author: Mr. Justice Barnes

text:
    Nellie Carlin, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,929.

      Negligence — duty towards one in place of danger. An instruction to the effect that plaintiff may recover for death of intestate caused by the defendant’s negligence, notwithstanding intestate’s own negligence exposed him to the risk of injury, if such injury was proximately caused by the defendant’s omission after such notice of the intestate’s danger as to put a prudent man upon his guard to avoid the injury, is erroneous where intestate was an adult and the declaration does not charge wilful negligence.
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 25, 1913.
    Rehearing denied April 8, 1913.
    John E. Kehoe and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    LeBosky & Plumb and Timothy D. Hurley, for ap-pellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from a judgment for $5,000 for personal injuries resulting in. the death of plaintiff’s intestate, Edmnnd Carroll, from collision with, one of defendant’s electric cars at the intersection of Indiana avenue and 29th street. The former runs north and south and the latter east and west. The car was going north on Indiana avenue on its east track, and Carroll was going west along the north line of 29th street and was nearly across said track when struck by the car.

The case was submitted to the jury on five counts, all of which charged negligence in the driving and management of the car. The specific negligence charged in the several counts is that the car was driven at a dangerous rate of speed, and without ringing any bell so as to warn pedestrians, and without stopping it before proceeding across 29th street, and without having any headlight on the front thereof to notify persons of the approach of the car. '

The evidence shows that there were persons waiting for a north-bound car at the northeast corner of the intersection of the two streets; that the motorman, intending to stop for them, shut off the electric power at a point about 100 feet south of 29th street, thus slackening the speed; that when about 50 feet south of 29th street, the power was again applied on a signal from the conductor not to stop; that at about this time Carroll moved from the sidewalk towards the track; that he started across it when the car was from ten to fifteen feet away, at which time the motorman applied the brake and endeavored to stop the car but too late to prevent the collision.

There was no evidence of the absence of a headlight or tending to show a want of duty or negligence in not stopping on the south side of 29th street. The conductor, motorman and another witness testified that the gong was being sounded as the car came to the crossing and while Carroll was moving from the sidewalk towards the track. No witnesses testified that it did not ring, but some testified that they did not remember that it did. The case, therefore, went to the jury principally on tlie question as to whether the car was driven at a dangerous speed at the point in question, as the proof was hardly sufficient to support any other charge of negligence.

From Carroll’s movements the motorman assumed that he was going to join those waiting for a northbound car, and did not become aware of a different intention until Carroll stepped upon the track, when the motorman immediately did all in his power to stop the car. For appellee it is argued that Carroll had the right to assume, and evidently assumed, that the car would stop to take on passengers and that its speed, after thus slackening, would not he accelerated. The jury were thus called upon to decide whether, on the one hand, the circumstances justified the motorman in acting upon the assumption that Carroll would join those waiting for the car and not attempt to cross the track; and, on the other, whether the circumstances justified deceased in acting upon the assumption that the car would continue to slacken its speed and stop for those waiting.

The evidence was so closely balanced that it was quite important that the jury should have been accurately instructed respecting the issues. One instruction in particular, we think, was misleading and erroneous ; it reads:

“The court instructs you further that notwithstanding the negligence of the deceased, Edmund Carroll, exposed him to the risk of injury, yet if you believe from the evidence under the instructions of the court that such injury was proximately caused by the omission of the servants of the defendant (as alleged in the plaintiff’s declaration or any count thereof) after having such notice of the plaintiff’s danger as would put a prudent man upon his guard, to use ordinary care for the purpose of avoiding such injury, then you should find the defendant guilty and assess the plaintiff’s damages.”

Appellee cites two cases in support of said instruction—Chicago W. D. Ry. Co. v. Ryan, 131 Ill. 474, and Swanson v. Chicago City Ry. Co., 242 Ill. 388, both of which cite the rule laid down in Shearman and Bed-field in their work on the law of neglig'ence (Vol. 1, sec. 99, 4th Ed.) from which the language in said instruction is evidently taken.

