No. 21,302.
    1. Municipal Court of Chicago, § 14

      —when new promise to pay debt barred by statute of limitations is admissible. Evidence of a new promise made by the defendant, within the period of the statute of limitations, held admissible in an action in the Municipal Court of Chicago, though on the face of the statement of claim it appeared that the claim was barred by the statute and though the defendant set up the statute as a defense in his affidavit of merits and the plaintiff did not reply thereto, since, under rule 21 of the Municipal Court Rules, matters so set up by way of defense are to be taken as denied, though the plaintiff files no pleading in reply thereto.
    2. Appeal and error, § 1744*—when judgment should not be disturbed. Where it appears from an examination of the record that substantial justice has been done between the parties, a judgment should not be disturbed on appeal.
    3. Principal and agent, § 199*—when authority of agent cannot be disputed by principal. In an action by a grain broker to recover money advanced to the defendant on account of transactions on the Chicago Board of Trade, made by the plaintiff on the defendant’s orders, where the evidence tended to show that the first order was given by the defendant personally and subsequent orders given by the plaintiff’s agent were ratified by the defendant, held that the claim that the agent had no authority to bind the defendant was untenable as a defense.
    4. Limitation of actions, § 117*—when evidence sufficient to prove new promise. In an action by a grain broker to recover money advanced to the defendant on account of transactions on the Chicago Board of Trade, made by the plaintiff on the defendant’s orders, evidence held sufficient to justify a finding that defendant had made a new promise to pay such amount after the claim was barred by the statute of limitations.
    5. Limitation of actions, § 115*—when promise to pay barred claim may be implied. A promise to pay a debt barred by the statute of limitations may be implied from an unqualified admission, that the debt is due and unpaid, nothing being said or done at the time rebutting the presumption of a promise to pay.

      Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 13, 1916.
    Olsen & Booed, for plaintiff in error; Clarence N. Booed, of counsel.
    Ctjlver, Andrews, Ejng & Cook, for defendant in error.

      Ree Illinois Notes Digest, Vole, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff as trustee in bankruptcy of the W. A. Fraser Company brought an action in the Municipal Court of Chicago against the defendant to recover for moneys advanced by said company for the defendant at his request. The cause was submitted to the court without a jury, and from a judgment of $530.75 in favor of the plaintiff, the defendant prosecutes this writ of error.

The case went to trial on plaintiff’s amended statement of claim and defendant’s affidavit of merits. Plaintiff claimed that the Fraser Company had advanced certain sums for the defendant in purchasing and selling wheat on the Chicago Board of Trade at defendant’s request. In his affidavit of merits, the defendant specifically denied that the Fraser Company bought or sold any wheat for the defendant and denied that said company had advanced any sums of money for him. It further set up that the claim did not accrue within five years of the commencement of the suit, and was therefore barred by the statute of limitations. No further pleadings were filed in the case. On the trial the defendant moved the court “to sustain the defendant’s plea of the statute of limitations, * * * and that the plaintiff be not allowed to offer any testimony in this cause.” The motion was overruled.

The evidence tends to show that W. A. Fraser Company, a corporation, had been engaged in buying and selling grain on the Chicago Board of Trade; that William Nims (who died before the trial) solicited orders for the purchase and sale of grain from the defendant, which were executed by the Fraser Company; that the Fraser Company had bought and sold for the defendant at different times several thousand bushels of wheat, and that in so doing they advanced for the defendant for insurance, and loss incurred, the several sums for which this suit was brought. It also appeared that one of the items mentioned in the statement of claim of $51.25 included commissions charged by the Fraser Company, the exact amount of which does not .appear. The evidence further tends to show that when Nims gave the Fraser Company the first order on behalf of the defendant, the order was refused on the ground that the defendant was already indebted to the Fraser Company in the sum of $197; that a representative of the company advised the defendant to this effect; that the defendant thereupon stated he would pay the amount due and asked the Fraser Company to accept the order, which it did; that afterwards as each order was accepted and executed the Fraser Company notified the defendant; that representatives of the Fraser Company called on the defendant from time to time and endeavored to collect the account and failing to collect the amount the matter was turned over to an attorney. The Fraser Company subsequently went into bankruptcy and its trustee instituted this suit.

To obviate the bar of the statute of limitations plaintiff offered evidence tending to show that the defendant had made a new promise within five years to pay the account. When this evidence was offered, the defendant objected on the ground that plaintiff had not filed an affidavit in reply to his affidavit of merits specifically setting up the new promise, and it now contends that the evidence was erroneously admitted in the absence of such affidavit. In support of this contention, the defendant argues that as it appeared on the face of the” statement of claim that each item was barred, and as plaintiff had filed no reply to the defense of the statute of limitations under the rules of the Municipal Court, no evidence was admissible tending to show a new promise within five years. Rule 21 of the Municipal Court, so far as material to the question now under consideration, provides: “If the plaintiff does not file any affidavit in reply to the defendant’s affidavit of merits of defense, he shall be considered to have joined issues thereon, and such joinder of issue shall operate as a denial of every material allegation of fact in the defendant’s affidavit of merits upon which issue is so joined, but the plaintiff may file an affidavit in reply setting up special facts, and in that event his reply will operate as a denial of the facts not admitted. Any subsequent affidavit (if any) filed by the defendant by way of rejoinder, or by the plaintiff by way of surrejoinder, shall be subject to the same rules as the plaintiff’s affidavit in reply. No affidavit shall materially change the nature of the cause of action or defense as set forth in the prior statement of claim or affidavit in that line of pleading, of the same party, but may set up new matter by way of confession and avoidance.” The affidavit of merits stated that plaintiff’s cause of action did not accrue within five years next preceding the commencement of the suit, and under rule 21 this stood denied by the plaintiff. This general denial was sufficient to permit the introduction of evidence to sustain a new promise. “When the statute of limitations has been pleaded, either that the defendant did not undertake, or that the cause of action did not accrue, within six years ‘before the exhibiting of the plaintiff’s bill,’ and the plaintiff could prove a promise or acknowledgment within that time, the replication might deny the flea generally and conclude to the country.” 1 Chitty’s Pleading (14th Am. Ed.) *583. Furthermore it appears from an examination of the record that substantial justice has been done between the parties, and in such case the judgment should not be disturbed. Finch v. Wisconsin Dairy Farms Co., 167 Ill. App. 400; Cooke Brewing Co. v. Mitchell, 177 Ill. App. 378.

The defendant next contends that it was incumbent upon plaintiff to show that Nims had authority to bind the defendant in giving the orders, and that the evidence does not meet this requirement. This contention is unsound for the reason that there was evidence tending to show that the first order was given by the defendant to the Fraser Company over the telephone, and that the other orders were all ratified by the defendant.

It is further contended that the evidence was insufficient to establish a new promise by the defendant to pay the account so as to take the case out of the statute. The witness Brunswick testified that he called on the defendant as a representative of the Fraser Company at defendant’s residence during the latter part of 1910, or the fore part of 1911, and demanded payment of the balance due; that defendant replied that he did not have the money but expected to receive some soon and that he would then take care of the .account. The witness Williams testified that he called on the defendant in the spring of 1913, presented a statement of the account and demanded payment; that the defendant said he was a little hard up; that he would settle the account, but he “couldn’t pay it just then. ’ ’ This testimony was contradicted by the defendant. We think there was sufficient evidence, if believed by the court, to sustain the finding that a new promise had been made. In order to take a case out of the statute of limitations, there must be a promise to pay the debt. Such promise may be implied from an unqualified admission that the debt is due and unpaid, nothing being said or done át the time rebutting the presumption of a promise to pay. Ayers v. Richards, 12 Ill. 146.

Defendant further contends that the judgment is not sustained by the evidence, in that it fails to show what part of the several items is made up of losses, insurance indemnities and commission, and that the account set up in the statement of claim is not proven. We have carefully examined all the evidence in the record and are of the opinion that this contention is untenable.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.