author: Mr. Presiding Justice Baldwin

text:
    Aleck Lisseck, Defendant in Error, v. Christ Anderson, Plaintiff in Error.
    Gen. No. 16,173.
    Malicious prosecution—what essential to recover in action for. In actions of this character to be successful the plaintiff must establish by a preponderance of the evidence that the defendant acted without reasonable cause and was actuated by malice.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed with a finding of fact.
    Opinion filed February 20, 1912.
    Auden, Latham & Young, for plaintiff in error; Charles Martin, of counsel.
    George B. Cohen and John D. Clancy, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This case is before us upon a writ of error to reverse a judgment of the Municipal Court of Chicago in favor of Aleck Lisseek, defendant in error here, against Christ Anderson, plaintiff in error. The cause was one of the fourth class, and was tried by a court without a jury. It resulted in a finding and judgment for plaintiff for $100.

Plaintiff’s statement of claim was for damages for assault and battery upon him alleged to have been committed by defendant August 5, 1909. This statement was subsequently amended to include a charge of malicious prosecution of plaintiff by defendant without reasonable or probable cause on a charge of larceny and disorderly conduct. The trial was had on October 7, 1909, at which time the court found for the plaintiff in the sum of $100. A motion for a new trial was entered, which, upon the 16th of October, was denied, whereupon the court allowed plaintiff to amend his statement of claim, nunc pro tunc as of October 7th, so as to charge false imprisonment, in addition to the other alleged causes of action.

Various grounds of error are assigned and argued, among them being the alleged error on the part of the court in allowing an amendment after the cause had been tried, and in the admission and exclusion of evidence, but the error mainly relied upon is that the finding and judgment of the court below was wrong upon the merits. From the record it appears that Lisseck, who had formerly been employed by Anderson, came to the latter’s place of business on the 5th of August, 1909, to procure money alleged to be due him for services rendered Anderson. There had been some controversy as to the amount due, and «when Lisseck came, one Schreiber, a partner or employe of Anderson, contended that there was due Lisseck but fifty cents, while Lisseck claimed a much larger amount. The matter was adjusted between them upon the agreement that Lisseck should receive $4 and receipt therefor in full for all services. The money, with the receipt for Lisseck to sign, being produced, a quarrel or brawl followed, concerning which the testimony of the parties is directly opposed; Lisseck claiming that immediately upon receiving the money and the receipt which he was to sign, he was assaulted by Schreiber and struck several times by him and afterward by Anderson himself, and that he made a great outcry, shouting “Police! Murder! Police!” etc.; that both he and Anderson called for the police patrol, which came, and he and Anderson were both taken to the station, where one of the police officers swore out a complaint against him, charging disorderly'conduct; that he was detained about three hours, and on the following day was discharged. The testimony on behalf of defendant was to the effect that when the $4, with the receipt which was to he signed, were tendered by Schreiber, Lisseck grabbed both the money and the receipt, and started to run, yelling at the top of his voice and calling a crowd about; that Anderson detained him until the police patrol arrived; that neither Schreiber nor Anderson struck or beat Lisseck in any manner, and that Anderson sought and aided in procuring the discharge of Lisseck on the day after the disturbance.

We have carefully examined the testimony given before the court below, and in our opinion it entirely fails to show malice on the part of Anderson, or justify the finding and judgment of the court. No useful purpose would be subserved by setting out in detail the testimony, or the remarks of the court in passing upon the case. We think the court misconceived the situation and reached a wrong conclusion upon the facts before it and the law applicable thereto. The testimony of the plaintiff himself was in some respects inconsistent and incoherent, and his corroboration was very slight; indeed, he was directly contradicted by his own witnesses as to some material circumstances. Lisseck’s own attorney testified in his behalf. This was manifestly improper and particularly since it involved a statement by such attorney as to what he had been told by his own client.

It is familiar law that, in actions of this character, to be successful the plaintiff must establish by a preponderance of the evidence that the defendant acted without probable cause, and was actuated by malice, and this, we think, this record entirely fails to establish. It follows, therefore, that the judgment of the court below was wrong and must be reversed; and, as we are clearly of the opinion from the record in this case that the testimony entirely fails to justify the claim that the defendant acted maliciously and without probable cause, the case will not be remanded, but judgment entered here in favor of plaintiff in error.

Judgment reversed with a finding of fact.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. H. Chambers, Plaintiff in Error, v. Josephine T. Allin, Defendant in Error.
    Gen. No. 16,210.
    Appeals and errors—when questions of law not preserved. If a trial is had before the court without a jury the defeated party cannot raise questions of law for the consideration of the Appellate Court without submitting propositions of law to the trial court and securing rulings thereon.
    Error to the Superior Court of Cook county; the Hon. Axel F. Chytraus, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 20, 1912.
    Rehearing denied and opinion modified and refiled March 12, 1912.
    John Gibson Hale, for plaintiff in error.
    Eric Winters, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

On December 9, 1893, plaintiff in error (suing as H. Kellogg) obtained a judgment against defendant in error for about $200 before a justice of the peace in Chicago. On the 21st of September, 1905, plaintiff in error sued upon the previous judgment before another justice of the peace, and, procured on the 26th of September, 1905, a judgment against the defendant in error for $200. From this judgment an appeal was taken to the Superior Court, where a trial was had de novo. On November 12, 1906, the cause was heard in that court without a jury, and resulted in a judgment in favor of defendant and for costs against plaintiff in error.

Plaintiff in error, Mrs. H. Chambers, who was then Mrs. Kellogg, had been since 1893 conducting a millinery business in Chicago, under the name of H. Kellogg & Co. She was married on June 1, 1899, to Mr. Chambers. On February 19, 1900, defendant in error, Josephine T. Allin, filed her petition in bankruptcy in the United States District Court, and scheduled the judgment above referred to in favor of “PI. Kellogg, Chicago, ’ ’ as one of her liabilities, and a notice of the bankruptcy proceedings was mailed to the plaintiff in error by that name and address. Josephine T. Allin was discharged from bankruptcy on the 9th of April, 1900, and it is stipulated that her discharge constituted a full release of all her liabilities that were sufficiently scheduled by her. Upon the trial it was further agreed that at the time Josephine T. Allin filed her petition in bankruptcy, and during the. entire proceedings, she had no actual knowledge of the change of name of Mrs. Kellogg to that of Mrs. Chambers, nor did she know of any name or address for her other than that of “H. Kellogg, Chicago,” as stated in the schedule in bankruptcy. It was further agreed that from 1893 to August, 1900, Mrs. Chambers, in the name of “H. Kellogg & Co.,” conducted a millinery business at 3806 Cottage Q-rove avenue, Chicago, and resided at that address during- all that time, and that she never knew of the bankruptcy proceedings and never received any notice in relation thereto. It was also stipulated that the schedule filed by Josephine T. Allin in her bankruptcy proceedings, wherein the demand of Mrs. Chambers was scheduled, is a sufficient schedule if the name and address “PI. Kellogg, Chicago,” is a sufficient schedule of the name, address, etc. Plaintiff in error contends here that the schedule of plaintiff’s claim in the bankruptcy proceedings by the name and address of “H. Kellogg, Chicago,” was not a compliance with the Bankruptcy Act of 1898, Section -7, requiring a schedule showing residence of creditors if known, and that, therefore, the discharge of the defendant in bankruptcy is no bar, and that, too, even if the bankrupt did not intentionally make an insufficient schedule. It is also contended by plaintiff in error that the state court, where the action is brought against a bankrupt, is a proper forum for the determination of the effect of the discharge.

The defendant in error contends, that the so-called assignment of errors in the case at bar is based entirely upon remarks made or reasons given by the judge at the time of rendering his decision, and that, therefore, there being no valid assignment of errors, there is nothing to be considered by this court. Defendant in error further contends that no written proposition of law having been submitted to the court on the trial below, this court is not authorized to consider the question of law as to the sufficiency under the Bankruptcy Act of the schedule of plaintiff’s claim and the effect of defendant’s discharge. Defendant in error further contends that this action was barred by the Statute of Limitations, and that that defense was available under the circumstances without being pleaded, the cause having been brought before a justice of the peace.

Upon the question of the Statute of Limitations and its effect upon the judgment, our attention is directed to the Bevised Statutes of Illinois, Chapter 79, Section 133; and upon the availability of this defense without formal pleadings in an action of this sort, to the decisions in the cases of Bromwell v. Bromwell, 139 Ill. 424; Dodge v. People, 113 Ill. 491; and Wilcox v. Tetherington, 103 Ill. App. 404; but we do not regard the matter as before us for decision. Either óf two questions would be decisive of the case; first, the sufficiency of the discharge, and second, applicability of the Statute of Limitations,—and each is a question of law. It is well settled that if a trial is had before a court without a jury, the defeated party cannot raise questions of law for the consideration of the Appellate Court, without submitting propositions of law to the trial court and securing rulings thereon. In the case at bar no propositions of law were submitted to, or acted upon by the court below, and, therefore, there is nothing before us to review, except upon the facts in the case, and upon these we think the record fully justifies the judgment of the court below. From the record, it appears that upon the trial of the cause, it was agreed between the parties that the bankruptcy proceedings were in all respects valid, and that the discharge secured by Josephine T. Allin was a good and sufficient discharge. It is true that the record shows the statement that “the only question in this case being as to the sufficiency of the said schedule filed in said bankruptcy proceedings; ’ ’ and it is also true that the judge, before whom the cause was tried, stated in his certificate to the bill of exceptions that the court held that, even if the schedule of the plaintiff’s demand was insufficient, it did not invalidate the discharge in bankruptcy, unless it appeared that such insufficient schedule was made with intent to defraud the plaintiff or prevent notice of the proceedings reaching her. We do not regard this statement in the certificate of the judge to the bill of exceptions as a proper method of bringing before us for review questions of law which should have been submitted and preserved in the form of propositions of law, but, in any event, upon the entire record, we think the judgment of the court below was correct, and it will, therefore, be affirmed.

Judgment affirmed.


text:
    C. A. Finch, Defendant in Error, v. Wisconsin Dairy Farms Company, Plaintiff in Error.
    Gen. No. 16,227.
    1. Municipal court—effect of dismissal of co-defendant in action upon contract. In a ease where there are no written pleadings, upon the failure of the evidence to establish joint liability upon the part ol the defendants, a dismissal of one of such defendants does not affect the right to proceed to judgment against the other defendant if the facts show a cause of action against him.
    2. Municipal court—when judgment not reversed. A judgment of the Municipal Court will not be reversed if it appears that substantial justice between the parties has been done.
    Error to the Municipal Court of Chicago; the I-Ion. Oscar M. TorRISON, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 20, 1912.
    Winston, Payne, Strawn & Shaw, for plaintiff in error; John C. Slade, of counsel.
    William Slack, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Defendant in error, Finch, a butter manufacturer of Michigan, brought an action of the fourth class in the Municipal Court of Chicago against the Wisconsin Dairy Farms Company, plaintiff in error, and one Robert A. N. Blatz, to recover for thirty-three tubs of butter shipped in December, 1908, by Finch to the Company, then doing business on South Water street, Chicago, Illinois. A trial was had resulting in a verdict in favor of Finch for $524.21, Blatz being dismissed out of the suit at the time of the trial. Upon the trial, plaintiff in error conceded that it was indebted to Finch on account of the butter in the sum of $266.32. The court below overruled a motion for a new trial, and entered judgment, to reverse which the Company have brought the case here upon a writ of error.

The statement of the claim originally filed was for $700, “the same being the reasonable value of thirty-three tubs of butter converted by the defendants to their use, and in the like sum for money had and received from the sale of said tubs of butter.” Before the trial the statement of claim was amended by the addition that plaintiff’s claim was for the sum of $700, “same being the reasonable value of thirty-three tubs of butter, sold and delivered by the plaintiff to the defendants at their request, and a like sum for interest on moneys withheld.”

The plaintiff in error here contends: First,—that the preponderance of evidence was in favor of its contention that it only owed the sum of $266.32, instead of $524.21, for which the verdict was rendered; second,—that the court erred in admitting in evidence two certain postal cards, dated February 3rd and February 24th respectively, both being subsequent to the transactions involved in this suit; third,—that the court erred in refusing to instruct the jury as requested by the Company that the burden was upon Finch to prove negligence on the part of the company by a preponderance of the evidence; fourth,—that the verdict of the jury was not supported by the statement of claim filed on behalf of Finch; fifth,—that the action was one in assumpsit, and that the voluntary dismissal by plaintiff of Blatz in a joint action, was, in law, a dismissal of both, and, therefore, the judgment against the Company was erroneous.

It appears from the testimony, that Finch received letters at his place of business in Michigan from the Wisconsin Dairy Farms Company, Chicago, soliciting his business, and expressing the ability and willingness of the Company to procure the highest price possible for him therefor, stating their charges for the services to be %c per pound for handling, and offering to pay cash at once; that during the month of December, 1908, Finch made three shipments to the Company, a total of thirty-three tubs of butter, aggregating about 2000 pounds; that, not receiving any pay for the butter, correspondence followed, extending through January and into February, with the result that Finch finally brought suit on the 25th of March, 1909. It was claimed by the Company that the butter was much below standard, resulting in their being obliged to sell it at a low price, and that, too, they were compelled to repack a portion of it in small parcels with a view to aid in its sale. The Company wrote Finch, enclosing a statement of account, showing $257.93 due him, and a check therefor, which Finch declined to accept and returned to the Company. At the trial the court instructed the jury that under the correspondence received in evidence, “the contract between the plaintiff and the defendant was not one of sale, but was a contract for sale upon commission,” and this instruction was given by agreement of the parties made in open court.

As to the contentions of the plaintiff in error that the verdict of the jury was not supported by the statement of claim, and that the voluntary dismissal of Blatz out of the suit, constituted a dismissal as to both, it is sufficient answer to say, that in Edgerton v. Chicago, Rock Island & Pacific Ry. Co., 240 Ill. 311, our Supreme Court has construed the law otherwise. In that case the suit was brought originally against the Bock Island Company only; later the Hoosac Tunnel Co. and the Wabash Railroad Co. were joined as defendants. After hearing, the suit was dismissed by the court as to the two latter defendants; the statement of claim was made in form as if it were an action on a contract, The court said: “It is conceded by all the parties that if this were an action on contract, on the facts as stated here, all parties defendant being served, the judgment must he entered against all the defendants or none” (citingcases), “and that in order to have this judgment stand against one of the defendants only, this must be held to be an action in tort. As to this class of cases under the Municipal Court Act, where no written pleadings are required, the same rule will govern as controls the form of actions before justices of the peacé. We have held that ‘it is the well settled practice that in such courts (i.e., where written pleadings are not required), the party suing need not even name his action, or if misnamed, that will not affect his rights, if upon hearing the evidence he appears to be entitled to recover and the court had jurisdiction of the defendant and of the subject-matter of the litigation.’ ” (Citing various cases.) We regard this authority as disposing of these two propositions.

As to the admission of the postal cards in question, there is one phase of the case upon which they were properly admitted in evidence; in any event, we do not think the cards are of sufficient importance that their admission constituted reversible error.

Coming now to the main contention in the case; there is no denial that Finch shipped and the defendant Company received substantially two thousand pounds of butter. The real controversy grows out of the subsequent conduct of the defendant Company in relation to the selling of and accounting for it, the Company insisting that the butter was very inferior and that they had very great difficulty in disposing of it, even at the very low price at which they claim a portion of it was sold, and that some portion was still unsold at the time the action was brought; that to facilitate the sale they had caused a portion of the butter to be taken from the original tubs and packed into prints, thus involving expense and trouble for which they claim the right to deduct from the price received for the butter sold. On the other hand, Finch contends that under the arrangements between the parties and the Company’s treatment of the whole affair, the Company became liable to him for the value of the butter, either upon the theory that the Company was a purchaser from him, or that they had converted the butter to their own use, and thereby became liable for its value.

■ It is true that, by agreement of counsel for both sides, the court instructed the jury that, under the correspondence received in evidence, the contract between the plaintiff and the defendant was not one of sale but was a contract for sale upon commission, yet the fact remains, that, under the testimony it is reasonably clear that both parties treated and considered the transaction as a sale or conversion by the Company, and, therefore, it became material-to determine what the butter was really worth. Upon the facts the jury found it to be worth $524.21, while plaintiff in-error conceded that it was worth $266.32. The testimony was sharply conflicting, and, after a careful examination of the testimony heard, we cannot say that the verdict was manifestly against the weight of the evidence. Under our statutes relating to the Municipal Court, this court should not reverse a judgment of that court in this class of cases, provided we are of the opinion that substantial justice has been done. Having reached the conclusion that substantial justice between the parties has been done in this case, the judgment will be affirmed.

Judgment affirmed.


text:
    E. F. Keebler, Defendant in Error, v. D. F. Crilly, Plaintiff in Error.
    Gen. No. 16,286.
    Appeals and errors—when finding by court not disturbed. A finding by the court is given the same effect as the verdict of a jury and such finding will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 20, 1912.
    Cassoday, Butler, Lamb & Foster, for plaintiff in error; Stephen A. Foster, of counsel.
    Felsenthal, Foreman & Beckwith, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Defendant in error, Keebler, brought an action of the fourth class in the Municipal Court of Chicago against plaintiff in error, Crilly, to recover a commission alleged to have been .earned by Keebler in furnishing a prospective tenant for certain property owned by Crilly. The specific claim was for five per cent, commission upon a year’s rental amounting to $7,200, of certain ground floor store premises located at 79 East Monroe street, which is at the northeast corner of Dearborn street, in Chicago. The .case was tried without a jury and the court found in favor of the plaintiff and entered judgment against Crilly for $360, to reverse which this case is before us upon a writ of error.

Keebler was conducting a real estate broker’s office, and sometime in January, 1909, had an interview with Crilly with respect to the property, at which time it seems to have been agreed that if Keebler would obtain a tenant who would pay $7,200 per year for the' premises and who was acceptable to Crilly, he should be entitled to the usual commission, which the evidence establishes at five per .cent. Keebler obtained a prospective tenant in one Weeghman, who desired to occupy the store for the purpose of operating a restaurant therein. In another portion (two doors west) of the building owned by Crilly, there was then a restaurant being operated by one George Knab, and on behalf of Crilly it was contended that he stated to Keebler that he would not lease the premises for any business objectionable to Knab; that when Crilly learned that Weeghman desired to use the premises for a restaurant, he ascertained that Knab was opposed to his allowing another restaurant in the same building, and Crilly so notified Keebler. Crilly also contended that Weeghman himself declined to become a tenant when he learned that Knab objected. It fur-, ther appeared from the evidence that Knab himself subsequently rented the premises in question from Crilly.

Keebler’s contention was that Crilly told him in the first interview that he would see Knab to ascertain if the latter had any objection to another restaurant coming in, and that, in a few days and before Keebler saw Weeghman, he went back and was told by Crilly that he had seen Knab and that Knab had no' objection. Keebler further contended that Weeghman was ready and willing to rent the premises and that this willingness was shown by his actual tender of a month’s rent and a demand for his lease. Accordingly, Keebler contended that he had produced a prospective tenant, ready, able and willing to complete the transaction, and that he thereby became entitled to his commission.

In their brief, counsel for plaintiff in error concede that the real controversy here is whether the defendant in error, Keebler, by the tender of Weeghman as a prospective tenant, became entitled to his commission, as a broker. Their contention in the court below was, as it is in this court, that the tenant should be acceptable to the plaintiff in error, and he ready, willing and able to enter into a contract for leasing of the premises in question upon the terms imposed, which involved the assent of one Knab to the tenancy by Weeghman, and that these conditions were not met. Defendant in error contended in the court below, as he does in this court, that Weeghman was ready, able and willing to take the property upon the terms proposed.

In this controversy, essentially one of fact, the court below having before it the witnesses in person and having heard their testimony, found against the plaintiff in error, and such finding by the court is entitled to at least as much consideration as would he due to a verdict of a jury in a similar case. The controversy, therefore, is narrowed down to the one question whether this court, upon a review of the testimony, shall conclude that the finding of the .court below is clearly against the weight of the evidence, and unless we reach the conclusion that it is, it is our dutv, sitting as an appellate court, to affirm the judgment, regardless of whether or not we would ourselves have reached the same conclusion upon the evidence as was. reached by the trial court.

We have carefully examined the testimony heard in the court below, and, while it cannot be said to be absolutely clear and convincing in favor of the defendant in error, yet we cannot say that the finding of the court below is clearly against the weight of the evidence. The judgment will, therefore, be affirmed.

Judgment affirmed.


text:
    Detmer Woolen Company, Defendant in Error, v. Arthur Dixon Transfer Company, Plaintiff in Error.
    Gen. No. 16,302.
    1. Municipal court—effect of mis-naming form of action. In the Municipal Court where no written pleadings are required the same rule governs as prevails before justices of the peace, that is to say, the party suing need not name his action or if it is mis-named his rights will not be affected, but if the evidence warrants it and the court has jurisdiction of the defendant and the subject-matter of the litigation, he will be entitled to his judgment.
    2. Municipal court—ivhen findings of faet not reversed. All presumptions in favor of the rulings of the court below upon questions of fact will be indulged and such rulings wall not be reversed unless such findings are clearly and manifestly against the weight of the evidence.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 20, 1912.
    Calhoun, Lyford & Sheean, for plaintiff in error; Edward W. Bawlins, of counsel.
    Moses, Bosenthal & Kennedy, for defendant in error ; Julius Moses and Walter Bachrach, of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Defendant in error, Detmer Woolen Company, brought an action of the fourth class in tbe Municipal Court of Chicago, against plaintiff in error, Arthur Dixon Transfer Company, to recover damages sustained by reason of the alleged failure of the Dixon Company to deliver a certain case of goods which it had undertaken to deliver to the Detmer Company. The action was originally brought against the Delaware, Lackawanna & Western E. E. Company and the Dixon^ Company, but, after plaintiff’s testimony was in, plaintiff took a nonsuit as to the Eailroad Company, ■ and, at the close of a trial, without a jury, obtained judgment against the Dixon Company for $818.58.

Plaintiff in error seeks to reverse the judgment of the court below and makes the following contentions: First,—that the finding of the court was clearly against the weight of the evidence for the reason that the receipt given by the Detmer Company to the Dixon Company for the package in question was evidence of high and satisfactory character of such delivery, and the proof offered by the Detmer Company to overcome this receipt was insufficient; second,—that the court erred in its findings of fact; third,—that the court below erred in overruling defendant’s motion in arrest of judgment, based upon the ground that the cause of action set out in plaintiff’s statement of claim was clearly an action ex contractu against the Delaware Ey. Company and the Dixon Company, and would not sustain a judgment against the Dixon Company alone.

From the record it appears that the Detmer Company, having an office in New York and one in Chicago, consigned to itself from New York to its Chicago office, four certain boxes of goods. The Dixon Company is engaged in the business of teaming and transferring goods in the city of Chicago; on the 13th of August, 1909, one of the drivers for the Dixon Company received the four cases of goods at the freight house in Chicago for delivery to the Detmer Company, and, in addition, received some other cases of goods for other concerns. The four cases for the Detmer Company were numbered respectively 1229, 1230, 1231 and 1232. The driver received these cases about 11:30 in the forenoon, and arrived with his load at the Chicago office of the Detmer Company shortly after 1:00 in the afternoon. The Detmer Company contend that but three of the four cases were delivered to it by the driver, and assert that case No. 1229 was never received by it; that the cases which it did. receive, weighed about 250, 480 and 720 lbs. respectively, and that the case in question, No. 1229, contained woolen goods and weighed about 720 lbs. The driver for the Dixon Company testified positively that he delivered it and he produced on the trial a written receipt of the Detmer Company, per Klemm, (an employe) for the entire four packages. Klemm, however, testified that, while he signed the receipt in question, he did not observe that it referred to four packages, nor was his attention called to that fact until several days afterward. He testified unequivocally that but three packages were delivered and that he supposed he was receipting for only that number.

Considering first the contention that the court below erred in overruling defendant’s motion in arrest of judgment for the reason that the cause of action set out in plaintiff’s statement of claim was clearly an action ex contractu against the Delaware Railroad Company and the Dixon Company jointly, and would not sustain a judgment against the Dixon Company alone, we are clear that it cannot be sustained. In Edgerton v. Chicago, Rock Island & Pacific Ry. Co., 240 Ill. 311, the statement of claim in the Municipal Court was drawn as if it were an action on a contract. The suit was originally brought against the Rock Island Railway Company alone; later two other companies were joined as defendants; after plaintiff’s testimony was in, he took a nonsuit as to the two added defendants and procured judgment against appellant. In passing upon the point raised, our Supreme Court said that if the action were one upon contract the judgment could not be sustained, and held that, to sustain the judgment, it must be considered an action in tort; the court further held that, as to this class of cases under the Municipal Court Act where no written pleadings are required, the same rule will govern as controls forms of actions before justices of the peace. The party suing need not name his action, or if it is misnamed, his rights will not be affected, but if the evidence warrants it, and the court has jurisdiction of the defendant and the subject-matter of the litigation, he will be entitled to his judgment.

As to the second contention of plaintiff in error,— that the court erred in its findings of fact—it is sufficient to say that all presumptions are in favor of the ruling of the court below upon questions of fact, and it will not be reversed unless such findings are clearly and manifestly against the weight of the evidence. Springer v. Chicago Real Estate Loan & Trust Co., 202 Ill. 17.

In Beidler v. Richardson, 107 Ill. App. 536, this court said: “The cause was submitted to the court for trial without the intervention of a jury. It thereby became the duty of the court to pass upon the facts as well as upon the law of the case. The witnesses were examined orally before him, and he, therefore, had the same opportunity for forming an opinion of the relative merit and weight of the evidence given by them as has a jury when in the box. Under these circumstances it necessarily follows that the same respect and consideration should be given by an appellate tribunal to. the finding of the fact by the court as is granted to the verdict of a jury. Kaestner v. Oldham, 102 Ill. App. 373. If the evidence of the successful party, considered by itself, is clearly sufficient to sustain the finding, this court will not reverse a judgment based thereon, unless such finding is clearly and palpably against the weight of the evidence.’’ Shevalier v. Seager, 121 Ill. 564.

In the case at bar, plaintiff in error tendered to the court below four certain findings of fact, each of which the court refused to hold. We have examined the testimony as shown by the record, and cannot say that the holding of the court upon these requested findings of fact was clearly against the weight of the evidence.

That the written receipt of the Detmer Company, covering the boxes, was prima facie evidence in favor of plaintiff in error is unquestionably true, but a receipt has never been held conclusive. Undoubtedly, it was subject to explanation or contradiction. As tending to show that in the course of business between the parties they were not careful to make their receipts conform to the facts, it may be mentioned that upon the trial it appeared that the Dixon Company was accustomed to deliver to the Detmer Company bills for services, upon which they had stamped in advance the words “Received Payment,” though the bills were not actually paid until for some days or weeks afterward. In’ this case there was the unequivocal testimony of three witnesses, corroborated to some extent by the facts and circumstances surrounding the transaction, opposed to the positive statement of the driver for the Dixon Company, strongly corroborated by the written receipt. However, the driver’s testimony must be judged in the light of his direct interest in the matter. Moreover, the testimony of the driver was weakened somewhat by the plaintiff’s offering in evidence a part of the statement made by the driver in which he said:

“I first took all the cases off of my wagon that I had for the Detmer Woolen Company, and then I put one of the cases, a small one, on the elevator, and took it up to the Detmer Woolen Company’s first floor and delivered it there and got two dollies on which to handle the heavier ones.”

From this it would appear that he delivered but three cases, the first being a small one and then two of the heavier ones, each on one of the two dollies to which his statement refers.

Even if we were in doubt as to whether we should have reached the same conclusion upon the evidence as was reached by the trial court, yet, upon the whole record, we do not feel at liberty to disturb this finding. The judgment will, therefore, be affirmed.

Judgment affirmed.


author: Mr. Justice Clark

text:
    Fred Genna, Defendant in Error, v. Continental Casualty Company, Plaintiff in Error.
    Gen. No. 16,236.
    1. Evidence—when coroner’s verdict competent. A coroner’s verdict as to the manner in which death resulted is competent in an action to recover upon an accident insurance policy.
    2. Insurance—how “immediately” as employed in an accident insurance policy is to he eonstrued. The word "immediately” is to.be construed as a word of time, and does not mean within a reasonable time, but does mean "presently,” "without any substantial interval. ’ ’
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed.
    Opinion filed February 20, 1912.
    Martin P. Cornelius, for appellant; Mantón Maverick, of counsel.
    Thomas J. and Daniel M. Healy, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Fred Genna, the defendant in error, brought action against the Continental Casualty Company upon a policy of insurance issued to his father, George Genna, in his lifetime. The defendant in error was made beneficiary of the policy in case of death arising from accident under certain conditions. The particular clause of the policy upon which the suit is based is as follows:

“Part II. Specific Accident Indemnity.
“If,, within ninety days from the date of the accident, any one of the following losses shall result necessarily and solely from such injury as is described in Part I, the Company will pay, subject to the provisions of Parts IV, V, VI, IX, XI, and XII.
“A. For Loss of Life—Said Principal Sum.”

The principal sum mentioned was $300. Part I of the policy, which describes the character of the injury which the insured must have received in order that there may be a recovery on the policy, is as follows:

“If the insured, while the policy is in force shall receive personal bodily injury (suicide, sane or insane not included) which is effected directly and independently of all other causes through external, violent and purely accidental means and which cause at once and continuously after the accident total inability to engage in any labor or occupation the Company will pay indemnity as provided in Parts II, III, IV, V, VI, IX, XI and XII for loss resulting therefrom. ’ ’

The claim of the defendant in error is that the insured, George Genna, his father, accidentally received a cut over his right eye on January 28, 1909, which resulted in erysipelas, from which he died on February 7th following. The evidence principally relied upon by the defendant in error as tending to substantiate the claim that the deceased died from accident was the verdict of a cororner’s jury, in which it was found that the said George Genna came to his death on' February 7, 1909, in the Cook County Hospital, from erysipelas following external violence. The verdict of the jury then continues as follows: “From the evidence offered, the jury are of the opinion that the said violence was the result of injuries accidentally received when in the performance of his duties as janitor on January 28, 1909, in the tank room owned by Armour backing Company.” To substantiate the claim that deceased met with an accident a witness was called in rebuttal, as the record shows, who testified that on the day the accident is alleged to have occurred he saw the deceased and that the deceased had a cut over his eye.

While the verdict of the coroner’s jury was undoubtedly properly admitted in evidence, we entertain grave doubts whether with the other evidence in the record it was sufficient proof of the fact that the deceased died as a result of an accident. However, in the view we take of the case, it is not necessary to determine this question.

There were submitted to the jury before whom the case was tried several interrogatories, among others the following: “Did the insured continue in hia regular occupation subsequent to the 28th day of January; 1909, for two days?” The answer of the jury to this interrogatory was “yes.”

In our opinion, the controlling question we are called upon to decide on this appeal is whether, if it be assumed that the death was by accident, the bodily injury was received through external, violent and purely accidental means, and caused at once and continuously after the accident total inability on the part of the insured to engage in any labor or occupation.

Our attention has been called to the following authorities: Preferred Masonic Mutual Assn. v. Jones, 60 Ill. App. 106; Williams v. Preferred Mut. Acc. Assn. (Ga.), 17 S. E. 982; Letherer v. U. S. H. & A. (Mich.), 108 N. W. 491; Continental Casualty Co. v. Wade (Tex.), 105 S. W. 35; Wall v. Continental Cas. Co. (Mo.), 86 S. W. 491; Pepper v. Order United Com. Travelers (Ky.), 69 S. W. 956; Merrill v. Travelers Acc. Co. (Wis.), 64 N. W. 1039; Laventhol v. Fidelity & Casualty (Calif.), 98 Pac. 1075; Vess v. United Benev. Soc. of America (Ga.), 47 S. E. 942. In all of these cases it appears to have heen held by the court that the word “immediately” as used in the policies is to be construed in this connection as a word of time, and does not mean within a reasonable time, but “presently,” “without any substantial interval.” As stated in the case of Williams v. Preferred Mut. Acc. Assn., supra; “It often happens that considerable difficulty arises in determining whether or not a particular thing is the proximate or remote cause of an injury. To avoid this difficulty in the numerous and ever varying cases which may arise, we think the company meant it to he understood that it would not be responsible for loss of time resulting from physical injury unless it was plain and manifest that the injury directly, alone and without delay, occasioned such loss of time.”

It is argued by the defendant in error that the condition related to causes where the suit was for loss of time on the part of the insured, and not to 'Causes like the present in which death ensued. We do not think this construction is tenable. The primary purpose of the policy was to indemnify against loss of time by the insured, but only in case the insured was injured in such a manner as to be unable to perform his usual duties after the injury. The policy then provides by its second section that if the injury of the sort mentioned in the first part of the policy results in death the person mentioned as beneficiar)'' shall receive the sum stated. The policy is not a life insurance policy, and the second part merely provides for a certain amount to be paid the beneficiary of the insured provided the insured dies of an accident of such a char■acter as would have enabled the insured, if death had not ensued, to recover under part I of the policy.

The construction of the words “at once” and “immediately” must be the same whether the claim arises under part I or part II of the instrument.

It is asserted by the defendant in error that the case of Wall v. Continental Cas. Co., supra, sustains his contention. That was the case of a brakeman who was injured on the 7th day of November, and quit work on account of the injury on November 15th. The evidence showed that between those dates he was on two runs, and on the 15th entered the hospital. It further showed that on these runs he was able to do no work; that another man who was learning the duties of brakeman went along and did all of the jilain tiff’s work, and plaintiff paid him for it. The court held that the evidence was sufficient to justify the conclusion that complete and immediate disability followed the accident.

In the record before us it is shown that erysipelas is a disease which frequently occurs in cases where the afflicted person has received no cut or wound. One of the witnesses, a physician, testified that “a man might be the healthiest on earth and acquire erysipelas without traumatism,” and his evidence was not contradicted. The verdict of the coroner’s jury was that death was caused from “erysipelas following external violence,” and that in the opinion of the jury “said violence was the result of injuries accidentally received when in the performance of his duties as janitor,” etc.

The coroner’s physician testified at the inquest, and his testimony by agreement was admitted in the case in the Municipal Court. His testimony was to the effect that in his opinion the deceaesed “came to his death from erysipelas following external violence.” He did not give it as his opinion that death resulted from an accident, or even that the accident caused the erysipelas which resulted in death.

In our opinion, the answer of the jury to the special interrogatory to the effect that the insured continued in his regular occupation for two days after the accident, is in direct conflict with its general verdict. In other words, the injury was not of such character as would have entitled the insured to recover under part I of the policy had he lived, and therefore there can properly be no recovery under part II of the policy in favor of the beneficiary.

Other defenses were interposed by plaintiff in error at the trial and are insisted upon here. They are: first, that in the application for the policy the insured falsely gave his age as 49 years, when in fact he was 61 years old; that this was done in order to deceive the plaintiff in error, under whose rules policies are not issued to persons above the age of 50 years; second, that in the application the employment of the insured was stated as that of sausage-maker, while his work was that of janitor, and that this was material because the rates were higher for those employed in the latter occupation than for those employed in the former; third, that the insured in his application warranted that he had no infirmity of mind or body or any defect in vision. The jury in answer to a special interrogatory found that the insured’s sight was defective. It is unnecessary for us to discuss or determine these questions as raised because, as we view the case, no recovery on the part of the defendant in error is allowable for reasons heretofore assigned.

The judgment will be reversed.

Judgment reversed.


text:
    J. W. Fernald & Co., Defendant in Error, v. Chicago, Burlington & Quincy Railway Company, Plaintiff in Error.
    Gen. No. 16,243.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Smith, J., dissenting.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 20, 1912.
    J. A. Coxthell, for plaintiff in error.
    Eddy, Haley & Wetter, for defendant in error; Charles H. Pegler, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

In this ease a recovery was had by the defendant in error against the plaintiff in error for the value of a horse and damages to a wagon, the horse having been injured in such a manner as to require his being shot, and the wagon damaged in a collision upon a street crossing.

The case was tried before the court without a jury, and the error assigned for reversal is that the finding-upon which the judgment is based was clearly and manifestly against the weight of the evidence.

We have examined the record with great care, and while we are unable to say that we should have reached the same conclusion as the trial judge if the case were before us as a trial court, we do not feel warranted in saying that it is clearly and manifestly against the preponderance of the evidence. Unless we can do so it is onr duty, under repeated rulings of this court and the Supreme Court, to affirm the judgment, which is accordingly done.

Judgment affirmed.

Mr. Justice Smith dissents.


text:
    Chicago, Milwaukee & St. Paul Railway Company, Defendant in Error, v. John N. Faithorn, Receiver, Plaintiff in Error.
    Gen. No. 16,260.
    1. Municipal court—when form of action adopted immaterial. So far as the question of the jurisdiction of the Municipal Court and the procedure therein are concerned, it makes no difference what the form of action is, because in that court in suits of the 4th class no written pleadings are required, and if the court has jurisdiction of the parties and the subject-matter it may render such judgment as is necessary to do justice between the parties.
    2. Negligence—ivhen receiver Katie. The test of liability lies in the determination of the fact as to whether the receiver was actually in control.
    Error to the Municipal Court of Chicago; the Hon; Mancha Bruggemeyer, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 20, 1912.
    Jesse B. Barton, for plaintiff in error.
    O. W. Dynes, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

The defendant in error, the Chicago, Milwaukee & St. Paul Ry. Co., hereinafter called the St. Paul Co., obtained judgment in the Municipal Court of Chicago in the sum of $300 for damages caused by the derailment of its train through the negligence of an employe of the plaintiff in error, John N. Faithorn, as receiver of the Chicago Terminal Transfer R. R. Co.

The contention of the defendant in error is that the suit was on contract, while the plaintiff in error insists that it was purely in tort. So far as the questions of the jurisdiction of the Municipal Court and the procedure therein are concerned, it makes no difference what the form of action is, because in that court in suits of the 4th class no written pleadings are required, and if the court has jurisdiction of the parties and the subject-matter it may render such judgment as is necessary to do justice between the parties. Edgerton v. C. R. I. & P. Ry. Co., 240 Ill. 311.

The case was heard on a stipulation of facts, which included a number of contracts that will hereinafter be referred to. The St. Paul Co. was a licensee of the P. C. C. & St. L. Ry. Co., hereinafter called the Pan Handle Co. In 1885 a company to whose rights the Pan Handle Co. succeeded, made a contract with the Chicago & Great Western B. B. Co. and the Chicago & Northwestern Ry. Co., with reference to the putting in of crossings over the tracks of a road now owned by the Pan Handle Co. and that of the Chicago & Northwestern Ry. Co., and in said contract the C. & G. W. Co. agreed to pay all the cost and expense of putting in .crossing frogs and crossing signals, gates, targets, watchman’s house, etc., and forever maintain them. The contract specifically provided that the C. &. G. W. Co. would pay all claims and demands and save harmless the other parties to the contract, their successors or assigns, from all liability, costs or expense incident to or growing out of the construction or use of said .crossings or the movements of trains over the same, that might arise in consequence of the want of care of the C, & G. W. Co., its agents or servants. The C. & G. W. Co. was afterwards succeeded by the C. & N. P. Ry. Co., and that in turn by the Chicago Terminal Transfer R. R. Co., hereinafter called the Terminal Co., of which the plaintiff in error was the receiver at the time of the institution of this suit.

In 1892 a contract was entered into by the C. & N. P., C. & N. W. and Pan Handle Companies, in which reference was made to the contract of 1885, and which provided for the readjustment and changes of tracks mentioned in the prior contract. By section 7 of the contract the C. & N. P. Co. agreed to pay the entire cost of the crossing frogs and to maintain them, etc., in accordance with the contract of 1885. By section 30 of the contract of 1892 it was provided that if the crossings should ever be required to be protected by interlocking devices, the C. & N. P. Co. should, at its sole cost and expense, construct the same and connect all existing tracks therewith, etc., and the C. & N. P. Co. by the said contract further “agrees that it will keep said interlocking and derailing system in repair and maintain and renew the same, or any part thereof, from time to time when necessary, and that it will pay all the cost of operating the same; all the men employed in the operation thereof shall be subject to discharge upon demand of the proper officers of said North-Western Company or said Pittsburgh Company, and the place of any man so discharged shall be immediately supplied by a competent man.”

Afterwards the interlocking device was installed and paid for by the Terminal Co. or its predecessor, and the Terminal Co. at all times assumed the burden of providing towermen at its own expense, in addition to maintaining the interlocking system. This arrangement seems to have been carried out by the receiver since he came into control of the property.

The agreed statement of facts contains this paragraph :

“The evidence in the case showed that as to derailment mentioned in the statement of claim as having occurred September 27, 1908, the same was caused by the negligence of the employe of the receiver, John N. Faithorn, operating the tower of the interlocking plant by throwing a derail in front of an approaching engine pulling live stock cars belonging to the plaintiff, whereby the engine and some cars went off the tracks at the derail, and it was agreed that in that particular derailment plaintiff had suffered damages to the amount of Three Hundred Dollars.”

It also contains the following admission by the plaintiff in error:

“John 1ST. Faithorn was receiver of the Chicago Terminal Transfer E. E. Co. at the time of instituting the suit, and, as such receiver, controlled, managed and operated the railroad of said Company at the time and place of the derailment specified in the statement of claim.”

The contention of the plaintiff in error is that he is not liable for the negligence of his servants in the management of the tower, because such servants were in reality operating the tower jointly for him, as receiver, and the defendant in error (the licensee of the Pan Handle Co.) and the C. &. N. W. Ry. Co.; that in effect he, as receiver, and the two railway companies were like partners in the operation of the device.

We cannot agree with this contention. We think it is conclusively shown by the agreements from which the foregoing extracts have been taken, as well as by those portions of the stipulation of facts heretofore recited, that the receiver was charged with the duty of not only maintaining the interlocking device, but of operating it. It is true the agreement provided that all the men employed in the operation thereof should be subject to discharge upon the demand of the proper officers of the other two companies, but it nowhere appears that either of the other two companies participated or had the right to participate in the selection of men. 'Either of the other two companies could insist upon the discharge of a man whom it considered incompetent, but the duty of selecting a competent man still rested upon the C. & N. P. Co. and also, in our opinion, upon the plaintiff in error, as receiver of the company taking the place of the C. & N. P. Co. Indeed it will be noticed that in the stipulation of facts it is admitted by the plaintiff in error that the accident for which damages were allowed was caused by the negligence of his employe. It is difficult to understand how, in view of this admission, he can now properly make the contention that the operation of the interlocking system was joint and that the employe was a joint employe.