The correctness of the rule was not questioned in the former case, but merely its application. The opinion stated that it was a settled rule of law and was approved in the Eyan case, supra. But in the latter case it was applied to an infant of such tender years as to be incapable of exercising ordinary care, and the court, after reviewing cases involving the rule, said:

“In such cases, where the person in danger of being injured is an adult, the defendant will only be liable for wilful injury or gross negligence, on the ground that the adult will be presumed to have the capacity of making some effort to remove himself out of the way of the threatened peril. But in the case of a child of tender years, the defendant will be liable for the want of ordinary care.”

Neither the declaration nor the facts of the case at bar presented a case for the application of such rule.

Carroll was an adult and no count of the declaration charges wilful negligence. Nor does any count rest upon the theory of a failure to exercise due care to avoid injury after due notice of negligent exposure by Carroll to the risk of it. On the contrary, each charges negligence in the management of the car and alleges the exercise of due care by Carroll for his own safety. How can one under the burden and necessity of proving such averments invoke such a rule? Can a jury be properly instructed, where gross negligence is not charged, that when a street ear runs into an adult pedestrian crossing its track, each in plain view, damages cannot be recovered if he does not exercise due care for his own safety, but nevertheless he may negligently expose himself to the risk of the danger and yet recover? The inconsistency is manifest. The instruction in question is irreconcilable with other given instructions casting the burden on plaintiff to prove tlie exercise of due care on the part of deceased. He could not, under the facts of this case, both exercise due care for Ms own safety and at the same time negligently expose himself to such, danger.

The judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Merle & Heaney Manufacturing Company, Appellee, v. Paschal Hicks, Appellant.
    Gen. No. 17,944.
    1. Set-off — evidence as to an action on note. In an action on a note, defendant’s claim of set-off for commissions on the sale of goods is not proved where defendant, after knowledge of the sale in question, adjusted matters of indebtedness with plaintiff, one of which was covered by the note sued on, and at no time claimed commissions.
    2. Damages — evidence not competent. Evidence of what charge an unlicensed concern made for storing the class of property in question without a showing that the charge was reasonable, usual or customary, and evidence of what was paid as rent of the premises occupied by such property after notice to remove, is not sufficient to establish damages for failure to remove property from premises.
    3. Damages — measure of. Where plaintiff improperly fails to remove goods from defendant’s premises, the measure of damages is what it costs to store the goods.
    4. Pbactice — propositions of law tendered to court. On a trial without a jury a proposition of law is properly refused where there is no evidence on which to base it.
    5. Practice — form of proposition of law tendered to court. The form alone of propositions of law submitted to the court without a jury justifies their rejection where they asli that a proposition of law be found on condition that certain facts are found.
    Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodstow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 25, 1913.

      Musgeave, Oppenheim & Lee, for appellant.
    Helmeb, MoultoN, Whitmae & Whitmae, for ap-pellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This case was tried before the court without a jury. The only questions argued relate to the findings and rulings of the court in rejecting defendant’s two claims of set-off, one for commissions on the sale of billiard tables to one Weighman, and the other for damages from the failure of plaintiff to remove its billiard tables and equipment from defendant’s premises.

As to the first claim, it is needless to recite the evidence in detail or analyze it. It raised a sharp issue of fact, and we think the court was justified in resolving any doubt it may have had on the subject in favor of plaintiff in view of the fact that defendant heard of the sale to Weighman in September, 1908, and subsequently adjusted matters of indebtedness to plaintiff, one of which was covered by the note sued on, given April 5, 1910, and as to which he sought an extension of time for payment in June, 1910, and at no time asked for an allowance on account of said commissions or made a claim therefor. On the contrary, it appears that as late as September, 1910, he admitted that Cars-tens, plaintiff’s vice president, asked him if he had sold any goods and that he did not even then make any claim for commissions.

Defendant’s other claim arose out of a contract between the parties, dated January 29,1909, pursuant to which plaintiff furnished defendant and delivered to his billiard rooms a certain number of billiard and pool tables, together with racks, cues and balls, which remained there until replevined by plaintiff about two years later.

