text:
    James H. Hooper, Appellee, v. John McGregor, Appellant.
    Gen. No. 15,057.
    Appeals and errors—when exclusion of evidence will not reverse. If the exclusion of particular testimony is complained of, in order to review the action of the trial court in that regard it must appear that the question calling for such evidence was put and an objection thereto sustained.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. John A. Gray, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed July 15, 1910.
    Egbert W. Millar and William Pettis, for appellant.
    James H. Hooper, appellee pro se.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

This is a suit by the plaintiff, Hooper, for attorney’s fees. Plaintiff first recovered a judgment for the amount of his claim, $157.08, before a justice of the peace; from that judgment the defendant appealed to the Circuit Court and there, upon a trial before a jury, plaintiff recovered a judgment for $150. This appeal is prosecuted by the defendant to reverse that judgment.

Having heard that the plaintiff, Hooper, had made collection of a claim for something like thirteen thousand dollars from the Great Western Coal and Coke Company two or three days previously, the defendant, McGregor, about August 1, 1905, called upon plaintiff and placed in his hands for collection a claim which he, the defendant, was asserting against that same Company for certain commissions amounting to $346.50.

After some discussion a written agreement between the plaintiff and defendant was made, which is as follows:

“Law offices, James H. Hooper, room 716 Oxford Building, Telephone Main 1414. Chicago, August 1st, 1905. I hereby employ James H. Hooper as attorney to collect claim of $346.50 against the Great Western Coal & Coke Company and agree to give him for his fees the sum equal to one-third of the amount collected and nothing unless successful, I to pay all the necessary court costs.

(Signed) John McGregor.

I hereby accept the above contract and agree to same.

(Signed) James H. Hooper.”

Some attempt was made by Hooper to procure the allowance of a claim on behalf of defendant in a receivership, but, as plaintiff testified, an agreement had been entered into in the receivership matter a day or two previously for the discharge- of the receiver and the allowance of the claim was denied by the court on the ground that the claim was filed too late. Plaintiff then immediately commenced an assumpsit suit against the Coal and Coke Company and caused to .be issued a writ of attachment in aid. He then had served as garnishees in that suit four railroad companies and two other parties, in various parts of the State. He filed a declaration, interrogatories to the garnishees, caused publication of notices to be made, etc. In this connection plaintiff advanced on behalf of McGregor $41.68 for costs. On September 28, 1905, Hooper was served with notice by the Coal and Coke Company’s attorneys, that they held in their possession and subject to his inspection a release signed by McGregor to the Coal and Coke Company of the claim McGregor had and also a motion for the dismissal of the suit against the Company signed by McGregor himself. Upon receipt of this notice Hooper called upon McGregor and McGregor then informed Hooper that he had settled with the Company and had signed a motion to dismiss the suit. The motion to dismiss is in the record and bears date September 27, 1905. The suit instituted by Hooper was subsequently dismissed according to this motion. Whether McGregor obtained payment in full or less does not appear.

Plaintiff thereupon instituted this suit for his fees. It is clear that by his action defendant herein, McGregor, made performance by the plaintiff of the contract herein involved impossible.

If McGregor collected from the Coal and Coke Company $346.50, the full amount of his claim, he become liable to the plaintiff, under the contract, for one-third of the amount he collected, notwithstanding the fact that he, himself, made the collection. It is a fair presumption, upon this record, to presume that McGregor collected the full amount of his .claim. McGregor had the knowledge of how much he collected. At the trial he did not choose to introduce any evidence on the subject. There is no evidence before us as to how much he collected. It was to McGregor’s interst to show that less than the whole amount of his claim was collected if such were the fact. It was not to Hooper’s interest to show that such was the fact.

Defendant testified that although when the written contract between himself and Hooper was made it was written that he, McGregor, should pay “all the necessary court costs” and although he was aware that it was so written, yet the real agreement was that Hooper should pay all the costs and that they agreed to make the written agreement as it is because it was unlawful for a lawyer to pay the court costs. The burden of proof in this regard was upon the defendant. Hooper denied positively that the real agreement was that he should pay the costs. We do not think that McGregor’s testimony can be considered sufficient to falsify the writing when sustained by the testimony of Hooper. Therefore even though McGregor’s evidence were competent as against the written contract, yet McGregor should not have prevailed on that issue. McGregor does not pretend to deny that he agreed to pay Hooper one-third of any amount collected. The defense, while obliged to concede that the contract as written is legal and valid, seeks to establish by parol a different and other contract between the parties, which other contract would be unlawful and invalid. And, in that connection, complaint is made because the trial judge did not permit the defense to show by parol evidence the conversation in full between the parties at the time of the employment. This complaint was entitled, to no consideration at our hands because in defendant’s argument no question tending to bring out such conversation, to which objection was made and sustained and where an exception was taken, is specified or pointed out. We have, however, considered the subject and find that although the trial judge evidently regarded the testimony as incompetent because tending to vary a written agreement, yet McGregor did, as already stated, testify that the real agreement was different from the written one' and that Hooper testified to the contrary. We, therefore, find no merit in the complaint. Furthermore it appears that in that respect substantial justice was done in the verdict returned and in the judgment rendered.

Other errors are complained of but in view of what has been said it would but unnecessarily lengthen this opinion to say anything more.

The judgment is affirmed.

'Affirmed,


source: Caselaw Access Project

author: Mr. Presiding Justice Chytraus

license: Public Domain

text:
    Stanislaus Nawrocki, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,051.

      Negligence—when recovery cannot he predicated upon doctrine of res ipsa loquitur. The presumption of negligence arising under the application of the doctrine res ipsa loquitur always yields to evidence which explains the cause of the occurrence; there is no room for the presumption where there is evidence disclosing the cause of the occurrence; in such case negligence, or the absence of negligence, must be determined upon the evidence.
    Actiop in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed July 15, 1910.
    Rehearing denied July 26, 1910.
    Franklin B. Hussey and Watson J. Ferry, for appellant.
    H. L. Piotrowsici and Cyrus J. Wood, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

In a trial by jury the plaintiff recovered a judgment in the Circuit Court against the defendant, for the death of his intestate occasioned by the failure of a street car operated by defendant to “take” or follow a switch in defendant’s car tracks.

After a most careful examination of this record we are unable to find any evidence tending to show negligence attributable to the defendant. Ho negligence being shown on the part of the defendant there can, of course, be no recovery by the plaintiff, although plaintiff’s intestate was injured in connection with defendant’s car.

Defendant operated a system of street cars in the city of Chicago. That system included a line of street cars on Archer avenue, which is a street running northeast and southwest, and a line running on Pitney court and Thirty-first street. Pitney court is a street running- northwest and southeast but nearly north and south. Thirty-first street runs east and west. The Pitney court and Thirty-first street line of cars, with one of the cars upon which line we are more particularly. concerned, began in Pitney court, where that street comes into Archer avenue, and ran south or southeast in Pitney court and then east in Thirty-first street. Pitney court had two car tracks and the Pitney court and Thirty-first street cars in their course came from Thirty-first, passed north in the east track in Pitney court and stopped at Archer avenue. These cars in returning south from this point switched into the west or south-bound track in Pitney court by a switch located a short distance south of Archer avenue— perhaps sixty or eighty feet. The witnesses do not agree in estimating the distance and the exact distance is immaterial. At that switch plaintiff’s intestate, John Tanka, met his death by falling off the rear platform of one of defendant’s cars. The accident occurred at about noon on February 28, 1904, and his fall, upon the evidence herein, must be regarded as occasioned by the swaying or jolting of the car at the switch. In the fall Tanka apparently broke his neck and he died in a very few minutes. He was a passenger coming from the Archer avenue line by transfer. The plaintiff recognizes the unquestionable rule in the law of evidence, as to the burden of proof, that the party seeking to recover compensation for an injury sustained must make out that the party against whom he complains was at fault and that where, as here, the cause of action is predicated upon negligence of the defendant he must make out that the defendant was negligent. It is true that sometimes, as when the instrumentality which causes the accident is wholly within the control of the defendant, the law of evidence relieves the plaintiff to the extent that negligence may be presumed from the nature of the occurrence and the conditions and circumstances surrounding the occurrence.

