text:
    John F. Devine, Administrator, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,114.
    1. OEDiNAiSfCES — regulating speed of vehicles do not apply to vehicles of pre department responding to an alarm. A city ordinance regulating the speed at which vehicles may be driven in the streets does not apply to members of the fire department when responding to a fire alarm.

      2. Evidence — relevancy. In an action for injuries received by a fireman while driving an engine in response to an alarm, through being thrown from the engine when a wheel thereof struck a hole in the pavement, it is not error to exclude the testimony of one driving' a hose cart four or five hundred feet ahead as to how fast he was driving, where it appears from his testimony that he did not see the engine at the time of the accident and did not know how fast it was going.
    3. Evidence — when properly ' excluded. In an action for injuries resulting in death, received when a fire engine deceased was driving struck a hole in the pavement and threw him off, it is not error to exclude testimony by the widow as to how much, if any, pension she has received since her husband’s death.
    4. Practice — withdrawal of juror. Motion to withdraw a juror and continue the case is properly denied on exhibition to the court of sensational newspaper articles concerning the case without any showing of the necessary facts by affidavit.
    5. Damages' — when not excessive. A verdict for $10,000 for the death of a fireman leaving a wife and family is not excessive.
    Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Baud, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 1, 1912.
    Rehearing denied October 15, 1912.
    Edward J. Brundage, Clyde L. Day, William; N. Sexton and N. L. Piotrowski, for appellant; Edward C. Fitch and David R. Levy, of counsel.
    McEwen, Weissenbach, Shrimski & Meloan, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Appellant, the city of Chicago, appeals from a judgment of $10,000 rendered against it in the Superior Court of Cook county, in favor of the administrator of the estate of Bartholomew Cloonan, deceased, for damages for the benefit of the widow and next of kin, resulting from the death of plaintiff’s intestate, alleged to have been caused by the negligence of appellant.

The amended declaration consisted of one count, charging that appellant negligently permitted certain holes to exist in the pavement of West Twenty-Second street, having had knowledge of the defective condition a reasonable length of time to have remedied it; and alleges that plaintiff’s intestate was a member of the city fire department, and that while driving a fire engine to a fire, was thrown off his seat by a jar caused by one of the wheels of the engine striking a hole in the pavement, sustaining injuries which resulted in his death. Demurrer to this, declaration having been overruled, the general issue, and two special pleas were filed. The first special plea set out an ordinance of the city of Chicago, Section 1416 of the Municipal Code of 1905, prohibiting riding or driving any horse or other animal or any vehicle upon any public street or way of the city, faster than ten miles an hour, and alleged that deceased, at the time of the accident, was driving at a greater speed than ten miles an hour. The second special plea set out another ordinance, Section 1417 of the Municipal Code, prohibiting any person riding or driving any horse or other animal at a greater speed than four miles an hour when turning the corner of any street or crossing the intersection of any street, and alleged that deceased at the time of the accident, while crossing Throop street at its intersection with Twenty-Second street, or in turning the corner thereof, was driving at a speed greater than four miles an hour.

Twenty-Second street, in the city of Chicago, extends east and west, and crosses Throop street, which runs north and south. Two street car tracks crossed Throop street in Twenty-Second street, and two tracks extended south from Twenty-Second street in Throop street, and the southbound track was connected by a curve and switch with the eastbound or south track of Twenty-Second street.

Cloonan was a member of the fire department of Chicago and the driver of the fire engine of Engine Company No. 28, stationed at 2867 Loomis street. On April 4, 1905, his company responded to a fire alarm from the vicinity of Fisk and Twenty-Second streets, and Cloonan drove his engine north on Loomis street to Twenty-Second where he turned east, the wheels of his engine running in the rails of the car tracks. When he engine reached the switch and curved in the tracks, at Throop street, the rear wheels slipped off the rails, and one of the wheels struck a hole in the pavement; the engine tipped to one side, though it did not overturn, and Cloonan was thrown from his seat to the ground, and sustained a compound fracture of both legs. He was taken to a hospital, where he died from blood poisoning, resulting from infection of the wounds.

Appellant relies upon the following grounds for reversal of the judgment: The verdict is contrary to the weight of the evidence, which shows that Cloonan was guilty of contributory negligence; the verdict is excessive; the court below erred in its rulings on admission of evidence, and in refusing certain motion made by appellant.

The city makes no contention as to its own negligence upon the evidence. The question of contributory negligence on the part of plaintiff’s intestate is the main question presented on this appeal. The evidentiary facts are not controverted except as to the speed at which the deceased was driving at the time he was injured. We have examined the evidence in the record upon that question, and are of the opinion that the verdict of the jury finds a sufficient basis in the evidence, and that we are not justified in reversing the judgment and verdict upon the ground that the evidence does not sustain the judgment. The evidence on the part of the city tends to show that the deceased was driving the engine at a speed of from twelve to eighteen miles an hour; the evidence on the part of plaintiff tends to show that the deceased, Cloonan, was driving at from four to six miles an hour at the time of the accident. The jury had a right to consider the reasonableness or unreasonableness of the estimate given by the witnesses for the city as to the speed of the horses at the time the accident occurred, and, in our opinion, all the evidence considered, there is no ground for the reversal of the verdict and judgment upon the evidence.

The trial court instructed the jury by Instruction No. 13, that under the law of this state, the ordinances set out in the pleas and offered in evidence, one restricting the speed at which horses may be driven upon the streets to ten miles an hour, and the other to four miles an hour at street intersections, were legal and valid ordinances in force in the city of Chicago at the time of the alleged accident, and that Cloonan was, under the law of this state bound to obey them and conduct himself in accordance therewith at the time and place of the alleged accident, and informed the jury that the fact that Cloonan was a fireman and was engaged in and about his duties as a fireman did not excuse him from obeying the ordinances, and that if he was injured while he was violating the ordinances, or either of them, by driving at a rate of speed in excess of that prescribed in the ordinances, or either of them, and that such violation proximately contributed in any way to bring about the alleged accident, they should find the defendant not guilty.

The trial court also refused to give Instruction No. 5 and No. 6 requested by plaintiff, which, if given, would have informed the jury that if they found from the evidence that at the time of the accident in question the deceased was a member of the fire department of the city of Chicago, and was then and there driving an engine going to a fire in response to a fire alarm, and in driving said engine he was then and there exercising the care which a prudent person would ordinarily exercise under similar circumstances, the deceased was not guilty of contributory negligence, and that under the evidence the ordinances offered by the city and admitted in evidence were not binding upon the decedent, and should not be considered by the jury.

The legal position thus taken by the court on the trial is now pressed for our consideration upon the question of contributory negligence, and it is now urged and claimed that if the deceased was violating the ordinances in question, he was guilty of contributory negligence which proximately produced the injury causing his death.

The case of Morse v. Sweenie, 15 Ill. App. 486, is cited in support of the general contention that the ordinances offered in evidence were binding upon the deceased while in the discharge of his duty as shown by the evidence in the case. In our opinion the case does not support the contention. The question presented by the instruction in that case was radically different from the question here presented and the case is not in point.

Appellant also cites the case of Illinois Cent. R. Co. v. Scheevers, 134 Ill. App. 514. In that case the administrator’s decedent was fire marshal of the city of Springfield, and while driving to a fire at a rate in excess of that permitted by an ordinance of the city, drove upon the track of the railroad company and came in collision with one of its engines, and it was held upon the evidence in that case that the deceased was guilty of contributory negligence in so doing; and it was incidentally held that the ordinance of the city of Springfield was binding upon the decedent, and to that extent the case supports the contention of appellant here. We are of the opinion, however, upon the authorities cited below that a city ordinance, regulating the speed of vehicles driven upon the streets of a city, does not apply to members of the fire department of the city when responding to a fire alarm.

In State v. Sheppard, 64 Minn. 287, the question arose as to whether a salvage corps, known as the Minnesota Board of Fire Underwriters, were amenable to a city ordinance prohibiting the driving of animals in the streets at a rate of speed exceeding’ six miles an hour. The court held that such an ordinance as applied to the salvage corps was unreasonable and was not binding upon them, and in arriving at its conclusion, the court put the salvage corps on the same level as the city fire department. The court in that case distinguished the Sweenie case, supra, and held it inapplicable.

In the well considered case of Farley v. City of New York, 152 N. Y. 222, in passing upon an ordinance regulating the speed of horses traveling on the street, the court held that such ordinance was intended to regulate the speed of horses traveling on the streets when used for the ordinary purposes of travel, and from the nature of the exigency such ordinance could not apply to the speed of vehicles of the fire department on their way to a fire, saying:

“The safety of property and the protection of life may and often do depend upon the celerity of movement, and require that the greatest practicable speed should be permitted to the vehicles of the fire department in going to fires.”

And upon the question of contributory negligences urged in the case, the court said:

“He took the usual risks of an employment of a dangerous character, but he did not assume the risks of the insecurity of streets resulting from the culpable negligence of the city. He was bound in driving to exercise the care which a prudent person would ordinarily exercise under similar circumstances. It was for the jury to say whether he was alert on this occasion, watchful to avoid obstructions which might be in his path, and whether there was any omission on his part of reasonable circumspection and diligence which contributed to the accident.”

In the case of Kansas City v. McDonald, 60 Kan. 481, the question was squarely presented to the court as to the right of recovery against the city for McDonald’s death, where it was conceded that McDonald was driving a hoot and ladder truck belonging to the fire department, at a run through the streets, and was violating the city ordinance against driving any horse, etc., faster than the ordinary traveling gait, or so drive as to endanger the safety of others. In that case McDonald was killed by being thrown from the hook and ladder truck, which struck an obstruction in the street consisting of a pile of rocks. In deciding the case, the court said:

“It is contended that the ordinance was proper evidence to show that McDonald, by its violation, was guilty of contributory negligence. We do not think that the ordinance was intended to govern the actions of firemen or regulate the speed of fire engines or trucks. Such an intention is nowhere expressed, and, if it had been, the ordinance would have been unreasona•ble. Cities do not provide horses of high mettle, trained to propel speedily apparatus for the extinguishment of'fires, and then impede them in their progress by a requirement that they shall not be driven faster than an ordinary traveling gait. Various appliances have been devised by which such horses aie harnessed with incredible speed, that no time may be lost in reaching the fire with hose and other aids to prevent the destruction of property. It is of first importance that a fire be reached in its incipiency. To accomplish this purpose, the utmost haste is necessary. A compliance with this ordinance by the firemen and the enforced delay required by its terms would convert the fire department into a purely ornamental adjunct to the city government — proficient only on parade.”

It is urged as a ground for reversal that the trial court erred in excluding the testimony of Captain O’Dea as to how fast he himself was driving at the time of the accident in question. Captain O’Dea was driving a hose cart some distance ahead of the engine whicli the plaintiff’s intestate was driving. According to his testimony he was some four or five hundred feet ahead of the engine. He testified that he could not state the rate at which the engine was going at Throop street. It appears from his evidence that he did not know how fast the engine was going at the instant of the accident, as he was four or five hundred feet from the point of the accident. He did not see the engine after he turned east into Twenty-Second street at the corner of Loomis street, and did not see Cloonan at the time of the accident. We do not think that O’Dea’s testimony as to how fast he himself was driving was pertinent to the issue in the case.

It is also urged as error that the court excluded the testimony of Mrs. Josephine Cloonan, widow of the deceased, on the question of how much, if any, pension she had received since the time of her husband’s death. In our opinion this testimony was properly excluded. Coots v. Detroit, 75 Mich. 628; Kansas City v. McDonald, supra; Illinois Cent. R. Co. v. Prickett, 210 Ill. 140.

In our opinion the court did not err in denying appellant’s motion to withdraw a juror and continuing the case. It appears that on the evening of February 9th, the court adjourned until ten o’clock the following morning. At the time of adjournment, appellee’s counsel had made his opening argument and counsel for appellant had completed their argument to the jury. There remained the closing argument of counsel. for appellee. The afternoon edition of the Chicago Daily News of February 9th contained in its first page a lengthy sensational article on the case. This article contained a statement of a dramatic and sensational occurrence at the hospital to which Cloonan was taken, which was not in evidence, as well as other comments on the case. The Chicago Tribune, Inter-Ocean, the Eecord-Herald, and the Chicago Examiner, published on the morning of February 10th, also contained articles on the case. At the opening of the court on the moming of February 10th, and before appellee’s counsel began his closing argument to the jury, appellant’s counsel exhibited the articles above enumerated to the court and moved for leave to withdraw a juror and continue the case on the ground that the jury having read the articles would be prejudiced- thereby. This motion was denied by the court, and error is assigned upon it. No affidavit was presented to the court at the time the motion was made. We think the mere presentation to the court of the articles in question, without any showing of the necessary facts by affidavit, such as was later made on the motion for a new trial, forms no legal basis for the motion, and the motion was properly denied.

In our opinion the court did not err in denying appellant’s motion to direct the jury to find appellant not guilty.

We do not regard the damages awarded by the jury as so excessive as to justify us in reversing the judgment. We cannot say that the verdict and judgment for $10,000 more than satisfied the pecuniary loss of Cloonan’s wife and family occasioned by his death. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice F. A. Smith

license: Public Domain

text:
    Charles H. Wacker, Defendant in Error, v. John N. Young, Plaintiff in Error.
    Gen. No. 17,169.
    1. Judgments — default. It is error to enter judgment by default on promissory notes because of tbe absence of tbe defendant when called, where an appearance, pleas and an affidavit denying indebtedness were on file and issue was taken tbereon.
    2. Judgments — default. Tbougb tbe defendant does not answer wben a case is reached for trial, if issue is joined, tbe plaintiff, to obtain judgment, must try bis case by a jury as if tbe defendant bad answered.

      Error to the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding.- Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed October 1, 1912.
    John P. McDonald, for plaintiff in error; Ed. H. Kubitz, of counsel.
    Lackner, Butz and Miller, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Charles H. Wacker, defendant in error, brought an action against John N. Young, plaintiff in error, in the Circuit Court of Cook county, on three promissory notes for $1,000 each, dated March 3, 1899, and due in three, four and five years respectively, after date, with interest at 4 per cent.; the notes were payable to the order of Charles EL Wacker, and signed John 1ST. Young. Various pleas were filed, the cause placed on the docket, and, when reached for trial, judgment by default was entered, defendant, (plaintiff in error) being absent from the court room.

Plaintiff in error here urges reversal of the judgment, and assigns as errors, that the court erred in rendering judgment on an affidavit of merits filed by plaintiff while a counter affidavit was on file, without further evidence being submitted to the jury; that the court erred in entering a judgment by default while appearance by counsel, plea and affidavit denying any indebtedness was on file; and that the court erred in denying motion to set aside the judgment.

The court below erred in entering judgment by default after an appearance by defendant and pleas and affidavit of merits were filed, and issue taken thereon. After issue is joined, the plaintiff, to obtain judgment, must proceed and try his cause by a jury, in the same manner as if the defendant had answered to his name when called. Manlove v. Gallipot, 1 Scam. 390; Covell v. Marks, 1 Scam. 391; Hall v. Marks, 34 Ill. 358; Mason v. Abbott, 83 Ill. 445. The judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    N. P. Severin, Defendant in Error, v. Pauline Conway, Plaintiff in Error.
    Gen. No. 17,193.
    1. Judgment — court may enter, on part of claim admitted, and refer issue on talance to jury. Where the defendant admits part' of the indebtedness, under a contract, sued on by the plaintiff, and claims the right to recoup as to the other part, the court has power under Practice Act 1907, § 55 and Rule 17 of the Municipal Court to render judgment for the amount so admitted and submit the issue as to the balance to the jury.
    Error to the Municipal Court of Chicago; the Hon. William: N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Charles A. Ward, for plaintiff in error; F. L. Barnett, of counsel.
    Oscar D. Olson, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This case is before us on a writ of error to the Municipal Court of Chicago, to reverse a judgment against plaintiff in error, Pauline Conway, for $377. f5 on admission by her affidavit of merits, and also a judgment on a verdict by the jury, assessing damages at $211.50.

It appears that Mrs. Conway employed defendant in error, N. P. Severin, a contractor, to raise and remodel a building at 2956 Dearborn street, Chicago; the work to be done according to plans and specifications for the sum of $1,500, and to be completed at a certain date. Mrs. Conway paid Severin $1,000, but refused to pay the balance, claiming that she wished to recoup herself for losses which she alleged she sustained on account of the manner in which the work was done, setting up in her affidavit of merits that she had lost three months’ rent amounting to $120 because the work was not finished at the time agreed upon; that she had a certain partition built by another party at a cost of $92, which work was included in the specifications and should have been done by Severin; and also that $6 were due for removing rubbish which had been left by the contractor.

On the trial, the court below found that plaintiff in error admitted she was indebted on the contract in the sum of $377.75 and rendered judgment for this amount. The amount of the balance due was then submitted to a jury who found in favor of defendant in error, and judgment was rendered against plaintiff in error for $211.50.

Plaintiff in error insists that the judgment of the Municipal Court should be reversed because the court was without jurisdiction to render the first judgment for $377.75; and that the court erred in dividing the claim by adjudicating one part and referring the other to a jury; that the verdict, which ignored the damages suffered by plaintiff in error, was against the weight of the evidence.

Under the situation shown by the record in this case, we are of the opinion that the two judgments were authorized as a matter of practice by Section 55 of the Practice Act of 1907, which, we hold, is applicable to, and binding upon, the Municipal Court of Chicago. Kule 17 of the Municipal Court authorizes the practice.

Upon the merits of the case we have examined the evidence in the record and we are of the opinion that it sustains the judgments rendered. We would not he justified in interfering with the verdict of the jury and the judgment. The judgment is affirmed.

Affirmed.


text:
    Kazimierz Benuszaitis and Mrs. Rachela Benuszaitis, Defendants in Error, v. T. Radawiczus, Plaintiff in Error.
    Gen. No. 17,229.
    1. Forcible detainee — what right cannot he determined in. An action of forcible detainer, does not lie to determine a boundary line or adjudicate a title.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmux, Judge, presiding. Heard in the Branch Appellate Court, at the March term, 1911.
    Reversed and remanded with directions.
    Opinion filed October 1, 1912.
    Theodore Proulx, for plaintiff in error.
    A. T. Powers, for defendants in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Defendants in error brought an action of forcible detainer against plaintiff in error in the Municipal Court of Chicago. The action is in form an action of forcible entry and detainer to recover from the plaintiff in error possession of the south 9 feet by 25 feet 3% inches of the middle one-third of the north one-half of the south one-half of lot 19 in Egan’s addition to Chicago.

The case was tried on an agreed statement of facts, which sets out the title of the plaintiff from Wm. B. Egan, who was owner of the thirty-five acres of which lot 19 above described was a part. The statement of facts then sets ont the derivation of title of the plaintiff in error of that part of the south half of lot 19 claimed to be owned by him from the same source of title. The statement shows that'after the defendants in error acquired title, they took possession of the premises and erected buildings thereon and have ever since occupied them as a homestead, but omitted to place a fence upon the rear of their property; that, subsequently, plaintiff in error purchased the property claimed to be owned by him, namely the middle one-third of the south one-half of the south one-half of said lot 19, and soon thereafter erected a building and fence thereon, and has occupied these premises as a homestead. The statement then sets out the various claims of the parties, and closes as follows:

« í Therefore, the question herewith submitted to this court for decision is, what should be the correct, just and legal length of each of said lots, and where should the line that divides said lots owned by the parties hereto, be drawn?”

The question thus stated by the parties and presented to the court on the trial and here on this writ of error is a question of title fundamentally, — it is not a question of possession. The dispute between the parties is one of title or boundary line. It is necessary to inquire into the title of the respective parties in order to determine the right of possession involved in the case.

In Thomas v. Olenik, 237 Ill. 167, it was held that title cannot be inquired into for any purpose in an action of forcible detainer.

It was held in Roby v. Calumet & Chicago Dock Co., 211 Ill. 173, that a judgment in forcible detainer is not an adjudication of title, since the only inquiry in such case is the right to immediate possession. The court also said:

“The only thing that could be decided in an action of forcible detainer is tbe right of immediate possession of tbe premises, and we have repeatedly held that tbe title cannot be inquired into in proceedings of forcible detainer. Riverside Co. v. Townshend, 120 Ill. 9.”

Controverted questions of title cannot be tried or determined in an action of forcible detainer. Palmer v. Frank, 169 Ill. 90; Shoudy v. School Directors, 32 Ill. 290 Doty v. Burdick, 83 Ill. 473; Thomasson v. Wilson, 146 Ill. 384.

Tbe court below bad no jurisdiction to try tbe case. Tbe judgment is reversed and cause remanded with directions to dismiss tbe case for want of jurisdiction.

Reversed and remanded with directions.


text:
    John Calahan, Defendant in Error, v. Thomas E. Conran, Plaintiff in Error.
    Gen. No. 17,254.
    1. Evidence — contractor may testify from estimate booh, though he has no independent recollection. ■ A contractor may read from his estimate hook in which he claims to have figured the whole job in controversy, though he has no independent recollection of the questions in issue apart from such book.
    2. Evidence — when estimate booh may be admitted in. Where a witness is permitted to testify from a book, aside from which he has no independent recollection, after such testimony, the book itself may be introduced in evidence.
    3. Appeals and ebboks — -when error in admitting evidence waived. Where opposing counsel expressly consents to the introduction of a book in evidence, error, if any is waived.
    4. Witnesses — exclusion of evidence. Where a witness is asked what plaintiffs said to him in a conversation relative to a plumbing contract with defendant in controversy, an objection thereto is properly sustained when it does not appear what was attempted to be proven, and no foundation for impeachment is laid.
    5. Evidence — reasonable price for completing performance. When a set-off is claimed for a refusal to complete performance under a plumbing contract, evidence as to tbe reasonable and customary price for tbe completion of sucb work is properly excluded as immaterial where tbe cost of completing sucb contract is not first shown.
    Error to tbe Municipal Court of Chicago; tbe Hon. Prank Crowe, Judge, presiding. Heard in tbe Branch Appellate Court at tbe March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Adams, Bobb & Adams, for plaintiff in error.
    Parker & Hagan, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

John Calaban brought suit in the Municipal Court of Chicagp against Thomas E. Conran to recover for materials furnished, labor performed and loss of profits on a building contract. Conran, who was about to erect an apartment building, entered into a contract with Calahan who agreed to furnish and complete all of the plumbing work in the building for the sum of $2,950. Plaintiff’s statement of claim further sets up that in addition to the contract, defendant had agreed to pay a reasonable sum of money for connecting the plumbing system of the building with the street main, the contract having been made with the understanding that the water pipes in the street were laid to the curb line, while in fact they were some distance in the street, necessitating extra expense in making the connection; also that material had been purchased and labor performed toward the installation of the plumbing system, and when the contract was partly completed, defendant refused to permit plaintiff to proceed further and prevented him from completing the work, whereby plaintiff was damaged.

Defendant’s affidavit of merits alleges that plaintiff had agreed to do all the plumbing work, including the street plumbing, for $2,950; that plaintiff began the work and, after due notice, refused to furnish fixtures as contracted for, and refused to continue the work; denies that there was any extra or additional contract; and that defendant prevented plaintiff from completing the work; and alleges that defendant was compelled to relet the contract to another contractor, and that it cost more to finish the job than the total amount claimed by the plaintiff on the contract, and also claims a set-off of $200 therefoiy

Plaintiff testified, giving as the reason for discontinuing the work, that after it had been started, defendant insisted that “guaranteed” fixtures be used while the estimate and contract were made with the understanding that “competition” fixtures were to be furnished, and as this involved greater expense, plaintiff would not proceed with the work unless an additional sum was paid him, and defendant refused to allow “competition” goods to be put in.

A trial by jury was had, and a verdict and judgment was rendered in plaintiff’s favor. On the trial the plaintiff was called and testified in his own behalf, and during his examination produced a book, and testified that he had the whole job figured in his book; that he had no .independent recollection except from that estimate book, and that he used it in his conversation with Conran, the defendant. Objection was made on behalf of the defendant to the witness’ using a book and reading from its pages. The court overruled the objection and the ruling of the court is now urged as error. It is argued that while the witness might use the book as a memorandum to refresh his recollection, it was improper for him to read from the book while testifying. In our opinion, under the facts testified to by the witness, it was proper for him to use the book while testifying, and we find no error, after such use, in permitting the book itself to be received in evidence. Brown v. Galesburg Pressed Brick Co., 132 Ill. 648.

The error, if it was error, was waived and made harmless by the express consent of the defendant that the jury might take the book itself when they retired to consider their verdict. The record shows that at the close of the trial, when the jury were about to retire, counsel for,the defendant remarked, “As to the book?” The court said, “That may go with the jury.” Counsel for defendant said, “All right.”

The defendant called as a witness one Sexsmith, who testified that he had a conversation with the plaintiff in the case in respect to the plumbing in the building in question sometime in November, and the witness was then further asked, “What did he say?” Objection was made to the question and sustained by the court. In sustaining the objection the court ruled that the defendant had a right to impeach Calahan if he wished to do so, but that he should first call Calahan’s attention to the time and place of the conversation and to what was said, and if Calahan admitted the alleged statement, then that would be the end of the matter, but that if he denied it, he could be impeached. The court also told counsel that he might call back Calahan to the witness stand and ask him the necessary questions. It does not appear from the record what the plaintiff in error proposed to prove by the witness, nor is it indicated by any question that was asked the witness, and we are unable to say from the record that the ruling of the court was incorrect.

Plaintiff in error called one Lindball as a witness, who testified that he knew the premises in question, and that he had put in the plumbing, gas fixtures and sewerage, except the tank, in the building in question. He was then asked, “Are you able to state what is the reasonable, customary price for that work which you put in that building?” The court sustained an objection by the defendant in error upon the ground that the evidence called for was naterial. It is urged that this testimony was necear<,v;y for the purpose of proving the defendant’s (plai ■ T in error), set-off to the claim of the plaintiff in the action. In the defendant’s affidavit of merits it was alleged that the defendant was obliged to go into the open market and relet the contract to other contractors, and that it cost more to finish the job than the total amount claimed by plaintiff, and the defendant claimed a set-off for money due against the plaintiff therefor. It would have been proper for the defendant to have proved upon the trial the cost of completing the contract which he claimed the defendant in error had failed to complete, and to show, if he could, that that cost exceeded the contract price; but no evidence appears in the record showing or tending to show the actual cost' of finishing the contract. No evidence was offered as to the amount which the defendant actually paid to complete the contract as he alleged, and until such amount was shown in evidence, or such evidence offered, it was immaterial to prove the reasonable and customary price for the work. If the actual cost to the plaintiff in error of completing the contract was more than the contract price, it would then become material to show whether he had paid more than the customary and reasonable charge for completing the work; but, if the actual cost was less than the contract price, such inquiry would be immaterial. The defendant’s plea of set-off was based upon the actual cost of completing the contract, according to the averments of his affidavit. If that actual cost was less than the balance due under the contract, it would still be the limit of the defendant’s right to recover under the set-off. We can see no reason in the course pursued by the plaintiff in error when he had witnesses present in court and could prove the actual cost of completing the work. Until that was done, the inquiry ruled out by the court was immaterial. Plaintiff in error did not, after the court ruled against him on the question of evidence, offer to prove the actual cost of completing the contract, although he had the witness on the stand who knew, that fact. We do not think the court erred in the ruling complained of.