Said contract provided for a conditional sale of said property. If defendant elected to buy the, same, then each, month, beginning with Jnne, 1909, he was to make statements of his earnings and expenses and pay one half of the net profits or net earnings from his billiard hall on the purchase price. If after that time, for a period of nine months, the statements failed to show a profit, then the agreement provided that plaintiff “shall take the said billiard and pool tables” etc., and retain all that had been paid thereon.

It does not appear that defendant rendered any statements as required by said contract, but it seems to have been understood that his business did not pay, and in February and April, 1910, he requested the removal of said tables and equipment, and on August 12, 1910, sent a written notice to plaintiff that if it did not remove the tables, etc., within ten days, defendant would cause the same to be removed and stored at plaintiff’s expense, and that he would also expect to be reimbursed for the rent of the premises paid by defendant from the time he had first notified plaintiff to remove said articles.

Whether or not defendant was in a position to require plaintiff to remove the goods without rendering the statements required under the contract need not be considered. We think the proof offered was insufficient to sustain such set-off.

Defendant did not put the goods in storage nor prove the usual and customary price thereof. He proved what charges an unlicensed concern made for storing that class of goods, but did not show that they were either reasonable, usual or customary.

As an alternative proof of damage, defendant claiming that the failure to remove the goods had deprived bim of an opportunity to rent the premises, proved what he had paid as rent for the same after his notice to remove as aforesaid. The proper measure of damages was what it would have cost to store the goods, whether kept on defendant’s premises or elsewhere, and not what he paid as rent for the premises, nor what in the meantime they might have been rented for to others. We think defendant failed to present competent evidence of the damage, if any, he sustained from plaintiff’s failure to remove the property.

It is further urged that the court erred in refusing two propositions of law tendered by defendant. The first was based on the theory that what defendant paid as rent for the premises or could have rented them for if vacated, was a proper measure of damages. As before stated, that was not the proper test. The other proposition probably submitted the correct rule of damages, but was properly refused because there was no competent evidence upon which to base it.

The propositions were faulty in other respects. They were not in the form of a proposition of law. They asked the court to find a proposition of law upon condition that it found certain facts. If the court did not find all the facts required in said propositions, as it manifestly did not, then it was justified in refusing to hold them as law. We think their form alone justified their rejection.

The judgment will be affirmed.

Affirmed.


text:
    Merle & Heaney Manufacturing Company, Appellee, v. Paschal Hicks, Appellant.
    Gen. No. 17,945.
    1. Damages' — when evidence sustains finding of, for unauthorised use of property. Plaintiff delivered to defendant certain ivory balls with option-to buy or return them. Later defendant notified plaintiff to take them back but continued to use them on another floor of the building contrary to agreement. Held, that while the damages were not susceptible of accurate, proof the court’s findings would not be disturbed, there being sufficient evidence to support them.
    2. Actions and defenses — when bringing and dismissal of as-sumpsit not bar to replevin. The fact that plaintiff previously brought and dismissed an assumpsit action for the value of property belonging to him does not bar him from bringing a replevin action therefor where defendant was not thereby led to change his position or pursue a different course.
    Appeal from the Municipal Court of Chicago; the Hon. Chabuss N. Goobnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 25, 1913.
    Musgrave, Oppenheim & Lee, for appellant.
    Helmer, MoultoN, Whitman & Whitman, for ap-pellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This was an action of replevin with a claim for trover. The goods in question consisted of various articles making up the equipment of a billiard room. No question arises with regard to the goods taken on the writ except as to two billiard tables and eight sets of ivory balls. The other questions raised relate to goods claimed but not found, of the alleged value of $217, and also to the amount of damages to goods recovered, alleged to be $1,053.50. The case was tried before the court without a jury, which assessed plaintiff’s damages at $1,002.

The property in question was the subject of a conditional sale under a written contract, but appellant claims that three and one-third dozen cues and two mirror cue racks were never delivered to him; that of the goods replevined he was entitled to keep two billiard tables to fulfill plaintiff’s obligation to him on a prior contract, and eight sets of ivory balls by special agreement; and that the evidence of damage to the ivory balls was incompetent, and the evidence to support the court’s findings for plaintiff on all these matters insufficient.