To establish negligence in the case at bar plaintiff placps his reliance principally upon the doctrine of res ipsa, loquitur and upon the theory “that the occurrence was one that would not ordinarily happen were due care and diligence used by the common carrier.” The “occurrence,” in the case at bar, was the derailing of the car which happened at the switch. One difficulty, however, met with by the plaintiff, in invoking the doctrine of res ipsa loquitur in this case, is that the presumption arising under that doctrine must always yield to evidence which explains the cause of the occurrence. There is no room for the presumption where there is evidence disclosing the cause of the occurrence. In such case negligence or the absence of negligence must be determined upon the evidence.

From the evidence herein it appears that Tanka was upon the rear platform of a car which started south from Archer avenue upon the east or north-bound track on Pitney court. The car was travelling at the rate of about four miles an hour and was intended to pass from the north-bound to the southbound track by way of the switch and the track which connected the two tracks at that point. When the car reached the switch the front wheels of the car did not run into the switch but continued south in the north-bound track. The hind wheels, however, did go into the switch and were derailed and the car ran a few feet before it was stopped. Tanka was on the rear platform of the car but his exact position there is a matter of considerable dispute. The jolting or swaying of the car caused him to fall toward one side and to fall off the car and in the fall he broke his neck. It may properly be stated, as bearing on the extent of the jolting or swaying, that a witness, who stood on the rear platform, testified that he stood without in anywise supporting himself and that, although he grabbed nothing to support himself, he could not recall that the movement of the car was violent or that it threw him off his balance.

With reference to the front wheel not taking the switch and the rear wheel doing so and becoming derailed it appears that the switch was an automatic spring switch so constructed that the tongue thereof was always toward the east side of the switch; that when a car came on the east track going north the flange of the wheels would pry the tongue over sufficient to pass but it would spring back immediately; that the tongue would thus always be open for cars going south to pass into the track connecting the north-bound and the south-bound tracks; that the switch consisted of a tongue about five feet long which came to a sharp point in the north end and was about five inches wide in the south end and which was laid in a grooved rail, the groove being about an inch and a half or two inches in depth with the sides of the groove slightly higher than the tongue and that the movement of the tongue was controlled by a spring which was underneath. It appears, also, that this switch was inspected every morning by an inspector for the defendant and that it was inspected at seven o’clock on the morning of the day in question and found to be in good condition and unobstructed; and that during the forenoon cars, including the car in question, passed over it every few minutes. When the car in connection with which the accident occurred passed over the switch going south it appears the switch was filled with muddy water. After the accident happened the motorman examined the switch to ascertain what had occasioned the trouble. In the muddy water filling the groove of the switch, at a point about one foot from the north end of the switch, he found a large iron bolt. This bolt, which was introduced in evidence in the court below and is here with the record as an exhibit, was found with the head toward the north. It has a head one inch square and is five inches long. This bolt is such that as it lay in the groove of the switch it could very readily have forced the front wheel out of the grove on one side of the tongue so that it would run into the other side of the tongue. If the bolt were east of the tongue the front wheel would naturally continue south on the north-bound track. The contact of the front wheel with the loose bolt, while it did not force it out of the switch groove, must have disturbed it or moved it somewhat. It is shown in the evidence that the bolt is not one used in connection with any of the cars running upon that line, so the defendant’s connection with and responsibility for the bolt is, with reasonable certainty, excluded. The bolt must have come to the place where it was found through some other agency than the defendant. The evidence relative to the bolt shows that the mis-switching of the front wheels and the derailing of the hind wheels of the car was not occasioned by any defect either in the rails of the defendant’s tracks, in the car itself or in the management or operation of the car. The mis-switching and derailing must he attributed to the presence of the bolt in the switch. The jolting and swaying of the car which caused Tanka’s fall was brought about by the presence of the bolt in the switch. 1 Clearly the presence of the bolt in the switch cannot, under the evidence herein, -be attributed to the negligence of the defendant nor can the motorman be considered negligent in not discovering the presence of the bolt in the muddy water. The car, as stated, was running at a speed of about four miles an hour and this cannot be regarded as a negligent operation of the car.

There is no room for the application of the doctrine of res ipsa loquitur in this case. The nature of the occurrence— the failure of the front wheel to take the switch—is not such as to suggest a defect in the mechanism of the car itself. It would rather suggest the existence of some defect in the switch. In view of the fact that during the day in question the car had frequently passed over the switch without mishap, this is particularly so. The evidence is clear that defendant inspected the switch every morning and specifically the morning of the day in question. The switch was in good order at seven o’clock in the morning of the day in question. Furthermore, while the Chicago City Railway Company, so far as its passengers are concerned, is charged with a high degree of care with reference to the switch, yet it cannot be said that the switch is a piece of machinery wholly within its charge and control. The switch was located in a public highway. The public authorities had general control of the highway. Rot only the Railway Company but the public generally had access to the switch. Its defective operation may have been caused as well by the act or negligence of someone else as by the act or negligence of the Railway Company. We do not accede to the proposition that the principle in the law of evidence generally known as the doctrine of res ipsa loquitur relieved the plaintiff herein, in so far as he relied upon negligence in that there was something defective about the switch, of the onus of showing negligence on the part of the defendant.

The judgment of the trial court must be reversed.

Reversed.

Mr. Justice Mack took no part in the consideration-or the decision of this case.


author: Mr. Justice Mack

text:
    Lulu Penn Ingersoll, Appellant, v. The Mutual Life Insurance Company of New York, Appellee.
    Gen. No. 14,979.
    1. Insurance—by what law governed. A policy of life insurance applied for and delivered in Colorado is a Colorado contract and governed by its laws.
    2. Insurance—what essential to enforcement of forfeiture. However essential promptness in the payment of premiums may be to a life insurance company’s business, courts will not, in aid of mutual insurance companies, any more than in aid of others, sustain forfeitures, either with or without notice, unless the right thereto be perfectly clear.
    3. Insurance—how policies construed. The language of an insurance policy is to be construed strictly against the insurer.
    4. Insurance—when non-payment of premium does not void. A life insurance policy which provides only that “if this policy shall become .void by non-payment of a premium" payments made shall be forfeited does not become void upon the non-payment of a premium at its due date, but the insurance continues in force subject to a lien for the unpaid premium and to a right on the part of the company to terminate the contract if after due notice the insured shall fail to comply with the condition of the policy, that is, to pay the premium.
    5. Insurance—when time not of the essence of the contract. If an insurance company specifies .a six months’ period for the surrender of a policy after default in order to obtain a paid up policy for a proportionate amount, time is not of the essence of the contract.

      6. Insurance—what does not constitute abandonment under life insurance policy. The mere failure to assert rights provided for in the event of non-payment of premiums does not constitute an abandonment thereof. No duty devolves upon the insured to protect such rights until some notice by the company is served upon such insured calling for action.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed July 15, 1910.
    Statement by the Court. The declaration to which a general and special demurrer was sustained is based on a policy of insurance issued by appellee on the life of appellant’s husband. The policy was on the ten payment life ten year distribution plan, that is, instead of a stipulated net premium based on the expectancy of life being paid annually for life, a larger fixed premium was to be paid annually for ten years. At the end of that time if the policy was then in force and at stated periods thereafter dividends were to be paid thereon, to the insured, and at death $2500, the amount of the policy, was to be paid to appellant. Eight annual payments of $143.75 had been made. The ninth and tenth payments due May 23, 1898, and 1899, respectively, were not paid. In December, 1902, the agent of the Company wrote to the insured “suggesting that he apply for reinstatement.” Plaintiff at the request of insured, thereafter left the policy sued on with defendant’s agent at Chicago, “while the matter of reinstatement and the amount of dividends due on said policy be considered by the company.”
    Four years thereafter and without any further effort on the part of the insured or plaintiff to procure insured’s reinstatement, or any further notice from the Company, the insured died, April 10, 1906. Thereupon due and timely proofs of death were tendered to the defendant, but defendant denied all liability on the ground that said policy lapsed in May, 1899.

      The policy contained the following statements material to the consideration of this case:
    “In consideration of the application for this policy, which is hereby made á part of this contract, The Mutual Life Insurance Company of Mew York promises to pay * * * unto Lulu Penn Ingersoll (wile of Prank W. Ing’ersoII), of Durango, in the County of La Plata, State of Colorado, $2,500 * * * upon acceptance of satisfactory proofs at its Home Office of the death of Prank W. Ingersoll, during the continuance of this policy, upon the following conditions, and subject to the provisions, requirements and benefits stated on the back of this policy, which are hereby referred to and made a part thereof.
    The annual premium of $143.75 shall be paid in advance on the delivery of this policy, and thereafter to the Company at its Home Office in the City of Mew York, on the 23rd day of May in every year during the continuance of this contract, until premiums for ten full years shall have been duly paid said Company. * * *”

    On the back was printed:
    “Motice that each and every such payment is due at the date named in the policy is given and accepted by the delivery and acceptance of this policy, and any further notice, required by any statute, is thereby expressly waived. * * *

      If this policy shall become void by nonpayment of premi urns, all payments previously made shall be forfeited to the Company except as hereinafter provided.

    This policy is issued on the 10-year distribution plan. It will be credited with its distributive share of surplus apportioned at the expiration of 10 years from the date of issue. Only 10 year distribution policies in force at the end of such term, and entitled thereto by year of issue, shall share in such distribution of the surplus; and no other distribution to such policies shall be made at any previous time. * * *
    After three full annual premiums have been paid upon this policy the Company will upon the legal surrender thereof before default in payment of any premium or within six months thereafter issue a nonparticipating policy for paid-up insurance payable as herein provided. * * *
    Mo agent has power on behalf of the Company to make or modify this or any contract of insurance, to extend the time for paying a premium, to hind the company by making any promise, or by receiving any representation or information not contained in the application for this policy.”
    Edmustd H. Smalley, for appellant.
    Whtstoh, Payhe, Straws & Shaw, for appellee; M. H. Whithey, of counsel.
   Mr. Justice Mack

delivered the opinion of the court.

In our judgment the decisions of the United States Supreme Court in Ins. Co. v. Hill, 193 U. S. 551, and of our Supreme Court in Rose v. Ins. Co., 240 Ill. 45, are conclusive against appellant’s contentions that certain notices required to be given a New York policy holder under Hew York law are essential in this case as conditions precedent to forfeiture because of the statement in the policy that it is to be governed by the law of New York.

This policy was applied for and delivered in Colorado and is a Colorado contract.

The vital questions in the case are:

1st: Did this policy become forfeited by the failure to pay the ninth premium subject only to the right to secure a paid up policy for eight-tenths of $2500 in the manner specified in the policy ?

2nd: If so, is the time fixed for surrender, six months, of the essence of the contract, or is the insured entitled to a paid up policy on application at any time or within a reasonable time thereafter?

3rd: Did the assured or appellant abandon any rights he or she may have had?

In considering these questions, the nature of such a limited payment life policy must ever be kept in view. This is well stated by Mr. Justice Bradley in New York Life Ins. Co. v. Statham, 93 U. S. 24, 23 L. Ed. 789:

“We agree with the court below that the contract is not an assurance for a single year, with a privilege of renewal from year to year by paying the annual premium, but that it is an entire contract of assurance for life, subject to discontinuance and forfeiture for nonpayment of any of the stipulated premiums. Such is the form of the contract, and such is its character. It has been contended that the payment of each premium is the consideration for insurance during the next following year as in fire policies. But the position is untenable. It often happens that the assured pays the entire premium in advance, or in five, ten or twenty annual installments. Such installments are clearly-not intended as the consideration for the respective years in which they are paid; for, after they are all paid, the policy stands good for the balance of the life insured without any further payment. Each installment is, in fact, part consideration of the entire insurance for life. It is the same thing where the annual premiums are spread over the whole life. The value of assurance for one year of a man’s life when he is young, strong and healthy is manifestly not the same as when he is old and decrepit. There is no proper relation between the annual premiums and the risk of assurance for the year in which it is paid. This idea of assurance from year to year is the suggestion of ingenious counsel. The annual premiums are an annuity, the present value of which is calculated to correspond with the present value of the amount assured; a reasonable percentage being added to the premiums to cover expenses and contingencies. The whole premiums are balanced against the whole insurance.”

It is totally unlike successive term insurance in which each premium is a payment for the insurance during the term and in no part for any subsequent period, as was the case of Roberts v. Life Ins. Co., 101 Ill. App. 313.

1. In Haas v. Mutual Life Ins. Co., 84 Nebr. 682, the court considers at length the question as to whether mere nonpayment of premium in the absence of an express provision that the policy shall in that event be void, prevents a recovery in case of death thereafter, and concludes that it does not.

In reference to the case of Weston v. State Mutual Life Assur. Co., 234 Ill. 492, this court correctly says: “The court does not decide that non-payment of a premium at the time specified will, in the absence of an express agreement to that effect, work a forfeiture of the policy. On the contrary it declined to decide that point.”

Forfeitures are not favored. However essential promptness in the payment of premiums may be to a life insurance compány’s business, courts will not, in aid of mutual insurance companies, any more than in aid of others, sustain forfeitures, either with or without notice, unless the right thereto be perfectly clear.

Many companies expressly provide, and this defendant company has, in many of its policies, as shown by reported cases, expressly provided, that the policy shall be null and void and all premiums forfeited, subject only to certain rights of reinstatement, if default be made in the payment of any premium. Such is not the language used in this policy. It provides that “if this policy shall become void by non-payment of a premium” payments made shall be forfeited : not “that it shall become void in that event and thereupon the payments made shall become, forfeited.” To sustain defendant’s contention that the failure to pay the ninth premium absolutely and automatically nullified the insurance, subject only to the right to secure a paid up policy, would compel us to hold as the Nebraska court says, “that a forfeiture of an insurance contract may be created by construction and need not be provided for by the strict terms of the contract. Such is not the law.” (Haas case, supra,).

The language of an insurance policy is to be construed strictly against the insurer. We are therefore of the opinion that in this case as in the Nebraska case mere nonpayment of a premium did not avoid the policy and forfeit the premiums paid; that the insurance continued in full force, subject to a lien for the unpaid premiums, and to a right on the part of the company to terminate the contract if after due notice the insured should fail to comply with the condition, that is, to pay the premium. In the event of such a termination, however, the right to a paid up policy as provided for would arise.

Under our interpretation of the policy, the Company, by virtue of the clause on the back of the policy, would thus have the right to forfeit or retain the accumulated reserve, giving only a paid up policy therefor, after the original contract of insurance should have been annulled. This is no unsubstantial right, for in the absence of such a. provision, the insured, after the original policy had been annulled, might well claim the reserve thereon, that is, the moneys paid by him not for the risk theretofore carried, but for the future risk which the Company, after annulling the contract, will no longer carry, moneys which, under such circumstances, it would not have earned.

That the Haas case (supra) was most carefully considered by the Nebraska court is elear0both from the fact that a rehearing was sought and denied and from the further fact that within two weeks thereafter the same court upheld an automatic forfeiture for non-payment of premium where the policy clearly provided therefor. McElroy v. Met. Life Ins. Co., 84 Neb. 866. As the report of the Haas case (supra) does not clearly show that the policy there involved was identical with the one here involved, we have examined the original briefs and the very forcible brief submitted by this defendant company on a petition for rehearing, in which the Eose case (supra), as well as the Weston case (supra), is discussed. We concur, however, in the conclusions reached by the Nebraska court.

The question before us, although it might have been raised in the Rose case (supra), was not there presented. The court says at page 54: “It is not contended that notice was necessary unless the statute of New York became a part of the contract,” and the court, following the Hill case (supra), held only that the statute had not become a part of the contract.

The rule is clearly stated by Hon. Emlin McClain of the Supreme Court of Iowa in 25 Cyc. 828 in these words: “But where there is in the policy no stipulation or condition for forfeiture on account of non-payment of premium, a default in payment will not operate in itself as a forfeiture nor can it be insisted upon by the Company as constituting a forfeiture in the absence of any notice.”

In Gruwell v. Knights & Ladies of Security, 126 Mo. App. 496, 504, the court said:

“Though the law always looks with an unfriendly eye on provisions in contracts for the forfeiture of acquired rights, where the parties clearly stipulate for such forfeiture and it does not appear to be obnoxious to any sound reason of public policy, courts will enforce the contract the parties themselves have made. Ko reason appears for denying to the insurer the protection of a contractual provision compelling the prompt payment of the stipulated consideration on pain of forfeiture. Indeed, it is difficult to perceive how any insurance company, whether old line, mutual, or fraternal, could do business at all if it permitted its policies to remain in force indefinitely after the assured had ceased to pay agreed premiums. Forfeiture for non-payment is a necessary means to avert disaster to the enterprise and it is well settled that stipulations in the contract which provides that non-payment ipso facto shall work a forfeiture, without notice to the delinquent, should be enforced. But, in the absence of any stipulation in the contract for forfeiture on the ground of non-payment, the policy will remain in force during the lifetime of the assured, however delinquent he may have become with respect to agreed payments. The idea that the contract of insurance remains in force only during the period for which a premium has been paid, though it has the support of respectable authority, we think is opposed to sound reason, as well as to the weight of authority.”

See too Union Central Life Insurance Co. v. Morrow, 7 Ohio Decisions, 118.

If this defendant’s contentions were correct and if, as might have been the case, this were a twenty year endowment policy and the premiums for nineteen full years had been paid so that the Company would have in its reserve nearly nineteen-twentieths of the face of the policy, nevertheless the entire amount could be forfeited by it without notice, without an opportunity to make 'good what might have been an oversight in paying, if the oversight continued one day over six months. In the absence of a perfectly clear agreement to that effect, we shall not sanction such a forfeiture.

2. If the foregoing views be sound, as we think they are, there is no necessity for considering the second question. It has, however, been argued at length and if it should finally be determined that our solution of the first question is not correct, the second must be answered. Lenon v. Mutual Life Ins. Co., 80 Ark. 563, and in the notes thereto in 8 L. R. A. (N. S.) 193, the authorities are collected. We concur in the conclusions reached in that case and in the Kentucky cases there cited, though contrary to the weight of authority, that in specifying a six months period for surrender of the policy after default in order to secure a paid up policy for a proportionate amount, time is not of the essence of the contract. The insurance company has received and has in its reserve the entire consideration for such á policy; there is nothing executory on either side. However essential to the proper conduct of its business it may be that premiums be promptly paid—premiums that condition the continuance in force of an existing contract, it cannot be contended that a like necessity exists in regard to the time of surrender. The surrender itself is a purely formal act; if the policy has been forfeited as an existing policy for the full amount, the Company gains nothing by the actual surrender and loses no rights by the failure to surrender; if the surrender is required primarily to secure notice to the company that all claims against it have been abandoned, then assuredly the time of giving such notice should not be deemed of the essence of the contract; the company already has in its possession, in the shape of the reserve on this very policy, a sum of money held by it for the very purpose of meeting this obligation—the full money consideration therefor. To hold that time is of the essence is to enable the company to forfeit oft times a large amount of money carried on its books as a liability on account of the specific policy, money paid to it over and above the actual cost of carrying the risk from year to year? for the very purpose of accumulating if so as to relieve the insured from the burden of paying during his entire lifetime, the annually increasing actual cost of insurance.

While the provision contained in the policies issued by most of the leadnig companies today that after two or three years’ premiums shall have been paid the right either to a paid up policy or to extended insurance should be automatic, with the privilege, moreover, to obtain the other or the cash surrender value by application within a certain time, may not of itself throw any light on the correct determination of the question before us, it does nevertheless demonstrate that today the companies themselves do not regard it as essential that a surrender be made within a fixed time or that any surrender at all be made in order to secure some rights to the insured who shall have lapsed his original policy.

3. Conceding that the insured may have believed that he lost all of his rights by his inability to meet the ninth premium, he cannot, as a matter of law, be said thereby to have abandoned whatever rights he did have. An abandonment in fact would be at the best a ground of defense, not a ground of demurrer to a declaration. There is nothing in this declaration which justifies an inference of an actual abandonment of the rights under the policy. On the contrary, the act of the agent in requesting the insured to consider reinstatement, and the delivery of the policy by the plaintiff to the company, not for purposes of surrender but for reinstatement, indicate clearly that neither party deemed the policy as abandoned at that time; the subsequent retention by the company of a policy not delivered to it for cancellation or surrender cannot be deemed an abandonment by the other parties of their rights.

We do not, however, assent to the contention that a contractual right of this kind is or can be deemed to be abandoned at law by mere failure to assert it for • a period short of the statute of limitations, or in equity without laches. If, as we hold, the rights of plaintiff were not automatically forfeited, although subject to be forfeited on reasonable notice, no duty devolved on her or on the insured to protect these rights until notice should be given. A waiver or abandonment of an existing chose in action is equivalent to a gift or release thereof to the obligor. This requires a technical release, a surrender of the document incorporating the right or an accord and satisfaction. An express verbal renunciation without consideration is not binding; much less is a mere failure to assert the right within the period of the stattute of limitations to be deemed an abandonment or renunciation thereof.

If plaintiff’s rights are limited to the value of the paid up policy for eight-tenths of the face value and if surrender or demand be a condition precedent thereto, it may be that such demand must, as the majority of the court in the Kentucky cases held, be made within the reasonable time of five years,-, unless waived, even though not within the specified time of six months. It is, however, unnecessary at this time to decide this question because, in our judgment, the transactions of December, 1902, and the subsequent retention of the policy by the company amounted to a waiver of any further demand or surrender.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Guiseppe Pusateri, Appellee, v. Chicago City Railway Company Appellant.
    Gen. No. 14,992.
    1. Negligence—duty of traction company with respect to wagon upon its tracks. However irritating the slowness of a wagon driver in getting out of the track may be, nevertheless, the car company, notwithstanding its superior right of way, is bound to exercise ordinary care not to run into the wagon and injure even the obstreperous driver; such, likewise, is its duty to another occupant of such wagon.
    2. Trial—propriety of permitting exhibition of injury to jury. If the character of the injury is fully and graphically described, there could be no error assigned upon the denial by the court of the right to show the injury; nevertheless such a matter is so clearly within the sound discretion of the trial court that unless the abuse of such discretion manifestly prejudiced the defendant, a reviewing court will not reverse.
    3. Instructions—what omission in, defining ordinary care, not erroneous. Held, in view of other instructions given, that the omission of the word “ordinarily” before “prudent and reasonable person” and the omission of the phrase “under like circumstances,” did not constitute error which called for reversal.
    4. Instructions—token use of particular phrase as to exercise of ordinary care not erroneous. Jffeld, that the use of the phrase “while in the exercise of ordinary care” was not erroneous, in view of the other instructions in the ease, as referring only to the exact moment of the accident.
    5. Instructions—when upon interest of employe appropriate. While the mere fact that a witness is an employe may not establish that he has an interest in the case, nevertheless, where, as in this case, the negligence, if any, of the defendant, is not personal but only that of a servant and the liability is due to the doctrine of respondeat superior, such a servant has a direct interest in the case, not only because a finding of not guilty would tend to re-establish him in his employer’s confidence, but particularly because if the employer were found guilty, the servant would be answerable over to his master.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Bobert W. Wright, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed July 15, 1910.
    Rehearing denied July 26, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Joi-ffl E. Kehoe and O. Le Roy Brown, for appellant; John R. Harrington, of counsel.
    Robert F. Kolb, for appellee; Edward Maher, of counsel.
   Mr. Justice Mack

delivered the opinion of the court.

On April 17, 1906, between 6:30 and 7 A. M. plaintiff, a fruit and vegetable peddler, was riding in his brother’s one-horse canvas covered and glass front wagon, south on Indiana avenue, toward the district in which he peddled his wares, between 63rd and 65th streets. With him were his brother, the driver, two other brothers and a friend, all peddlers. The driver received a 5 cent fare for hauling them and their goods. One brother sat with the driver, another in the wagon with the wares, plaintiff and the friend on the tail gate with their feet hanging out of the back end of the wagon, the plaintiff sitting on the west side. While the wagon was well filled, the driver could see through it and out of the back between the barrels and baskets, the space being about a foot wide. The driver and his brother sitting with him testified that they could see back clearly and that their view was unobstructed.

The wagon was being driven at a slow trot along the southbound track of defendant. It had pulled out occasionally to let a car pass, the last time at 43rd street. As to the exact facts of the accident, the evidence is conflicting.

Plaintiff’s evidence tends to prove that at between 5 and 30 feet north of the north crosswalk of 50th street the driver turned east, intending to go to a house on the south side of 50th a few doors east of Indiana avenue. The car was then about 30 feet away and coming fast. The gong sounded only once. Plaintiff shouted “The car is coming” when the horses and three wheels were out of the track, but before the rear right wheel had cleared it. The car, without slackening its speed, struck the gate of the wagon while it was in this position, crushing plaintiff’s leg and necessitating amputation.

Defendant’s evidence tends to prove that the car was going only three to five miles an hour; that the gong was sounded vigorously and often for over a block while the car was following the wagon at a distance of about a car length; thai after the wagon was partly out of the track, the driver unexpectedly turned to the south, back into the track; that as the car was then only five feet away the contact was inevitable and due solely to the driver’s unexpected act.

Both plaintiff and his companion on the tail gate testified that there was no opportunity to pull in their legs as a movement would have thrown them down.

If defendant’s version be correct, it would not be chargeable with negligence as it would not only have had no reason to anticipate the driver’s act of turning in again but, moreover, no negligence of any kind could be charged against it-On the other hand, if plaintiff’s version be correct, the jury would be fully justified in finding both that the car was not managed with that degree of care which defendant owed to the plaintiff and that the plaintiff, knowing that the motorman had full knowledge of his position and of the difficulty in changing it, was not guilty of any contributory negligence. However irritating the slowness of a wagon driver in getting-out of the track may be, nevertheless, the car company, notwithstanding its superior right of way, is bound to exercise ordinary care not to run into the wagon and injure even the obstreperous driver; a fortiori does it owe this duty to another occupant of the wagon;

Defendant urges not that the driver’s negligence is to be imputed to plaintiff, but that plaintiff himself was guilty of contributory negligence, 1st, because he could not leave the exercise of ordinary care to the driver alone, 2nd, because it is a driver’s duty to turn out and let a car pass, 3rd, because one who sees a car rapidly approaching, knowing that it will strike him unless stopped or slackened, must endeavor to get out of the way.

The second ground urged is, however,, applicable only to drivers and not to one in plaintiff’s position. The third is subject to the limitation that if the party in the track also knows that the car is under the control of the driver and that the latter has him in full view, while a jury might, a court cannot find him guilty of contributory negligence in not getting out of the way, when his only method of doing so apparently involved other dangers to him. As to the first reason, there is no question as to plaintiff’s duty himself to exercise ordinary care and not to leave this to his driver; inasmuch, however, as the jury were justified in believing that the driver had every opportunity to see and in fact did see the car, in time to get out and also in believing that he heard the gong sounded for some time before the accident, the jury were further justified in refusing to consider plaintiff’s failure to warn him and to urge him to get out sooner, as contributory negligence.

The case is in this respect totally unlike those cases in which a passenger who knows of an impending danger of which the driver is ignorant, takes no steps either to warn the latter or to protect himself, relying entirely upon the possibility of the driver discovering the danger and avoiding it.

Without discussing the evidence in detail, we are of the opinion that it cannot be said by a reviewing court that the plaintiff has so clearly failed to prove by a preponderance of the evidence either the defendant’s negligence or his own exercise of due care, as to justify a reversal.

Complaint is made of some of the instructions and of the admission of certain testimony and of the action of the court in permitting plaintiff to exhibit the stump. While the character of the injury was fully and graphically described and therefore no error could have been assigned on a denial by the court of the right to show the stump, nevertheless, matters of this kind are so clearly within the sound discretion of the trial court that only in case the abuse of such discretion manifestly prejudiced the defendant, would a reviewing court reverse the judgment. In our opinion, this exhibition, even though entirely unnecessary for the jury’s enlightenment, did not tend to affect their determination of the question of liability. As the verdict of $12,250 was reduced to $10,000 on remittitur, a sum that is, under the circumstances, by no means excessive, it cannot be said to have affected defendant prejudicially in any respect.

Complaint is made of the following instructions given on behalf of plaintiff:

“2. The court instructs the jury that the words 'ordinary care,’ wherever used in these instructions, mean, according to the law of the State of Illinois, that degree of care which a reasonably prudent or cautious person would take to avoid injury under like circumstances.

And the court further instructs the jury that the word 'negligence,’ wherever used in these instructions, means, according to the law of the State of Illinois, either an omission to do something which a reasonable person guided by those ordinary considerations which ordinarily regulate human affairs would do, or 'negligence’ is the doing of something which a prudent and reasonable person would not do.

And the court further instructs the jury that if they believe from the evidence that the plaintiff was injured, as alleged in his declaration, while he was in the exercise of ordinary care, and if they further believe that his injury was caused by the negligence of the defendant, as charged in the declaration, then, under the law, it becomes the duty of the jury to find a verdict in favor of the plaintiff.

3. The court instructs the jury that if you believe from the evidence that Giuseppe Pusateri, plaintiff in this suit, was riding on the wagon, which said wagon was driven by Salvatore Pusateri, and that he was on the wagon at the invitation of Salvatore Pusateri, who was the driver, and that Giuseppe Pusateri had nothing to do with the driving, and did not control same, then the court instructs the jury that Giuseppe Pusateri, if he was in the exercise of ordinary care for his own safety, is not to be blamed with or charged for the negligence, if any, of Salvatore Pusateri, the driver; and if you further believe from the evidence that Giuseppe Pusateri, while in the exercise of ordinary care for his own safety, was injured by the negligence of the defendant, Chicago City Railway Company, and sustained injuries, all as alleged in the declaration, then it becomes your duty to find a verdict for the plaintiff, Giuseppe Pusateri.

4. The jury are instructed that the fact that any witness in the case is, or has been, in the employ of either the plaintiff or defendant, as well as the relations which exist between any witness and either party to the suit, and any interest a witness may have in the result of the suit, so far as the same may be shown by the evidence, may be considered by the jury in determining the weight which ought to be given to the testimony of such witness, taking the same in connection with all the other evidence in the case, and the facts and circumstances proven.”

The specific objection to instruction Fío. 2 is in omitting in the second alternative definition of negligence, the limiting word “ordinarily” before “prudent and reasonable person.” We cannot, however, assent to the contention that without this word, the jury might in this case apply the standard of the most prudent man. Inasmuch as the court had just defined to the jury ordinary care as that degree of care exercised by a reasonably prudent person under like circumstances, we cannot regard the omission of the phrase “under like circumstances” in defining negligence, as prejudicial error. This definition of negligence by Baron Alderson has, moreover, been expressly approved by our Supreme Court in numerous cases. C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512, 521.

The first criticism of instruction Ho. 3 is the submission to the jury of the question as to whether or not plaintiff had anything to do with the driving and the control thereof. To the extent that the exercise of ordinary care for his own safety required him to warn the driver, he did, as a matter of law, have to do with the driving; but obviously this instruction was not intended to be and, in our judgment, could not fairly have been understood by the jury as in any way referring to this duty. The next clause in which the rule of non-imputability of the driver’s negligence is expressly conditioned upon the exercise of ordinary care for his own safety, indicates clearly that the preceding clause referred only to a direct control in the sense that the driver was under his orders. Whether or not this was so was a question for the jury. The admission of plaintiff’s attorney in his brief in this court, withdrawn on oral argument, that the payment of 5 cent fare in some way made the driver plaintiff’s employe, cannot bind the plaintiff or this court. The evidence is clear that no relation of master and servant existed and that plaintiff was nothing but a passenger on his brother’s wagon.

It isr also urged against this and the preceding instruction that the words “while in the exercise of ordinary care” have reference to the exact moment of the injury and thereby exclude from consideration the question of plaintiff’s negligence in permitting his legs to hang over for some time preceding the injury. In Village of Lockport v. Licht, 221 Ill. 35, the expression used was, not “while,” but “if, at the time of the injury.” As there used, this was held to mean “at the very moment of the injury.” The expression used in the present case does not, however, expressly refer, as did that in the Licht case, to the time of the injury and cannot be fairly interpreted as equivalent to the clause “while in the exercise of ordinary care at the time of the injury.” In our opinion, “while” refers, not to a moment but to the entire time just preceding and during the accident. As the Supreme Court said in C. & A. R. R. Co. v. Fisher, 141 Ill. 614, 625:

“It is claimed that the instruction requires of the plaintiff the exercise of ordinary care at the particular point of time when the injury was received, only, and omits the requirement of care previous thereto and thereby excludes from consideration previous acts of negligence materially contributing to the injury. The word ‘while’ means ‘during the time of that,’ and seems to necessarily imply some degree of continuance. The jury could not reasonably have regarded IT otherwise than as reeerring to the whole series OE CIRCUMSTANCES INVOLVED IN THE ENTIRE TRANSACTION.”

While the Supreme Court in the case of Bennett v. Chicago City Ry. Co., 243 Ill. 420, does not approve of the fourth instruction, nevertheless, in the final opinion after a. rehearing, the expression used in the original opinion that “the instruction would be wrong in any case” was withdrawn. The court said:

“This instruction was given in Donley v. Dougherty, 174 Ill. 582, and it was there held, on the facts in that case, that the court did not commit substantial or reversible error in so doing. We are disposed to hold that the instruction is not accurate. Under some conditions this court might feel that it was so far misleading as to require a reversal of the judgment, but in the case at bar we think it is obvious that no harm resulted to appellant from its being given.”

While the mere fact that a witness is an employe may not establish that he has an interest in the case, nevertheless, where, as in this case, the negligence, if any, of the defendant, is not personal but only that of a servant and the liability is due to the doctrine of respondeat superior, such a servant has a direct interest in the case, not only because a finding of not guilty would tend to re-establish him in his employer’s confidence, but particularly because if the employer were found guilty, the servant would be answerable over to his master.

While this instruction does not clearly limit the consideration of the fact of present or past employment to those cases in which such an interest is shown, nevertheless, as the only employes who testified were those in charge of the car, we do not deem the error, if any, of such importance as to justify a reversal in this case. It is to he noted, too, that the case of I. C. R. R. Co. v. Haskins, 115 Ill. 300, is not referred to in the Bennett case. The trial court in that case modified an instruction reading:

“The jury are instructed, that while they are the sole judges of the credibility of witnesses, they have no right to disregard the testimony of an unimpeached witness, sworn on behalf of the defendant, simply because such witness is or was an employe of defendant,” by adding:

“But the relation of any witness to a party to the suit, such as employe, is a matter proper for the consideration of the jury, in the light of all the evidence; and if, after such consideration, it does not appear that the testimony of the witness has been influenced by such relation, then it should be disregarded. What influence, if any, such relation may have had on the testimony of any witness, is to be estimated by-the jury in the light of all the evidence.”

This statement of the law has never been overruled.

During the direct examination of plaintiff’s brother, the following occurred:

“Mr. Kolb: Q. But after you felt the car hit the wagon, just tell us what happened ?

A. He says the wagon stopped on the other side, on the corner of the south side, he says, we got off and the car stopped, too, and the motorman was in the middle of the tracks, when he says, ‘You must excuse me’—

Mr. Kehoe: I object to that and move that it be stricken out.

Objections overruled by the court; exceptions by defendant.

A. (continuing) :—and he started to cry.”

Defendant contends that this was in the nature of an apology and implied that defendant was at fault, and that it should therefore have been stricken out; that the error was emphasized by the fact that plaintiff’s counsel subsequently asked the motorman on cross examination whether he didn’t say, “Excuse me, I couldn’t stop the car,” although an objection to this question was sustained.

Whether or not a statement of the cause of the accident immediately thereafter would have been admissible as part of the res gestae, we need not determine; the words “You must excuse me” are at best only an exclamation; they do not necessarily or even fairly imply an admission either of fault or of liability, but at the most, of participation in the accident and regret therefor. As the participation was not disputed, proof of the expression of regret could not have prejudiced this deféndant.

Affirmed.


text:
    Leokadya Wojczynska, Appellee, v. Chicago Consolidated Traction Company et al., Appellants.
    Gen. No. 15,014.

      Negligence—when doctrine res ipsa loquitur applies. If a collision occurs between two traction trains the doctrine res ipsa loquitur applies if both of such trains are controlled by the defendant.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed July 15, 1910.
    Rehearing denied July 26, 1910.
    John A. Rose and Frank L. Kriete, for appellants; W. W. Gurley, of counsel.
    Johnson, Belasco & McCabe, for appellee; Joel Baker, of counsel.
   Mr. Justice Mack

delivered the opinion of the court.

This is an appeal to reverse a judgment of $6,000 in a personal injury case.

The first count of the declaration alleges the control by defendants of street car tracks on Elston avenue, Chicago, and the operation by defendants of cars thereon; that she boarded a certain car of defendant’s on Elston avenue to be carried southeast on Elston avenue; that defendants at and near the junction of another street, Belmont avenue, so carelessly, wrongfully and negligently drove, managed and operated the said car upon which the said plaintiff was upon, as to cause the same to collide with'a certain other car running in an opposite direction on the said street.

The other two counts charged specific acts of negligence which were not sustained by any proof and which may therefore be disregarded.

The evidence tended to show a collision between the Belmont avenue car going west and the Elston avenue car going southeast in which plaintiff, a large woman, was a passenger, necessitating the transfer of the passengers. The observable physical injuries, due to her being thrown against the back of the seat in front of her, were very slight, but a miscarriage at four months pregnancy was testified to, as resulting from the accident and plaintiff also claimed that an exophthalmic goitre which developed six or eight weeks after the accident and persisted to the date of the trial, was due thereto. The only damage to the cars was some broken windows. Inasmuch as her own medical experts testified only that such a goitre might have been produced by shock to the system, and there is not a word in the record to justify a jury in concluding that whatever shock plaintiff had suffered, had even probably produced this goitre, defendants’ motion to strike out all the testimony on this subject should have been granted and the overruling thereof constitutes reversible error.

Just how the collision occurred, whether the Belmont avenue car was going east or west and which car struck the other, are not at all clear from the conflicting testimony of plaintiff’s witnesses. Defendants introduced none, taking the position that they had no report of any accident and that none had occurred. It is probable, however, that a Belmont avenue car going east struck the car in which plaintiff was riding.

If both cars were controlled by defendants, the doctrine of res ipsa loquitur would apply. There is, however, no proof of the ownership or control of the Belmont avenue car. and no allegation thereof in the declaration. For aught that appears in this record, the Belmont avenue car was owned and controlled by third parties. The court cannot take judicial notice either of the ownership or of the control, and in the absence of an allegation of defendants’ control of this car, not the one in which she was a passenger, the plea of the general issue does not absolve plaintiff from the duty of offering evidence thereon.

The allegation of the negligent management of the car in which plaintff was a passenger would be sufficient, if it were sustained by proof, but there is no proof that this car or those in control of it were in any way to blame. Inasmuch, however, as on proof that defendant controlled both cars, the mere fact of the collision would, under the doctrine of res ipsa loquitur, make out a prima facie case, and as this cause must be remanded, we refrain from commenting further upon the evidence or the defects pointed out in the instructions. These may well be obviated on another trial. Greater certainty, moreover, would be given to the declaration by a specific allegation of the control of both cars and the negligent operation of each of them.

Reversed and remanded.


text:
    Hunter W. Finch & Company, Appellant, v. New Ohio Washed Coal Company, Appellee.
    Gen. No. 15,020.
    1. Contracts—what tends to establish repudiation. Held, under the evidence in this cause, that the fact of insolvency being established, would tend to establish the issue of repudiation and that it was error to exclude evidence as to the fact of insolvency.
    . 2. Contracts—what effects repudiation providing for delivery of coal. A contract by the owner of a mine for the sale and delivery of coal from the mine of such owner, is repudiated by a sale of such mine.
    3. Contracts—what essential to recover for breach-. A party cannot sue for a breach of contract without alleging and proving that he himself substantially complied with all the material terms of the contract.
    4. Contracts'—when time of essence. Time is ordinarily of the essence of the contract in mercantile agreements; a failure, therefore, to pay for installments of merchandise delivered under a contract will justify refusal to proceed, at least until a payment has been made.
    5. Contracts—when time ceases to be of essence. If the parties by conduct disregard the provisions of the contract fixing time of payment thereunder, time ceases to be of the essence of the contract.
    6. Contracts—effect of repudiation. The repudiation of a contract calling for the delivery of merchandise gives to the other party at his option an immediate cause of action for all of the damages suffered by such repudiation, and such party has the right to call on the defendant to fill its future orders.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed July 15, 1910.
    1ST. W. Hacker, for appellant.
    Tenney, Coefeen, Harding & Sherman, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

Suit was brought on the following contract:

“Coal Contract: Made this 27th day of April, A. D. 1905, by and between The Hew Ohio Washed Coal Company, of Chicago, Illinois, with mines in Williamson County, Illinois, on the I. C. Ry., party of the first part, and Hunter W. Finch & Co., of Chicago, Ills., party of the second part.

Party of the first part agrees to sell to the party of the second part, who agrees to purchase from the party of the first part, twenty thousand (20,000) tons of their unwashed and washed coal in sizes unwashed lump and egg, and washed Ho. 1 and 2.^

Second party agrees to take this coal in about equal monthly installments during the year commencing April 1st, 1905, and ending March 31st, 1906, as near as market conditions will permit.

Second party agrees to pay to the first party on or before the 25 th of each month for all coal shipped on its orders during the previous month. Prices of the various sizes of coal to be f. o. b. cars at mines, mine weights to govern settlements.

New Ohio 6" Lump $1.20

a a 6" Egg-1.20

u a Washed Egg-1.65

u a No. 2 Washed Stove 1.30

In addition thereto the second party agrees to pay the first party two-thirds (§) of all amounts in excess of 10 cents per ton over and above the minimum mine price, as stated above, for the coal shipped under this contract. In other words, first part is to receive two-thirds (§) of any premium received for the coal after second party has deducted its regular selling commission of 10 cents per ton.

Example : When the second party is able to obtain $1.45 per ton f. o. b. cars mines for unwashed lump coal, the party of the first part shall receive for such coal $1.30 per ton f. o. b. cars mines.

Second party agrees to place on each order sent to the first party the actual price at which the coal is sold, and to hold open to the first party at all times its books and accounts for the purpose of verifying its statements as to the division of premiums obtained for the coal.

The first party is to use due care in the mining, screening and washing of its coal and to prepare same in a good marketable condition and make shipments promptly and aid the second party in every reasonable way in disposing of the specified tonnage mentioned and satisfying the trade.

This contract is made subject to strikes, lockouts, accidents and car supply and all causes beyond the control of the parties hereto, it being understood that the party of the first part is to furnish the cars, the second party to assist in procuring same when necessary.

New Ohio Washed Coal Company,

By Fred Gardner,

Vice-Pres. & Gen. Mgr.

Hunter W. Finch & Company,

By H. W. Finch,

President.”

Defendant pleaded the general issue and a set-off of about $3000. Judgment was rendered for it, on the verdict, for the amount of its set-off.

This contract, as we interpret it, is a combination of a sale and agency contract. It obligated plaintiff to take and order out 20,000 tons of coal and defendant to deliver the same on orders of resale received from plaintiff, in about equal monthly installments. A minimum price to be received by defendant was fixed in the contract; any excess reselling' price was to be shared by first allowing plaintiff 10c per ton and then dividing the balance between them in the proportion of one-third to plaintiff and two-thirds to defendant. Plaintiff was to pay on the 25th of each month for all goods ordered out during the preceding month.

While defendant did not ship promptly, the record sustains its contention that this was due to car shortage and was therefore excused by the contract. It was therefore in no default on this account.

In December 1905, before December 8, after about 6,000 tons had been shipped, under the contract, and orders for 900 to 1200 tons more had been received but not filled by defendant, plaintiff was informed by defendant’s officers that the mine had been sold and that no provision had been made for the purchasers thereof to take care of the contract. Defendant admitted that it did not give plaintiff’s president to understand that it would protect plaintiff on the contract. Plaintiff proved the market price of these coals in December 1906 and in each of the three following months. This was greatly in excess of the minimum price fixed in the contract.

Defendant’s mine was in the so-called Carterville district and produced so-called Carterville coal. The market price of coal in December 1906 and the following months testified to was of Carterville. coal of the same general character, quality and market value as the Hew Ohio Washed Coal. There were 20 mines in the district producing great quantities of the same sort of coal.

On. December 8, 1905, plaintiff wrote as follows:

“New Ohio Washed Coal Company,

Great Northern Bldg., Chicago.

Gentlemen:

Deferring to conversation a few days ago with your Mr. Harry Daniel, at which time he stated that you had now arranged to sell out your mine and that no provision had been made for furnishing us the balance of coal due us on our contract with you, which I find amounts to some 14,000 tons, I, therefore, enclose you herewith, our bill for the difference between our contract price and the present market price on this coal, which amounts to $4,666.66.

We have credited you with a balance due you on coal shipped us in October and also in November, the total of which amounts to $2,978.47, leaving a balance due us of $1,688.19, for which amount I wish you would remit prompt-!y-

Tours, very truly,

H. W. Finch,

Pres’t.”,

and sent the following statement:

“Chicago, Dec. 9, 1905.

Order Number........

Sold to New Ohio Washed Coal Co.,

Great Northern Bldg.z

Chicago.

Difference between present market price and contract price on 14,000 tons of coal due on our contract at 331 per ton.............. $4,666.66

Contra @

By October invoices rendered......$1,527.25

By November ” ” ...... 1,964.06

$3,491.29

Oct. 16 To memo........$ 12.82

Nov. 13 “ cash.......... 500.00

512.82 2,978.47

$1,688.19”

On December 12, defendant replied as follows:

“Hunter W. Finch & Co.,

Fisher Bldg.,, Chicago.

Gentlemen:

We have yours of the 8th with the statement rendered. You certainly have a very arbitrary way of doing business, in view of the contract which we made with you last April. We have complied fully with the terms of that contract on our part, but you have utterly failed to comply with your obligations. You have failed utterly to comply with the. part of the contract providing that you should pay to us on or before the 25th of each month for all shipped on your orders during the previous month, and for such failures we hereby notify you that this contract is cancelled and we demand that you remit us forthwith the balance due us of $2,991.29.

We do not recognize any claim whatever on your part on the basis of the statement rendered or any other basis for the reason as before stated, that you are the parties that have committed a breach of this contract and not ourselves. We exceedingly regret that any difference should have arisen between us in this matter, but as it stands' we are clearly entitled to our money, and unless we have prompt remittance we will be forced to take whatever steps may be necessary to enforce payment.

.Very truly yours,

Hew Ohio Washed Goal Co.,

Harry E. Daniels,

Sec’y.”

Defendant’s sale of its mine for which a preliminary contract was made about December was consummated by delivery on December 24.

Plaintiff’s president testified that he paid $500 on account of October shipments on November 13, although it was not due until November 25, on defendant’s agreement to extend the payment of the balance when due. This was denied by defendant’s officer with whom the conversation was had. He testified on this point as follows:

“I had a conversation with Mr. Finch on or about the 13th of November over the telephone,

Q. State whether, or not Mr. Finch requested you to extend the time of payment on the October shipment ?

A. I have no recollection of such a request. I did not at that time agree to extend the time of payment. My recollection of the transaction of November 13th is that I called him up on the telephone, went over to his office, asked him for a check and finally persuaded him to give it to me.

Cross Examination.

To the best of my knowledge and belief there was no such conversation as Mr. Finch has detailed.

I have absolutely no recollection of any conversation in which I agreed to extend the time of payment of any account. As a matter of fact, it was out of my province. I was very anxious to get that money and needed it for our payroll.

Q. And you were looking after the finances of the company at that time owing to Mr. Daniels’ death? A. I was doing everything I could to keep the ship afloat. I believe if I had made any such statement I would remember.”

The court sustained an objection to this question asked on cross examination:

“Is it not a fact that the company was then (referring to time of the conversation just preceding the letter of December 8) insolvent and then unable to carry out that contract ?”

Eo grounds of objection were stated. While the witness, subsequently, answering another question, claimed that defendant could have bought coal elsewhere and so carried out the contract, there is no other evidence of defendant’s solvency or insolvency. If defendant was insolvent at that time, this fact would have a considerable bearing on the true interpretation of defendant’s acts and would tend to confirm plaintiff’s version that they amounted to a repudiation of the contract. This corporation, if insolvent, could not well have intended, and in justice to its other creditors ought not to have attempted to carry out a contract which, after the sale of the mine, would require it to make purchases in the open market and to resell at a loss. In our judgment the court erred in sustaining this objection. But, even without this or any testimony as to defendant’s insolvency, the clear preponderance of the evidence demonstrates that prior to the letters of December 8 and 12, and at the conversation in relation to the sale of the mine, defendant had repudiated the contract. While the mine was not delivered until December 24, a preliminary contract of sale was made on December 1 and defendant’s officer in general charge of the business admits that he told plaintiff’s president, not that it was going to be, but that it had been sold and that no provision had been made to take care of the contract. The ground of repudiation stated in the letter of December 12th—the nonpayment on November 25th—was obviously an afterthought, as no reference was made thereto in the conversation and no demand was made for the money before that time.

Appellee contends, however, that even the completed sale of the mine did not render performance impossible inasmuch as the defendant could purchase the same or similar coal in the open market—that the coal to be delivered was Carter-ville coal and not coal from defendant’s mines. We cannot agree with this interpretation. Defendant was not obligated to secure coal elsewhere if e. g. there had been a strike on its own mine. While coal of the same grade from any mine in the district might be just as good and while if defendant had entered into an absolute obligation to sell 20,000 tons of the specified coal, a court might, under some circumstances, interpret "New Ohio” coal as meaning either the specific “New Ohio” or any other coal of-the same kind from the same district, nevertheless such ’cannot have been the intention of the parties to this contract. It is “their” coal which defendant is to ship and as defendant is a coal mine owner, this can mean only the coal from its mines, not any coal that it may acquire. The word “their” is the only description of the coal given in that part of the contract which imposes the obligation to sell and to buy. The only other description is in connection with the price—and there the name of defendant’s own coal is used. Even if a more general term like Carterville had beep, there used, nevertheless it would have meant “their” Carterville—that is, Carter ville from their mine.

But it is urged, there was nothing to prevent defendant— at any rate if it was solvent—from buying coal from its vendee. If the obligation to deliver “their” coal had been absolute, this might be a good answer; but it was not absolute, it was conditional, subject to strikes, lockouts, accidents and car supply and all causes beyond defendant’s control. This clearly contemplated that defendant would retain control. It would be no answer to urge that by reason of the sale, defendant would not be excused because of a strike against its vendee. In our judgment this condition to defendant’s obligation to perform made the contract a personal one. Plaintiff wanted defendant’s coal, not a lawsuit; it was willing to take its chances of a strike against defendant or a lockout or an accident while defendant was in charge; it cannot be compelled to take a similar chance as to defendant’s vendee. When defendant sold the mine, it thereby put it out of its power to assure to plaintiff the performance of its obligation in accordance with the terms of the contract, and plaintiff therefore was justified in treating the statement to it that the mine had been sold, especially, coupled with the statement that no provision had been made to carry out the contract, as a repudiation.

The court if so requested should have instructed the jury to find that defendant had repudiated its obligation. The failure, however, to give the instruction requested by plaintiff, in substance that the sale of the mine if proven constituted a breach, was not error because the court did give an instruction on behalf of plaintiff much broader and more inclusive than the one refused. We are, however, unable to see why, under the instruction given, the jury failed to allow plaintiff any damages unless it be that they believed plaintiff to be in default for nonpayment of the money due November 25th on account of the October shipments, and for that reason to have lost its right to sue.

On this question they were at defendant’s request instructed as follows:

“The court instructs you as a matter of law that, if you find from the evidence and the court’s instructions that the plaintiff, prior to the alleged failure or refusal of the defendant to make further deliveries under the contract had failed to pay, or was not ready and willing to pay for any of the coal delivered prior thereto and for which payment was then due according to the terms of the contract, and if you further find from the evidence that the defendant did not waive compliance with the terms of the contract as to payment, then the plaintiff in this case is not entitled to recover damages for the alleged breach of contract.”

The rule of law is well established that a party cannot sue for breach of contract without alleging and proving that he has himself substantially complied with all the material terms of the contract. Harber Bros. Co. v. Moffatt Cycle Co., 151 Ill. 84. An offer, however, to offset defendant’s claim for money due against plaintiff’s claim for breach of the contract is, in case the latter justly exceeds the former, equivalent to a tender of money due. Such an offer was made by the statement dated December 9th. If this offer was timely, then there is no bar to plaintiff’s claim for damages.

Whether or not an express extension had been granted was a question for the jury, in view of the direct conflict in the testimony; their verdict on this point is against.the plaintiff. While the testimony shows no extension to any definite date, the extension, if any was granted, would be for a reasonable time; in any event, however, the question is not whether there was an enforceable contract to extend, but whether defendant by its act waived the strict performance of plaintiff’s obligation; if it did, then it cannot claim that non-performance punctually on the day was such a breach as would bar plaintiff’s recovery. But was an extension of any kind necessary to prevent defendant from ending the contract because of this breach ? Defendant claims that by reason of the failure to pay for the October shipment on November 25th defendant was guilty of the breach of such a material obligation that it, defendant, was justified in repudiating the contract on this ground, and that such a repudiation did not render it liable for damages.

Time is ordinarily of the essence of the contract in mercantile agreements; a failure, therefore, to pay for installments delivered would justify a refusal to proceed at least until a payment had been made. But as is pointed out in Williston on Sales, sec. 467, at pp. 823, 4:

“It by no means follows, however, that as soon as default is made in payment for an instalment of goods the seller is entitled to rescind the contract or totally refuse further performance, even though the default in payment continues until the time for the next delivery of' goods is due. It might well be that the seller, though entitled to delay further delivery until paid for what he had already delivered, would not be entitled to continue to refuse to deliver after payment was made. The seller’s right to take the latter course must depend upon the materiality of the breach. It is probable that time in regard to the payment of money on the day when it has been promised is not so vital as a failure to accept or deliver goods on the day promised.”

The parties may, however in any event, by their course of dealing interpret the obligation so as to make time not of the essence and, in our judgment, that was done in this case. The conduct of the parties, the plaintiff in paying and the defendant in accepting moneys in other. months, without objection, after the 25th (in July on the 27th, August 28th, and especially on October 27th for moneys due September 25th), amounts to a waiver, not of the right to demand payment promptly but of the right to repudiate, without notice or any demand, all further obligations because of a failure to pay on the 25th of the month, a waiver, in other words, of the right to require this strict performance as a strict condition precedent to the fulfillment of defendant’s obligations.

Defendant, however, did not demand payment under penalty of repudiation; it treated non-payment as working ipso facto a forfeiture of plaintiff’s right to compel further performance. This it could in no event do after having impliedly waived strict performance.

But it is not only the course of dealings that barred repudiation on this ground by defendant; even if payment theretofore had been prompt on the day, nevertheless, the failure to pay on the 25th could have been subsequently waived. Any acts of the parties that amounted to- a mutual recognition that the contract was still in force would bar defendant from taking advantage of this breach, except only to the extent of claiming any damages suffered thereby. Such acts of recognition are clearly shown in this case. When plaintiff demanded fulfillment of the orders given, defendant, instead of asserting its right based on the breach, was absolutely silent on this point, but it admitted its own default without reference to plaintiff’s.

Moreover, on ¡November 25th, the day for payment of the October shipments, defendant filled plaintiff’s orders without requiring this payment and, subsequent to ¡November 25th, it accepted additional orders without objection. By all of these acts, it waived any prior default by plaintiff as a condition precedent; it could no longer repudiate on this ground.

The instruction complained of, even if technically accurate, was misleading; it was not, under the circumstances, such a statement as would make clear to the jury the question at issue if the facts had been doubtful enough to submit it to them. The expression “defendant did not waive compliance” could without further explanation have readily been understood by the jury to refer to some express waiver such as the alleged extension agreement and thereby to exclude waiver by implication.

In our judgment an instruction that defendant had waived payment on the day and up to the date of its letter would have been justified; in any event the preponderance of the evidence to that effect is- so clear that we cannot sustain a verdict necessarily based on a contrary finding. The instruction limiting plaintiff’s damages to loss on orders placed before the repudiation was erroneous.

Defendant’s repudiation of its obligation gave plaintiff, at its option, an immediate cause of’ action for all of the damages thereby suffered by it. It had the right to call on defendant to fill its future orders. Defendant by repudiating announced that it would not fulfill even if the orders ivere obtained. It thereby absolved plaintiff from the necessity of securing them; that would have been time and labor lost. The market was such that it had a large assured profit if it sold the coal. As 10 cents was to have been its fixed compensation before any division of profits and was termed in the contract a selling commission, the jury would have been justified in finding, in the absence of any direct proof, that the cost of selling the coal would be at the most 10 cents, and that plaintiff had lost at least one-third of the difference between the minimum contract price plus 10 cents and the market price, not only on the coal ordered but on the whole 14,000 tons. The true measure of damages in this case, however, is not the difference between the market and contract price as the court at plaintiff’s request instructed the jury, but as to orders not yet placed, one-third of the difference between the market price of similar coal at the time of repudiation and the minimum price fixed in the contract plus that part, if any, of 10 cents per ton that exceeds the cost of selling per ton, and as to orders placed, plaintiff’s loss is shoAvn by the difference between the prices to be paid by it on these orders under the contract and the prices obtained by it on the resales. The market price at the time of repudiation would be the then market price for deliveries of the 14,000 tons in about equal monthly installments during December, January, February and March. In the absence of such a market price at that time, the market prices in each of these months would control for a pro rata amount.

Because in our judgment the jury rendered a verdict contrary to the clear preponderance of the evidence, in refusing plaintiff any damages, the judgment must be reversed and the cause remanded.

Reversed and remanded.