The main controversy in the case was as to the terms of the verbal contract entered into for the work in question. Plaintiff below testified that the contract provided for the use of “competition” goods in performing the work. The plaintiff in error contended that the original contract required “guaranteed” goods to be used. On the merits of the controversy between the parties upon this point, we are of the opinion that the verdict of the jury is supported by the evidence.

A further question of controversy- between the parties was as to a contract for the additional work required in going beyond the curb line some distance into the street in order to connect the plumbing with the water main. Plaintiff below proved that the water pipes did not extend to the curb line, and that he was compelled to go 25 feet, more or less, into the street in order to connect the plumbing system of the building with the water main, and that he was authorized to do the work by the plaintiff in error when it became known that the water had not been brought to the curb line of the street. There is no contradiction in the record as to the value of this additional work done at the request of the plaintiff in error. Plaintiff in error denied that he made any such contract with the defendant in error. This question was likewise decided by the jury in their verdict, and we see no reason for disturbing the verdict upon the merits of the case. The judgment is affirmed.

Affirmed.


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    Arch O. Burdick, Defendant in Error, v. Nicholas P. Valerius, Plaintiff in Error.
    Gen. No. 17,270.
    1. Municipal Court — amendments. Plaintiff may be permitted to amend Ms claim before trial by increasing the amount of damages.
    2. Continuance — when not error to refuse on claim of surprise. To' predicate error on a refusal to grant a continuance on the ground of surprise, it must appear that the party offered to file an affidavit showing that he was taken by surprise.
    3. Municipal Court — when~ ownership of automobile causing damage is admitted of record. Where a sworn statement of claim alleges damages caused by the negligence of defendant, by his servant, in carelessly driving an automobile of defendant, and the affidavit of defense does not deny ownership of the automobile, the ownership of the automobile stands admitted of record under Rule 17, of the Municipal Court.
    4. Municipal Court — when prima facie case is made out that servant was acting in the course of his employment. Where a sworn statement of claim filed in the Municipal Court alleges damr ages caused by the negligence of the defendant’s servant in the course of his employment, and the affidavit of merits does not deny that the servant was so acting, a prima facie case is made out as to that issue.
    5. Evidence — insurance adjustment not admissible. In an action to recover damages sustained by an automobile through the defendant’s negligence, it is not error to exclude from evidence an agreement between plaintiff and an insurance company adjusting such damages.
    6. Evidence — when tax schedule not admissible to show value of automobile. In an action for damages sustained by an automobile through defendant’s negligence, it is not error to exclude from evidence a tax schedule containing the plaintiff’s valuation of said machine.
    Error to the Municipal Court of Chicago; the Hon. Robert Wolcott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Rehearing denied October 15, 1912.

      Julian C. Ryer, for plaintiff in error.
    W. S. Johnson and Henry M. Pierce, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Arch 0. Burdick, defendant in error, recovered a judgment in the Municipal Court of Chicago against Nicholas P. Valerius, plaintiff in error, for damages resulting to his automobile from a collision with the plaintiff in error’s automobile.

It appears that neither of the parties were in their automobiles at the time of the collision, but that their respective chauffeurs were driving the machines along Sheridan Road in the city of Chicago, at about 10:30 in the morning of the day in question. Plaintiff’s chauffeur was driving in a northerly direction along Sheridan Road. He was on the right of the road, the east side, as he thus drove north, and was going at the rate of about four miles an hour, when the automobile of defendant, driven by defendant’s servant, going in a southerly direction, crossed over from the west side of the street in a wabbling, zig-zag manner, and crashed into the plaintiff’s automobile with such force as to cause damages to repair which an expenditure of about $600 was necessary. When the plaintiff’s automobile was struck, it was almost at a stand-still, and was on its own side'of the street, and within ten feet of the east curb of the street.

The cause was tried by the court and a jury. The verdict of the jury was for $600, upon which a judgment was entered.

Before the commencement of the trial, plaintiff asked and was given leave to amend by increasing the amount of the ad damnum of his claim. Defendant made objection to the motion, but the court overruled the objection and allowed the amendment. It is urged that the court erred iu allowing ah amendment of the plaintiff’s claim to be made by increasing the amount of the ad damnum. We think the court did not err in that respect. Tomlinson v. Earnshaw, 112 Ill. 312.

It is contended on behalf of the plaintiff in error that the court erred in denying the motion of defendant for a continuance upon the ground of surprise when the motion was allowed to increase the ad dam-nun. We find no such motion for a continuance of the record. If such motion had been made and refused by the court, it would not have been error as the defendant did not ask leave, or offer to file an affidavit showing that he was taken by surprise and was unprepared to proceed with the trial because of such amendment.

Ño assignment of error is made in this court by the defendant upon the action of the court below in respect to the motion for continuance. The point is, therefore, waived. French P. & O. Co. v. Meehan, 77 Ill. App. 577; Davis v. Lang, 153 Ill. 175. Furthermore, the written motion for a new trial in the court below, specifying the' grounds upon which the motion is based, made no claim that the court below erred in permitting the plaintiff to amend and denying defendant’s motion for continuance upon the ground of surprise.

The statement of claim filed in the Municipal Court sets forth that the claim of plaintiff is for damages sustained by him on the 6th day of June, 1910, caused by the negligence of the defendant by his servant in carelessly running and driving an automobile of the defendant while acting in the line of his employment, whereby the same was caused to run against the automobile of the plaintiff. This claim was sworn to. The affidavit of defense filed by plaintiff in error does not deny the ownership of the automobile', nor that the chauffeur of the plaintiff in error was acting in the line of his employment at the time of the accident. Under Bule 17 of the Municipal Court, the ownership of the automobile stands admitted of record. The evidence tends to show that the plaintiff in error, defendant below, was tbe owner of the automobile that collided with tbe plaintiff’s automobile, but there was no direct evidence that the plaintiff in error’s chauffeur was running the automobile at the time of the accident under any orders from the defendant, or on any business of the defendant. There is no direct testimony either way in regard to this fact. Plaintiff in error’s servant, who was driving plaintiff in error’s automobile at the time of the accident, was called as a witness by the plaintiff in error, but was not asked as to whether he was performing his usual services as a chauffeur for the defendant or not at the time of the accident. It appears that plaintiff in error, Valerius, was present in court at the time of the trial, but did not go upon the witness stand. In our opinion the ownership of the automobile is admitted by the record, and it appears without controversy that the plaintiff in error’s chauffeur was in charge of the automobile at the time of the accident. It is urged, however, that the plaintiff in error is not liable for an accident which does not occur by reason of his authority over his servant, and that mere ownership of the automobile does not make him liable. With this contention we cannot agree. We think that the record and evidence makes out a prima facie case against the plaintiff in error on the question of liability, and that it devolved upon the plaintiff in error to state in his affidavit of merits and show that his chauffeur was acting outside his usual line of employment, or operating the machine without his consent. Long v. Nute, 123 Mo. App. 204; Stewart v. Baruch, 103 App. Div. (N. Y.) 577; East St. Louis C. Ry. Co. v. Altgen, 112 Ill. App. 474, affirmed in 210 Ill. 213.

In our opinion the court did not err in excluding as irrelevant and immaterial the alleged agreement made between the plaintiff below and the Lloyd’s Insurance Company of London regarding an adjustment for $300 of «a claim that plaintiff had for damages or loss to his automobile. The agreement was not made between the plaintiff and the defendant. It was apparently a compromise agreement between the plaintiff and the insurance company. We do not think the court erred in refusing to admit in evidence a personal property tax schedule purported to have been made by the defendant in error, in which he scheduled the value of his automobile at $500.

We have examined the instructions requested by the plaintiff in error and refused by the court, and also the instructions given by the court, and, in our opinion, no substantial error was committed by the court in giving and refusing instructions. We think the law of the case was fairly stated to the jury by the instructions of the court.

An examination of the evidence in the case does not convince us that the verdict of the jury and judgment were wrong upon the merits of the case. We are of the opinion that the evidence shows that the plaintiff in error’s servant, or chauffeur, negligently managed the automobile of the plaintiff in error, and that the damage to the defendant in error’s machine was caused by the negligence of the plaintiff in error by his servant. The judgment is affirmed.

Affirmed.


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    Gottlieb Saul, Defendant in Error, v. The Supreme Court of the Daughters of Columbia, Plaintiff in Error.
    Gen. No. 17,292.
    Benefit society — proof of death. Where a benefit society retains the proofs of death and pays part of a death claim, it waives all objections to the proofs not specifically pointed out.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 12, 1912.
    Robert F. Kolb, for plaintiff in error.
    Edward R. Litzinger, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Defendant in error brought suit in the Municipal Court of Chicago against plaintiff in error upon a benefit certificate issued by the latter upon the life of Ottilia Saul, wife of the defendant in error. The benefit certificate provided that plaintiff in error would pay to defendant in error $1,000 in accordance with and under the provisions of the laws governing plaintiff in error’s beneficiary fund upon satisfactory proof of death of Ottilia Saul. Mrs. Saul died January 24, 1910. Shortly after, defendant in error called upon the secretary of the society and obtained an advance of $100 on the insurance. Suit was brought for $900 and a set-off of $100 was claimed by plaintiff in error.

It was provided in the by-laws of the society that the proof of death of deceased should state the cause of death and be accompanied by proofs of death of the kind and on the form to be furnished by the defendant (plaintiff in error); it was also provided that the society should be exempt from payment of the death loss of a member by reason of or superinduced by abortion or criminal operation, whether performed by the member herself or by any other person or persons upon her, or from abortive remedies, either medicinal or instrumental, administered either by herself or by others. The principal grounds of reversal of the judgment in favor of the plaintiff are based on these provisions of the by-laws.

It is urged by plaintiff in error that the proofs of the death should have been accompanied by a copy of the coroner’s verdict, because the blanks called expressly for that, and it was never waived by the defendant. It is a sufficient answer to this contention that the affidavit of merits does not set up this defense to the action in accordance with the provisions of Rule 17 of the Municipal Court. Further, we think the plaintiff in error waived all objections to the proofs not specifically pointed out where it retained, as in this case, the proof without objection. Phenix Insurance Co. v. Belt R. Co. of C., 182 Ill. 33; Continental Life Ins. Co. v. Rogers, 119 Ill. 474.

It is urged that the evidence shows that the deceased, Mrs. G-ottlieb Saul, died from an abortion that was self-induced, and that, therefore, there was no liability under the contract of insurance. We have examined with care the evidence in the case bearing upon this question. The evidence to sustain plaintiff in error’s contention consists of the coroner’s inquest and the testimony of Dr. Joseph Springer, the coroner’s physician; on the other hand, the defendant in error offered his own testimony and the testimony of Dr. Haley, Dr. Bell and Malvina Letz. Upon a careful consideration of the testimony, we are of the opinion that the evidence supports the finding of the court. Without going into a detailed discussion of the evidence, which would serve no useful purpose in this case, our conclusion is that the plaintiff in error did not prove by a preponderance of the evidence the fact of death by abortion as set forth in its affidavit of merits. There is much inaccurate use of terms in the testimony and in the argument of counsel; but when the true purport and meaning of the defendant in error’s testimony is considered, keeping in mind his limited knowledge of the English language, together with the other testimony offered by the defendant in error, we cannot conclude that the court erred in its finding upon this question. The defense is based upon the theory of Dr. Springer, the coroner’s physician, and the finding of the coroner’s jury; this, we think, is overcome by the evidence produced on behalf of the defendant in error.

We find no rulings on the question of evidence which call for a reversal of the judgment. The judgment is, accordingly, affirmed.

Affirmed.


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    B. Tomaszewski et al., etc., Plaintiffs in Error, v. Martin C. Anderson, Defendant in Error.
    Gen. No. 17,304.

      Brokers — right to compensation. Where the evidence shows that plaintiff, while negotiating a trade between defendant, owner of a flat building, and the owner of a farm, was informed by the latter that they could not make the trade and defendant was so notified, and it further appears that the trade was subsequently effected by another agent who had previously offered the same farm though it had not been known, by defendant that the farms were the same, it cannot be said that a verdict for defendant on the questions as to whether the plaintiff was employed by defendant and was the procuring cause of the transfer is against the manifest weight of the evidence.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Aflirmed.
    Opinion filed October 1, 1912.

      I. W. Foltz, for plaintiffs in error.
    Bulkley, Gray & More, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

On April 28, 1911, a motion was made by defendant in error to strike the statement of facts from the record and to affirm the judgment. On May 16, 1911, the motion to strike was allowed and the judgment was affirmed, and on May 31, 1911, a rehearing was denied. On June 27, 1911, the order denying the petition for rehearing was vacated and likewise the order striking the statement of facts and order of affirmance, and the motion to strike the statement from the record was denied. The orders of June 27, 1911, were made for the reason that the attention of the court was called to Hill Co. v. U. S. Guaranty Co., 250 Ill. 242, in which the opinion was filed April 19, 1911, and the rehearing denied June 7, 1911. Under the authority of that case, this court was of the opinion that it had erred in sustaining the motion to strike the statement of facts from the record. By some error, the opinion filed on that motion in this ease was not withdrawn from the reporter’s hands and the opinion upon the motion to strike was erroneously published in Tomaszewski v. Anderson, 162 Ill. App. 211.

The case now comes before us upon the merits, and it appears that sometime in April, 1910, plaintiff in error advertised for sale or exchange a 200 acre farm. Defendant in error answered, offering in exchange a six-flat building located in Chicago. After some négotiations the matter was dropped. In June, 1910, plaintiffs in error wrote to defendant in error, offering him a 120 acre farm in Wisconsin. This same 120 acre farm had already been brought to the attention of the defendant in error by another real estate broker, one Buttles. Defendant in error testified that he was informed by plaintiffs in error that the farm was clear of incumbrance. By arrangement between plaintiffs in error and defendant in error, a visit was made to the farm, and later on, the owner of the farm, Peterson, looked over the defendant in error’s flat building in Chicago. After some negotiations had been had with Peterson, the latter told plaintiffs in error he could not make the trade and the defendant in error was so notified.,

Defendant in error then saw Buttles and for the first time discovered that the farm of Peterson, offered by plaintiffs in error, and the one offered by Buttles were one and the same. Negotiations through Buttles resulted in the closing of the deal between Peterson and Anderson, and Buttles received his commission. Plaintiffs in error, learning of the transfer, brought an action against defendant in error in the Municipal Court of Chicago to recover commission on the value of the flat building.

The questions of fact as to whether plaintiffs in error were employed by defendant in error, and were the procuring cause of the transfer was submitted to a jury in the trial court, and the verdict of the jury in favor of the defendant is, we think, sustained by the evidence. We think the evidence shows that the employment of plaintiffs in error, if they were employed, in the matter of the trade that was finally carried through, was terminated, and that afterwards Buttles, another real estate agent, took the matter up and succeeded in effecting a trade.

We have examined with care the errors assigned on the refusal of instructions tendered by the plaintiffs in error and are of the opinion that no reversible error was committed by the court in refusing the instructions tendered. The court instructed the jury orally and, in our opinion, fairly covered by its charge the law applicable to the facts of the case.

The judgment is affirmed.

Affirmed.


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    Joseph Denunzio Fruit Company, Defendant in Error, v. Pennsylvania Company and Pennsylvania Railroad Company, Plaintiffs in Error.
    Gen. No. 17,329.
    1. Stipulations — when to he construed broadly. A stipulation of the parties to a ease, with reference to testimony designed to shorten the trial and to save expense, should he construed broadly.
    2. Carriers — stipulation as to condition of refrigerating car. A stipulation between a railroad company and a consignee that witnesses for the company would testify that their records, kept by them in the course of their duties, were true and correct and would show facts as to the movement of a refrigerating car, its temperature and ventilation, will be construed to mean that the witnesses shall testify in a legal way from records kept in the usual course of their duties, that they have no independent recollection of the facts and that using the records to refresh their recollection they will testify as therein stated, and is admissible in an action to recover for the loss of goods damaged by an improper temperature.
    3. Municipal Courts — when certified copy of rules is not part of record. On writ of error to the Municipal Court of Chicago, a motion for leave to file, in the Appellate Court, a certified copy of the rules of the Municipal Court, will be denied, as filing a certified copy of the rules would not make them a part of the record.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed October 1, 1912.
    Loesch, Scofield & Loesch, for plaintiffs in error.
    Charles A. Butler, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

On September 19, 1908, 100 barrels of cranberries were shipped in one car, P. R. R. Co. No. 102810, from Falmouth, Mass., to the defendant in error at Louisville, Ky., via the New York, New Haven & Hartford R. R. Co. and Pennsylvania R. R. Co. The ear arrived at its destination on September 26, 1908. The time of unloading is controverted in the evidence, — the defendant in error claiming that the car was unloaded the day of its arrival, while plaintiffs in error allege that September 26th was Saturday; that the car was received early in the morning and defendant so notified, but that on Monday, September 28th, the car was still in its possession, and a written notice was sent to defendant in error. There was evidence to show that some 20 barrels of the 100 were opened,' and that some of the berries were found soft and in bad condition. When the whole shipment was gone over, defendant in error claimed that about 20 barrels were worthless.

Defendant in error paid the freight charges, but no complaint was made until November 12, 1908, when a written claim for $100 was filed with agent of plaintiff in error at Louisville.

Defendant in error introduced testimony showing that the temperature of a car in which cranberries are carried should be kept at fifty degrees, and if it should go above that, the ventilators in the car should be opened; that when the car left Falmouth, the ventilators were open, but that, upon its arrival at Louisville, the ventilators and ice plugs were found closed and nailed down. Prior to the trial, the parties entered into a written stipulation that if certain witnesses for plaintiffs in error named in the stipulation were present at the trial, they would testify as to the movements of the car, condition of ventilators and plugs, and temperature at various points during its transit. Upon the trial, defendant in error objected to all parts of the stipulation wherein the witnesses stated they would testify that on certain dates their records, kept by them in the course of their employment and duties, were true and correct and would show the time the car arrived at the'junction points, that the ventilators were open, ice pings out, as to temperature, time of leaving, and distance between junction points, and the objection was- sustained. Plaintiffs in error offered to show what the witnesses would testify to if produced in open court; objections were made and sustained to this offer.

The jury rendered a verdict in favor of defendant in error for $142.00, but the court required a remittitur of $57.50, covering the freight charges which had been included in the verdict, and entered judgment against plaintiffs in error for $84.50.

The court excluded from the evidence that part of the stipulation as to what the witness Charles Boothroyd would testify, which commences, “that he would testify that the records made by him in the course of his employment are true and will show,” etc., that part of the stipulation as to what the witness E. J. Norton would testify, commencing, “that he would testify from his records.,” etc. and from that part of the stipulation as to the witness J. B. Eaton, commencing, “that he would testify from his records that the said,” etc., and from that part of the stipulation as to the testimony of H. C. Barnes the following, “that he would testify from his records that the said,” etc., and that part of the stipulation relating to the testimony of the witness John Smith commencing, “that he would testify from his records’that said,” etc. In thus excluding the facts stated in the parts of the stipulation referred to, we think the court erred. A fair construction of the stipulation with reference to the testimony of Boothroyd is, we think, that he would testify that the records made by him in the course of his employment were true, and that referring to those records, he would testify of his own knowledge to the facts set forth in the stipulation. In regard to the portion of the stipulation relating to the testimony of the witness Norton, we think the part excluded, fairly construed, means and was intended to mean that he would testify to the facts stated, using the records as memoranda to refresh his recollection. The same observation applies to the part of the stipulation relating to the witness Eaton (Diamond Glue Co. v. Wietzychowski, 227 Ill. 338), and also to the witnesses Barnes, Smith, Addleman and Claffey. The objections made to these parts of the stipulation are highly technical, and in construing a stipulation of the parties with reference to testimony designed to shorten the trial and save expense, we think the stipulation should be broadly construed in the furtherance of justice. We cannot approve of attorneys making stipulations as to evidence for the purpose of shortening the trial and saving expenses, and then resort to technical objections of the nature here made and thus obtain an unfair advantage. If it was necessary to protect the interests of the defendant in error by having the records identified in the stipulation and attached thereto or present in court at the trial, this might have been covered .by the stipulation without difficulty.

The phraseology of the stipulation may reasonably be criticised, but we think the intention clearly manifested in the stipulation to be that the witnesses would testify in a legal way from records which had been kept by them in the usual course of th<nr duties and employment, and that they were unable to remember the facts independently of the records -.o made, and that using the records as memoran hi they would testify to the facts therein stated.

•For this ruling on evidence, the judgment of the court below is reversed and the ca.use remanded for a new trial.

A motion is made in this ease o n behalf of the defendant in error for leave tofile in the cause a certified copy of the rules of the Muficipa 1 Court of Chicago. This motion was reserved to the i íearing. It has been held by the main court in Marwick v. Edgar, 170 Ill. App. 167, that the Municipal Court Act requires this court to take judicial notice of the rules of the Municipal Court. In the case of Northern Coal & Supply Co. v. Mueller Bros. Fuel Co., 171 Ill. App. 342, it was held that while it was doubtful whether the title of the act creating the Municipal Court is broad enough, to cover a provision prescribing the practice of the Appellate and Supreme Courts in cases brought to these courts by writ or error or appeal from the Municipal Court, still, in order that there may be uniformity of practice in the different branches of this court, it will be assumed by us that the rules of the Muncipal Court are correctly set forth in the briefs and' publications to which our attention has been called. We further held that it would be the better practice that the rules of court as well as ordinances relied upon be set forth in the record, but, for the sake of uniformity and not because we approve of the practice, we would take notice of the rules. As heretofore held by us in writs of error to the Municipal Court, we are called upon to inspect the record, and we cannot look to anything but the record. Filing a certified copy of the rules in this court would hot make them a part of the record which we are inspecting. The certified copy would, therefore, serve no useful purpose, and the motion for leave to file it will be denied.

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

Reversed and remanded.


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    Truman H. Miner, Defendant in Error, v. George V. McIntyre, Plaintiff in Error.
    Gen. No. 17,348.
    1. Assumpsit, action op — when action for money had and received will not lie. When an attorney receives less than his agreed fee on compromising a suit therefor against his client, the client claiming to be liable to another attorney for the balance of the agreed fee, the money is paid and received as money of the first attorney and the other cannot recover from him as for money had and received for such other’s use.
    Error to the Municipal Court of Chicago; the Hon. Robert N. Scott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed with finding of fact.
    Opinion filed October 1, 1912.
    John A. McKeown, for plaintiff in error.
    James E. Gillis, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Defendant in error sued plaintiff in error, claiming that money was due him under a written contract which he set out in his original statement of claim. The contract was not offered in evidence. At the conclusion of the testimony, defendant in error filed an amended statement of claim, averring that plaintiff in error was indebted to him for money had and received for the use of defendant in error.

Judgment for $37.50 was entered against the plaintiff in error on a finding by the court.

Upon consideration of the evidence, we do not think that it justified a recovery on the ground of money had and received. The evidence does not make out a case against the plaintiff in error, showing that the money he collected from Eobertson in settlement of his suit against Robertson for fee, or any part of it, was due to defendant in error. The evidence does not prove that Robertson paid the money to plaintiff in error for the use of defendant in error. The evidence shows that Robertson retained the plaintiff in error to conduct a case against one Graves for personal injuries, and that Robertson agreed to pay plaintiff in error $100 fee for his services in the case. It became necessary for plaintiff in error to sue Robertson to recover for his fee. The suit was compromised without a trial and the plaintiff in error was paid $62.50 for his claim of $100; the difference of $37.50 was deducted by agreement between Robertson and the plaintiff in error upon the contention of Robertson that he expected to have to pay defendant in error $37.50. There can be no recovery on the ground of money had and received for use of another when the money was paid and received as money of the one receiving it. The judgment is reversed with a finding of fact.

Reversed with a, finding of fact.


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    Union Cold Storage and Warehouse Company, Plaintiff in Error, v. Lapidus and Holub Company, Defendant in Error.
    Gen. No. 17,374.
    1. Wabehousemen — when liable for damage from negligence. In an action for storage charges an off-set was claimed for apples frozen through negligence, the evidence was conflicting whether, after an allowance had been made for three barrels found on inspection to be damaged, the warehouseman was to be notified whether any more damaged apples were found, or whether, a sale was authorized of all damaged apples at the price they would bring, the warehouseman to stand the. loss. The apples were taken from storage for immediate sale and the three barrels inspeoted were of a wagon load of twenty eight barrels, and the inspector was there to adjust the loss. Meld, a verdict allowing the off-set would not be disturbed.
    2. Warehousemen — evidence admissible in offsetting damage against storage charges. Where there is evidence in an action for storage that the warehouseman authorized a sale of damaged apples at his loss, evidence as to the sales of the apples and sales tickets made out by the person who stored the apples is admissible in evidence.
    3. Witnesses — when sales tickets mag be used to refresh recollection. Where a person having stored apples in a warehouse is authorized to sell damaged apples at the loss of the warehouseman, sales tickets made at the time may be used to refresh the recollection of a witness as to the amounts of the sales.
    4. Warehousemen — what sufficient basis to compute damage. Where part of a lot of apples stored in a warehouse are frozen and damages for the loss are sought to be offset against storage charges, evidence of what the apples of the same lot, which were not frozen, were worth and sold for, of the amount realized from the sale of the frozen apples, and that there was no market price for frozen apples, contains all the elements necessary to the finding of the correct damages.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 1, 1912.
    Culver & King, for plaintiff in error.
    Harry J. Ganey, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Plaintiff in error, a public warehouseman, brought an action in the Municipal Court of Chicago to recover from defendant in error the sum of $379.35 due for storage charges on 200 barrels of apples. Defendant 'in error claimed a set-off of $400 against this amount, alleging that by reason of the negligent manner in which plaintiff in error had stored and handled sixty barrels of the apples, said apples were frozen and damaged to the extent mentio; ;d. Plaintiff in error offered to allow $6 or $2 per 1 rrel, for three barrels of apples which their representative had examined and found damaged, which allowance was credited in plaintiff’s statement of claim, but defendant in error claimed that 60 barrels additional were in the same damaged condition.

Upon trial, the jury rendered a verdict in favor of plaintiff in error in the sum of $259:35, evidently allowing defendant in error’s claim of set-off at the rate of $2 each on the sixty barrels, and judgment was entered accordingly. Plaintiff in error assigns as grounds for a reversal of the judgment, that the verdict was against the weight of the evidence, and that the court erred in its rulings upon the admission of evidence, and in overruling plaintiff in error’s motion for a new trial.

It was admitted on the trial by defendant in error that the plaintiff in error’s claim, amounting to $379.35 for storage was correct and was due to the plaintiff in error, so that the controversy before the trial court was as to the claim of set-off as disclosed by the affidavit of merits filed by the defendant in error, claiming damages to sixty barrels of apples on account of the negligence of plaintiff in error in storing them. Upon this claim there is a conflict in the testimony as to what arrangement was made at the time it was discovered that some of the apples were frozen and in bad condition. Douglas, manager of plaintiff in error, testified that he examined three barrels of the apples and found them to be damaged, and agreed to allow credit therefor; also that he requested that if any more were found to be damaged he should be notified so that he could inspect them, but that he heard nothing further. On the other hand, two witnesses for the defendant in error testified that Douglas, after examining the three barrels, told them to sell the apples at what price they could obtain, and that he would make it all right. The controversy between the parties is as to whether the talk with Douglas, and the direction by Douglas to sell the damaged apples covered only the three barrels inspected by him at the time of the conversation, or applied to the whole lot stored with plaintiff in error.

The controversy thus outlined was submitted to and passed upon by the jury, and we are unable to say, from a study of the evidence, that the conclusion of the jury was wrong upon the merits of the case. There is ground for the conclusion that the testimony of Douglas is not reasonable when considered in the light of all the facts in the ease. The apples had been brought from storage to defendant in error’s place of business for immediate sale. It was to the interest of all concerned that they be sold as soon as possible. There were twenty-eight barrels of apples on the wagon when Douglas came to examine them and examined the three barrels, two of which were taken off the wagon in his presence. He admitted that the three barrels examined by him were damaged and allowed then and there a credit of $2 per barrel for the three barrels. He was there for the purpose of adjusting the loss. The apples had been taken from storage for immediate sale, and the jury evidently took the view that it was not reasonable to believe that Douglas postponed the examination of the rest of the barrels to some future day, or that the defendant in error assented to any such arrangement.

If, as the jury found, the arrangement was made as testified to by the witnesses Urick and Holub on behalf of defendant in error, there was no error in admitting the testimony as to the sales of the apples by defendant in error, or in admitting in evidence the sales tickets made out by defendant in error for the sale of the apples. The amounts of the sales were testified to, using the sales tickets made out at the time to refresh the recollection of the witnesses, which, we think, was proper. It was also shown what price the apples of the same lot, which were not frozen or injured, were ■worth and sold for. There was no market price for frozen apples so far as the evidence shows, and the jury had before it all the elements necessary to find the correct damages in the case.

The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley

text:
    The People of the State of Illinois, Defendant in Error, v. Christ Peterson, Plaintiff in Error.
    Gen. No. 16,649.
    1. Husband and wife — Municipal Court. The Municipal Court of Chicago has jurisdiction of a prosecution of a husband for abandoning and neglecting to support his wife, and the offense can he prosecuted by information.
    2. Husband and wife — wife abandonment. A husband charged with abandoning and neglecting to provide for his wife, had lived with her at his mother’s. He testified that he went to another state to find work, that he did not inform his wife as she was not at home, that he intended to send for her and on returning to his mother’s, not having secured work, he found his wife had left a week after he did without leaving word where she had gone. Neither party made inquiry as to the whereabouts of the other. Meld, the evidence was not sufficient to support a conviction.
    3. Husband and wife — wife abandonment must be proved beyond a reasonable doubt. A prosecution of a husband for abandoning and neglecting to provide for His wife is a criminal action and every material allegation in an information must be proved beyond a reasonable doubt.
    Error to the Municipal Court of Chicago; the Hon. W. K. Dieterich, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 3, 1912.
    E. H. Kubitz, for plaintiff in error.
    George Frantzen, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On April 27, 1910, an information was filed in the Municipal Court of Chicago by Julia Thompson, sister of Alice Peterson, stating that on June 6, .1909, Christ Peterson, the lawful husband of Alice Peterson, “did then and there wrongfully and unlawfully, and without good cause, abandon and neglect and refuse to maintain and provide for his said wife, the said Alice Peterson, contrary to the statute,” etc. Peterson was arrested and tried, the jury finding him “guilty of wife abandonment in manner and form as charged in the information. ’ ’ The court adjudged him “guilty of the criminal offense of abandoning, without good cause, his wife, and neglecting and refusing to maintain and provide for her,” and sentenced him to pay a fine of $100 and costs of suit, and further ordered him to pay to said Alice Peterson, for her use, the sum of $6 per week for the period of one year. To reverse the judgment this writ of error is prosecuted.

It appears that plaintiff in error was married to Alice Peterson at St. Joe, Michigan, in September, 1908; that they returned to Chicago, the wife going to live with her said sister and plaintiff in error to live with his mother; that about October 11,1908, they commenced to live together as husband and wife on Milwaukee avenue; that after residing there for a short time, they went to the residence of the mother of plaintiff in error and together lived there until June 4, 1909, on which date plaintiff in error, being out of work, went to Latimer, Iowa, where he expected to find work. He' testified that it was his intention, if he there succeeded in obtaining work, to send for his wife and have her come and live with him; that he did not succeed in obtaining work and returned to Chicago, went to his mother’s house and ascertained that his wife had left said house about June 11, 1909, leaving no word where she had gone; that he did not tell his wife when he went away where he was going because she was not at home at that time; that he did not write his wife while he was gone; that he did not make any search for her after he returned, and that he had not contributed to her support since June 4, 1909. The evidence further disclosed that the wife, after leaving the home of the mother of plaintiff in error, made no inquiry there as to the whereabouts of plaintiff in error, and that during the time the parties were living together as husband and wife, trouble between them arose because of the wife leaving plaintiff in error on several occasions and remaining away for several days at a time against his protest.

It is first contended by counsel for plaintiff in error that the Municipal Court was without jurisdiction to enter the judgment, because the offense complained of could only be prosecuted by indictment. The offense charged could be prosecuted by information (Sec. 24, Chap. 68, Hurd’s Rev. Stat. Ill.; People v. Glowacki, 236 Ill. 612).

It is next contended that in order to convict a husband of wife abandonment under the statute it must be shown that the husband, without good cause, did “abandon his wife and neglect and refuse to maintain and provide for her,” under,,such circumstances as to disclose an intention on his part of not returning to the wife, and that the evidence in this case does not show such an intention. We agree with counsel, and are of the opinion that the evidence is not sufficient to support the verdict and the judgment (Virtue v. People, 122 Ill. App. 223, 225; State v. Weber, 48 Mo. App. 500).

On the trial, counsel for plaintiff in error asked the court to instruct the jury to the effect that it was incumbent upon the prosecution to prove, beyond a reasonable doubt, that the defendant did abandon his wife without good cause, which instruction the court refused to give. We think the trial court erred in refusing to give such an instruction. This is a criminal action, and every material allegation in the information must be proved beyond a reasonable doubt. A mere preponderance of the evidence is not sufficient. Stanley v. People, 104 Ill. App. 294; State v. Greenup, 30 Mo. App. 299, 303; Goddard v. State, 73 Neb. 739.

For the reasons indicated, the judgment of the Municipal Court is reversed and the cause remanded.

jReversed and remanded'.


text:
    Sarah A. Burns, Plaintiff in Error, v. Henry W. Shoemaker, T. Towar Bates and William F. Whitehouse, Co-partners as Shoemaker, Bates & Co., Defendants in Error.
    Gen. No. 16,679.
    1. Brokers — liability for proceeds of sale of stolen, stock. A stockbroker selling certificates of stock which are endorsed in blank, received by him for sale from one who has stolen them, is guilty of conversion thereof, and is liable to the true owner, although the thief may have represented himself to be the true owner, and the broker acted in good faith, and without notice of the theft, made the sale and paid the thief the net proceeds thereof.
    2. Trover and conversion — measure of damages. The proper measure of -damages in trover for the conversion of personal. property, including stock, is the current market value of the property-at the time of the conversion, with interest from that time until the trial.
    3. Trover and conversion — when evidence of market' value is admissible. In trover for the conversion of certificates of stock a stock broker knowing the market value of the stock at all times during the year inay testify as to the market value on the date when one of the certificates was transferred upon the books of the corporation.
    4. Trover and conversion — when sale of stolen stock as conversign is for the jury. Where an affidavit in attachment in a fourth class case In the Municipal Court of Chicago states that a stock broker was “indebted” to the plaintiff and further that he had “converted” certain certificates of stock, and the attachment is dissolved by a recognizance and the case tried as a suit in personam, and there is evidence that the broker without knowledge of a theft sold the stock for a thief and paid him the proceeds, there is a sufficient case in trover for conversion to warrant its being passed upon by a jury.
    5. Municipal Courts — when attachment is tort action. Where an affidavit in attachment in a fourth class case in the Municipal Court of Chicago states that the defendants are “indebted” to the plaintiff and that the defendants “converted” certificates of stock to their own use, and the court acquires jurisdiction in personam by the entry of a general appearance and the filing of a recognizance to pay any judgment, no written pleadings being required and the affidavit standing as a statement of claim, the action is what the proof makes it, and recovery may be had in trover for conversion.
    6. Municipal Court — when jurisdiction in personam acquired in attachment. Where a defendant enters a general appearance in a fourth class case in the Municipal Court of Chicago, begun by filing an affidavit in attachment, and dissolves the attachment by giving a recognizance to pay any judgment, jurisdiction of the person is acquired and the ease becomes one in personam as if originally commenced by the filing of praecipe for a summons as provided by the Municipal Court act, section 40, the attachment affidavit standing as a statement of claim.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    Albert H. and Henry Veeder and Louis C. Ehle, for plaintiff in error.
    Harlan & McCandless, John Maynard Harlan and Lewis W. McCandless, for defendants in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This writ of error was brought to reverse a judgment of the Municipal Court of Chicago, in a fourth class case, in favor of defendants in error, hereinafter referred to as defendants.

On October 2, 1909, plaintiff in error, hereinafter referred to as plaintiff, filed in said court a certain affidavit for attachment in which plaintiff stated that the defendants were “indebted to her, * * * in the sum of $840, upon seven shares of the capital stock of Swift & Company, an Illinois corporation, which were represented by its stock certificates, Nos. D. 30,156 for two shares, I). 14,213, for four shares, andD. 63,009 for one share, all in plaintiff’s name, and of which plaintiff was then and there the sole owner, and which the said Shoemaker, Bates & Co., on, to-wit, June 1,1909, took and converted to their own use, and sold and received the proceeds thereof, without the authority of the plaintiff; that said shares were then and there of the value of, to-wit, $120 per share; that defendants are all non-residents of this state,” etc. Plaintiff also filed an attachment bond with surety in the sum of $1,680, and an attachment writ issued. The Commercial National Bank was served as garnishee. On October 5, 1909, the general appearance of all of the defendants was entered, and a jury trial demanded. On the same, day defendants filed a recognizance conditioned that defendants pay plaintiff the amount of “whatever judgment which may be rendered herein against the defendants on a final trial hereof within ninety days after the rendition of such judgment,” etc., whereupon the court ordered that- the attachment be dissolved and the garnishee discharged.

On the trial of the cause before a jury, counsel for plaintiff, in his opening address, stated that in May, 1909, the stock in question had been sold by defendants without the authority or consent of plaintiff, and that this action was brought to recover from the defendants “the value of that stock which they had converted to their own use.” Prom the evidence introduced on behalf of the plaintiff it appears that in the year 1909 the three defendants were engaged in business as stockbrokers in the city of New York, under the firm name of Shoemaker, Bates & Co., acting as agents of others in the purchase and sale of stocks of corporations, and that they had an office in the city of Chicago, where business was conducted through a representative of the defendants, named Follansbee; that plaintiff, in February, 1909, was living with her sister, Mrs. Mary J. Kelly, in Chicago, and at that time, and for several years prior thereto, was the owner of the stock in question; that about March 1, 1909, plaintiff departed from Chicago, leaving the three certificates of stock in the custody of Mrs. Kelly, who kept them in an unlocked drawer of a china cabinet in the dining room of her home with other private papers ; that plaintiff returned to Chicago about September 1, 1909, and shortly thereafter saw said certificates in the office of Swift & Company in Chicago; that plaintiff had at no time sold said stock or any part thereof, or authorized anyone to sell the same for her ; that plaintiff’s genuine signature was on the back of two certificates, Nos. D. 30,156 and D. 14,213, but that the signature on the back of certificate No. D. 63,009, purporting to be her signature, was not her signature ; that sometime in the year 1906 she endorsed said two certificates, and delivered them to the husband of her niece, so that he might raise some money thereon for his use; that about-two months thereafter said husband returned said certificates to her and that it never occurred to her to erase her said endorsement on the same; that a man named Charles Keppler had a room and boarded at Mrs. Kelly’s house from November, 1908, to June, 1909; that both plaintiff and Mrs. Kelly, in January, 1910, in the Criminal Court of Cook county, heard said Keppler say that he had stolen the certificates in question; and that certificate No. D. 30,156 was transferred on the books of Swift & Company on May 23,1909, certificate No. D. 14,213 on May 27,1909, and certificate No. D. 63,009 on June 2, 1909.

Prior to the trial plaintiff filed twelve interrogatories to be aswered by the defendants, and the same were answered by the defendant, T. Towar Bates. Five of those interrogatories were as follows:

“(7) Did said defendants receive from said Keppler, in the year 1909, shares of the capital stock, of Swift & Company, an Illinois corporation, including certificates for seven shares of the capital stock of said company, in the name of Sarah A. Burns, and if so, when?
(8) Did said certificates include certificates Nos. D. 30,156, for two shares, D. 14,213, for four shares, and D. 63,009 for one share, in the name of Sarah A. Burns ?
(9) 'Did Shoemaker, Bates & Co., sell the said shares of stock, and if so, when?
(10) What was the amount of . the proceeds of the sale of said seven, shares of stock?
(11) What was done by said Shoemaker, Bates & Co., with the proceeds of said shares of stock?”

Interrogatory 7 was answered as follows:

“7 Affiant has heard, but has no personal knowledge, and, hence, neither admits nor denies that seven of the shares of stock of Swift & Company, which affiant heard Shoemaker, Bates & Co. sold as aforesaid, as agent for Charles Keppler, were issued in the name of Sarah A. Burns. ’ ’

On the trial counsel for plaintiff read each of the twelve interrogatories before the jury, and the answers to some of them without objection, but when he sought to read in evidence this answer to interrogatory 7, objection was made that it appeared that the witness had no personal knowledge of the facts therein stated, but based his asnwer solely upon what he had heard, and the objection was sustained by the court. The answers to interrogatories 8, 9 and 10 were similarly framed, viz: “Affiant has heard, but has no personal knowledge, and hence neither admits nor denies that * * * ”, and upon objection being made, were not read to the jury. The answer to interrogatory 11 was, however, admitted in evidence as follows:

“11 Shoemaker, Bates &■ Co. turned over tlfé net proceeds of the sale of said stock, $722, to said Charles Keppler.”

A witness for the plaintiff, named Babcock, engaged in business in Chicago as a stockbroker during the year 1909, testified that he knew the market value of Swift & Company stock at all times during the year 1909. He was then asked, “What was the market value of the stock of Swift & Company on May 23, 1909 ? Counsel for defendants objected to the question on" the grounds, in substance, that plaintiff’s action is in assumpsit, she having waived the tort by alleging in her affidavit for attachment that the defendants were “indebted” to her, that she cannot recover the market value of the stock in any event, that all she can possibly recover is what defendants got for the stock and “what the defendants got is in evidence.”

Counsel for plaintiff thereupon repeated his statement made in his opening address, that this suit is an action in trover for the conversion of the stock in question. The court sustained the objection on the ground that the action was in assumpsit, and that the measure of damages would be the actual amount which the defendants received for the stock, which amount the court stated, was admitted in the defendants’ answers to the interrogatories. Whereupon, counsel for plaintiff stated, “Of course, their claim on that then would make them my agent; their taking the money would make them my agent for the matter.” And the court replied, “That is the other angle of it exactly. If you make your footprints in the sands of a law suit it is pretty hard to rub them out.” Whereupon plaintiff rested her case, and on motion of defendants, the court directed the jury to bring in a verdict for the defendants, which was done, and judgment was entered thereon.

We think'it is the law that where a stockbroker sells certificates of stock which are endorsed in blank, received by him for sale from one who has stolen them, he is guilty of conversion thereof, and is liable therefor to the true owner, althoug’h the thief may have represented himself to the broker to be the true owner, and the broker acted in good faith and, without notice of the theft, made the sale and paid the thief the net proceeds thereof. Swim v. Wilson, 90 Cal. 126; Bercich v. Marye, 9. Nev. 312; Kimball v. Billings 55 Maine, 147. Counsel for defendants in their brief concede this to be the law, in cm action of trover, but claim that this was an action ex cohtractu. We also think it is the law that the proper measure of damages in an action of trover for the conversion of personal property, including stocks, is the current market value of the property at the time of the conversion, with interest from that time until the trial. Sturges v. Keith, 57 Ill. 451; Janeway v. Burton, 201 Ill. 78; Cassidy v. Elk Grove, etc., Co., 58 Ill. App. 39.

After a careful review of the record in this case we have reached the conclusion that the trial court erred in directing a verdict for the defendants at the conclusion of plaintiff’s evidence. We think a sufficient case in trover for conversion was made by plaintiff to warrant it being passed upon by the jury. And, considering this action as one in trover for the conversion of the stock in question, we also think the trial court erred in not allowing the witness, Babcock, to testify as to the market value of the stock on May 23, 1909, which was the daté, as it appeared from the evidence, .when one of the certificates of stock was actually transferred upon the books of Swift & Company.

It is contended by counsel for defendants that, as this action was begun by filing ah affidavit in attachment, and as an original attachment cannot legally be sued out in an action ex delicto, plaintiff’s action must necessarily be one ex contractu. But the record shows that defendants entered a general appearance, and, after the giving by them of a recognizance in which they agreed to pay “whatever judgment” might be rendered against them, the attachment was dissolved and the garnishee discharged. The case, then, ceased to be one in rent and became one in personam as completely as if originally commenced by the filing of a praecipe for a summons, as provided by Section 40 of the Municipal Court act, the affidavit previously filed standing as the statement of plaintiff’s claim. And by the entry of the general appearance of the defendants the court acquired jurisdiction of the persons of the defendants. After an examination of this affidavit or statement, we cannot say that it is insufficient to support an action in trover. While it states that the defendants are “indebted” to the plaintiff, it also states that the defendants “converted” the stock in question to their own use. Furthermore, actions of the fourth class in the Municipal Court are brought without forms of written pleading. And where there are no written pleadings required, “as in a suit before a justice, the action is what the proof makes it, regardless of the name which the plaintiff or the justice may give it.” Doherty v. Schipper & Block, 157 Ill. App. 413, 422. In Edgerton v. Chicago, etc. Ry. Co., 240 Ill. 311, which was an action of the fourth class begun in the Municipal Court, the statement of claim appeared to have been made in form as if it were an action on contract, but it was held that the judgment might be upheld as an action of tort. In this case our Supreme Court said (p. 313):

“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 peace. We have held that ‘it is a well settled practice that in scnh 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 has jurisdiction of the defendant and of the subject matter of the litigation.’ ”

For the reasons indicated, the judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.