The questions raised are mostly questions of fact. The record is somewhat voluminous and the evidence involves many matters of detail, relating to the quantities and values of the various kinds of articles belonging to such an outfit,' their condition when replevined, the extent of their damage and use and their depreciation in value from use. The court made no specific findings of fact and was not asked to, and what estimates it rejected and received in making the assessment of damages, it is impossible to determine. In that respect we are not aided by an analysis of the evidence in the arguments, and in reaching the conclusion that there was sufficient competent evidence to sustain the court’s finding, we deem it impracticable to discuss these details and thus protract the opinion to needless length.

The evidence is conflicting, but the trial court had far better facilities than we have for determining what weight should be given to the testimony heard, and we think the court had sufficient evidence to reach conclusions adverse to each of appellant’s claims.

The greater part of the damage claimed was from depreciation in the value of the ivory balls resulting from their use. By the contract under which they were delivered, defendant was entitled to return all the goods in case he did not elect to buy them. They were delivered to and were to be used on the third floor of the building in which defendant conducted his business. Defendant had another billiard hall on the second floor, the outfit for which he had previously purchased from plaintiff. About a year after the delivery of the goods in question, he notified plaintiff to take them out, but nevertheless continued to use the same there for several months thereafter, and later used them, without any right to do so, on the second floor. It was sought tcprove the damage to said balls from such unauthorized use, but not from use on the third floor which was authorized under the terms of the contract. In the nature of things, the damage from the use on the second floor alone, after previous use on the third floor, was not susceptible of accurate proof. But we think the matter was as fairly presented to the court as could he under the peculiar circumstances, and are not convinced that there was any reversible error in admitting the testimony received to show such damage.

It appears that plaintiff had previously brought and dismissed an assumpsit suit to recover the value of said goods, but defendant was not thereby led to change his position or pursue a different course with respect to the property. His rights and the relations of the parties remained unchanged, and plaintiff was not thereby barred from bringing a suit for replevin. Garrett v. John V. Farwell Co., 199 Ill. 436; Flower v. Brumbach, 131 Ill. 646; Gibbs v. Jones, 46 Ill. 319.

The judgment will be affrmed.

'Affirmed.


author: Mr. Justice BarNes

text:
    Herman Hartwig, Defendant in Error, v. Ferdinand Knapwurst and Charles F. Nelson, Plaintiffs in Error.
    Gen. No. 18,115.
    1. Appeals and erboes — where instruction is not objected to. An Instruction is not preserved for review where no objection was raised in the lower court.
    2. Negligence — duty of driver to pedestrians. The rainy condition of the weather with which pedestrians may have to contend requires greater vigilance on the part of a driver of a motor wagon when approaching a street intersection.
    3. Negligence — duty of driver to Tceep motor power under con-trot. The driver of a motor wagon is under duty to keep his motor power under such control that he will not run into one crossing the street with ordinary care.
    4. Evidence — whether speed is dangerous, question of fact. In an action for damages from being struck by a motor wagon, it is a question of fact for the jury whether the speed, though not great, was dangerous.
    Error to the Municipal Court of Chicago; the Hon. G-eobge J. Cowing, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed March 25, 1913.
    Louis Braudes, for plaintiffs in error.
    Philip H. Treaot, for defendant in error.
   Mr. Justice BarNes

delivered the opinion of tlie court.

Plaintiff, an elderly and feeble man, was run into and knocked down at night by defendants’ motor wagon while it was being driven south on Clark street, and he was crossing from the west to the east side thereof at its intersection with another street. The negligence charged was that the wagon was being-driven at a reckless and high rate of speed and without sounding a horn or giving other warning of its approach. Defendants denied the charge and claimed the accident was due to plaintiff’s negligence. Plaintiff was pulled out from under the wagon and found to have a scalp wound and several bruises, from which he was laid up so as to be unable to resume business for some weeks. The verdict and judgment were for $450.

The only matter urged for our consideration, aside from the sufficiency of the evidence is that the court improperly instructed the jury as to liability for future damages.

We think the instruction was proper, but were it not, the question is not preserved for review as no objection was raised to the instruction.

We think the evidence is sufficient to warrant the verdict. The night was dark and rainy with wind from the northeast. Plaintiff held an umbrella and was following his wife across the street. The evidence tends to show that he looked for vehicles as he entered on the street and was run down while on the car track over which Ms wife bad just passed in front of him. There was notMng to prevent the driver from seeing them, and the conditions of weather against which pedestrians had to contend were snch as to require greater vigilance on his part in approaching where pedestrians had the right and might be expected to cross. It was his duty to keep Ms motor power under such control that he would not run into’ one exercising such right with ordinary care. There was nothing to indicate that plaintiff was not going to continue along after Ms wife. Counsel for appellants concedes the wagon was going at the rate of six or eight miles an hour, and there was evidence tending to show that the driver was in a hurry and did not sound his horn. It was a question of fact for the jury, whose decision we are not disposed to disturb, whether the speed, though not great, was not dangerous under the circumstances of the time and place.

The judgment will be affirmed.

Affirmed.


author: Mr. Justice Barhes

text:
    Paul Kuhn, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 18,162.
    1. Pleading — affidavit of merits admits what it does not deny. Under the rules of Municipal Court, in an action against the city for personal injuries received from falling into a coal hole in the sidewalk on a certain avenue, in affidavit of merits which is simply a general denial of liability does not deny but admits that the avenue is a street of the city.
    2.' Cities and villages — notice of defect. In an action against the city for injuries to plaintiff from falling into a coal hole, where the evidence tends to prove that the construction was faulty and the hole had been in the same condition for such time that defendant ought to have known it, there is sufficient evidence to charge the city with notice of the defect.

      Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlib, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    William H. Sextoh and N. L. Piotrowski, for plaintiff in error; David E. Levy, of counsel.
    Harold W. Jirka and. Charles J. Could, for defendant in error.
   Mr. Justice Barhes

delivered the opinion of the court.

Plaintiff brought a suit for personal injuries alleged in his statement of claim to have been received from falling into a coal hole in the sidewalk on West North avenue in the City of Chicago. The verdict and judgment were for $450. In its brief and argument defendant presents two grounds for reversal: (1) failure to prove that said avenue was a public street, and (2) failure to prove that the city had notice of the alleged defect in time to have remedied it.

The first ground was not properly raised. The rules of the Municipal Court, received in evidence, provide that a defendant shall specify in his affidavit of defense the nature of such defense and that every allegation in the statement of claim, not denied specifically or by necessary implication in such affidavit of defense, shall be taken to be admitted. The affidavit of defense was simply a general denial of liability and did not question, but under such rules admitted, that said avenue was a street of the city.

As to the other ground, the evidence was conflicting. The hole was in a sidewalk of stone, and there was no metal rim for the cover to rest on. Two witnesses who had observed it for nine months or longer, said that the stone was chipped off about the rim of the hole, and one of them said that the cover slanted so that he had seen people trip on it. A photograph showed that the iron cover apparently did not fit closely about the hole. The fáct that two other witnesses with equal facilities for noting its conditions testified that they never noticed snch defects, would not warrant ns in holding that the verdict was against the manifest weight of the evidence. We cannot say that it was. We might add, as said in a similar case, “the evidence tended to prove that the original construction, without an iron rim, was faulty, and also that the coal-hole had been in the same condition for such time that defendant ought to have known of it.” City of Chicago v. Jarvis, 226 Ill. 614.

The judgment will he affirmed.

'Affirmed.


author: Mr. Justice BaeNes

text:
    William G. Carnegie, Defendant in Error, v. John Dawney, Plaintiff in Error.
    Gen. No. 18,176.
    1. Tbial — dismissal as to one joint defendant. Tlie rule that in a joint action ex contractu a dismissal as to one defendant effects a discontinuance of the entire action does not apply where the party against whom dismissal was had was not a party to the contract.
    2. Set-off — where claim is unliquidated. In an action for an amount due for services rendered in making plans and specifications for a building, a claim for damages on the ground that plaintiff verbally directed the contractor to change the location of the building is not proper matter of set-off, being for unliquidated damages not growing out of the subject-matter of the contract.
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    Kruse & Peden and B. C. