author: Mr. Justice Graves

text:
    John Pley, Appellee, v. Harry C. Lavette, Appellant.
    Gen. No. 16,044.
    1. Pleading—effect of general issue in action of tort. In an action of tort the plea of not guilty controverts the truth of such allegations in the declaration as the plaintiff is bound to prove and no more.
    2. Pleading—when plea of son assault demesne unavailing. If the defendant by his testimony expressly disproves a plea of son assault demesne the defense interposed by such plea is to be totally disregarded and the claim of justification is to be considered no longer in the case.
    3. Instructions—when erroneous will not reverse. An erroneous instruction will not reverse if the theory of defense therein set forth has been expressly repudiated by the defendant’s own testimony.
    4. Instructions-—predicated upon evidence. An instruction is properly refused which is not predicated upon any evidence in record.
    5. Instructions—upon what theory party entitled to. A party is only entitled to instructions on his theory of the case if such theory is disclosed by the pleadings and is supported by evidence.
    6. Instructions—when motion for peremptory properly denied. A motion for a peremptory instruction is properly denied if there is any evidence in the record fairly tending to support the material allegations in the declaration.
    7. Evidence—when upon quantum of proof properly refused. It is proper for the court to refuse an instruction which requires the plaintiff to prove his ease beyond a reasonable doubt if the pleadings do not specifically charge a criminal offense.

      8. Trial—what essential to render remarles of court ground for reversal. It is only where an unguarded remark of the court in the presence of the jury upon a matter of fact that is for the determination of the jury, is calculated to prejudice the rights of the defeated party, that it is ground for reversal.
    9. Verdicts—when not excessive. Seld, in a personal injury action, that a verdict for $2,000 was not excessive, where it appeared that a shot from a revolver of the defendant penetrated the right arm of the plaintiff below the shoulder joint, passed through the arm, shattered the bones, passed into the right lung, where it continued to remain, and where it further appeared that the plaintiff suffered pain and was permanently injured.
    Trespass. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 14, 1912.

      Hugh J. Kearns, for appellant.
    James P. Grier, for appellee; Philip Clarkson, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

Appellee was in the employ of appellant as a farm hand and was to receive as part of his compensation for such services his hoard and lodging in the house on the farm where he was employed. The household consisted of appellee, appellant and a Mrs. Case, the housekeeper. On the evening of the day in question, while these three persons were partaking of the evening-meal, a controversy arose over some trivial matter between appellant and the housekeeper, but in which all three took more or less part. Appellant, becoming angry, got up from the table and either by accident or design tipped the table over, scattering the remains of the meal and the dishes about the floor and breaking some of the dishes. The preponderance of the evidence tends to show that both appellant and the housekeeper were intoxicated. After appellant tipped the table over appellee took hold of him and forced him into his bedroom and locked the door. Shortly thereafter, appellant shot through the door with a revolver, the ball striking appellee in the arm near the shoulder and, passing through, it lodged in his lung. The preponderance of the evidence tends to show that before that time appellant had told appellee “to take care of him if he did anything wrong, if he broke up the house.” To recover damages for the injuries caused to his person by the revolver ball, appellee brought this suit in trespass. The pleadings are unsatisfactory. There are two counts in the declaration. The first count charges that appellant assaulted appellee with a loaded pistol and shot him. The second count is a hybrid and charges that appellant “with force and arms and without right or provocation, wantonly, wilfully, carelessly and negligently” assaulted appellee with a loaded pistol and shot and wounded him. Whether it was the pleader’s intention in this count to claim for negligence or for trespass, we venture no opinion. Courts have ■sometimes used the expression wanton and wilful negligence,” but we cannot conceive how one can be guilty of a careless, negligent, wcmton and wilful assault. To this declaration appellant interposed two pleas. The first is a plea of not guilty, which controverts the truth of such allegations in the declaration as the plaintiff is bound to prove and no more. Chicago Title and Trust Co. v. Core, 223 Ill. 58. The 'second is a plea of son assault demesne, in which appellant admits the trespass in the declaration mentioned and justifies on the ground that if he had not committed the trespass as charged in the declaration, he would have been beaten, bruised and ill-treated’ ’ by appellee. Appellee joined issue on these pleas. It is perhaps fair to say that since these pleadings were filed there has been a change in attorneys for both parties.

There was no proof offered by appellant in support of his plea of son assault demesne, but on the contrary he testified explicitly that after he had been locked in his room for two minutes, and after he had repeatedly warned appellee to go away out of danger, because he, appellant, was going to shoot the lock to pieces and appellee might get hurt, and after everything was quiet on the other side of the door and appellant thought appellee had gone away, appellant shot through the door for the purpose of shattering the lock. Every syllable of this testimony expressly negatives the averment in his plea that he shot in defense of his person or in fear of being bruised and beaten.

Appellant’s plea of son assault demesne being expressly disproved by his own testimony, the issues were narrowed down to those formed on the first plea, namely: whether appellant had committed the trespass complained of. Whether he was justified in committing it is no longer in the case. The ball fired from the pistol of appellant struck and injured appellee. The evidence shows that when the shot was fired by appellant he. was in an intoxicated condition and was angry and quarrelsome. He had just been forced into his bedroom and locked in by appellee. He testifies that appellee used considerable force and .much vile language at the time, applying to appellant offensive and opprobrious epithets such as would have a tendency to inflame the passions of a man, particularly if he were intoxicated. It was dark in the room where appellant was confined. He was just inside the door and he testified he placed his hand about where he thought the lock was and discharged the pistol. Just where the ball went through the door the proof does not show. Appellant says it was a little above the lock, and the physical evidence shows that it was high enough to strike appellee, who was a man of mature years, in the shoulder. To say the least, it seems incredible that a man in a dark room, intending to shoot a lock from the door, should not in some way have located the lock before firing the shot, or that he could have expected to hit the lock by firing in the general direction of where he thought it was. It is also inconceivable that appellant could have expected to free himself from the room by breaking the lock to the door, which common knowledge and observation would indicate instead of releasing him would more than likely so effectually destroy the mechanism of the lock as to prevent it from being operated even with the key. We think all reasonable minds must agree that the preponderance of the evidence fairly tends to show that in firing the shot, appellant was actuated by a spirit of malevolence and revenge towards appellee rather than by any hope of hitting the lock in the dark and thereby releasing himself, and that the jury were warranted by the evidence in finding the defendant guilty, notwithstanding the fact that he testified to the exercise by him of the most solicitous care to have appellee go to some safe place where he would not be injured when appellant should fire at the lock.

The contention of appellant that appellee had no right to recover, because he was himself engaged in the committing of an unlawful act at the time he was injured is without foundation on the facts in this case. Aside from the fact that the evidence tends to show appellant had asked appellee to take care of him if he was doing anything wrong, or was breaking up the house, it was no more unlawful to restrain appellant after he had tipped over the table and broken the dishes, either in a drunken frenzy or in a condition of irresponsibilty, than it would be for a friend of an intoxicated person to take his money and valuables from him for the purpose of preventing the same from being squandered or lost.

Appellant complains of the rulings of the court on the admission of evidence that appellant was drunk; that the injuries were' permanent; that appellant had requested appellee to take care of him ; that the witness who was a doctor could tell from objective symptoms whether there was an inability to move the joint injured by the ball; that the X-Ray plate was a correct likeness of what it purported to show; that the X-Ray plate was admitted in evidence and exhibited to the jury; and ■that an X-Ray expert was allowed to interpret the X-Ray plate taken of the shoulder and part of the chest of appellee; and to state that it showed a metal substance in the chest between the fourth and fifth ribs, when the plate did not show such substance. Without going over these several objections seriatim and at length in this opinion, an examination of the record discloses no error in the rulings of the court in the respects complained of, but does disclose that such rulings were directly in accord with the well established rules in relation to the admissibility of evidence. As to the last objection that the expert was allowed to state-that a metal object was shown in the plate when no-such object appears there, appellant asks this court to-examine the plate offered in evidence, which has been certified here for our inspection. This we have done- and find that a shadow in the exact form of the side view of a large revolver bullet is plainly visible in the locality testified to by the expert.

Instruction No. 7 given at the instance of appellee- and objected to by appellant is substantially correct, as is held in Harrison v. Ely, 120 Ill. 83, and Chicago Traction Co. v. Mahoney, 230 Ill. 562, and cases there-cited.

Appellee’s instruction No. 8 is criticised because it had a tendency to minimize the disorderly conduct of appellee and because it limits the defense of self-defense -to cases of actual danger and necessary self-defense. This instruction is faulty, -and the giving of it would likely require a reversal of the judgment, if the claim that appellant acted in self-defense had not been expressly repudiated by appellant’s own testimony, but as it has been so repudiated, this instruction could have done him no harm.

Appellee’s instruction No. 9 applies to the law of self-defense, and while it is erroneous, no possible harm could have resulted from its being given for the reason above stated in reference to instruction number eight. Appellee’s instruction No. 10 is substantially correct, and even if not technically so, it is, like instructions eight and nine, in relation to the doctrine of self-defense which is not now in this case.

Appellant’s refused instruction No. 1 was predicated on a finding by the jury that appellee had voluntarily engaged in a fight with appellant. There is no evidence in the record that appellee engaged in a fight with appellant. There was no evidence of a fight with any one. True, appellee took hold of appellant and pushed him along, stumbling as he went, and apparently intoxicated, into Ms room and locked Mm in, "bub appellant •did not resist and there was no fight.

Appellant’s refused instruction No. 2 is included in all essential particulars in his given instruction No. 2. Appellant’s refused instructions Nos. 3, 5, 9 and 14 had reference to the doctrine of self-defense and for the reasons already stated had no place in this case. Appellant’s refused instructions Nos. 6, 8 and 19 announce the rule to be that appellee must prove his case beyond a reasonable doubt. That is not a correct statement of the law in tMs case. The pleadings do not specifically charge a criminal offense and the rule is not applicable. Miller v. Balthasser, 78 Ill. 302; Woods v. Dailey, 211 Ill. 495; People v. Sullivan, 218 Ill. 419; McInturff v. Ins. Co., 248 Ill. 92.

Appellant in his refused instruction No. 7 has undertaken to lay down the rule as to the right of a person who is being unlawfully restrained of Ms liberty to defend himself against being so restrained, and the instruction closes with the words, “if you further find from the evidence that the plaintiff, John Pley, was injured by the defendant at the time when the plaintiff, John Pley, was engaged in Qommitting the offense of false imprisonment against the defendant and while the defendant was defending himself against the said offense or its further continuation, then you should find the defendant, Harry C. Lavette, not guilty. ’ ’ The plea of son assault demesne filed in this case attempts to justify the trespass charged (and admitted by the plea) on the ground of self defense against impending physical injury or, following the language of the plea, “* * that plaintiff just before said time * * * with force and arms * * * made an assault upon the defendant and would have beaten, bruised and ill-treated him if "he had not immediately defended himself against the plaintiff * * There is nothing in the plea undertaking to justify appellant for attempting to release himself from a false imprisonment. Neither is there anything in the evidence tending to support such a defense even if it had been properly pleaded. Appellant testified he had been locked in the room for two minutes and he supposed appellee had gone away out of danger, as he had been requested by appellant to do, before he, appellant, discharged the pistol, thereby plainly negativing the supposed facts on which the instruction was based, namely: that appellee was engaged in' committing the offense of false imprisonment and appellant was defending himself against such offense. A party is only entitled to instructions on his theory of the case, if such theory is disclosed by the pleadings and is supported by evidence. The theory on which this instruction was based is not disclosed by the pleadings and is expressly disproved by the testimony of appellant himself. There was no error in the court’s rulings on the giving and refusing of instructions.

The peremptory instruction asked by defendant was properly refused. There was evidence in the record f airly tending to support all the material averments in. the declaration. Under that state of proof it is improper to direct a verdict for the defendant. Libby, McNeill & Libby v. Cook, 222 Ill. 206. That counsel for appellant and the trial court considered there was evidence in the record not only sufficient to warrant the jury in finding appellant guilty, but conclusive on that point, if appellant’s affirmative defense was not considered, is shown by the fact that counsel for appellant, at the close of all the evidence and before the final peremptory instruction was asked, moved the court to' award him the opening and closing argument to the jury, and by the fact that the court accorded him that right. Upon no other theory than that the trespass was. either admitted by the pleadings or conclusively proven, by undisputed evidence could appellant have been entitled to the opening and closing arguments. In either event the peremptory instruction was properly refused.

There was nothing in the remarks of the court that. •could have prejudiced the rights of appellant. It is only where an unguarded remark of the court in the presence of the jury upon a matter of fact that is for the determination of the jury, is calculated to prejudice the rights of the defeated party, that it is ground for reversal. St. L. S. W. Ry. Co. v. Elgin Condensed Milk Co., 175 Ill. 557. Even an improper remark by the •court will not be sufficient to reverse a case where it is apparent the verdict could not have been different than the one rendered. Highley v. Metzger, 187 Ill. 237. On the facts in this case we are unable to see how any fair-minded jury could have rendered a different verdict than the one they rendered here.

The verdict and judgment was for appellee for $2,-000. Appellant insists this is excessive. The testimony fairly tends to show that the ball shot from the revolver of appellant penetrated the right arm of appellee about an inch below the shoulder joint, passed through the arm, shattered the bone, passed into the body and lodged in the right lung, where it now remains ; that appellee was in the hospital several weeks in a serious condition; that the use of his arm is impaired; that he cannot do hard manual labor; that his •earning capacity is impaired; that he suffers pain when the weather changes; and that his injuries are permanent. We think the verdict was not excessive, even on the basis of compensation. Besides that, we think the preponderance of the evidence fairly tends to show a state of facts upon which the jury might well have included in their verdict a very substantial amount by way of vindictive damages in addition to what they allowed as compensation.

A careful scrutiny of this record discloses no reversible error. The judgment is, therefore, affirmed.

Judgment affirmed.-


source: Caselaw Access Project

license: Public Domain

text:
    Clara H. Woodward, Appellee, v. James Donovan, Appellant.
    Gen. No. 16,086.
    1. Evidence—when right to recover upon written instrument prima facie established. Where there is no issue made by the pleadings as to the validity or bona fides of the instrument sued on or the consideration on which it is based or the right of the party to sue, the introduction in evidence of such instrument, regular on it face, shows prima facie the right of the party suing thereon to recover.
    2. Evidence—what proof of title to written instrument. The mere possession of a promissory note or bond is prima facie evidence of the legal title to the instrument and the right of the one in possession to sue thereon, and in the case of an instrument of that character made payable to some person other than the one in possession the presumption arising from possession is that the one in possession may sue thereon in the name of the person to whom it is made payable.
    3. Principal and agent—presumption of authority of attorney. An attorney of record who has possession of a promissory note and who brings suit thereon is presumed to have authority from the payee of the note to conduct such suit. ,
    4. Presumptions—as to existence of plaintiff or complainant. The presumption of the authority of an attorney to act for a party in bringing a suit in the name of such party necessarily carries with it the presumption of the existence of such party.
    5. Presumptions—as to performance of official duties. In the absence of proof to the contrary it is presumed that a public officer has done his duty.
    6. Chattel mortgages—when prima facie valid. If a chattel mortgage provides for the retention of the mortgaged property by the mortgagor and it is made, acknowledged and recorded as provided by statute, it is prima facie valid as to the creditors of the mortgagor, and proof of the bona fides of the transaction is not necessary in the first instance.
    7. Chattel mortgages—vdien acknowledgment sufficient. The acknowledgment of a chattel mortgage before a duly qualified deputy clerk of the municipal court who signs the name of the clerk of such court and attaches the seal of such court to a proper certificate is a sufficient compliance with the statute, even though he does not affix his own name as deputy to the certificate after the name of his principal.
    ■ 8. Chattel mortgages—what does not affect sufficiency of acknowledgment. In the absence of proof that no memorandum by the deputy taking an acknowledgment of a chattel mortgage was made as required by statute the presumption will prevail that a proper memorandum was made.
    9. Chattel mortgages—effect of failure of cleric to make memorandum. Even if the clerk of the municipal court fails in his duty to make a memorandum required by statute the rights of the mortgagor who had no control over the clerk cannot be prejudiced by such failure if the mortgage is in proper form and is recorded.
    10. Chattel mortgages—when lien superior to that of distress warrant. If a chattel mortgagee has not exercised his election to foreclose upon default in payment of one of several instalments his lien is not lost if the last instalment has not matured when a distress warrant is levied upon the property remaining in the possession of the mortgagor pursuant to the terms of the mortgage.
    11. Chattel mortgages—when finding that property mortgaged was not household property, not disturbed. If the finding of the master confirmed by the court to the effect that the property covered by the mortgage was not household property is not manifestly against the weight of the evidence it will not be disturbed on appeal.
    12. Municipal Court—how acts of deputy cleric to be performed. When any act is performed by a deputy the authority to do which he has solely by reason of the fact that he is such deputy, the act may always be done and usually must be done in the name of his principal, and where the act done is the signing of some instrument and the deputy signs the name of his principal the act is the act of the principal and binds him and all the parties concerned as fully as if it had been signed by the principal, even though the name of the deputy actually signing it is not added. ■
    13. Degrees—when newly discovered evidence not ground for setting aside. If the alleged newly discovered evidence is cumulative in character and not of a controlling effect, it will not justify the setting aside of the decree rendered.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. P. W. Gallagher, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 14, 1912.
    W. D. Black, for appellant; C. D. F. Smith, of counsel.
    Clark & Clark, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

On April 27,1908, appellant, claiming that one Nellie D. Driver, otherwise called Nellie D. Smith, owed him $3,500 for rent past dne for premises owned hy him and occupied hy her, known as No. 101 Cass street in /the city of Chicago, issued his distress, warrant and took possession under it of a large amount of personal property belonging to her.

On July 31, 1908, appellee filed her bill in chancery in the Circuit Court against Nellie D. Smith, the American Trust and Savings Bank, trustee of Nellie D. Smith, and appellant, wherein she alleges that Nellie D. Smith, then Nellie D. Driver, on October 15,1907, being indebted to appellee for money that day loaned to her in the sum of $1,800, executed and delivered to appellee her promissory note for that amount, payable in installments of various amounts and due respectively on the 15th day of the months of November and December, 1907, and January, February, March, April, May, June and July, 1908, and on the same day made, executed, acknowledged and delivered to appellee a chattel mortgage on the property therein described to secure the payment of the note; that appellee was the legal owner and holder of that note; that the mortgagor was in default in all the payments except the first two, which had been paid; that appellant had seized the property described in the mortgage and was then in possession of the same under some claim of right; that whatever that claim of right was it was subordinate to the rights of appellee under the mortgage. The prayer of the bill asks that the mortgage be foreclosed and the property sold to satisfy the balance due on the note.

Appellant answered this hill setting up his interest in the property by virtue of his relation to Nellie D. Driver as her landlord; setting up the lease and the indebtedness accrued and due him thereunder for rent; setting up his distress proceedings and denying the rig'hts of complainant under the mortgage as against him. The other defendants also answered the bill, hut there is nothing in their answers material to the issues presented here. The cause was referred to a master in chancery to take the evidence and report his conclusions. The master found the issues for complainant and that she was entitled to a foreclosure of her mortgage and to have the property sold and the mortgage debt paid out of the proceeds of such sale. From this decree James Donovan alone appealed.

Appellant claims the decree was not warranted, because there is no evidence that the complainant was a real person then in existence; because there was no evidence outside of the note and mortgage that at the time the same were given Nellie D. Driver was indebted to complainant, or that the same were bona fide; because the mortgage was not acknowledged before the clerk of the Municipal Court as it purports to have been; because the mortgage was acknowledged before a deputy clerk of the Municipal Court, and such deputy did not certify to that fact under his own name and his own seal, but did sign the name of the clerk of the Municipal Court and did attach the seal of that court; because there is no evidence that the officer who took the acknowledgment entered in his docket or book kept for that purpose the memorandum required by statute; because the evidence shows that when the note and mortgage were executed, Nellie D. Driver was a married woman; that the goods mortgaged were household goods then in use as such in their dwelling which was rented by her from appellant; that she was in arrears $3,500 in her rent; that appellant had taken possession of the mortgaged property under a distress warrant for the purpose of collecting the rents due; and because, if the mortgage was valid, the mortgagee had waived her right to foreclose the same as against appellánt by failing to take possession of the same upon default being made in the payment of the installment due January 15,1908.

In a suit in chancery to foreclose a mortgage or in a suit at law on a promissory note, where there is no issue made by the pleadings, as to the validity or bona fides of the instrument or the consideration on which it is based or the right of the party to sue, the introduction in evidence of the instruments or instrument sued on, regular on the face, shows prima facie the right of the party suing thereon to recover. Brown v. McKay, 151 Ill. 315; Boudinot v. Winter, 190 Ill. 394; Mantonya v. Martin Emerich Outfitting Co., 69 Ill. App. 62.

The mere possession of a promissory note or bond is prima facie evidence of the legal title to the instrument and of the right of the one in possession to sue thereon, and in the case of an instrument of that character made payable to some person other than the one in possession, the presumption arising from possession is that the one in possession may sue thereon in the name of the person to whom it is made payable. Ransom v. Jones, 1 Scam. (Ill.) 291; Martin v. Martin, 174 Ill. 371; Curtiss v. Martin, 20 Ill. 557.

An attorney of record who has possession of a promissory note and who brings suit thereon is presumed to have authority from the payee of the note to conduct such suit. Harris v. Galbraith, 43 Ill. 309; Williams v. Butler, 35 Ill. 544; Ransom v. Jones, 1 Scam. (Ill.) 291.

The fact that an attorney at law prepares a bill in chancery in a party’s name and signs the party’s name and his own name to it is unmistakable evidence of the relation of client and attorney. Burnham v. Roberts, 70 Ill. 19. The presumption of the authority of an attorney to act for a party in bringing a suit in the name of such party necessarily carries with it the presumption of the existence of such party. The note and mortgage were in the possession of the solicitor for complainant who filed the bill. They were regular on their face and were offered and introduced in evidence by him. Under the issues in this case the introduction of them in evidence made a prima facie case for appellee.

Cases from New York and Nebraska have been cited in support of the contention that appellant was bound to prove in the-first instance the bona, fides of the transaction. These authorities are not in point here. The statutes under which these decisions were made provide, in substance, that mortgages of personal property, when the possession of the property remains with the mortgagor, shall be presumed to be fraudulent and void as against creditors of the mortgagor unless such possession is provided for by the terms of the mortgage. Such presumption, however, may be rebutted by proof that the transaction was bona fide and without intent to defraud creditors. Under our statute such mortgages under the same conditions are' absolutely void as against creditors of the mortgagor.

The New York and Nebraska cases cited hold that under the provisions of the statutes of those states, upon the. foreclosure of such a mortgage, it is necessary in order to overcome the presumption of invalidity arising from the retention by the mortgagor of the possession of the mortgaged property, when the mortgage did not provide for his so retaining possession, that proof of the bona fides of the transaction be made, and that upon such proof being made the presumption of invalidity is overcome and the rights of the mortgagee are paramount to those of a creditor of the mortgagor.

Under our statute the question of the validity of the mortgage as against the rights of a creditor of the mortgagor, when the possession of the mortgaged property remains with the mortgagor, depends on whether the mortgage contains a provision that he may retain possession of such property. If the mortgage does not contain such a provision, it is void as to such creditors and no amount of evidence of the bona fides of the transaction will alter the situation.

While in the case at bar the mortgagor retained the possession of the mortgaged property, it was expressly provided in the mortgage that she might do so, and if she retained the possession of it only so long as by the terms of the mortgage it was stipulated she might, the mortgage was prima facie valid as to the creditors of the mortgagor and proof of the bona fides of the transaction was unnecessary in the first instance.

The mortgage on its face appears to have been acknowledged before Homer K. Gralpin, Clerk of the Municipal Court of Chicago. It is conceded by appellant that Homer K. Gralpin was at the time the mortgage was acknowledged clerk of that court, and that as clerk of that court he was qualified to take and certify to the acknowledgment of the mortgage. The undisputed evidence introduced by appellant shows that the acknowledgment was in fact taken by one Frank T. Duffy, who was then a deputy clerk of the Municipal Court of Chicago under Homer K. Gralpin, and that Duffy signed the name of Gralpin to the certificate of acknowledgment. Duffy also attached the seal of that court to the certificate, but did not affix his own name as deputy to the certificate after the name of his .principal.

It is not claimed that there is anything wrong in the form of the certificate or that if it had been signed by Gralpin 'himself if would not have been in compliance with the requirements of the statute, but it is contended that in order to constitute a valid acknowledgment the mortgagor must appear in person before an officer authorized to take the acknowledgment, and that the certificate .of acknowledgment must be under the personal hand and seal of the officer taking the acknowledgment; that such acknowledgment cannot be taken by a deputy clerk and the certificate signed by the deputy in the name of the principal. The ' act of a deputy officer in the name of his principal, within the scope of his authority, is the act of the principal and is as binding on the principal and on third persons, as if performed by the principal personally. It is the act of the principal and not the agent. Hope v. Sawyer, 14 Ill. 253; Abrams v. Ervin, 9 Ia. 87. In the Hope case the facts were that a deed was acknowledged before a deputy clerk of a court and the certificate was signed by the deputy in the name of the principal and the seal of the court was attached. The contention was there made, as it is here, that the acknowledgment should have been made before, and the certificate signed by, the clerk in person. The court held the acknowledgment and certificate good, saying, “The certificate in question was none the less the act of the clerk, because made by his authorized deputy. ’ In the Abrams case an acknowledgment of the deed was taken by a deputy clerk of the District Court. It was contended that the taking of the acknowledgment was not one of the duties of the clerk of the District Court; that it was not a ministerial but a quasi judicial act which could only be performed by the clerk in person. On these questions the court said, “Where the duties of a public officer are of a ministerial character, they may be discharged by deputy. Duties of a judicial character can not be so discharged. The clerk is a ministerial officer. When the law gives him the power to appoint a deputy, such deputy, when created, may do any act that the principal might do. He can not have less power than his principal. He has the right to subscribe the name of his principal; and the act of the deputy in the name of - the principal, within the scope of his authority, is the act of his principal.”

When any act is performed by a deputy, the authority to do which he has solely.by reason of the fact that he is such deputy, the act may always be done and usually must be done in the name of his principal; and where the act done is the signing of some instrument and the deputy signs the name of his principal the act is the act of the principal, and binds him and all the parties concerned as fully as if it had been signed by the principal, even though the name of the deputy actually signing it is not added. In the case of Talbott v. Hooser, 12 Bush. (Ky.), 408, a deputy clerk of the county court took an acknowledgment of a deed in the name of his principal and signed his principal’s name to the certificate and omitted to sign his own name as deputy to it. It was claimed the acknowledgment was a nullity because the principal neither took the acknowB edgment nor signed the certificate and because the deputy who in fact took the acknowledgment and signed the certificate did not sign his own name to the certificate, and the certificate did not purport to have been made by the deputy. In disposing of these questions the court on page 414, says,

“Whatever official act is done by a deputy should be done in the name of his principal, and not in the name of the deputy. The authority given by law to a ministerial officer is given to the incumbent of the office. Authority is not given to the deputy, but to the principal, and is exercised by the principal, either by himself or his deputy, so that whether the deed was acknowledged before B. M. Harrison in proper person or before B. E. Harrison it was, in contemplation of law, acknowledged before the former in his official capacity; and it was not only lawful, but entirely proper that the body of the certificate should read precisely as if the clerk in proper person had taken and certified the acknowledgment, the only irregularity being that the deputy omitted, after signing his principal’s name, to add ‘By B. E. Harrison, D. C.’
‘ ‘ The certificate being regular and valid on its face, Mrs. Talbott sought to avoid it by proving that it was not in fact signed by the principal clerk, and in doing so she proved that it was written and the clerk’s name signed by B. E. Harrison, and he being a deputy authorized by law to sign his principal’s name, the evidence offered to show the certificate illegal, because B. M. Harrison did not affix his signature to it, shows it to be valid, because his name was signed by an au, °'ized deputy.”

The statute of this state, chapter 95, secs. 2 and 3, relating to the acknowledgment of chattel mortgages, provides in part,

“* * * * * in counties having a population of more than 200,000 such instrument, if the mortgagor is a resident of the State at the time of making the acknowledgment, shall be acknowledged before a justice of the peace of the town or precinct where the mortgagor resides, or if there be no justice of the peace in such" town or precinct such instrument shall be acknowledged before the clerk or any deputy clerk of the Municipal Court in the district in which the mortgagor resides, or if there be no such clerk or deputy before the County judge of the county in which the mortgagor resides. The certificate of acknowledgment may be in the following form: This (name of instrument) was acknowledged before me by (name of grantor) (when the acknowledgment is made of a resident insert the words “and entered by me”) this ........day of..........19..... Witness my hand and seal. (Name of officer).
seal. ....................
“3. (Acknowledgment Docketed.) If the acknowledgment is by a resident of this State the justice of peace, clerk or deputy clerk of the Municipal Court, or county judge, shall enter in his docket or in some book kept for that purpose a memorandum thereof substantially as follows:
A. B. (name of mortgagor) to C. D. (name of mortgagee) ; mortgage of (here insert description of the property as in the mortgage.)
Acknowledged this........day of........19.... ”

Appellant insists the foregoing statute in so far as it authorizes deputy clerks of the Municipal Court to take and certify acknowledgments of chattel mortgages invests them with a power which they must exercise in their own official capacity as deputies, but independent of their principal; that the signature and seal to the certificate must be the personal signature and seal of the deputy and that the deputy must enter the memorandum mentioned in sec. 3, R. S. above quoted, in the deputies’ docket or some book kept by such deputy for that purpose, as distinguished from the docket or book kept by the principal for such purpose. No such construction has ever been placed on that statute by any of the courts of this State so far as we are advised, nor do we think it is susceptible of such construction. A deputy clerk of the municipal court owes his official existence to his principal and has no official existence independent of his principal. He derives all his powers through his principal and has only such powers as his principal has. His official acts are the acts of his principal. No such thing has ever been known to the law as a deputy clerk’s docket or a deputy clerk’s seal, and there is nothing in the provisions of the statute quoted to indicate anr intention on the part of the legislature to make the act of a deputy clerk of the Municipal Court in acknowledging chattel mortgages an independent act of the deputy, or other than the act of the principal. So far as anything appears in the record in this case, the mortgage was properly acknowledged.

It is next urged that there is no proof whatever that the memorandum required by section 3, R. S. heretofore quoted, was made. Neither is there any proof in the record that it was not made. In the absence of proof to the contrary the presumption is that a public officer has done his duty. Hogue v. Corbit, 156 Ill. 540.

In the absence of proof to the contrary it is presumed that a public officer who has taken an acknowledgment of a chattel mortgage has done his duty and has made the memorandum required by law in his docket or book kept for that purpose. Harlow v. Birger, 30 Ill. 425; Calumet Paper Co. v. Knight & Leonard, 43 Ill. App. 566.

Even if the clerk had failed in his duty in this regard, the rights of the mortgagee who had no control over the clerk could not be prejudiced by such failure, if the mortgage is in proper form and is recorded. Pease v. Fish Furniture Co., 176 Ill. 220. There is, no claim in this case that the mortgage was not duly filed for record and in fact recorded in the recorder ’s, office of Cook county, as required by law, and it must, be presumed that the officer who acknowledged it did his duty and made the memorandum in the proper docket or book kept for that purpose as required by law.

It is next urged that the provision of the mortgage for the retention of the possession of the mortgaged property by the mortgagor only provided for such retention until default should be made in the payment, of the note secured by the mortgage or some installment thereof, and that, -as default had been made in the payment of several installments, before appellant took possession of the property under his distress warrant, and the mortgagee had not elected to take-the property by virtue of her mortgage, such possession by the mortgagor after default in the payment of the first installment was fraudulent -as to appellant, and he had -a right to take possession of it under his. distress warrant.

The clause of the mortgage as to the mortgagor retaining possession of the mortgaged property is as-, follows:

“And Provided, that it shall be lawful for said mortgagor to retain possession of said chattels; and at her own expense to use and enjoy the same, until she shall make default in the payment of said note, or any installment thereof, at the time therein stated.. And said mortgagor covenants that, if default be made, in payment of the Note aforesaid, or any or either of them, or any part thereof, or, if the mortgagee or his. assigns or agents shall feel insecure or unsafe, or fear diminution, removal or waste of said property; or, if the mortgagor shall sell or assign, or attempt to sell or -assign, said Chattels, or any interest therein; or if -any Writ or Distress Warrant shall be levied on said Chattels or any part thereof, then all of said note, at the option of said mortgagee, without notice of said option to any one, become at once due and payable,, and said mortgagee shall thereupon have right to take immediate possession of said property, and for that purpose, may pursue the same wherever found.”

While the mortgagor was in default in the payment of the installment due January 15, 1908, and subsequent installments, appellee took no steps to foreclose her mortgage until the final installment 'due July 15,. 1908, had become due, and the mortgagor had defaulted in its payment. By the terms of the mortgage it was optional with appellee whether she would elect to declare the whole debt due and payable and take-possession of the property on default in the payment of the first installment or any of the subsequent installments, or wait until the whole note should become due. Appellee elected to wait until the whole note became due.

While appellee had a right to elect to declare the whole debt due and payable on default in the payment of the first installment, she was not bound to do so, but could properly exercise her election to wait until the whole debt was due and default had been made in its payment, and the lien and priority of the mortgage was not impaired by her so electing. Cleaves v. Herbert, 61 Ill. 126; Barbour v. White, 37 Ill. 164; Marseilles Mfg. Co. v. Bockford Plow Co., 26 Ill. App. 198; Rehkopf v. Miller, 59 Ill. App. 662; Friend v. Johnson, 68 Ill. App. 661.

It is next contended that -the mortgagor was a married woman when the mortgage was executed by her;. that the property mortgaged was household goods, within the meaning of section 24, chapter 95, B. S., requiring mortgages of household goods to be executed by both husband and wife, and that as this mortgage was only executed by the wife it was void.

The master in chancery, to whom this cause was referred, found that the mortgaged property was not. household property within the meaning of the statute above referred to, and the court that entered the decree confirmed the master’s findings in this and all ■other respects. We have gone over the evidence carefully and are inclined to the view that the evidence warrants that finding. To say the least, the finding is not so manifestly against the weight of the evidence as to warrant a reversal of this decree for that reason. The evidence on the question of marriage of the mortgagor was, to say the least, very unsatisfactory. The mortgage was signed by the mortgagor by the name of Nellie D. Driver, and she was described in the mortgage as Nellie D. Driver, widow. The witness, Mrs. Fenouille, called by appellant, testified that while the mortgagor was a widow, she was known as Mrs. Driver and after she was married she was known as Mrs. Smith; that she did not remember when she was married, but that it was during the summer of 1907, before she occupied the premises at 101 Cass street. There was also testimony to the effect that sometime in October, 1907, on being charged with improper relations with a man by the name of Smith, the mortgagor said they had been married in June, 1907. After the master in chancery had filed his report of evidence and findings, appellant made an application to have the cause re-referred to the master to take further proof as to when the mortgagor was married. The court refused to so re-refer the cause and this is assigned for error. The substance of the additional ■evidence, which appellant desired to introduce on a re-reference to the master, as to the date of the marriage, as shown by affidavits filed with the motion for a re-reference, was that a Doctor Montgomery had been called" to attend the man Smith in August, 1907, ■and found him and Mrs. Driver in bed together, and that they then said to the doctor that they had been married in June, 1907. The affidavits further disclosed that both appellant and his attorney knew of this evidence while the cause was yet before the master, and that appellant’s attorney said to the master if he had any doubt as to when the marriage took place, appellant desired to produce the doctor as a witness. To this proposal the master seems to have made no reply, and appellant seems to have taken it for granted that it was not necessary to produce the-doctor as a witness ■ and did not do so. Treating this evidence as both competent and material, there was absolutely no showing entitling appellant to re-open the case for the introduction of it, and there was no-error in denying the motion for a re-reference. Practically the only evidence in the record that the marriage took place before the mortgage was given was the statements of the parties made under circumstances when they must either claim marriage or admit improper relations with each other. The proposed testimony of Dr. Montgomery was cumulative on that point, and even if it had been admitted, we think the master would have been warranted in finding that at the time the mortgage was given Mrs. Driver was a single woman.

We think the decree ordering the foreclosure of the mortgage and the sale of the property was amply warranted by the law and the evidence.

The decree is, therefore, affirmed.

Decree affirmed.


text:
    Minnie A. Eggleston, Appellee, v. The Fair, Appellant.
    Gen. No. 16,096.
    1. Corporations—what essential to bind. A corporation can only act by and through its agents and representatives and it cannot make an ■agreement except by and through such of its agents as are authorized to bind it.
    2. Instructions—submitting questions of law. An instruction should not be given which allows the jury to construe the effect of the allegations of the declaration.
    Appeal from the Circuit Court of Cook county; the Hon. John' Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 14, 1912.
    Willis Smith, Henry L. Wallace and Walter F. Heinemann, for appellant.
    Edward H. Morris, for appellee.
   Mr. Justice Graves

delivered the opinion of the •court.

About May 1, 1905, appellee, who before that time was employed by appellant as sales lady in the department of ladies’ suits in its store, was made head of stock in the department of ladies’ coats. As sales lady, she received $15 per week, and the preponderance of the evidence shows that she received in addition thereto certain commissions on sales. As head of stock, she was to receive the same weekly compensation, and she claims she was guaranteed that the commissions would not be less than $500 between May 1, 1905, and the end of that year. She furtheh claims that her contract for employment in the first instance, and her transfer to the head of stock in the coat department, was made by one Whitehouse acting in behalf of appellant. The $15 per week salary was paid, but appellee received no commissions after she became head of stock in the coat department. This suit was brought to recover the claimed guaranteed commissions. Appellee recovered a judgment of $500.

It is claimed by appellant that the proof is not sufficient to warrant a finding that appellee was unconditionally guaranteed $500 in commissions, as claimed by her, or to show that Whitehouse had any authority to make the contract of employment. It is not denied that appellee was employed by appellant as sales lady in the department of ladies’ suits, or that while she was so employed she was to receive, and in fact did receive, from appellant $15 per week. Neither is it denied that she was employed by appellant as head of its department of ladies’ coats.

Appellee testified in reference to her employment by appellant that he (Whitehouse) “told me if I could come to The Fair that he would give me charge of the ladies’ suits with a percentage which amounted to a number of hundred dollars.” “I remained in that department just one year. I next had a conversation with Mr. Whitehouse the first week in April, 1905. He asked me how I would like to take charge of the ladies’ coats and I told him that I would be very glad to if I could better myself, and he said, ‘Well, you get that percentage,’ and I asked him how much that percentage would amount to, and he said he could not tell exactly, it would be in the neighborhood of $800 or $900, but he said it was the best department of his section; his section was called “Store 428,” which took the ladies’ suits, furs, waists, skirts and ladies’ coats, but he said, ‘We guarantee you the very lowest figure of a $500 check before the first of the year.’ ”

Whitehouse, who was an employe of appellant in the capacity of manager and buyer in its department of suits and cloaks and who had under him from 75 to 125 persons, among which was appellee, and who was called as a witness for appellant,' referring to the time he first approached.appellee to induce her to enter the employment of appellant, testified: “She said she did not want to change unless she could do better. I offered her $15 a week and she accepted.” He further testified to a conversation with appellee about becoming head of the coat or cloak department as follows: “I asked her how she would like to take charge of the stock. She said she would. She wanted to know what was in it for her. I told her we would pay her $15 a week and give her a bonus on the sales, provided the profits was maintained in the department, and she accepted it that way. * * * I told her about the bonus, if she would get $25,000 increase, she would get a check for $250. If she would get another $25,000, she would get $500, provided the profits were maintained in the department.”

Appellee on rebuttal pointedly denied that there was anything said by Whitehouse about the commissions being 'Contingent or conditional on the sales amounting to any given sum.

We think the fact that all the negotiations in relation to the employment of appellee by appellant were had with Whitehouse, together with the fact that her services were accepted by appellant, and that appellee was paid her weekly wage of $15 by appellant during the whole time she worked there, without objection or question about the regularity of her employment, was sufficient to warrant the jury in finding that White-house was the authorized agent of appellant to employ appellee, and that his acts, whether originally authorized or not, were fully ratified by appellant, and that in either case appellant was bound by whatever the contract made by Whitehouse acting for appellant was.

As to the terms of the contract, there is but one point of difference, and that is whether there were any conditions to the contract to pay commissions. On this point there are some circumstances corroborating appellee. Appellee testified that, as sales lady in the suit department, she received $15 per week and certain commissions, which she said ran from $10 to $13.50 per week, which would amount to from about $500 to about $700 per year. The witness, Anna Jurgenson, testified that during the year 1904 sales ladies in the suit department received commissions on sales. "When "Whitehouse proposed that appellee should take the position of head of stock in the cloak department, she at once inquired what advantage it would be to her. He told her that she would get $15 per week, which was the same regular salary she was then getting, and then made some statement as to the commissions sufficiently favorable to her so that she accepted the position. If appellee, as sales lady in the suit department, was receiving commissions in addition to her $15 per week salary, that was a circumstance worthy of consideration by the jury in determining whether she would be likely to accept the proffered new position without a guarantee that she would receive at least the minimum amount she was receiving in the position then occupied by her. The jury, after availing themselves of all aids for determining the credibility of the witnesses and the weight that should be given to their testimony, adopted appellee’s theory as the true one, and we are not prepared to say they were not justified in so doing.

The following instruction was given at the request of appellee:

“If from the evidence in this case the jury believe that the defendant The Fair—by and through its agent or representative, made an agreement with the plaintiff to pay her $15 a week and not less than $500 commission, as alleged in the declaration—then the jury should find a verdict in favor of the plaintiff.”

Appellant complains of the giving of this instruction for two reasons. First, because the words “agent or representative” were not preceded by the word “authorized” or some equivalent expression, and second, because it refers to the agreement made by appellant “by and through its agent or representative, as alleged in the declaration,” when the declaration consists of the common counts only and contains no averment of any agreement so made. We think appellant misconstrues the import of the instruction. There is nothing in this instruction that is predicated on the question of agency. The only purpose in giving this instruction was to inform the jury that if they believed from the evidence that appellant made an agreement yfith appellee to pay her $15 per week and not less than $500 commission, then she was entitled to recover. Under this instruction the point the jury was called upon to decide was whether appellant had made the agreement recited in the instruction, not how or through whom it was made, but was it made. The words “by or through its agents or representatives” might well have been omitted. Appellant was a corporation and could only act by and through its agents or representatives, and could not make an agreement except by and through such of its agents as were authorized to bind it. Any agreement made by an agent not authorized to make it would not be its agreement. A finding by the jury that appellant made the agreement would be a finding that it was made by and through its authorized agent.

As to the second objection, it will be noted that the agreement which must be found to exist before the jury could find the issues for appellee was fully set out in the instruction. There was nothing left to be gathered from an inspection or consideration of the declaration by the jury. Adding the words “as alleged in the declaration, ’ ’ did not alter the instruction or leave in doubt what the jury must find the facts to be before they ¡could find the issues for appellee. The instruction, as given, amounted to telling the jury that under the declaration if the jury believe from the evidence that appellant made an agreement with appellee to pay her $15 per week and not less than $500 commission, the finding of the jury should be for appellee. Instructions have been criticised in which the jury have been told that, if the jury believe from the evidence that the plaintiff has made out a case, “as charged in the declaration,” then the verdict should be for the plaintiff. The vice in such an instruction is that it leaves the jury to determine what the allegations of the declaration amount to. The instruction complained of here is not subject to that criticism for the reasons stated.

It is lastly contended that the court erred in its rulings on the admission of evidence in two instances. The rulings complained of were each made during the introduction of evidence for appellee in rebuttal. One instance was where the court overruled an objection of appellant to the admissibility of evidence tending to show what compensation appellee received while employed by Chas. A. Stevens. This evidence was admissible to rebut the testimony of Whitehouse, who had testified, at the instance of appellant, to an amount he claimed appellee had received while working for Stevens. If the amount of wages appellee received at Stevens’ was not a proper subject of inquiry, appellant should not have gone into it. Having done so, it cannot complain that appellee was permitted to show what the facts were as appellee understood them. The other instance was where the court overruled an objection to the admissibility of evidence concerning a claimed conversation between appellant’s witness, Whitehouse, and the witness, Miss Jurgens on, concerning appellee’s commission as head of stock, which Whitehouse had testified, in answer to a proper question asked on cross examination, did not take place. This evidence was also proper rebuttal evidence, and the objection of appellant to its admission was properly overruled.

Finding no error in the record, the judgment of the court below will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Baume

text:
    Daniel M. Healy, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,050.
    1. Contributory negligence—what tends to establish. Evidence which merely tends to show that the plaintiff’s intestate made no effort to exercise care for his own safety until it was too late to avoid danger, amounts to a failure on his part to exercise due care for his safety.
    2. Contributory negligence—what does not avoid 'imputation of. One who negligently rushes into a place of danger cannot, when injured, avoid the consequences of such negligence by showing that he attempted to escape when escape was impossible.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with a finding of fact.
    Opinion filed January 17, 1912.
    Rehearing denied February 2, 1912.
    James 0. Condon, for appellant; Irvin I. Livingston, of counsel.
    Thomas J. Healy and Daniel M. Healy, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for the alleged wrongful killing of appellee’s intestate, Abraham Nevills, wherein, a trial by jury in the circuit court resulted in a verdict and judgment against appellant for $7,000. The negligence charged in the declaration is that the servants of appellant so carelessly and improperly drove and managed a street car operated on Halsted street, at the crossing of Forty-second street, that it ran over and upon and struck appellee’s intestate.

While the evidence relating to some matters of minor importance is in conflict, it clearly and indisputably establishes the following material facts. At about 5:30 o’clock in the evening of December 22, 1904, Nevills,. while on his way to his work at the establishment of Libby, McNeill & Libby, located west of Halsted street and north of Forty-second street, was seen at the southeast corner of said streets. It was dark, rain was falling and a brisk westerly wind was blowing. Immediately after a north bound car on Halsted street had passéd said corner, Nevills started to cross the intersection of said streets, walking hurriedly in a northwesterly direction, with his body inclined in that direction and his head down. He thus crossed the east or north bound track and proceeding reached the east rail of the west or south bound track at a point about midway of the intersection of said streets, when he was struck by the fender of an approaching south bound car and thrown to the ground. His clothing became entangled in the fender and he was dragged a distance of about 50 feet, and died from the injuries thereby sustained. The south bound car was being operated at a speed of from six to eight miles an hour. The car was lighted inside and a small light was burning in the upper part of the front vestibule. A clear preponderance of the evidence tends to show that, as the car traveled south, and while approaching and crossing Forty-second street, the motorman rang the gong at short intervals. The motorman and the passengers in the front vestibule of the car, first observed Nevills a distance of six or eight feet in front of the car, as he came into view after the north bound car had proceeded a sufficient distance to enable them to do so, and the passengers shouted warnings of danger and the motorman applied the brakes. The witness, Mason, called on behalf of appellee, testified upon cross examination and again upon his re-direct examination that Nevills was facing east when he first saw him,' and that was “right at the time when he got hit,”' and appellee insists that this testimony tends to show that the deceased was then attempting to retrace his steps so as to avoid the car, and that in so doing he was in the exercise of due care for his safety. Such inference is not properly deducible from this testimony. If true, it merely tends to show that the deceased made no effort to exercise care for his safety until it was too late to avoid the danger, which, in effect, amounted to a failure on his part to exercise due care for his safety. One who negligently rushes into a place of danger cannot, when injured, avoid the consequences of such negligence by showing that he attempted to escape, when escape was impossible. The testimony of the witness, Mason, on his direct examination is not, however, wholly consistent with his statement that the deceased was facing east when he was struck, for on his direct examination he testified unequivocally that he did not see the deceased until after he was struck.

It would serve no useful purpose to review in detail the testimony of the several witnesses called bv the respective parties. We have read and considered the same with the deliberation which the importance of the issues involved demands, and are fully persuaded that the deceased was guilty of such contributory negligence as bars a recovery. There is not in the record a scintilla of evidence tending to show that before and at the time the deceased was struck by the car he was in the exercise of due care for his own safety, but it affirmatively appears therefrom that he was guilty of negligence which contributed to his injury and death. The case of Chicago City Ry. Co. v. Fennimore, 199 Ill. 9, relied upon by appellee, is not in point. In that case the plaintiff appears to have looked twice in an effort to avoid danger, before she attempted to cross the street. In the case at bar the deceased apparently made no effort whatever to avoid known danger in going upon a track where a car of appellant might be approaching at any time, but as it conclusively appears, voluntarily assumed a position which prevented him from observing the approach of the car, until too late to avoid injury.

The judgment is reversed with a finding of fact to be incorporated in the judgment of this court.

Reversed with finding of fact.

Fustdihg of Fact: We find as an ultimate fact that appellee’s intestate was guilty of negligence which contributed to his injury and death.


text:
    Jacob Levy, Administrator, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 16,130.
    1. Instructions—when as to exercise of due care not narrow. The requirement that the plaintiff should have been in the exercise of due care for his own safety “at the time of the alleged accident’’ does not limit the exercise of such care within too narrow a compass. The expression ‘ ‘ at the time of the alleged accident ’ ’ covers the entire occurrence.
    2. Instructions—when upon due care erroneous in assuming material fact. An instruction upon the exercises of due care which assumes a material fact in dispute is erroneous and ground for reversal.
    3. Ordinance—when repeal not effected. A subsequent law which is general does not abrogate or repeal a former one which is special and intended to operate upon a particular subject, and if the latter law does not contain negative words it will not repeal the particular provisions of the special law on the same subject, unless it is impossible that both should be enforced.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 21, 1912.
    Rehearing denied March 12, 1912.
    John A. Bose and Frank L. Kribte, for appellant; W. W. G-urley, of counsel.
    Brady & Levy, for appellee; Mathew P. Brady and C. Stuart Beattie, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the icourt.

In this action on the ease by appellee against appellant to recover damages for wrongfully causing the death of appellee’s intestate, a trial by jury in the Superior Court resulted in a verdict and judgment against appellant for $4,000.

The case was submitted to the jury on the first, third and additional counts of the declaration. The first count alleges that on March 14, 1908, appellant was operating a street railway on West Division street and running a car thereon for the carriage of freight, which car was proceeding in a westerly direction towards and near the crossing of said West Division street with North Ashland avenue; that then and there while the decedent, a minor, eleven years of age, was crossing with all due care, said street at said intersection, appellant by its servants so carelessly and negligently ran, drove, managed, operated and controlled said car, that thereby the said car ran against and struck the decedent, etc. The third count charges a breach of sections 1963 and 1964 of the Ordinances of the city of Chicago, which require each and every car, operated upon any street railway, to be equipped with fenders of steel of the basket kind, substantially attached to the front end of said car, provided, that where cars are operated in trains, or where such car is attached to a grip car or other such car such fender need only be provided upon the grip or front car of such train; and further charges that the decedent while crossing West Division street a short distance west of North Ashland avenue, and while exercising due care for his safety, was struck by the foremost car. and run over and killed. The additional count charges that there was then in full force and effect in said city of Chicago, a certain ordinance, known as section 1970, which provided, in substance, that every conductor, gripman, motorman, or other person having charge of any street car shall, when approaching any cross street, occupied by street railway tracks, which intersect those on which such street car is being operated, bring such car to a full stop before arriving at and within ten feet of the nearest intersection line of such cross street; and further charges that on the day aforesaid appellant was operating a certain car, whereof a motorman and conductor had charge, toward North Ashland avenue, which crossed said West Division street and was occupied by street railway tracks which intersected the tracks of said railway upon West Division street, and that appellant by its said servants negligently ran the said car while proceeding westerly, and in violation of said ordinance, neglected to bring the said car to a full stop before arriving at and within ten feet of the nearest intersection line of North Ashland avenue, and negligently continued to run said car westwardly on said West Division street over and beyond said intersecting street without stopping, whereby the decedent while crossing said West Division street a short distance west of the west line of North Ashland avenue, and in the exercise of due care, and while said car was being run westwardly, was struck, etc.

Early in the afternoon of the day decedent was killed, he, together with several other boys, were skating with roller skates on the sidewalk and pavement on West Division street, a short distance west of its intersection with North Ashland avenue. The train which struck decedent consisted of two freight or,construction cars, whereon material was being hauled on the north or westbound track in West Division street. There is a sharp conflict in the evidence relating to the precise point in West Division street where the decedent was struck. Witnesses for appellee fix the point as being twenty-five feet west of North Ashland avenue, while the witnesses for appellant fix the point as being seventy-five feet west of said avenue. The evidence is also sharply conflicting upon the questions as to the speed at which the train was running ; whether or not the front end of the front car was equipped with a fender; whether decedent was' struck by the front or the rear car; whether or not the train stopped on West Division street east of its intersection with North Ashland avenue, which was occupied by street car tracks running north and south.; whether of not any gong was sounded as the train ran west; and whether or not the decedent was in the exercise' of due care for his safety at and prior to the time he was struck. All of these questions were properly submitted to the jury, and the court did not err in refusing to give the peremptory instructions tendered by appellant.

The most serious issue of fact present in the case-under the evidence relates to the question of decedent’s care for his safety.

The second instruction given at the request of appellee informed the jury that the decedent was not bound to exercise extraordinary care and prudence or the highest degree of care and prudence to avoid injury, but that he was only required to use such care ordinarily to be expected of one of his age, discretion, intelligence and experience under the same or like-circumstances shown by the evidence to have existed at the time of the accident. The instruction is a substantially accurate statement of the law. The requirement that the deceased should have been in the exercise of the degree of care mentioned, “at the time of the alleged accident,” does not limit the exercise by the decedent of the requisite care for his safety within too narrow a compass. The expression “at the time of the alleged accident” covers the entire-occurrence. Krieger v. A. E. & C. R. R. Co., 242 Ill. 544.

The fourth instruction given at the instance of appellee is as follows:

“If you believe from the evidence that the street railway on Division street was crossed by another street railway laid on Ashland avenue, and that the car or train by which it is alleged the deceased was killed was upon the railway on Division street, and that the said car or train was, just before the accident, east of the intersecting Ashland avenue track, and proceeding westwardly, then the court instructs you that, under an ordinance of the city of Chicago in force before, and at the time of the accident, the defendant was required and it was its duty to bring-said car or train to a full stop at and before crossing' said Ashland avenue; and, if you further believe from the evidence that the said car was not brought to a full stop at and before crossing said intersection at Ashland avenue, but without stopping continued westwardly across said Ashland avenue up to the place where the accident happened; and if you also believe from the evidence that the deceased started to cross said Division street just as said car arrived at the -crossing at Ashland avenue and Division street, then you are instructed that he had the right to assume that the said car would come to a full stop at and before passing over the said crossing; and you may take such right into account in considering whether or not. the deceased was in the exercise of due care before and at the time of the accident in question, and in considering whether or not the defendant was negligent in operating the said car.”

A minor objection to this instruction consists in the direction that if the jury believed from the evidence that the decedent “started to cross Division street just as said car arrived at the crossing at Ash-land avenue and Division street,” then he had the right to assume, etc. The ordinance provides that the required stop shall be made before arriving at and within ten feet of the nearest intersection line of the cross street. It is possible, if the decedent looked to the east at all and saw the car approaching, he may have looked at the instant after it stopped just within ten feet of the east intersection line of Ashland avenue, and started again to cross said avenue, in which case, the required stop having been made, decedent would not have the right to assume, although the car had then arrived at the crossing, that it would come to a full stop. The vital error in the instruction is that it assumes the decedent saw the car approaching Ashland avenue. As bearing upon the question of due care for his own safety, and the instruction relates wholly to that question, the decedent could not have been influenced to exercise any care upon the assumption that the car would stop, as required by the-ordinance, unless he saw the car approaching at a point before it was required to stop. If the conduct of the decedent was not consciously influenced by the fact that he saw the car before it was required to stop, and by his reliance upon the assumption that it would stop as required, the fact that the car did not stop could have had no possible bearing on the question of his due care.

The ninth instruction tendered by appellant omitted any reference to the danger or to the conduct of appellant, with respect to which the decedent was required to exercise due care, and was properly refused.

The criticisms upon the rulings of the court in relation to the examination of witnesses are not sufficiently meritorious to require discussion.

At the trial counsel for appellant produced an ordinance of the city of Chicago, passed February 11, 1907, authorizing appellant to construct, maintain and operate a system of street railways in the streets- and public ways of the City of Chicago, wherein appears the following:

“Fenders.” “All cars shall be equipped with efficient and serviceable fender devices, head lights and sand boxes.” This ordinance was first offered in evidence to be considered by the court in support of appellant’s contention that it operated to repeal the ordinance passed May 20, 1905, declared upon in the third count of the declaration. The ordinance so-offered was subsequently withdrawn by appellant, and is not now properly in the record for consideration.

The provision, however, in the ordinance of February 11, 1907, relating to fenders is general in its character, and it does not appear that said ordinance contains any negative words which are operative to repeal ike particular provisions of' the prior ordinance of May 20, 1905, on the same subject, declared upon in "the third count. Neither does it appear that it is impossible that both ordinances, in so far as they relate "to fenders, can be reconciled and enforced. A subsequent law which is general does not abrogate or repeal a former one which is special and intended to operate upon • a particular subject, and if the later law does not contain negative words, it will not repeal the particular provisions of the special law on the same subject, unless it is impossible that both should be enforced. Village of Ridgway v. County of Gallatin, 181 Ill. 521.

Por the error in giving the fourth instruction tendered by appellee, the judgment is reversed and the ■cause remanded.

Reversed and remanded.


text:
    Henry Geiger et al., Defendants in Error, v. Minnie Brown, Plaintiff in Error.
    Gen. No. 16,162.
    1. Forcible entry and detainer—what not proper subject of in■quiry in an action of forcible entry and detainer. The question as to "the title of the premises involved cannot be inquired into.
    2. Forcible entry and detainer—what not defense in an action of forcible detainer. To recover possession of premises wrongfully detained no cross demand in the nature of a recoupment can be interposed by way of defense.
    3. Landlord and tenant—estoppel to deny title. A tenant in possession under a lease is estopped to deny title in the lessor or in the grantee of the lessor.
    4. Landlord and tenant—what does not waive time of payment of ■rent. The fact that payment of instalments was not always insisted upon when due by, the terms of a lease, does not operate to relieve the tenant from the obligation to pay the rent due upon demand therefor.

      Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Mancha Brtjggemeyer, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 21, 1912.
    Albert Wesley G-ottschalk, for plaintiff in error.
    Caswell & Healy, for defendants in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Plaintiff in error prosecutes this writ of error to reverse a judgment against her in the Municipal Court, in an action of forcible detainer, wherein she was found guilty by a jury of unlawfully withholding from defendants in error the possession of the premises described in the complaint.

Plaintiff in error entered into possession as lessee of the premises in question under a written lease executed by Thomas Bates and Wm. Lerch, as executors, for a term beginning May 1, 1909, and ending April 30, 1910, at a rental of $900, payable in monthly installments of $75 in advance on the first day of each month. On May 15, 1909, the said Bates and Lerch, as executors, conveyed the premises to defendants in error and plaintiff in error thereafter paid the installments of rent for June and July to defendants in error. Upon her failure to pay the installments of rent for August and September plaintiff in error was, on September 2, 1909, served with a written demand for the payment of $150 and notice of termination of said lease in the event of her failure to pay said amount within five days.

1. It is urged that defendants in error could not maintain the action because it does not appear that they acquired any title to the premises by the conveyance to them by Bates and Lerch as executors; that the record contains no evidence of the authority of said executors to convey the premises. There is no merit in the reason urged. “In actions of forcible detainer the title to the premises cannot be inquired into for any purpose.” Thomas v. Olenick, 237 Ill. 167. Moreover, plaintiff in error, having entered into possession under a lease from said executors, is estopped to deny their title.

2. The fact that payment of the installments was not always insisted upon, when due by the terms of the lease, did not operate to relieve plaintiff in error from the obligation to pay the rent due upon demand therefor.

3. It is next urged that the court improperly refused to ■ permit plaintiff in error to prove that the premises were in a dilapidated condition; that she showed the same to one of the defendants in error, who attempted to make some repairs, but did so in an unsatisfactory manner. This was not an action to recover the rent claimed to be due, but to recover possession of the premises wrongfully detained by plaintiff in error, and no cross-demand by her could properly be set up in the action. Mark v. Schumann Piano Co., 105 Ill. App. 490, affirmed in 208 Ill. 282.

There is no error in the record and the judgment of the Municipal Court is affirmed.

Judgment affirmed.


text:
    The Decatur Furniture Company, Defendant in Error, v. Chester A. Tousey, Plaintiff in Error.
    Gen. No. 16,178.
    1. Verdicts—when not disturbed as against'the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.

      2. Municipal Court—effect of adoption of inappropriate form of action. In cases of the 4th class the form of the action is of no consequence where the court has jurisdiction of the person of the defendant and of the subject-matter of the litigation.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 21, 1912.
    Rehearing denied March 12, 1912.
    Fred A. Bangs, for plaintiff in error.
    Frederick A. Brown and William R. T. Ewen, Jr., for defendant in error; William P. Yroman, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Plaintiff in error, Chester A. Tousey, prosecutes this writ of error to review the record of the Municipal Court in a case of the fourth class, wherein upon a trial by the court without a jury the defendant in error recovered a judgment for $442.50.

The amended bill of particulars filed by defendant in error is as follows:

“To rent of factory building in Decatur, Illinois, belonging to the plaintiff occupied by defendant as follows:
1 month, March 5, to April 5, 1907........$ 50.00
20 months, April 5, 1907, to Nov. 5, 1908.... 100.00
To value of wiring belonging to the plaintiff and taken out of the building without permission by the defendant................ 400.00
$550.00”

The evidence discloses that in March or April, 1906, plaintiff in error, acting either for himself or for the firm of Tousey & Cottrill, purchased from the trustee in bankruptcy of the Decatur Chair Company and the Joliet Chair Company, bankrupts, the stock and machinery belonging to said bankrupts, then contained in buildings belonging to defendant in error; that thereafter plaintiff rented space in said buildings for the storage and handling of said stock and machinery, paying therefor $200 a month from April 5, 1906, until December 5, 1906, when in- view of the fact that much of the property had been disposed of and less room was required, the rent was reduced to $50 a month, which amount was thereafter paid by plaintiff in error up to March 5, 1907; that beginning March 5, 1907, as claimed by plaintiff in error, or April 5, 1907, as claimed by defendant in error, plainr tiff in error was released from his obligation to pay $50 a month as rent, and thereafter continued to occupy a portion of the building until November 5, 1908; that at the time plaintiff in error went into possession of the property, the buildings were wired with about 6,000 feet of copper wire, connected with the dynamo in the engine room, and were also equipped with about 150 electric lamps and other fixtures, used in lighting the building; that the wire, lamps and fixtures were the property of defendant in error; that acting upon the' assumption that said wire, lamps and fixtures were the property of plaintiff in error, an agent or servant of plaintiff in error, with the knowledge and implied, if not express direction, of plaintiff in error, caused the same to be disconnected and removed from the building and sold the same as junk for $40.

The only witness who attempts to fix a time when the conversation was had with'plaintiff in error, wherein it was' agreed that the obligation of plaintiff in error to pay $50 a month rent should cease, was John B. Prestley, the secretary and treasurer of defendant in error. He testified that the conversation was had within thirty days after March 5, 1907. Plaintiff in error testified to a different version of the same conversation, but did not assume to say when the conversation occurred and did not deny the statement made by Prestley in that particular. Obviously, if the conversation occurred after March 5, 1907, and prior to April 5, following, it was at a time when plaintiff in error was in possession of the premises after the expiration of the monthly term on March 5, under the theretofore existing agreement to pay $50 a month as rent, and he was, therefore, then liable to pay such rent for the month ending April 5. A finding that plaintiff in error was liable for the rent at $50 a month, for the month ending April 5, 1907, was not unwarranted.

As to the claim of defendant in error for rent at $5 a month for the twenty months following April 5, 1907, during all of which time a portion of the premises were occupied by plaintiff in error, there is a direct conflict in the evidence. Plaintiff in error’s version of the conversation with John B. Prestley, heretofore mentioned, was, that he asked Prestley whether or not in view of the fact that the premises were then not otherwise occupied, and the material in storage was down to a small amount, defendant in error could not afford to permit him to occupy the premises without paying further rent; that" Prestley recalled the fact that plaintiff in error had paid “a good deal” of money for rent, and said-there would not be any further charge for rent if plaintiff in error would move out within a day or two if' it was necessary. Prestley testified that upon the occasion in question plaintiff in error claimed that the rent should be reduced from $50 a month and that he didn’t think he (witness) should charge him anything; that he replied that plaintiff in error had paid "the rent promptly and he felt very kindly towards him and could be trusted to make the rent reasonable and the matter would be satisfactorily arranged thereafter; that he did not tell plaintiff in error he could use the premises free of rent. The record also discloses that in his deposition, taken prior to the time he testified as a witness at the trial, he testified that sometime between April 5th and May 5th plaintiff in error said that so much of the machinery that was on storage had been shipped he desired the rent reduced to a nominal amount, and defendant in error agreed that the rent, after the current month, would be reduced to a nominal rent. For aught that appears the trial court in arriving at its finding may have wholly eliminated the charge for rent of the premises following April 5, 1907, but if such charge was allowed, its allowance cannot be held to be against the manifest weight of the evidence. It is uncontroverted that a charge of $5 a month was reasonable.

Upon the testimony of plaintiff in error alone he is liable for the value of the copper wire in question. He admitted that the wire was not his property; that it was sold for him by his agent and that he “corroborated or authorized” its sale for thirty-five or forty dollars.

Evidence that the fair and reasonable value of the wire before it was taken down was $400 and that it would be reasonably worth $300 to replace it is uncontradicted.

It is, however, insisted by plaintiff in error that the action for the recovery of rent is in the nature of an action in assumpsit or in debt; that the proper and only action for the recovery of the value of the wire, unless the tort is waived, is in tort; that a tort committed against real estate cannot be waived; and that an action in tort cannot be joined with an action in assumpsit or debt.

This is a case of the fourth class and the form of the action is of no consequence, where the court has jurisdiction of the person of the defendant and of the subject-matter of the litigation. Edgerton v. C., R. I. & P. Ry. Co., 240 Ill. 311.

There is no error in the record and the judgment is affirmed. ■

Judgment affirmed.


text:
    George K. Wentworth, Defendant in Error, v. Charles T. Otis, Plaintiff in Error.
    Gen. No. 16,183.
    1. Contracts—when express not essential to recover. The existence of an express contract is not necessary where under the evidence it appears that the plaintiff is entitled to recover upon the basis of a quantum meruit.

    2. Measure of damages—when inaccuracy will not reverse. If the finding and judgment so closely approximate the fair cash market value which was the appropriate measure of damages, measured by the most available and practical standards, that it stands for substantial justice, such finding and judgment will not be disturbed.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 21, 1912.
    Ashcraft & Ashcraft, for plaintiff in error.
    Lawrence P. Conover, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Defendant in error brought suit in the Municipal Court against plaintiff in error to recover the alleged contract price, at 50 cents per hundred pounds, or the fair cash market value, of 88,530 pounds of hay, sold to and received by plaintiff in error in April, 1908. A trial by the court without a jury resulted in a finding and judgment against plaintiff in error for $442.65, to reverse which judgment he prosecutes this writ of error.

The contentions of plaintiff in error may be ■ summed up in the statement that the finding and judgment are against the manifest weight of the evidence.

Both parties are residents of Chicago and own and operate adjoining farms in Newton county, Indiana.

Defendant in error testifies that in March, 1908, he called at the office of plaintiff in error in Chicago, for the purpose of ascertaining whether he desired to purchase any hay; that plaintiff in error was not iri the office and witness asked the bookkeeper or man in charge of the office (Jones) where plaintiff in error was, and Jones replied he was down at the ranch; that witness said he had some hay he wanted to sell, and in reply to an inquiry by Jones as to how much he wanted for it, he said, “Ten dollars a ton, I have made a rule since I have been farming, never to .sell any hay less than ten dollars. If I can’t get ten dollars I wont sell it. I will feed it up.” Witness further testified that Jones said he would write Mr. Otis, and witness replied, “All right, I wish you would. I will go over to my office and I will write my man that I had a talk with you.” Witness further testifies that he wrote his man (Miller) the same day, stating* his conversation with Jones, and that the price of the hay was ten dollars a ton. Miller corroborates defendant in error in this particular. Jones' denies positively that defendant in error was in the office or that he ever had the conversation related by defendant in error, or that he wrote plaintiff in error about any hay. There is some controversy in the evidence relative to the authority of Jones to act for plaintiff in error, and as to whether or not Jones was in the-employ of plaintiff in error in an individual capacity. It is undisputed, however, that Jones was employed in the office occupied by plaintiff in error, and that in the absence of plaintiff in error from Chicago, Jones frequently wrote to him in regard to the business of the farm. It is also undisputed that shortly after the time defendant in error claims to have had the conversation with Jones, plaintiff in error’s foreman, Baxter, drove to the farm of defendant in error and arranged with his foreman, Miller, to commence hauling the hay. Baxter testifies that just before he commenced to haul the hay he received a letter from plaintiff in error, who was in California, advising him that defendant in error had hay to sell, and instructing him, if he got short, to go and get it; that- when he went to the farm of defendant in error he asked Miller if the latter knew anything about any contract with reference to the hay and that Miller said he did not, but that he had orders from defendant in error to let plaintiff in error have hay if he came after it. Miller testifies that when Baxter came to the farm of defendant in error nothing was said about the price of the hay. Plaintiff in error testifies that he never received a letter from Jones in regard to the hay, and that he found out through common rumor in the neighborhood of his farm that defendant in error had timothy hay for sale.

While there are circumstances in evidence tending to sustain the claim of defendant in error that the hay was purchased by plaintiff in error in pursuance to information communicated to him by Jones, it is unnecessary to determine whether or not an express contract for the sale and purchase of the hay at a fixed price was entered into between the parties, because defendant in error is entitled, under the evidence, to recover upon the basis of a quantum meruit.

It is asserted by defendant in error and denied by plaintiff in error that the hay in question was of the grade known as “No. 1 timothy.” Upon this issue, the evidence is sharply conflicting. Defendant in error testifies that the grade known as “choice timothy” is strictly timothy and admits of the admixture of no grasses, and that No. 1 timothy admits of the admixture of some red top and June grass or blue grass, and no witness testifies to the contrary. He further testifies that the hay purchased by plaintiff in error was No. 1 timothy. Miller testifies that he has had experience in grading hay, and that the hay hauled by plaintiff in error," except the last three loads, was No. 1 timothy, and that the last three loads was clover hay. Baxter and Parker, who were in the employ of plaintiff in error when the hay was hauled, both testify, in substance, that they know little, if anything, about the grading of hay. Other witnesses for plaintiff in error, who examined some hay which had been taken from the barn of defendant in error and carried in a sack for six or seven months, testify that the hay in the sack was not No. 1 timothy. Without detailing the evidence bearing upon the question whether or not the hay in the sack was a fair sample of the hay purchased by plaintiff in error, we are persuaded that as it appeared in the sack it was not a fair sample of the hay in question. It was of a different cutting, from other land, and was necessarily so bruised and mangled by long sacking that it was practically impossible to intelligently determine its proper grade.

It is conceded there was no fixed market value for the hay at the time and place of delivery, and that the nearest market was Chicago about 36 miles distant, where No. 1 timothy hay in bales was then worth from $13 to $14 a ton. It is also practically conceded that for feeding purposes loose hay is more valuable then bailed hay. If plaintiff in error be charged the prevailing market quotation in Chicago, less commissions and the cost of bailing and transportation, and considering the greater value of loose hay over baled hay, the finding and judgment so closely approximates the fair cash market value of the hay in question, measured by the most available and practical standards, that it stands for substantial justice in the case. The judgment of the Municipal Court will be affirmed.

Judgment affirmed.