The test of liability in cases like the present lies in the determination of the fact as to who was actually in control, if the negligence was due to the one so actually in control, then he is the one to be held responsible for the consequence of such negligence. An agister is liable for damages committed by cattle placed in his control, and not the owner of the cattle. Ward v. Brown, 64 Ill. 307; Ozburn v. Adams, 70 Ill. 291. A principal contractor and not the owner of the building or work under construction is responsible for injuries, to third persons caused by the negligence of himself or his employes. Pfau v. Williamson, 63 Ill. 16; Kepperly v. Ramsden, 83 id. 354. An agent who assumes entire control over certain work in which the principal does not interfere has been held to be liable, and not the principal. Baird v. Shipman, 132 Ill. 16.

The case of Blank v. I. C. R. R. Co., 182 Ill. 332, has been referred to by the plaintiff in error. In the contracts introduced in evidence now under consideration there is no provision exempting the one in .control of the operation of the interlocking switching and derailing device from the negligence of its or his employes. The contracts seem to have been prepared with unusual care with respect to the protection of the rights of the parties thereto, and it would seem fair to presume they would have contained such a provision if that had been the intent of the parties. In the case last referred to there was a provision for exemption from liability for negligence.

In the view we take of the matter, it is unnecessary to discuss the question as to whether or not the rights of the defendant in error as licensee were any other or different than those of the Pan Handle Company would have been in like circumstances.

We find no error in the record, and the judgment is therefore affirmed.

Judgment affirmed.


text:
    Leo S. Bridges, Defendant in Error, v. Albert E. Engers, Plaintiff in Error.
    Gen. No. 16,311.
    1. Replevin—right of defendant to maintain action against plaintiff for wrongfully suing out. A defendant successful in a replevin action need not sue the surety upon the replevin bond given; but may institute action against the plaintiff in the replevin suit for the wrongful obtaining of the writ.
    2. Municipal court—effect of adoption of particular form of action. In 4th class eases in the Municipal Court no written pleadings are required, and the same rule obtains as in cases before justices of the peace. It makes no difference whether the form of action is apparently in tort or in assumpsit. All that is necessary is that the court have jurisdiction of the parties and the subject-matter. It may then enter such judgment as the successful party is entitled to on the evidence.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 20, 1912.

      James Ewing Davis, for plaintiff in error.
    William A. Either, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Albert E. Engers, the plaintiff in error, brought suit in replevin against Leo S. Bridges, the defendant in error, and one Alexander Tintner, before a justice of the peace, which resulted in a judgment in favor of Tintner and Bridges and against Engers. Engers then appealed the case to the Circuit Court, to which court the. appeal was followed by Bridges hut not by Tintner, the latter not entering his appearance. The result of the suit in the Circuit Court was in favor of Bridges, damages being fixed at one cent, and a writ of retorno habendo was issued. The writ was placed in the sheriff’s hands, but no demand was ever made for the property. Three days after the writ was issued the judgment entered in the Circuit Court was amended, on motion of Bridges, by striking out the allowance of damages. Thereafter Bridges brought suit in the Municipal Court of Chicago in the sum of $200 for damages occasioned by the wrongful suing out of the writ of replevin by Engers. In the Municipal Court the case was tried before the court, without a jury, which found that the plaintiff, Bridges, was entitled to the sum of $50 as the value of the wagon wrongfully taken from him, and also to the further sum of $50 as attorney’s fees incurred by him in the trial of the case in the Justice Court and in the Circuit Court.

The contention of the plaintiff in' error is that the suit was one in trover, and that in that form of action attorney’s fees may not be recovered, the measure of damages for the conversion of the property being the current market value. If the action were one in trover we should regard the point made by the plaintiff in error as well taken. We do not, however, regard it as such an action.

From the statement of claim it would appear that the action was to recover the damages to which the plaintiff would have been entitled if suit had been brought upon the bond in replevin, the only difference being that no attempt was made to obtain judgment against the surety upon the bond which presumably was given when the writ of replevin was taken out. If such bond was given by the plaintiff in error he merely created a new obligation. He did not lessen his liability in any other form of action for the improper suing out of the writ. Cobbey on Replevin, Sec. 1307; Bruner v. Dyball, 42 Ill. 34.

In fourth class cases in the Municipal Court no written pleadings are required, and the same rule obtains as in cases before justices of the peace. It makes no difference whether the form of action is apparently in tort or in assumpsit. All that is necessary is that the court have jurisdiction of the parties and the subject-matter. It then may enter such judgment as the successful partv is entitled to on the evidence. Edgerton v. C. R. I. & P. Ry. Co., 240 Ill. 311.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice F. A. Smith

text:
    R. O. Watson, Defendant in Error, v. John A. Makaroff, Plaintiff in Error.
    Gen. No. 16,298.
    Chattel mortgages—when penalty for failure to malee proper report of sale recoverable. Held, that a report of sale, unsigned, which did not contain an itemized statement of the necessary reasonable expenses incurred in foreclosure, was not a compliance with the statute and that a recovery of the penalty prescribed by the statute was proper.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.'
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 20, 1912.
    Henry S. Blum, for plaintiff in error.
    Adams, Bobb & Adams, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinión of the court.

R 0. Watson, defendant in error, obtained judgment in the Municipal Court against John A. Makaroff, plaintiff in error, in an action brought to recover two hundred dollars under and by virtue of the statutes governing foreclosures of chattel mortgages. Section 26, chapter 95 of Hurd’s Revised Statutes, in regard to the foreclosure of chattel mortgages by sale under powers contained in mortgages, provides in substance for the giving by the mortgagee of three days ’ notice prior to the sale, and upon the making of the sale the mortgagee shall make out a statement showing the items of personal property sold, the name of each purchaser, and the amount for which each article is sold, and also an itemized statement of the necessary reasonable expenses incurred in taking, keeping and selling the property, and shall deliver the same to the mortgagors or some one of them in person or by mail, and if he fails so to do within ten days after the sale, the owner of the property may sue for and recover one-third of the value of the property so sold from the mortgagee, or person making such sale as assignee of said mortgagee.

It appears from the record that the defendant in error gave a chattel mortgage to the plaintiff in error, containing a power of sale, and that several payments were made upon the mortgage prior to the sale, but that the defendant in error was in default in payment of the debt. Thereupon plaintiff in error, the mortgagee, took possession of the property, advertised it for sale and sold it. The evidence tends to show that the property in question, which was the hull of a boat, was worth the sum of six hundred dollars-. After the sale notice was sent by plaintiff in error, or by some one it does not appear by whom, to the defendant in error of the sale of the boat for eighty-five dollars. It does not appear from the notice to whom the boat was sold. The notice was unsigned and simply contained a statement of the custodian’s fees ten dollars, fees for foreclosure ten dollars, and for posting notices two dollars.

This report of sale does not in our opinion comply with the provisions of the statute. It is unsigned, it does not contain an itemized statement of the necessary reasonable expenses incurred in foreclosing the mortgage, it does not contain the name of the purchaser of the article sold; and in our opinion the defendant in error was entitled to recover the penalty for violation of the statute.

The plaintiff in error proceeds in his argument in this court upon the theory that the action was for the conversion of the boat in question. Some of the language used in the plaintiff’s amended statement of claim would justify the plaintiff in error in the theory that the action was brought for the conversion of the property; but the latter part of the statement clearly indicates that the action is brought to recover the penalty provided for in the statute.

We think the argument of plaintiff in error proceeds upon an erroneous conception of the theory of the case, and that the principles and authorities cited and relied upon in his brief are therefore not applicable to the case as made in the court below.

The judgment is supported by the evidence, and it is affirmed.

Affirmed.


text:
    E. J. McQuaid, Plaintiff in Error, v. George H. Baughman, Defendant in Error.
    Gen. No. 16,318.

      Contracts—what nudum pactum. The promise to, carry out an executory contract already in existence, will not support an agreement for additional compensation.
    Error to the Municipal Court of Chicago; the HoN. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 20, 1912.
    Statement by the Court. E. J. MeQuaid, plaintiff in error, brought suit in the Municipal Court against George H. Baughman, defendant in error, to recover upon an, agreement in writing signed by the defendant in error. The case was tried before the -court without a jury, and the court found in favor of the defendant in error.
    The counsel in the case made and signed an agreed statement of facts from the evidence, which was approved by the trial judge, in substance as follows:
    The suit was originally based upon two written instruments introduced in evidence in the course of the trial, marked “Plaintiff’s Exhibit 1,” and “Plaintiff’s Exhibit 2,” respectively.
    At the opening of the case it appeared that whatever claim the plaintiff had against the defendant based upon the instrument introduced as “Plaintiff’s Exhibit 1” could only be recovered in a joint action by the plaintiff and all the parties named in Exhibit 1, whereupon the suit so far as that portion of the claim was concerned, was upon the motion of the plaintiff dismissed, the demand for a jury was withdrawn and the case proceeded to hearing on the plaintiff’s claim based upon the instrument introduced as “Plaintiff’s Exhibit 2.”
    Both instruments are essential to an understanding of the case and are set out in haec verba except for the numbering of the paragraphs, as follows:
    Plaintiff’s Exhibit 1.
    (1) This instrument made and entered into this 14th day of July, 1902, by and between Herman Janas, Cary N. Hopkins, Howard Durham, E. J. McQuaid and George A. "Wishart of Chicago, Cook County, State of Illinois, as first parties, and George H. Baughman, of Chicago, Cook County, State of Illinois, second party, WlTHESSETH :
    (2) For and in consideration of the sum of One Dollar by each of the parties hereto in hand paid to the other party, the receipt of which is hereby acknowledged, and other good and valuable consideration herein enumerated, the first parties agree to sell, assign, transfer and deliver and do hereby sell, assign, transfer and deliver to the party of the second part all their right, title and interest in and to three hundred shares of the capital stock of the Chicago Sales Book Company.
    (3) Second partv agrees to pay to said first parties, within thirty days from date of this agreement, fifteen hundred dollars and within six months from date of this agreement the further sum of fifteen hundred dollars.

      (4) It is agreed by and between the parties to this agreement that the title to the stock of the Chicago Sales Book Company to be transferred under this agreement shall pass from the first parties to the second party upon the execution of this agreement.
    (5) The second party further agrees in the event of securing the services of A. C. North, of Elkhart, to complete the third checkbook machine, in first-class condition, to pay said first parties on or before twelve months from date of this agreement seven hundred and fifty dollars ($750). It is hereby agreed that said seven hundred fifty dollars is not to be considered as a part of the purchase price of said stock, but is to be considered as a bonus, and in the event of failure of said second party to secure said services of A. C. North as above mentioned, said bonus of seven hundred and fifty dollars is not to be paid, but will in such event lapse and wholly fail.
    (6) Further said stock shall be deposited by said first parties, upon signing of this agreement in escrow with the Chicago Title and Trust Company to be delivered to said second party by said company as follows: One hundred fifty shares upon first payment by said second party; one hundred fifty shares on second payment by second party.
    (7) Further, said first parties do hereby irrevocably constitute and appoint said second party their attorney to transfer the said stock on the books of Chicago Sales Book Company, with full power of substitution in the premises.
    Signed and sealed by all the parties above mentioned.
    Exhibit 2 reads as follows:
    I hereby agree to pay E. J. McQuaid five hundred dollars ($500) as additional bonus to sum named in contract of sale of stock in Chicago Sales Book Co. of date July 14,1902.
    Signed, George H. Baughman. A note under his signature is to the effect that the instrument was amended by him on July 15, 1902.

      It appears that the defendant undertook to buy all of the stock owned by the stockholders of the Chicago Sales Book Company and to that end the sale contract was drawn. The plaintiff had the custody of the sale contract for the purpose of delivering the same to the escrow therein named after the contract had been signed by all the parties.
    On the fourteenth day of July, 1902, all the parties had signed the contract, and on that day the plaintiff called on the defendant and stated that he was not satisfied with what_ he, the plaintiff, was getting for his stock and that unless he received something more he would refuse to carry out the agreement; and a discussion was had as to what the plaintiff should receive in addition to the stipulated purchase price. There was a general understanding, but nothing definite was arrived at. On the following day the defendant tendered to the plaintiff an instrument in writing, in words and figures as follows:
    “I hereby agree to pay E. J. McQuaid two hundred and fifty dollars ($250) as addition bonus to sum named in contract of sale of stock in Chicago Sales Book Company of date July 14, 1902. I further agree that if the Chicago Sales Book Company earns a dividend at the end of two years from date to deliver to E. J. McQuaid five hundred dollars ($500) par value stock of Chicago Sales Book at such time.
    George H. Baughman.
    Chicago, July 14, 1902.”
    The plaintiff expressed his dissatisfaction therewith, stating that he preferred money to stock, and thereupon returned the instrument above set forth to the defendant; whereupon by mutual consent it was amended and modified by striking out the words “two hundred and fifty” and substituting the words “five hundred,” and also striking out the following: “I further agree that if the Chicago Sales Book Company earns a dividend at the end of two years from date to deliver to E. J. MeQuaid five hundred dollars par value of stock ot Chicago Sales Book at such time,” and adding thereto the following: “Amended by me, July 15,1902, Gfeorge H. Baughman.” Which amended instrument is herein referred to as the promise in writing, and is marked “Plaintiff’s Exhibit 2.”
    It further appears that at the time of the making of the original draft of the instrument Plaintiff’s Exhibit 2, as above set forth, and also at the time the same was amended and delivered, the sale contract and .certificates of stock had not been delivered to the escrow named therein, but were in the possession of the plaintiff. No question'is raised as to the payment of the three thousand dollars named in the sale contract, nor as. to the delivery of the stock to the defendant, it being admitted that there had been a performance' of these provisions.
    It does not appear that there was anything said by the plaintiff to the defendant, or by the defendant to the plaintiff, as to any relationship between plaintiff’s Exhibit 2 and plaintiff’s Exhibit 1, nor was anything said that would establish an intention on the part of either of the parties to connect the promise in writing with any particular portion of the sale contract.
    It appears from the agreed statement that the sale' contract was signed by all of the parties thereto at the office of the Chicago Sales Book Company in Chicago on the 14th day of July, 1902. The original copy of the contract was then given to the plaintiff, E. J. MeQuaid to be deposited by him, together with the certificates of stock, in escrow with the Chicago Title and Trust Company. MeQuaid returned to the office of the Chicago Sales Book Company later on the same day, and said to Baughman he would kick over the contract unless Baughman did something in addition for him, as he was not satisfied with what he was getting for Ms shares of stock, Baughman told him that rather than have the deal fall through he was willing to make an additional agreement with him (McQuaid), whereupon the defendant prepared the original Plaintiff’s Exhibit 2 before the alterations thereon were made, and presented the same to McQuaid. This agreement was not satisfactory to plaintiff, and the next day McQuaid came back to Baughman and Exhibit 2 was altered by the defendant, on its face, and appears as Plaintiff’s Exhibit 2 in the statement, and was then delivered to McQuaid by the defendant.
    At the close of all the evidence, the court held that in the absence of any evidence indicating the intention of the parties that the interpretation of the promise in writing, Plaintiff’s Exhibit 2, was a question of construction for the court, and the court thereupon held that the two instruments must be construed together and being so construed the promise in writing, “Plaintiff’s Exhibit 2,” was properly interpreted in conjunction with paragraph five of the sale contract, and that the performance of the condition therein contained, which the court held had not been sufficiently established by the plaintiff, was essential to a recovery upon the writing, plaintiff’s Exhibit 2, and that in the absence of sufficient evidence to prove the performance of the condition, the court found for the defendant. The court further held that the plaintiff having had in his possession the contract of sale, Plaintiff’s Exhibit 1, fully signed by all the parties, for the purpose of delivery in escrow, before the execution of the promise in writing, plaintiff’s Exhibit 2, the latter was without consideration and hence void.
    Pikes & Newmahk, for plaintiff in error.
    Wells M. Cook, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

It is urged on behalf of plaintiff in error, plaintiff below, that different instruments executed as evidence of one transaction at the same time or different times, must be .construed as a single instrument, and that where a contract is made upon an ample consideration and is afterward modified by separate instruments, the law constitutes it one contract, and the consideration of the original contract applies to and is sufficient for the modification.

These with other legal principles are urged by the plaintiff in error and are supported by authority; and we are not disposed to question them as principles of law to be applied in proper cases. In our opinion, however, they have no application to the case before us. At the time that Exhibit No. 2 was executed and delivered Exhibit No. 1 was in full force and effect, although it had not been deposited in escrow with the Chicago Title and Trust Company by the plaintiff in error, McQuaid. So far as the contract was concerned it was signed, sealed and delivered and it was placed in the hands of McQuaid as a messenger for deposit with the Chicago Title and Trust Company. It was a completed contract as between the parties. Exhibit No. 2, the instrument sued on in this case, is not a modification of Exhibit No. 1, the contract of sale. It is a separate, independent agreement between two of the parties who signed the contract of sale. It cannot be considered a modification of that contract for the reason that that contract could only be modified by the consent of all the parties to it. The contract sued on was simply the promise of the defendant in error, Baughman, to pay McQuaid an increased compensation for doing what he was legally bound to do, and it was without consideration.- It is simply a contract in which the promisee, McQuaid, contracted to do nothing more than he was already obligated to do. The promisee in such case has sustained no detriment and the promisor obtained no benefit, for the reason that the promisee undertook to do nothing more than he was therefore legally obligated to do. The promise of additional compensation for carrying out an executory •contract affords no consideration for a new promise on the part of the party to whom the existing obligation is due. Phoenix Insurance Co. v. Rink, 110, Ill. 538; Crossman v. Wohlleben, 90 Id. 537.

