author: Mr. Justice Brown

text:
    Stephen D. Ryan, Appellee, v. Thomas E. McArdle, Appellant.
    Gen. No. 15,473.

      Contracts—what incompetent to show, as not in force. A contract between two parties capable of contracting, which was duly executed and delivered, cannot be affected by evidence of a verbal agreement made at the time of its execution that it should not go into effect until approved by a third party.
    Appeal from the County Court of Cook county; the Hon. William H. Hinebaugh, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed February 16, 1911.

      Ritsher, Montgomery, Hart & Abbott, for appellant.
    McArdle & McArdle, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

July 14, 1905, in the city of Dubuque, Iowa, the plaintiff and appellee, Ryan, and the defendant and appellant, McArdle, signed in duplicate the following document, one copy of which was taken and retained by Ryan and the other by McArdle:

“S. D. Ryan of the City of Dubuque, Iowa, for and in consideration of the agreement hereafter mentioned, leases to Thomas McArdle of Chicago, Illinois, the south warehouse and sufficient grounds for three oil storage tanks of not less than 8,000 gallons capacity each, situate on Block 27, Dubuque Harbor.Company’s Addition to the City of Dubuque, Iowa, for the terpa of five years from September 1st, 1905, with the privilege of five years additional at same rate. In consideration of said lease and for his services as Manager of said oil business, Thomas McArdle hereby agrees to bind himself, his heirs and assigns to pay the said S. D. Ryan the sum of $150 per month during the term of said lease, beginning September 1st, 1905. Should the said Thomas McArdle at any time during the term of said lease wish to dispense with the services of said S. D. Ryan, or should S. D. Ryan discontinue his services to the said Thomas McArdle or his assigns, the said Thomas McArdle agrees to pay S. D. Ryan, his heirs or assigns, the sum of $75 per month as rent for the property herein described during the term of said lease. S. D. Ryan are to furnish the office and storage tanks; Thomas McArdle' to furnish oils, horses, wagons, etc., necessary for the business and to reimburse said S. D. Ryan for storage tanks in monthly installments to be agreed upon when cost of tanks is known.
S. D. Ryan,
Thos. E. McArdle.
Hellen M. Ham,
Witness. July 14,1905.”

After the execution of this instrument McArdle left Dubuque and returned to Chicago, where he lived. He was at that time and up to the date of the trial was a salesman in the employ of the Fred Gr. Clark Company, which from the correspondence that afterward took place appears to have been a corporation with an office in Chicago. It dealt in oils.

After McArdle’s return to Chicago there was some correspondence between him and the plaintiff, in relation to the proposed business to be established under the contract, a part of which only is in evidence. A letter of July 26, 1905, from McArdle to Eyan speaks of the advisable course to pursue in relation to the purchase of storage tanks, and other requisites for the business apparently expected to be carried on, and asks whether, in the event of his wishing to incorporate in Iowa, it would be necessary for the writer’s name to appear in incorporation papers.

August 19, 1905,, the defendant telegraphed to the plaintiff, apprising him that he would soon be in Dubuque, and from correspondence thereafter it is very evident that at the interview which took place when the • plaintiff and defendant met at Dubuque the defendant categorically refused to go on with the business which had been contemplated in the agreement, and announced that he needed no oil storage tanks on the premises mentioned in the instrument, as he would not carry out the arrangement described in the contract.

The reason given by Mr. McArdle was thus expressed by him in a subsequent letter:

“I would not have entertained the proposition at all if I had not had in view the idea of being backed up by the Fred Gr. Clark Co. However on putting the proposition before the Fred Gr. Clark Co. they have turned same down absolutely and state that I cannot entertain this proposition while in their employ. Even though I was to sever my connection with the Fred Gr. Clark Co., the feeling that would then exist would not allow them to grant me the credit line which would be absolutely necessary for me to handle the Dubuque proposition.”

Further on in the same letter he says:

“I thought perhaps you would * * * cancel the agreement existing between yourselves and the writer. * * * If you see fit to enforce our agreement the outcome would simply be that you would throw the writer into bankruptcy.”

The plaintiff refused to cancel the agreement, and it is evident that after the interview before mentioned, the relations between him and the defendant were anything but cordial. The plaintiff made some unavailing .efforts to convince the Fred G. Clark Co. that they should take up and carry out the defendant’s contract, and alleged his belief that MeArdle had acted in the interest of the company whose employe he was. “I believe,” he says in a letter of September 12th, “there is a personal obligation, a partnership in this deal, by which not the corporation but the individuals and the copartners are obligated.”

On August 31, 1905, Byan wired and wrote to Mc-Ardle that he delivered to him the warehouse and grounds according to the lease of July 14th, and awaited instructions. He did some little work personally in preparing the premises for the erection of oil tanks, and held himself ready, as he says, to enter into the service of MeArdle had the latter decided to go on with the business. MeArdle, however, proceeded no farther with it, and on January 6, 1906, Byan leased the premises involved for three years to a third party, the Union Transfer Company, at a rental of $50 a month. He had been endeavoring to obtain such a tenant for them since it had become apparent that Mc-Ardle did not intend to go on with the proposed business nor to carry out his agreement.

October 30,1906, the plaintiff, Byan, brought suit in the County Court of Cook county against the defendant, MeArdle, alleging in a special count of his declaration damages in the .sum of $1,000 for the breach of the before described agreement of July 14, 1905, and adding the common counts thereto. Afterward the declaration was amended by the addition of other special counts, demurrers to some of which were subsequently sustained. At the time of the trial of the cause, June 8, 1908, the pleadings outstanding consisted of a declaration containing the usual common money counts and two special counts on the contract.

The defendant’s pleas were the general issue, want of consideration and failure of consideration.

The cause was submitted to a jury, who found a verdict for the plaintiff for $472.50, for which and costs, after a motion by the defendant for a new trial had been overruled, a judgment was rendered by the County Court. From this judgment an appeal was taken by the defendant to this court.

In this court, under the assignments of error, the defendant argues that the judgment should be reversed because the appellee was allowed by the court to answer questions which assumed that the instrument of July 14, 1905, was “a contract in force,” and because evidence was excluded which was offered to prove (to quote from the record the offer of defendant’s counsel at the trial) “That at the time of the signing of this contract it was stated by Mr. McArdle and assented to by Mr. Eyan, that this contract should not become effective until it was approved by the Fred G-. Clarke Co., and that assent was never given, and therefore the contract was never delivered.”

Complaint is also made of the refusal of an instruction tendered by the defendant, which apparently proceeded on the theory that evidence such as the preceding offer contemplated had been received, and directed the jury if they believed it to find for the defendant.

We do not think the court below erred in rejecting this “offer of proof” or in refusing the instruction. The instrument of July 14th was a contract between two parties capable of contracting, and was duly executed and delivered. There can be no serious dispute about that. Previous verbal conversations and negotiations and even conditions must be considered as merged in the instrument.

In Ryan v. Cooke, 68 Ill. App. 592, and 172 Ill. 302, the same contention was made concerning the refusal of an offer, in substantially the same terms, of evidence in relation to a delivered contract, and the Appellate and Supreme Courts held the Superior Court right in rejecting the offer. The opinion in the Supreme Court points out a distinction which must be considered as disposing, under the law of this State, of the theory of the defense in the case at bar. It says: “While it may be shown that a deed or contract is not to be. delivered until a condition is performed, yet it cannot be shown by parol that actual delivery was -made under an agreement that a condition should be performed and that the deed or contract should not be operative unless it was performed. In the one case the purpose of the proof is to show want of a legal delivery, but in the other case the effect of the proof is to contradict an instrument absolute on its face by showing, contrary to its terms, that it is not absolute but only conditional. ’ ’

The instrument under discussion in Ryan v. Cooke was under seal, but neither in reason or by authority is there any difference in the rule in the case of unsealed contracts.

The other principal contention of the appellant relates to the damages assessed by the jury. We do not think that under the evidence the instructions tendered by the plaintiff in regard to loss for services were called for, but the instruction on the subject given at request of the defendant was explicit and clear and applied to the facts proven.

In any event, the verdict against the defendant was less than the accepted rule concerning his liability for rent under the undisputed facts disclosed by the record would have justified. Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514; Marshall v. Grosse Clothing Co., 184 Ill. 421.

The judgment of the County Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Margaret Born, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,479.
    1. Instructions—as to effect of release properly refused. An instruction which tells the jury the effect of a release is properly refused if the evidence is undisputed that the party by whom the release was given was at the time under age.
    2. Releases—what shows disaffirmance hy minor. Bringing action for personal injuries is a sufficient disaffirmance by a minor of a release purporting to discharge from liability on account of such personal injuries. The consideration paid for such a release and retained by the minor may be considered in mitigation of damages.
    Action in case for personal injuries. Appeal from the Superior Court of Coolt county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed February 16, 1911.
    B. F. Richolson and Watson J. Ferry, for appellant.
    Johnson & Belasco, for appellee; Joel Baker, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal hy the Chicago City Railway from a judgment for $1,700 and costs against it, rendered hy the Superior Court of Cook county. The judgment was on the verdict of a jury in a personal injury case brought by the appellee, Margaret Born. The accident which was the basis of the suit happened on May 12, 1905, when the plaintiff was seventeen years of age. The trial took place in January, 1909.

The judgment is attacked in this appeal on several grounds. Among them is the alleged error of the trial judge in refusing two instructions tendered by the defendant in relation to the effect of a release signed by the plaintiff and received in evidence. It was executed the day after the accident and purports to be an absolute release under seal by Margaret Born of all demands or causes of action against the Chicago City Railway Company for the sum of fifteen dollars, and concludes: “I am 18 years of age.”

The first instruction concerning this release, the refusal of which is complained of7| was to the effect that if the plaintiff knowingly executed it, the jury had no right to find for the plaintiff, because they might think that the amount received was not sufficient to compensate her for her injuries.

The second instruction was to the effect that even if the jury believed from the evidence that the plaintiff was not of the legal age of eighteen years when she signed the release, yet if they further believed from the evidence that she had before the trial arrived at such age, her retention and appropriation of the money, if she did retain it, must be treated as a ratification of the settlement and forbid her recovery.

We do not think there was any error in refusing these instructions. There was no contradiction of the fact that the plaintiff was a minor at the time the release was executed, despite the evidence of the claim agent that she told him that she was of full age and her statement to that effect written by her, as he says, in the body of the release. There was some conflict of evidence as to the execution of the release and as to what was said and done at the time of it; but we deem it immaterial.

The release was put in evidence, and if an instruction had been thought necessary and requested that the jury should consider the amount paid in mitigation of any damages proven, it would undoubtedly have been given. But this suit was brought within ten days thereafter, and such action has been held by this court a sufficient disaffirmance of a release by a minor. Pennsylvania Co. v. Purvis, 128 Ill. App. 367; Chicago Telephone Co. v. Schulz, 121 Ill. App. 573. Nor do we think that as a condition of recovery she was obliged to return the fifteen dollars. Young v. West Virginia C. & P. R. Co., 42 W. Va. 112; St. Louis, I. M. & S. R. Co. v. Higgins, 44 Ark. 293; Worthy v. Jonesville Oil Mill, 77 S. C. 69; Southern Cotton Oil Co. v. Dukes, 121 Ga. 787.

We are thus brought to the merits of the case. Because of the decision which we have reached we regard it inexpedient to discuss in detail the evidence, which we have endeavored carefully to analyze and weigh.

Although much is said in the arguments about contradiction in the testimony of the witnesses, there are substantially but two stories told of the accident. One is supported by the testimony of the plaintiff herself and of her friend and companion at the time of the accident, Miss Engleberg, and to a much less degree by that of Miss Smith. Its essential feature is that the plaintiff attempted to cross Madison street in front of a train of street cars that had come to a stop; that the cars started without warning and ran her down. Under this state of things the liability would exist, if the plaintiff were not guilty of contributory negligence. The other story is supported by the testimony of the motorman of the car which inflicted the damage, by that of the conductor of a car in the train, by that of a passenger on the grip car, and by that of four bystanders on the street (two on each side of it) who saw the accident. These seven men all testify substantially that the plaintiff and her two girl companions suddenly ran from behind some wagons standing along the curb or passing along the street; that the girls were evidently in great haste to cross the street in a northeasterly direction; that they ran in front of a moving grip car; that two of them crossed the tracks safely, but that the plaintiff tripped and fell on them; that the motorman stopped his car with all possible speed and skill, but could not prevent her being struck by the fender as she lay on the ground.

If this story in its essential features is true, no negligenee of the defendant was proven, and independently of all questions of contributory negligence on the part of the plaintiff she should not recover.

The defendant claims that the verdict and judgment are so manifestly against the weight of the evidence, both on the question of defendant’s negligence and on the question of the contributory negligence of the plaintiff, that we should reverse the judgment with a finding of fact and put an end to the case.

We are not prepared to do this, but we do hold that the verdict was so far against the weight of the evidence that the court below should have granted a new trial and submitted to another jury its consideration. We fully appreciate the functions of a jury in determining the relative credibility of conflicting testimony, and fully recognize the truth of the apothegm relied on by plaintiff, that “evidence is weighed and not counted;” but we cannot conscientiously, after a study of this record as it stands, hold that on it the verdict of the jury is so far justified as to warrant us in approving it and the decision of the trial judge on the motion for a new trial. • On the assignment of error that the trial court erred in overruling defendant’s motion for a new trial, we shall reverse the judgment and remand the cause.

Reversed and remanded.


text:
    The People of the State of Illinois, ex rel. Carl Bajohr, Appellee, v. The Weber Company et al., Appellants.
    Gen. No. 15,487.
    1. Corporations—right of stockholder to examine hooks. The right of a stockholder to examine the records and books of account of the corporation at all reasonable times, by himself or his attorney, is expressly guaranteed to him by the statutes of Illinois, and such right if denied will be enforced by mandamus.

      2. Mandamus—who not improper party. In a proceeding for a writ of mandamus to enforce the right of a stockholder to examine corporate hooks, held, that the treasurer of the corporation was not improperly joined and that under the pleadings in the cause the judgment for costs against such treasurer was not erroneous.
    Mandamus. Appeal from the Superior Court of Cook county; the Hon. Williasd M. McEwen, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed February 16, 1911.
    Tinsman, Rankin & Neltnor, for appellants.
    Frank E. Hayner, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from the judgment of the Superior Court of Cook county awarding a peremptory writ of mandamus against the Weber Company and its officers and directors, commanding them and each of them that they forthwith permit the relator, Carl Bajohr, or his attorney in fact, to examine all books and papers relating to the transaction of the business of the said Weber Company, and charging the Weber Company, Bichard A. Steen and Bernard P. Weber with the costs of the proceeding.

Carl Bajohr was a stockholder in the Weber Company and his right to examine the records and books of account of the corporation at all reasonable times, by himself or his attorney, is expressly guaranteed to I him by the statutes of Illinois, and the Supreme Court of Illinois has declared that this right involves the right to examine contracts and such other papers as the petition and order in the case at bar refer to. Stone v. Kellogg, 165 Ill. 192.

We see no valid reason alleged in either the pleadings or the testimony, why this writ should not issue if the right was denied or unreasonably obstructed, and we think the record plainly indicates that it was at least so obstructed.

Defendant cites authorities to the proposition that' a writ of mandamus should not issue in doubtful cases or where the petitioner cannot show a clear right.

The right in this case is not doubtful and the citations are therefore irrelevant.

The inclusion of Bernard P. Weber among the defendants is complained of on the ground that no personal demand was made on him by the petitioner before the institution of the suit. Weber was a director and treasurer of the company. He was, under the circumstances, a proper party to the petition. He did not disjoin himself from the company or its president in the somewhat inartificial pleadings which ensued, and according to the recital in the judgment or decretal order of the court joined in the submission of the case to the court. The writ properly ran against him, with the other defendants, and the costs were properly taxed against him with the others.

The judgment of the Superior Court is affirmed.

Affirmed.


text:
    Constantine Mueller, Appellee, v. Anna W. Phelps, Executrix, Appellant.
    Gen. No. 15,495.
    1. Negligence—duty of owner of building as to elevator. The owner of a building containing an elevator which is used in common by his tenants, their employes and persons doing business with such tenants, is “to use reasonable care to keep it and its appurtenances in a reasonably safe condition.”
    2. Contributory negligence—when person injured by elevator not guilty of, as a matter of lato. Held, that the action of the plaintiff in this case in placing his head in what proved to be the path of a descending elevator platform did not, as a matter of law, constitute negligence which barred his recovery.
    3. Pleading—when declaration sufficient after verdict. Held, that the declaration in this case was sufficient after verdict which charged that the defendant negligently permitted the elevator, elevator shaft and appurtenances to be in such a dangerous condition as to cause the accident which resulted to an employe of one of several tenants of the defendant who used the building and elevator in common.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Oscab E. Heard, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed,
    Opinion filed February 16, 1911.
    Statement by the Court. This is an appeal from a judgment of the Superior Court of Cook county for $4,500 rendered against the defendant Phelps in favor of the plaintiff Mueller for personal injuries alleged to be the result of the defendant’s negligence. The suit was originally brought in July, 1907, against Erskine M. Phelps and one Henry Jacobs. On the trial in November, 1908, at the close of the plaintiff’s testimony, the court directed a verdict in favor of the defendant Jacobs and denied a motion for a peremptory instruction in favor of the defendant Phelps. The case then proceeded against Phelps. At the close of all the evidence the motion for a peremptory instruction in Phelps’ favor was renewed and again denied. The jury found a verdict for $4,500, on which the judgment appealed from was entered.
    The declaration filed in the ease contained four counts, but the plaintiff discontinued as to the third and fourth counts thereof. The first count alleged the defendant Phelps to have been on August 17,1906, the owner of premises 48 and 50 Wabash avenue, Chicago, on the main floor of which the defendant Jacobs conducted a restaurant; that the defendants were possessed of and operating an elevator for carrying freight to and from the basement of said building; that the plaintiff Mueller was in the employ of said Jacobs as cook, and that it was one of his duties to haul material from the basement to the restaurant of said Jacobs by means of the elevator. It was therefore the duty of the defendants to maintain said elevator, elevator shaft and appurtenances in such good condition and repair as to make it safe for said plaintiff to work there. Yet the defendant’s negligently.failed to keep said elevator, shaft and appurtenances in good condition and repair, and negligently permitted them to become and remain so defective and in such a bad condition that when the plaintiff attempted to use the elevator, and while he was, in the exercise of due care, attempting to bring it to the main floor, so as to be able to use the same, it struck him, threw him to the ground, whereby his leg was broken and he was otherwise injured.
    The second count, stating the same accident, alleged the negligence of the defendants to be that they “failed to keep the elevator in good condition and repair and to provide sufficient light and appliances in said elevator and elevator shafts, and negligently permitted said elevator and elevator shafts to become and remain in such bad condition and without light and sufficient appliances and so dangerous” that the accident happened as before stated.
    The defendants pleaded the general issue.
    Erskine M. Phelps died pending this appeal, and the executrix of his last will and testament was substituted as appellant.
    F. J. Canty and J. C. M. Clow, for appellant.
    Adler, Lederer & Schoenbrun, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

In this appeal the assignment of errors covers the ■ following matters, which are argued by the appellant:

First. That the plaintiff’s declaration is insufficient to support a judgment.

Second. That there is no sufficient evidence to show that the defendant Phelps owed the plaintiff any duty or was guilty of any breach of duty to him.

Third. That the evidence showed contributory negligence on the part of the plaintiff so clearly that the trial judge should have held it to be proven as a matter of law, and directed a verdict for the defendant.

Fourth. That improper evidence was admitted in behalf of the plaintiff.

Fifth. That one instruction tendered by the defendant was improperly modified.

In so far as the argument of the defendant urges that neither the declaration nor the evidence in this case shows actionable negligence on the part of the defendant Phelps, the contention turns on the question: What duty did@the owner and possessor” of the building in which the elevator was situated and the accident occurred (which Phelps by stipulation was conceded to be) owe to the plaintiff, who was an employe of one of Phelps’ tenants and was obliged to use the same in the discharge of his ordinary employment?

The elevator was a freight elevator in a building of five stories. It was used by all the tenants of the building in common. The plaintiff was an employe of a tenant of the main floor. An employe of Mr. Phelps in a confidential capacity-—his private secretary—testified that it was a part of his duties to examine the elevator, to see that it was in good running order, and that at intervals he would visit the premises, looking them over, and that this took him up and down on the elevator.

The rule of law in this State on the liability of an owner of a building wherein is an elevator thus used and operated—in the absence of some special contract to the contrary at least—is that he is bound “to use reasonable care to keep it and its appurtenances in a reasonably safe condition, and that he is liable for injuries which result to persons lawfully in the building from a failure to perform such duty.” Shoninger Co. v. Mann, 219 Ill. 242. See, also, Devine, Admr., v. The National Safe Deposit Co., 240 Ill. 369. The same doctrine has been often declared in other jurisdictions.

The declaration in the case at bar in the first count alleged that the defendant negligently permitted the elevator and elevator shaft and appurtenances to be in such a dangerous condition as to cause the accident, and in the second count made the charge of negligence more specific by alleging that the defendant permitted the elevator and shaft to remain without light and sufficient appliances and therefore dangerous. We think this was sufficient, if proven, to sustain a verdict and judgment. And we think it was a question for the jury whether the original construction of the elevator and elevator shaft and its appliances and lack of appliances, and their .relation to the use of the elevator without a conductor, and the necessity in such use to raise and lower it from below its platform without any indication of where it might be, and the lack of more light in the shaft, charged the defendant with a lack of reasonable care to keep the elevator and shaft in a reasonably safe condition for the legitimate use which the plaintiff was making of it. The jury, by their verdict, said that they did, and we are not disposed to overrule their decision.

It is strongly contended, however, that whatever the duty or negligence of the defendant, there can be no doubt of the contributory negligence of the plaintiff, and that this must prevent his recovery. It is urged that the evidence so clearly showed the action of the plaintiff which caused him to incur the accident to be careless and negligent, that reasonable minds could come to no diverse conclusions concerning it. Thus the question of the contributory negligence of the plaintiff became one of law for the court, and the jury should have been instructed to find for the defendant.

This point is one most strenuously insisted on, and the evidence and the authorities bearing on it are carefully discussed in briefs and arguments of the respective counsel.

An. examination of the law and the facts involved leaves us of the opinion that in this case it was a fair question for the jury whether, notwithstanding the danger which inhered in the plaintiff’s position and action at the elevator shaft in question and in his placing his head, as he did, in what proved to be the path of the descending elevator platform, he was not, considering the construction and method of operation of the elevator and the duties and necessities of his employment, exercising at that time the ordinary care that a person of ordinary prudence and intelligence might exercise under the same or similar circumstances ; whether, indeed, it was not the only possible means of using the elevator to do as he did, and whether, if so, the danger was so apparent that a person of ordinary prudence would have nevertheless refused to incur the risk. It inhered in their verdict, under the full instructions given to them on this matter, that they found that the plaintiff did not fail in the ordinary care required of him, and we shall not disturb that finding.

There is nothing in the alleged admission of improper evidence or in the modification of the twenty-second instruction, discussed in the defendant’s argument, which calls for comment from us. They involve no reversible error.

The judgment of the Superior Court is affirmed.

Affirmed.


text:
    Thomas Lannon, Appellee, v. City of Chicago, Appellant.
    Gen. No. 15,501.
    1. Negligence—when city, with respect to grade of streets, guilty of. If an injury results to a person riding in a vehicle drawn by a horse by virtue of a hole in a public street, the city is liable notwithstanding the horse may at the time of the accident even be in the act of running away.

      2. Contributory negligence—how Question determined. Contributory negligence is always a question for the jury except when the evidence of its existence is so clear that no reasonable minds could come to contrary conclusions.
    3. Evidence—when erroneous exclusion will not reverse. It is not every erroneous exclusion of evidence that will suffice to reverse a judgment. It is only where harm has resulted that a reversal will be ordered. It is for the reviewing court to determine as to whether such harm has resulted.
    4. Verdicts—when not excessive. Held, in an action on the case for personal injuries, that a verdict and judgment for $15,000 was not excessive where it appeared that the injury was severe, that the plaintiff was permanently crippled by a material shortening of his right leg and a material limitation of its motion, etc.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed February 16, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Edward J. Brundage and John R. Caverly, for appellant; Edward C. Fitch, of counsel.
    Quin O’Brien, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The appellee in this cause, the plaintiff in the Superior Court, recovered in that court, on the verdict of a jury, a judgment for $15,000 against the city of Chicago, the appellant, for a personal injury due, according to his declaration in the suit, to the negligence of the city in allowing a public highway in its control— Dearborn street—“to he and remain out of repair and condition to such an extent” that “there were large holes or openings” at a point where it intersected Boot street in said city, which holes “had been there for a long time prior thereto, and of which the defendant did then and there have notice in time to have repaired it, if it had not been negligent in that regard. ’ ’ The declaration alleges that in consequence of this negligence the plaintiff, while driving a wagon along the said street, in the exercise of reasonable care for his own safety, necessarily and unavoidably drove into a hole or opening and was thrown to the ground and seriously injured.

The grounds urged for a reversal of this judgment in this court are:

First. That the verdict was contrary to the weight of the evidence, in that (a) the testimony properly considered with reference to its trustworthiness, probability and credibility, showed that the negligence alleged was not the cause of the accident, and (b) the testimony showed that the plaintiff was not in the exercise of due care for his own safety, but was guilty of contributory negligence.

Second. That the court erred in excluding competent and material evidence for the defendant; and

Third. That the verdict was excessive in amount for the damages proved, and is shown by its amount to have been the effect of passion and prejudice, which it is claimed by the appellant might well have been the result of improper language of plaintiff’s attorney in his closing address to the jury.

The accident resulting in the injury happened while the plaintiff, driving a horse in what is valiantly called by the witnesses a heavy buggy or a light wagon, was turning or had just turned into Dearborn street from Boot street.

The testimony of the witnesses and the respective theories of the plaintiff and the defendant concerning the details of the accident are quite different, but we do not think that it is necessary for us to express an opinion on the speed of the horse at the time the vehicle was overturned.

It is undisputed that the horse was frightened into nervousness at least while coming east on Boot street and passing through the subway. Whether or not he was walking, trotting briskly or slowly, or even running when he was turned north into Dearborn street, is not the material question. That question is whether the overturning of the buggy was the result of the existence of holes negligently left in the street. The material theory of the defense is that there was no hole in the street, or at least no hole into which the wheels of the vehicle went, causing it to overturn, but that in trying to control a runaway the plaintiff turned too sharp a corner from Boot and Dearborn streets and came to grief in consequence. That theory is- supported by some testimony, but there is testimony on the other hand of persons professing to be eye witnesses of the accident that the hole was there; that it had existed long enough to imply notice to the city; that the wheels of the wagon went into it, and that the result was the overturning of the vehicle and the injury of the plaintiff. Even had the horse been running away and entirely out of control, if this testimony was true defendant would be liable. City of Joliet v. Shufeldt, 144 Ill. 403. •

The weight of the evidence seems against the hypothesis that the horse was not under control; but whether or not it was, the material question under the conflicting evidence was, as we have- said, whether or not the overturning of the buggy was the result of the hole in the street. This question was for the jury. A full consideration of the testimony fails to convince us that there is inherent incredibility in the story of the plaintiff’s witnesses, or that we are justified in ignoring it in favor of the theory advanced by the defendant and supported by its witness Bodey, and the alleged previous contradictory statements of the plaintiff and some of his witnesses.

The question of the plaintiff’s contributory negligence was also for the jury. Contributory negligence is always a question for the jury except when the evi-' dence of its existence is so clear that no reasonable minds could come to contrary conclusions. It would be useless for us to enter on an analysis of the evidence in the case at bar to show that this state of things does not exist therein. It is quite plain on the face of it.

We do not think there was any reversible error in the exclusion of an answer of the witness Holmes to a question tending to impeach by proof of variant statement the plaintiff’s witness Hogan. The foundation seems hardly to have been properly laid, the material substance of the alleged contradictory statement was actually admitted, and in any event it is not every erroneous exclusion of evidence that will suffice to reverse a judgment; nor is it the law that we are not to judge whether or not it was prejudicial. Walden v. Lewis, 71 Ill. 453.

The complaint that the verdict is excessive seems to us better founded and has given us some hesitation. We do not think that the counsel for the plaintiff, however, is properly to be charged with transcending the legitimate limits of advocacy in his address to the jury, or that it can be assumed that improper appeals to their passions and prejudices were the cause of their finding.

The injury was undoubtedly a very severe one, and was so described by the only expert witness called. The plaintiff is permanently crippled by a material shortening of his right leg and a material limitation of its motion. This was the result of the peculiarly bad nature of the fracture—an intra-capsular break of the neck of the femur. The plaintiff, besides being thus permanently lamed, suffered very severely during the seven weeks in which he was confined to his bed. He testified that after that time he went on crutches for months and could do no work for more than half a year thereafter; also that his back was weak and “bad” as the result of the accident from the time of its occurrence in July, 1901, to the time of the trial in January, 1909, and that during all that time he had suffered constant pain in his leg and could not walk even a short distance without great soreness in his hip joint and leg. While we should have been better pleased with a smaller verdict, we do not, after careful consideration, see our way to overrule the jury and trial judge either by reversing and remanding the case or compelling a remittitur as a condition of affirming.

The judgment of the .Superior Court is therefore affirmed.

'Affirmed.


text:
    John F. Devine, Administrator, Appellee, v. Illinois Telephone Construction Company et al., Appellants.
    Gen. No. 15,507.
    1. Appeals and erbobs—effect of judgment erroneous as to one defendant. If in an action sounding in tort a judgment is erroneous as to one defendant it must he reversed as to hoth.
    2. Evidence—effect of absence of, showing ownership and operation. Held, that the judgment against one of the defendants in this case, which was rendered for personal injuries, was erroneous in that there was no evidence which tended to connect such defendant with the ownership or operation of the agencies which caused the injury complained of.
    3. Amendments and jeofails—what not abuse of discretion. Held, that it was not error for the trial judge in this case to permit one of the defendants at the trial to supplement its plea of the general issue with a separate plea denying ownership, operation and control.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed February 16, 1911.
    John A. Bloomingston, for appellants.
    Hayes McKinney, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

Because of the disposition we feel compelled to make of this appeal, it is not only unnecessary hut inexpedient for us to express any opinion upon the merits of the plaintiff’s claim against the Illinois Telephone Construction Company. The judgment must be reversed and the cause remanded for a new trial because the judgment is against both the Illinois Telephone Construction Company and the Illinois Tunnel Company, and there is no evidence tending to fasten any liability oh the last named corporation for the accident causing the death of the plaintiff’s intestate.

We are not at liberty, even if we should hold the verdict and judgment justified as against the Illinois Telephone Construction Company, to affirm the judgment against it and reverse it as to the Tunnel Company, or to reverse the judgment as a whole and remand the cause with permission to the plaintiff to dismiss as to the Tunnel Company and enter judgment on the verdict given against the Construction Company. The former course was pursued in Memphis Ry. Company v. Stringfellow, 44 Ark. 322, and said to be in accordance with the common law. But this is not a possible or allowable practice in Illinois. If the judgment is erroneous against one of the defendants only it is erroneous as a whole, and must be reversed as a whole, with a general remandment of the case. Smith v. Byrd, 2 Gilman, 412; Brockman v. McDonald, 16 Ill. 111; Williams v. Chalfant, 82 Ill. 218; Jansen v. Varnum, 89 Ill. 100-102; West Chicago Street Ry. Co. v. Martin, 154 Ill. 523-526; Supreme Lodge Knights of Honor v. Goldberger, 175 Ill. 19; Seymour v. Richardson Fueling Co., 205 Ill. 77-82; Eckels v. Farley, 131 Ill. App. 557; Eckels v. Henning, 139 Ill. App. 660.

This proposition is not denied by the appellee, but he attempts to justify the judgment as a whole on several grounds.

He argues, first, that the evidence shows the Tunnel Company to be liable in this cause because:

(a) “The name Illinois Tunnel Company appeared upon the engine and cars through the movement of which on a railway on the Lake Front Park the accident occurred which is the basis of this suit against both the companies,” and because (b) .“certain of the officers held the same position in both Companies”— the Illinois Telephone Company and the Illinois Tunnel Company.

Clearly, whatever probative force evidence tending to establish these statements would have in the absence of anything to the contrary, to show the ownership and operation of the engine and cars at the time of the accident, it has none to overcome the uncontradi.cted testimony of the witnesses Kendrick (called by plaintiff) and Altpeter and MeG-ary (called by the defendants), that the Illinois Telephone Construction Company was actually owning and operating them at that time and that the Illinois Tunnel Company was not, and the still more indisputable documentary evidence (produced and offered by defendants in consequence of a subpoena duces tecum taken out by plaintiff) which proved their operation by the Construction Company. Appellee also claims that the evidence shows the Tunnel Company liable, because (c) of the following matters: The Illinois Telephone Construction Company was engaged at the time of the accident in the work of constructing a tunnel under the city. One of the outlets to the tunnel was at the foot of Harrison street to the east of the Illinois Central tracks. Cars came out of the tunnel filled with the excavated clay and were taken across the Illinois Central tracks to a temporary north and south track, on which they were switched and thence pulled by a small locomotive to the place where the clay was to be dumped. It was while the cars were moving on this north and south track that the accident resulting in the death of the plaintiff’s intestate who was a dump man, in the employ of the Illinois Telephone Construction Company, happened. The Illinois Tunnel Company was the corporation holding the license or. privilege from the city to construct and operate the tunnel in the street—a license or privilege of the kind usually, though imprecisely, called a “franchise,” and so called in the evidence in this case.

Therefore, says the plaintiff, “The Illinois Telephone Construction Company was the agent and servant of the Illinois Tunnel Company in building the tunnel, including the work which was being done on the Lake front,” consequently the said Tunnel Company is liable for the acts and defaults of the Construction Company while doing that work.

The evidence certainly tended to establish the premises in this statement, but the conclusion is a nonsequitur. The Illinois Telephone Construction Company was an independent company, the evidence shows, constructing the tunnel and doing the dumping work on the Lake Front Park. It owned, operated and controlled all the agencies which brought about the accident and employed all the employes mentioned in connection with it. The Illinois Tunnel Company was, according to the testimony of Mr. H. H. Kendrick, its Treasurer, in existence at that time and held the “franchise” for the tunnel. He said, when the question was pressed, that the Tunnel Company “owned the underground bore. ’ ’ The character of the ownership he then explained by saying ‘ ‘ They held the franchise.” But he explicitly says also, the work on the tunnel was being done in 1905 by the Hlinois Telephone Construction Company and that Company “had not turned it over to the Illinois Tunnel Co.,” and that all the working agencies and all the working agents involved in the work were owned and paid respectively by the Illinois Telephone Construction Company. “The Tunnel Company was not an operating Company” during that period and did not “become an operating Company and take over the paraphernalia1' of the Illinois Telephone Construction Company until} September 15, 1906,” he said. ;

The relations of the two companies are nowhere in the record stated any more fully than this, nor indeed so fully by any other witness. And yet this is very vague. As to the terms of the “franchise” or license, and as to whether the Construction Company was, as may be conjectured, working under a construction contract with the Tunnel Company or had itself some license, privilege or so-called franchise in the streets, we are left entirely in the dark by the record.

The witness Alpeter was timekeeper for the Illinois Telephone Construction Company in 1905. He called it (apparently by a slip of the tongue) the Chicago Telephone Construction Company, and then gave his understanding of the relations of the Companies (at the same time admitting that he knew nothing about it) as follows: “The Company at that time went under the name of the Chicago Telephone Construction Company and today it is the Hlinois Tunnel Co. It is the same Company only that they have changed the name, a I understand.”

It is not claimed or admitted, however, by either party that this “understanding” was correct.

Mr. McGarry, the manager of the claim department of George W. Jackson, Incorporated, testified that in 1905 George W. Jackson was chief engineer and general manager of the Illinois Telephone Construction Company; that at that time the Illinois Tunnel Company was not operating; that in September or October of 1906 Mr. Jackson took the business by contract. He says that then “The Illinois Tunnel Company contracted with Mr. Jackson to do the work themselves, they took hold and contracted with him to finish the work. He took it under contract from that time on. Prior to that time he was doing it as Chief Engineer and Manager of the Illinois Telephone Construction Company.” Asked then by the counsel for the plaintiff, “Was the Illinois Tunnel Co. then the successor of the Illinois Telephone Construction Co.?” Mr. McGarry answered, “I presume that is right. That is my understanding.” This is all the evidence in the record on the point, vital so far as the Tunnel Company is concerned, of its connection with the work of filling in the Lake Front Park in 1905, with the material taken out of this “underground bore” and moved on the cars which ran over the plaintiff’s intestate. But the evidence is overwhelming, as hereinbefore indicated, that those cars were owned, run and operated entirely by the Illinois Construction Company, and that the Tunnel Company had nothing actually to do with their management or control.

In such a state of the record, it is unnecessary to discuss the authorities cited by the appellee, such as R. R. Co. v. McCarthy, 20 Ill. 385; R. R. Co. v. Whipple, 22 Ill. 105; Railway Co. v. Woosley, 85 Ill. 370, and Ry. Co. v. Dudgeon, 184 Ill. 477.

If we were even able to assent (as, under the doctrine of West v. Railroad Company, 63 Ill. 545, and Boyd v. Railway Company, 217 Ill. 332, we are not) to the proposition that a “franchise” of the Tunnel Company to tunnel under the streets of the city or Chicago might render it liable for the negligent default of the Construction Company while disposing of the material on the Lake Front Park, something more definite as to the respective relations of the Companies to the “franchise” and to the work in 1905 must have been shown to justify a judgment in this case against the Tunnel Company.

But, secondly, the appellee relies also, and perhaps especially, on technical grounds of practice and pleading. He says that the judgment against the Tunnel Company, even if it is not warranted on the merits by the record, should not be disturbed. Because (a) the trial court erred in allowing the plea of the general issue first filed for the Tunnel Company jointly with the Construction Company to be supplemented by the Tunnel Company’s separate plea-of non-operation and control filed during the trial. Allowing this plea to be filed has been assigned as a cross-error by the appellee, and he asks that this court should remedy it by excluding from consideration the questions raised by the plea and consider the defense of both companies as though they stood upon the plea of the general issue jointly filed by them. His argument is that under the doctrine announced by the Supreme Court in Traction Co. v. Jerka, 227 Ill. 95, the fact of the joint ownership, operation and control of the cars and appliances was admitted by the Tunnel Company by the filing of the general issue, and it was an abuse of discretion which should be treated as non-existent for the trial court afterward to have allowed a retraction of this admission by the filing of the special plea during the trial.

In Eckels v. Henning, 139 Ill. App. 660 (affirmed by the Supreme Court under the name of Henning v. Sampsell, 236 Ill. 375), this court had occasion briefly to question an attempted application of the doctrine of the Jerka ease (227 Ill. 95) and the Chapman case (220 Ill. 428), to what were in the Henning case the separate and several pleas of the general issue filed by alleged tort-feasors sued jointly for a tort for which only one was proved guilty. We do not intend, however, to place our decision in this case in any degree on the doubt therein expressed. There is a special plea in this case of non-ownership, operation and control in the record, and we do not hold it an abuse of discretion in the trial judge to allow it filed when and as he did. We see clearly that it might be an abuse of judicial discretion if a corporation were solely sued for a personal injury and filed no special plea denying ownership or control of the injuring agencies, to allow it on the eve of trial or in the course of trial to file such a plea, disclosing then, for the first time it might be, the real tort-feasor, whose interests were identical or involved with the defendant, but in whose favor the statute of limitations had run. We are not intending here to lay down a rule which would cover such a case, nor, it may be, all cases of the joint • suing of the actual tort-feasor with an innocent party, if they jointly plead, as in this case, the general issue. But although each case must stand on its peculiar facts in this regard, the general principle is that a trial court may properly allow, in its discretion, before or during trial, amendments in pleading under which the truth can be shown without estoppel. For such amendments are generally “in furtherance of justice” and “enable the defendant to make a legal defense,” and fall within both our Statute of Amendments and the Practice Act.

In the case at bar the Construction Company and Tunnel Company were sued and declared against jointly. The agencies inflicting the alleged injury were declared to be controlled by them jointly. The companies pleaded the general issue.

During the examination of jurors the counsel for the defendants announced that the evidence would show that the Construction Company was the party employing the deceased and the party doing the work at the point where the accident happened, and that it owned and operated the cars and equipment involved; to which the counsel for the plaintiff replied: “Well, then, as soon as we begin taking evidence we will have a formal stipulation as to that.” Counsel for plaintiff was pressed during the opening statements to say whether he purposed to try to hold both defendants or only one, but declined to commit himself then, claiming, and being supported in his claim by the court, over the objection of defendants, that he would have the right to dismiss against one defendant at any time thereafter. Then counsel for defendants asked leave to file the plea of non-operation and control for the Tunnel Company, and although an objection of the plaintiff’s counsel to this was then sustained, it was with the following colloquy:

Counsel for defendants: “Well, I just want an opportunity of presenting it later on.”
The Court: 1 ‘ Counsel may conclude to dismiss himself, but he can take his own time about that.”
Counsel for defendants: “I just want to show the proffer was made and I will present the document later on.”

The trial. proceeded and testimony showing the actual control by the Construction Company and the non-control by the Tunnel Company of the injuring agencies was produced as hereinbefore indicated, the witnesses being cross-examined on their testimony in this regard by counsel for plaintiff.

The request for leave to file the special plea of non-operation and control for the Tunnel Company was renewed and granted before the case went to the jury and before the documentary evidence concerning the payment of the employes doing the work which caused the accident was produced. The court apparently was satisfied of the propriety of so allowing it when he had determined it was a plea in bar and not in abatement.

Counsel for the plaintiff, in the course of the colloquy which then took place, said that he “didn’t want to have it” (by the context apparently referring to the verdict or judgment) “against the Illinois Tunnel Co. and the Construction Co.”

We do not think the trial judge abused his discretion in this case in allowing the filing of the plea, nor in refusing to vacate his order allowing it on the subsequent application of the plaintiff.

The appellee, however, further insists that even were the filing of the special plea properly allowed, the judgment against both defendants should not be reversed: Because (b) the record does not raise the question of the rightfulness of the inclusion of the Tunnel Company in the judgment. This is based on the argument that one of the bills of exceptions shows that although the Tunnel Company filed a separate motion for a new trial with many reasons which expressed or implied the statement that there was no sufficient evidence before the jury to hold it liable; yet on argument of the motion for a new trial the counsel for the-defendants only argued this question, if at all, under the point “That both of the defendants could not have been employers of the plaintiff’s intestate, and that hut one of the defendants could have been. ’ ’

This was tantamount, he says, to an abandonment of the position that the judgment against the Illinois Tunnel Company was without any basis in the evidence, and should estop that company from insisting on that point in this court.

We do not agree with this contention. The opinion in Calumet Furniture Company v. Reinhold, 51 Ill. App. 323, is relied on by the appellee to sustain his extreme doctrine of abandonment by non-argument of reasons formally presented in a motion for a new trial. The language of this opinion construed in any sense on which the appellee could rely herein, has been expressly repudiated by this court since. Hartford Fire Insurance Company v. Northern Trust Company, 127 Ill. App. 355. It is not in accordance with the rules laid down by the Supreme Court or by this court on the subject. See, for example, Landt v. McCullough, 206 Ill. 214.

The judgment of the Superior Court is reversed and the cause remanded to that court for a new trial.

Reversed and remanded.


author: Mr. Justice Smith

text:
    Carl R. Coffin, Appellee, v. City of Chicago, Appellant.
    Gen. No. 15,499.
    1. Negligence—duty of city to warn. Held, under the conditions shown by the evidence in this case, that it was the duty of the city when about to raise the bridge in question to give reasonable warning thereof to persons on the street about to go upon such bridge.
    2. Trial—when propriety of arguments of counsel not saved for review. In the absence of an objection with a ruling and an exception, the propriety of arguments of counsel are not saved for review.

      3. Motions fob new tbial—effect of written. Grounds for a new trial not specified in a written motion for a new trial assigning specific reasons, are waived.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed February 16, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Edward J. Brundage and John R. Caverly, for appellant; Charles B. Stafford, of counsel.
    Theodore G. Case, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellee brought suit against appellant for damages for personal injuries.

The testimony on behalf of the appellee tended to show that the appellee at about seven thirty in the evening of October 7, 1903, was walking west on Randolph street and started to cross on the bascule bridge over the Chicago river. After he was on the same, without warning of any kind the bridge was suddenly raised, causing him to slide down and be caught between the .bridge and an adjustable, or movable, iron apron extending west from the wooden part of the sidewalk, crushing his legs and necessitating the amputation of the right leg between the knee and thigh.

The testimony on behalf of the appellant tended to show that the appellee was drunk and disregarded warnings, signal lights and lowered gates to guard the entrance to the bridge, carelessly and recklessly placed himself in a dangerous position, and thereby was injured.

The declaration consisted of two counts. The first count averred as the negligence that the defendant had constructed ‘ ‘ certain gates or barriers extending across the street and sidewalk at the approach of said bridge at the respective ends thereof for the purpose of warning and notifying pedestrians upon said street and sidewalk that the bridge was about to be elevated or opened up * * * the defendant then and there carelessly * * * suddenly opened up and elevated the said bridge without lowering or closing the said gates * * * and without, giving to the plaintiff any signal or warning that the said bridge was about to be opened and operated,” etc.

The amended second count averred as the negligence, in substance, that the defendant had theretofore stationed at the east end of said bridge a watchman, whose duty it was to give persons reasonable and timely warning of the opening up and elevation of said bridge, etc., yet the defendant carelessly, etc., failed to have a watchman or other person to give the plaintiff any reasonable or timely warning, etc., when said bridge was suddenly opened, etc.

The appellant first contends that the declaration will not sustain a recovery, because the city was not required to maintain barriers or gates, and the averments of the declaration as to barriers or warning should be disregarded. In support of this contention the appellant cites Kluska v. City of Chicago, 97 Ill. App. 665, and Gavin v. City, 97 Ill. 66. We do not think either of these cases in point. The bridge was of the type commonly known as a “jack knife bridge,” and it is very clear from the evidence in this case that raising the same' with a person thereon was very dangerous. Under the conditions shown by the evidence in this case, it was clearly the duty of the city, when about to raise the bridge, to give reasonable warning thereof to persons on the street about to go upon the said bridge.

Complaint is next made of the closing argument of counsel for appellee. We do not regard same as improper except as to one statement. To that statement no objection was made, and therefore there is no ruling of the court, or failure of the court to rule and exception thereto, before us for review.

The appellant urges error in giving certain instructions on behalf of appellee, and the modification of two of the instructions given on behalf of appellant. The instructions complained of given on behalf of appellee announced correct principles of law applicable to the evidence. One of the modifications complained of was a necessary one; thé other was unimportant, for it made no material change in the meaning of the instruction.

The case went to the jury on the first count only. The court, over the objection of the appellant, improperly sent the amended second count into the jury room. The appellant filed a written motion for a new trial, and assigned therein as grounds for a new trial sixteen errors, but no mention of any kind was made therein of this error now complained of in this court. The error was therefore waived. Chicago City Ry. Co. v. Smith, 226 Ill. 178.

Counsel for appellant concludes with an earnest argument that the verdict was against the weight of the evidence. If the testimony introduced by appellee be believed, the city is liable. If the testimony introduced by appellant be believed, there is no liability. The testimony is squarely conflicting, and, as usual in such cases, much can be said in argument by both parties, but we see no particular benefit in a discussion of the testimony. The case has been tried twice and both times a verdict returned for appellee for substantial damages. We are not disposed to hold the verdict clearly and manifestly against the weight of the evidence, and the judgment is affirmed.

Affirmed.


text:
    Joseph Detloff, Appellee, v. Anton J. Weiland et al., Appeal of Alexander Reinowski, Appellant.
    Gen. No. 15,504.
    Appeals and errors—when findings of chancellor set aside. If findings of fact by the chancellor are not supported by the evidence they will be set aside and a decree predicated thereon reversed.
    Bill for accounting, etc". Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed February 16, 1911.
    A. W. Martin and Edward H. S. Martin, for appellant.
    Wm. M. & Wm. S. Johnston, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellee filed a bill in the Circuit Court of Cook county alleging that in October, 1905, he owned and resided on a certain farm in Wisconsin; that one Weiland, by certain fraudulent representations, reciting same, secured from appellee a conveyance of said farm and thereafter conveyed same to one Reinowski, who conveyed same in exchange for certain premises known and described as 95 Lister avenue, in Chicago; that Reinowski was a party to the fraud; and prayed the court for an accounting and that appellee be decreed to be the equitable owner of said 95 lister avenue, etc. Answers wore filed and on a hearing the court found for the complainant and entered a decree finding, among other things, that Reinowski was a party to the fraud, and decreed that appellee have a lien for $1,450, with interest, etc., on said 95 Lister avenue, and unless same be paid, etc., the said premises be sold, etc. Reinowski alone appeals.

Appellee said he came from German Poland and claimed that he was unable to read or write English, and was an ignorant, unsuspecting old man; also said he came to this country in 1870, worked for the Chicago and Northwestern “in the yard on iron” for fourteen years; that he then went into the teaming business, where he sometimes talked English, and conducted said business until 1896, when he purchased and went to live on said farm; that on October 6, 1905, Anton J. Weiland, who was his son-in-law, came to see him; that they talked about Weiland buying the farm and the next day he sold and conveyed the farm to Weiland for the consideration of $2,500 and the further consideration that Weiland move onto the farm and keep appellee and his wife as long as they lived. The testimony was conflicting as to many of the details of this transaction. Weiland said he purchased the farm for $2,500, and denied that he agreed as a further consideration he would give appellee and wife a home, At the time of this transaction appellee owed Weiland about $1,350 for loans made appellee from time to time, including a mortgage of $336 paid by Weiland October 7th, when the said conveyance was made. Weiland gave appellee a note for $1,100, payable in five years. Appellee claims that the note was to be payable in one year and was to be secured by a mortgage on the farm, but Weiland deceived him, etc. The remaining $50 Weiland was to pay in cash, but did not pay it. There was conflicting testimony as to the value of the farm, but the court found it was $2,900.

The findings of the court and the decree as to Wei-land are not questioned and not before us for review. Assuming, therefore, that Weiland was guilty of fraudulent representations, etc., as found by the court, the question is: Was Reinowski a party thereto? Reinowski was also a son-in-law of appellee, and at the time divorced. His two children were on a cousin’s farm about ten minutes’ walk from appellee’s. Thanksgiving, 1905, Reinowski went to visit his children. He called on appellee and wife, and on December 2, 1905, appellee and wife, Weiland and Reinowski went to Necedah. Appellee made a bill of sale of certain personal property to Reinowski and Weiland paid a mortgage of $106 on a binder. Weiland conveyed the farm to Reinowski and appellee told them he knew Weiland had sold the farm to Reinowski, and he wanted his note paid. Weiland promised to go to Chicago and get the money and pay the note. Appellee then agreed with Reinowski that he and his wife would stay on the farm until April and Reinowski’s two children would stay with them and Reinowski would pay appellee and his wife each ten dollars a month. Reinowski went on the farm April 7, 1906, and began to work same. On April 12th Mrs. Detloff died. On June 29th appellee went to Chicago to see Weiland to get his money. He saw Weiland, but not receiving any money, in December, 1906, filed the bill herein.

It is clear that Reinowski knew that appellee had conveyed the farm to Weiland for a consideration of $2,500, but there is no evidence that Reinowski knew of or took part in any of the claimed fraudulent representations made by Weiland, and there is no evidence that Reinowski knew that appellee claimed the further consideration of providing a home for appellee and wife. Appellee said that he never told Reinowski of his agreement, and so far as he knew Reinowski did not know of same. Reinowski offered evidence tending to prove his good faith in exchanging the farm for 95 Lister avenue, but for some reason, not clear to us, was not permitted to do so. Whatever may be conjectured, there is no evidence of any fraud on the part of Reinowski to support this decree as to him, and the decree is reversed as to Reinowski and the cause remanded to the Circuit Court with directions to dismiss the bill as to Reinowski for want of equity.

Reversed and remanded with directions.


author: Mr. Presiding Justice Smith

text:
    Times Square Automobile Company, Defendant in Error, v. E. S. Good, Plaintiff in Error.
    Gen. No. 15,192.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed February 14, 1911.
    John K. Prindiville, for plaintiff in error.
    Edward R. Litzinger, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The statement of claim of the defendant in error, plaintiff below, is for $289 balance due on the purchase price of an automobile. Defendant below, plaintiff in error, filed a counterclaim for $1,000' for alleged damages suffered by him because of the failure of defendant in error to deliver the automobile as contracted. The case was tried before the court without a jury. No propositions of law were tendered to the court to be held as the law of the case. The only real question involved is whether the finding and judgment of the court is contrary to the law and the evidence.

Upon an examination of the evidence in the record, and without discussing it in detail, we are of the opinion that the finding and judgment of the trial court should not he set aside. We have found no basis in the evidence for holding that the finding of the trial court is against the manifest weight of the evidence. The trial court saw and heard the witnesses, and was m a better position for determining the truth than is this court, depending, as we must, on the printed page alone. The judgment is affirmed.

I'Affirmed.


text:
    Theresa C. Stadler, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,246.
    1. Evidence—as to what medical expert incompetent. A medical expert who has examined the plaintiff solely for the purpose of enabling him to testify should not be permitted to recite to the jury acts of the plaintiff “which could have been purely voluntary and under the control of the injured party, and which may rest upon no other basis than the truthfulness of the injured party.”
    2. Evidence—when as to suffering improper. The time in question being long after the accident, held, error to refuse to strike out the following answer to the following question:
    “Q. How did she appear, whether sick or otherwise?
    “A. She suffered, she suffered out through her back and shoulders.”
    3. Evidence—what declarations self-serving. Cries and statements as to pain and sleeplessness made after the accident are self-serving and improper.
    4. Evidence—what competent as to witness’ condition. It is error to refuse to permit a witness to answer a question which inquires as to how the plaintiff appeared as to being nervous or not nervous.
    5. Trial—duty of judge. The trial judge should regulate and control the arguments of counsel within proper limits and should not permit indulgence in vulgarities, and if, on the whole, a trial marked by such incidents is unfair, a new trial will be granted.
    Appeal from the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed February 14, 1911.
    Franklin B. Hussey and C. LeRoy Browh, for appellant.
    Edward Maher and H. E. Wykekoop, for appellee; Morse Ives, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This appeal from a judgment of the Municipal Court of Chicago in favor of appellee for $5,800 for breach of a contract of carriage, presents a number of rulings on evidence and other questions for review. It is conceded by appellant that it committed a breach of the contract. The main controversy is over the amount of damages, and the main contention by the defendant, appellant on the trial, was that the neurasthenic condition or trouble with which the plaintiff below is afflicted, was not caused by the accident in question, but was produced by other causes for which appellant was in no way responsible. The contention of the plaintiff, on the other hand, was and is that it was caused by the injuries which she received in the accident of November 29, 1907, at Kedzie avenue and Sixty-third street, while plaintiff was a passenger on defendant’s car.

Dr. N. H. Adams examined the plaintiff at the request of her attorney on three different occasions at his office. All of these examinations were made for the sole purpose of enabling the witness to testify as a medical expert in this case. The witness was asked to state what he found on his examinations. The witness answered: “I observed that when she entered my office that her walk was careful, that it was deliberate, that she carried the body bent forward slightly, that the neck was held rigid.” The defendant moved to strike out the answer, on the ground that the matters testified to were subjective and incompetent. The motion was overruled. In our opinion the ruling was erroneous. The witness stated to the jury acts of the plaintiff, “which could have been purely voluntary and under the control of the injured party, and which may rest upon no other basis than the truthfulness of the injured party.” Greinke v. Chicago City R. Co., 234 Ill. 564; Shaughnessy v. Holt, 236 id. 485.

The court permitted the testimony of Mrs. Brassel relating to a time long after the accident to stand, overruling a motion to strike out her answer to the following question:

“Q. How did she appear, whether sick or otherwise?
A. She suffered, she suffered out through her back and shoulders.”

Mrs. Lathrop was permitted to state what occurred after the accident and while plaintiff was on the way to Dr. King’s office, namely, that plaintiff would “cry that the pain was so great in her neck.” This was a self-serving declaration, and as such it was incompetent. And so also is the testimony of Mrs. Storseth, who first met the plaintiff about two weeks after the accident, and who gave the plaintiff massage treatments. She testified that whenever she went to plaintiff’s house the plaintiff complained of not having slept, and that it was several weeks before she could commence to bend her head back. Lake St. E. R. R. Co. v. Shaw, 203 Ill. 39.

On the other hand, when the defendant called Sadie Maze, who had observed the plaintiff while the witness was cleaning plaintiff’s millinery store, and asked her how the plaintiff appeared to her about two years before the trial, as to being nervous or not nervous, the court sustained an objection to the question, because the terms of the question required an interpretation of the term nervous by the witness. We think this ruling was erroneous. Dimick v. Downs, 82 Ill. 570; C. & E. I. R. R. Co. v. Randolph, 199 id. 126; West Chicago St. R. Co. v. Fishman, 169 id. 196; Chicago C. R. Co. v. McCaughna, 216 id. 202.

Again, Dr. Banga, called by the defendant, testified that about ten years before the trial he had removed a tumor on plaintiff’s womb, and with it the body of the womb, leaving only the neck of the womb of about an inch or an inch and a half of the neck of the womb, which projects into the vagina. Dr. Adams had testified at the instance of the plaintiff, that he had made a vaginal examination of her, and found the womb. In view of this testimony for the plaintiff, Dr. Small was called by the defendant and testified to the effect upon the nervous system which would follow the removal of the womb, as testified to by Dr. Banga. He was then asked what would be the condition of the pelvic organs after such an operation on a digital examination. The court sustained an objection to the inquiry and ruled out the testimony. This was erroneous. In view of the testimony of Dr. Adams and Dr. Banga the testimony was important to the defendant. The question was purely one for an expert, and its purpose was to contradict the testimony of Dr. Adams and the testimony of the plaintiff herself. The court also erroneously sustained objections to similar lines of inquiry when other witnesses were on the witness stand.

From an examination of the record we are of the opinion that the trial of the cause was unfair in many particulars, which we do not stop to detail. The conduct and language used by counsel for the plaintiff were in the highest degree reprehensible. The trial at times more nearly represented a vulgar street brawl than a quiet, orderly proceeding in a court of justice. The court did not exercise its authority in controlling the arguments of counsel. The quality of justice is strangled and eliminated in such proceedings. The trial court, sitting as a court of justice, should not permit its proceedings to degenerate into an undignified and rude battle of vulgarities.

For errors committed on the trial, the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    Helen W. Johnson, Defendant in Error, v. W. H. Mulholand et al., Plaintiffs in Error.
    Gen. No. 15,252.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed February 14, 1911.
    Tolman, Redfield & Sexton, for plaintiffs in error.
    Lipson & Levy, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Defendant in error, Helen W. Johnson, had judgment in the Municipal Court of Chicago against plaintiffs in error in an action to recover the sum of $325 which it was alleged had been received by plaintiffs in error for the defendant in error in a real estate transaction in January, 1908, and retained by them.

The controversy is whether the plaintiffs in error as real estate brokers for the defendant in error are entitled to charge the admitted rate of two and one-half per cent, on the amount of cash or $9,000 which defendant in error received in the transaction for her property, or upon the sum of $22,000 the entire value of the property which was encumbered to the amount of $13,000.

Defendant in error, plaintiff below, contended and proved that a special agreement was made with plaintiffs in error that the commission should be only on the cash part of the transaction. On the other' hand Mulholand on behalf of the plaintiffs in error testified that no specific amount of commission was ever mentioned. This was a question of fact simply, and we must regard the verdict of the jury as settling it, for we find no recognized legal ground in this case for disturbing the verdict.

We do not think the evidence in this case establishes an accord and satisfaction. If the jury believed the testimony of Johnson to be true, as it did apparently, then the check of'plaintiffs in error for $1,470.90 was not tendered upon condition that, if accepted, it was to be payment in full. Neither the check nor the statement accompanying it contained any such statement. There was no verbal statement to that effect. '

The judgment is affirmed.

Affirmed.


text:
    Elizabeth M. Schneider, Defendant in Error, v. Chicago Vulcanizing Company, Plaintiff in Error.
    Gen. No. 15,268.

      Corporations—what ultra vires. A commercial and manufacturing corporation has no power to pledge its property or issue its accommodation paper for the payment of or as security for an individual debt of another person in which it has no interest and for which it is in no wise responsible.
    Error to the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed with finding of facts.
    Opinion filed February 14, 1911.
    Tinsman, Rankin & Neltnor, for plaintiff in error.
    Adkinson & Hibben, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Defendant in error', plaintiff below, sued the plaintiff in error on the following note:

“June 6th, 1908.
Received of Martin E. Hon three hundred and fifty dollars, for value received, which we agree to repay on or before June 25th, 1908.
Chicago Vulcanizing Company,
$350.00 H. W. Terriers,
Pres. ’ ’
The instrument was endorsed as follows: “Pay to the order of Miss E. M. Schneider.
Martin E. Hon.”

On the trial the plaintiff below offered in evidence the note and endorsement thereof and rested her case.

The evidence for the defendant showed that the note was given for a balance of a commission account due from Terriere to Hon; that the Chicago Vulcanizing Company received no consideration for the note of any nature or kind, and never" authorized Terriere to execute it; that the note was assigned to defendant in error after its maturity, and that she had full notice of the want of consideration to the maker before the assignment was made to her, and took the note with full notice that its execution was without the scope of the powers of the plaintiff in error. No evidence in rebuttal was offered.

Two questions are thus presented on the record: (1) the entire absence or want of any consideration for the note sued on, and (2) the note, being for the individual and personal debt of Terriere, was outside the object of the corporation and beyond the powers conferred upon it as shown by its charter.

In our opinion upon the evidence in the record there was no consideration for the note moving to the plaintiff in error. The note was made solely for the use and benefit of Terriere, doing business under the name of the Northern Motor Car Company. No recovery can be had on the note as against plaintiff in error for the reason that the defense of no consideration with notice to defendant in error is fully established by the evidence.

We further think that the" making of the note was an ultra vires act on the part of plaintiff in error. LA commercial and manufacturing corporation has no power to pledge its property or issue its accommodation paper for the payment of or as security for an individual debt of another person in which it has no interest and for which it is in no wise responsible?) Wheeler v. Home Savings Bank, 188 Ill. 34; Central Trans. Co. v. Pullman P. C. Co., 139 U. S. 24. The note was void as against plaintiff in error.

The judgment of the trial court is reversed with a finding of fact.

Reversed with finding of fact.


text:
    Sol Siegel et al., Defendants in Error, v. Julius Moses et al., Plaintiffs in Error.
    Gen. No. 15,279.
    1. Garnishment—when cause not at issue. If the answer of the garnishee sets up a claim to the fund in his possession in favor of a third person, it is error to render judgment without notifying such third person of the pendency of the proceeding and afford him opportunity to make claim.
    2. Garnishment—what proof essential to maintenance. Proof must be made in a garnishment proceeding of the judgment, on which it is based in order to show a right to maintain the proceeding.
    Garnishment. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed February 14, 1911.
    Rehearing denied March 3, 1911.
    Walter Bachrach, for plaintiffs in error.
    Albert G. Rosenbaum and Francis H. Clark, for defendants in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Siegel & Borge, defendants in error, for the use of J. Doppelt instituted a garnishment proceeding in the Municipal Court of Chicago against Julius Moses and his firm of Moses, Bosenthal & Kennedy, upon an alleged judgment for $200 recovered by Doppelt against the firm of Siegel & Borge. Service of the garnishment was had on Julius Moses only. He answered orally that a portion of the fund alleged to be in his possession was subject to a claim in favor of the Knoxville Woolen Mills, a creditor of Siegel & Borge amounting to $61.24, which he had promised to pay out of the fund in his hands if Siegel & Borge had received the goods.

The Knoxville Woolen Mills did not appear in the action, nor was any notice of the proceeding given it.

The trial court without taking any notice of the claim of the Woolen Mills or the obligation of Moses to pay it entered into prior to the garnishment, entered judgment for $90 against the garnishees, Moses, Bosenthal & Kennedy, and Julius Moses.

In our opinion notice should have been given the Knoxville Woolen Mills of the pendency of the proceedings in order that it might have an opportunity to assert and protect its rights, and until that was done the cause was not at issue and in a condition to be heard. Hamberg-Bremen F. I. Co. v. Kennedy, 57 Ill. App. 136; Chott v. Tivoli A. Co., 82 id. 244.

Another fatal objection to the judgment, and for which it must be reversed, is that no proof was made, as shown by the record, of the judgment originally obtained by Doppelt against Siegel & Borge upon which the garnishment proceeding was based. Proof must be made in a garnishment proceeding of the judgment on which it is based in order to show a right to maintain the proceeding. Pease v. Underwriters Union, 1 Ill. App. 287.

Service on Julius Moses alone is not service on the other members of the firm.

The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

Mr. Justice Clark took no part in the decision of this case.


author: Mr. Justice Baldwin

text:
    Eliza Sowersby, Appellant, v. Royal League, Appellee.
    Gen. No. 15,235.
    Fraternal benefit societies—when admission of applicant ultra vires. If a society is organized with, specific powers contained in its charter prescribing therein certain limits to the ages of eligibility, the admission of an applicant in excess of the limit is ultra vires, notwithstanding at the time of making application the applicant was of eligible age. A certificate issued to such an applicant is void notwithstanding the acceptance of dues and assessments for many years after its issuance, but such 'dues and assessments. will be ordered returned.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed February 14, 1911.
    Rehearing denied March 3, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. Appellant, Eliza Sowersby, brought an action in the Superior Court of Cook county upon a benefit certificate issued by appellee, Eoyal League, to her late husband, and payable upon his death to her his widow.
    The case was submitted to the court below, without a jury, upon an agreed state of facts, and resulted in a finding and judgment for the defendant, from which the plaintiff appeals.
    On October 26, 1883, the Secretary of. the State of Illinois issued a Certificate of Incorporation to the Supreme Council of the Eoyal League under the Act of April 18, 1872, relating to corporations not for pecuniary profit. Under this Act, the incorporators were required to file with the Secretary of State a duly acknowledged certificate setting forth, among other things, the following: (a) The name of the corporation, and (b) the business and objects for which it is formed.
    Section 31 of the Act provided that corporations thus formed should have the power, inter alia, to make by-laws prescribing: (a) The duties of all officers of the corporation, (b) the qualifications of members thereof.
    The Certificate of Incorporation actually filed, set forth:
    “1st. The name of the corporation.
    2nd. _ The object for which it is formed is to manage, direct and control the affairs of a secret benevolent league, for the purpose of assisting its members fraternally who are physically, morally and socially acceptable, and who are white men between the ages of twenty-one and fifty-one years, at the time of becoming members thereof, and to benefit the widows, orphans and dependents of deceased members thereof. ’ ’
    By an Act approved June 4, 1889, and in force July 1, 1889, section 31, supra, was amended so as to give the power of making by-laws to the trustees, which by-laws, among other things, “shall prescribe * # * the qualifications of members of the corporation,” subject, however, to modification, alteration or amendment by the members in annual or special meeting.
    On July 8, 1889, Sowersby applied for membership in the League, stating that he was between the ages of fifty and fifty-one years. On July 9, 1889, he was examined by the local medical examiner, and the result submitted to the medical examiner in chief on July 15, 1889, who, on that day, returned the report to the local physician for further information. On July 22, 1889, a further examination was made by the local physician. Meantime, and on July 21, 1889, Sowersby had reached his fifty-first birthday. On July 23, 1889, the supreme medical examiner approved the application. On August 26th, Sowersby was initiated, and on August 28, 1889, the benefit certificate in suit was issued.
    From the date of his admission as a member until he died in December, 1906, a period of over seventeen years, Sowersby paid all required dues and assessments, and these were received and retained by defendant.
    The stipulation of facts upon which the case was tried below, includes, among other things, an offer on the part of the defendant, the Eoyal League, to repay to the executor or administrator of Sowersby’s estate the total amount paid in by him, as assessments.
    Appellee filed its plea of ultra vires, and claimed that the age limit, which restricted membership in it to persons between twenty-one and fifty-one years of age, was binding upon it and upon Sowersby, and. upon all claiming under the benefit certificate.
    It was stipulated that Sowersby was more than fifty-one years of age at the time he was accepted for membership in the organization, but appellant claimed that the age limit, referred to in the articles of incorporation, was not applicable. Appellant claimed that, under an Act, approved and in force June 22,1893, and amendments thereto, the Legislature undertook to regulate the formation and management of fraternal benefit societies, which thus for the first time passed under the control of the Insurance Commissioner so far as it concerns their insurance feature; that section 7 of the Act specifies what shall be included in the application for a Certificate of Association to be filed thereunder by new corporations, and that, among other things, this certificate must state the proposed plan of doing business, “the limits as to age of applicants for membership, which shall not exceed sixty years.”
    Morse Ives, for appellant.

      Mann & Miller and Arthur J. Donovan, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

After a very careful examination of the question, we are of the opinion that the court below rightly sustained the plea, of ultra vires,—and that the League had no power to admit Sowersby to membership after he had passed the age of fifty-one years, and, accordingly, that the benefit certificate issued and sued upon is absolutely void. If we are right in holding that the corporation was without power to admit him to membership under the circumstances, it follows that the corporation could not, by accepting payments of assessments from him or otherwise, waive the age limit, nor be estopped to insist upon it as a defense in this case.

While it is true that the general law of 1872, relating to corporations, provided, among other things, that the corporations so formed should have the power to make by-laws, prescribing the qualifications of members thereof, we regard it as clear that the Boyal League having filed a certificate setting forth both the business and objects for which it is formed, and in which it is specified that “the object for which it was formed is to manage, direct and control the affairs of a secret benevolent League for the purpose of assisting its members fraternally, who are physically, morally and socially acceptable, and who are white men between the ages of twenty-one and fifty-one years at the time of -becoming members thereof,” constituted a valid and definite limitation upon the power of the League to admit persons to membership, and none could be admitted who did not come within the description of being “white men within the ages of twenty-one and fifty-one years at the time of becoming members thereof.” The Boyal League was required by statute to state the purpose for which it was organized, and it did state the purpose to assist persons who were “white men between the ages of twenty-one and fifty-one years at the time of becoming members thereof.” It was, therefore, thus organized for that purpose, and the plea of ultra vires in this case was fully sustained by the facts, and. constituted a valid defense.

Counsel for appellant suggests that, under the law of 1872, the qualifications of members were to be determined by the by-laws to be made by the corporation. It is true that the corporation might properly adopt by-laws, describing the qualifications of its members,—which must, however, include only such persons as are included in the certificate stating the business and objects for which it is formed, and who are “white persons between twenty-one and fifty-one years of age.” In other words, the certificate of incorporation, upon being properly executed and filed, constitutes the charter of the company. It necessarily and conclusively states the business and objects for which the corporation is formed, and, while within the limitations of this statement of its business and objects, the corporation may make by-laws and, among other things, provide for the qualifications of members thereof, yet such qualifications must be restricted to the persons who are included and within the stated business and objects of the charter.

The judgment of the court below is affirmed.

Affirmed.