The promise by Baughman to pay a sum to McQuaid additional to that provided in the original contract of purchase, exacted by McQuaid after the execution of the original contract before he would carry out the sale according to its term, is without consideration and is unenforceable. Schneider v. Heinsheimer, 55 N. Y. Supp. 630; Bastian v. Dreyer, 7 Mo. App. 332.

In our opinion the judgment of the court is just, and it is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Baume

text:
    Acorn Brass Mfg. Co., Appellee, v. Atkinson, Mentzer & Grover, Appellant.
    Gen. No. 16,097.
    Appeals and errors—when finding by court not disturbed. A finding by the court will not be set aside as against the evidence unless clearly and manifestly so.
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 14, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    James M. Grvirr, for appellant.
    Gregory, Poppenhusen & McNab, for appellee; Edward R. Johwstoit, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is an appeal from a judgment in the Municipal Court in favor of appellee and against appellant for $1,059. The case was tried by the court without a jury.

On May 23, 1906, appellant, at the solicitation of one John L. Taylor, who was then in the employ of appellee, gave him an order for the manufacture and delivery of 25,000 sets of regal clasps, at three cents per set. Taylor gave said order, together with certain dies used in manufacturing said clasps, to appellee, and the latter proceeded to manufacture a sample or samples of the same. The samples manufactured by appellee and delivered to appellant were discovered to be of insufficient strength, and thereupon a conference was had between appellee’s superintendent, Bason, and Mentzer, the secretary of appellant, when it was determined that the clasps could be strengthened bv reinforcing the same with an extra metal strip. Eason informed Mentzer that the cost of the die necessary to make the extra metal strip would be $30, and that the additional cost of the clasps per set would be 1% cents making the total cost 4% cents per set. Mentzer instructed Eason to proceed to manufacture the clasps at the additional price agreed upon, and appellee thereafter manufactured and delivered to appellant 14,454 sets of said clasps. Appellant then refused to accept any more clasps, and refused to pay appellee for the clasps theretofore delivered and accepted. At the time appellant refused to accept the delivery of any more clasps, appellee had expended $409.56 for labor and material in partially manufacturing 10,922 sets of clasps, being the remainder of the order.

The finding and judgment against appellant covers the two items mentioned.

Appellant’s main contention is that its contract for the clasps in question was with Taylor and not with appellee. Upon either one of two theories the contrary is clearly established by the evidence. First: If the order to Taylor, bearing date May 23, 1906, be regarded as the basis of the contract finally entered into, it is apparent that appellant was aware of the relation then existing between Taylor and appellee, because on the day following, it addressed a written communication to appellee relative to the use of the dies which belonged to appellant. The conclusion is irresistible that appellant knew appellee was going to manufacture the clasps. Thereafter, the invoices for the clasps delivered to appellant were in the name of appellee, and in response to demands by appellee for payment of its account, appellant promised to make settlement with it when complete delivery of the order had been made. In its letter of August 10, 1906, ad- ' dressed to appellee, appellant expressly recognizes the existence of an agreement to pay appellee for the clasps. Second: It is uncontroverted that the subsequent agreement, of July, 1906, providing that the clasps should be strengthened and manufactured by appellee at a cost to appellant of 4% cents per set, was entered into by and between the parties themselves, independently of Taylor. This subsequent contract was sufficiently complete in itself to establish the relation of appellee and appellant as the contracting parties thereto.

Appellant offered in evidence a written contract purporting to have been entered into on November 3, 1905, between it and Taylor, with reference to the manufacture, under certain letters patent, of a clasp known as the “royal clasp.” The contract had no relation to any issue involved in the case at bar, and was properly excluded.

The finding of the court is fully supported by the evidence and the judgment is affirmed.

Judgment affirmed.


text:
    Nannie E. Miles, Appellee, v. International Hotel Company, Appellant.
    Gen. No. 16,107.
    1. Inns and innkeepers—when common law liability does not exist. An innkeeper is not an insurer of the safety of baggage if the relation of innkeeper and guest is not established.
    2. Bailments—care required of gratuitous. A mere gratuitous bailee of property is bound to take reasonable care to protect it from loss or damage, that is, such ‘/care as men of common prudence usually bestow for the protection of their own property of a similar character. ’ ’

    3. Bailments—when prima facie established. In any contract of bailment upon proof by the bailor that he placed property in the hands of the bailee and that the same was not returned upon demand the law presumes negligence on the part of the bailee and imposes on him the burden of showing that he exercised such care with respect to the property as was required.
    4. Bailments—what competent to rebut presumption of negligence. Held, that it was competent for the bailee to show that the several employees who were entrusted with the property alleged to have been lost were competent and were so considered by the bailee when he employed them.
    Appeal from the Superior Court of Cook county; the IIon. George A. Dttpuy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 14, 1912.
    A. Gr. Divus, for appellant.
    Jacob J. Kern and John A. Brown, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover the value of a trunk and contents alleged to have been accepted for storage by appellant, as a bailee, and thereafter lost. A trial by jury in the Circuit Court resulted in a verdict and judgment against appellant for $625.

On November 30, 1904, appellee registered as a boarder at the hotel conducted by appellant and was assigned to a room for which she paid $7 a week, and which she occupied until May 30, 1905, when she paid for said room in full, and left the hotel. Upon a printed notice, posted by appellant in the room occupied by appellee, appeared the following: “All baggage and property of guests left with us for storage will receive our best attention, for which no charge will be made, bnt in case of accident by fire or water or damage of any kind it will be at the risk of the owner.” Appellee testified that as she was about to leave the hotel she asked the housekeeper if the latter would see that her trunk was properly cared for, and that the housekeeper told her to call the head porter; that she asked a bell boy to inquire at the office whether there would be any charges for her trunk, and that after an absence the bell boy returned and told her the clerk said, “He would be glad to take care of it for you;” that she then left her trunk and a parrot cage in the room and went to Indianapolis; that upon her return to the hotel about six months thereafter, she asked the clerk to have her trunk sent np to her room; that the officers and servants of appellant reported that the parrot cage was in the baggage room or store room, bnt the trunk could not be found. The trunk, if received by appellant, was never returned by it to appellee.

There is an intimation by counsel for appellant, in the repeated use by them of the expression “pretended trunk,” that appellee never had a trunk in the hotel, but two of appellant’s own witnesses, who were employed in the hotel as housekeeper and linen woman, respectively, during the time appellee occupied a room there, testified that they frequently saw a trunk in her room.

Appellant was not an insurer of the safety of the trunk, because the relation of innkeeper and guest did not exist between it and appellee. Appellee was a mere lodger or boarder. Vigeant v. Nelson, 140 Ill. App. 644.

Liability, if any, in this case, must arise out of the contract of bailment.

A mere gratuitous bailee of property is bound to-take reasonable care to protect it from loss or damage. That is, such ‘ ‘ care as men of common prudence usually bestow for the protection of their own property of a similar character.” Preston v. Prather, 137 U. S. 604; Gray v. Merriam, 148 Ill. 179. In Story on Bailments, sec. 62, it is aptly said, “and what is reasonable care must materially depend upon the nature, value and quality of the thing, the circumstances under which it is deposited, and sometimes upon the character and confidence and particular dealings of the parties. ’ ’

In the case at bar the contract of bailment, if one existed, was evidently entered into, in part at least, as an inducement to appellee to return to appellant’s hotel as a boarder, whereby a benefit would accrue to appellant. Furthermore, as was held in Vigeant v. Nelson, supra, the notice which was posted by appellant in appellee’s room may properly be presumed to have entered into the contract for the storage of the trunk. This notice informed appellee that property left with appellant for storage would receive its “best attention,” which attention could not mean less than ordinary care.

In the third instruction offered by appellant and given to the jury, it expressly recognizes its obligation to exercise reasonable care with respect to the trunk.

In anv contract of bailment, upon proof bv the bailor that he placed property in the hands of the bailee, and that the same was not returned upon demand, the law presumes negligence on the part of the bailee and imposes on him the burden of showing that he exercised such care with respect to the property as was required. Cumins v. Wood, 44 Ill. 416; Funkhouser v. Wagner, 62 Ill. 59.

Appellant, upon the trial, sought to show that the porter, night-watchman and baggage room keeper employed by it were competent employes, and that they were considered by appellant to be competent, when they were employed, but upon the objection of appellee that such proof was incompetent, irrelevant, immaterial and not binding on appellee, appellant was not permitted to make the proof. As tending to rebut the presumption of negligence arising from the prima facie case made by appellee, the proof offered by appellant was competent, and the ruling of the trial court was prejudicially erroneous. Evidence of like character was admitted and considered by the court in Gray v. Drexel Arms Hotel, 146 Ill. App. 604. See also Gray v. Merriam, supra.

For the error indicated the judgment is reversed and the cause remanded.

Reversed and remanded.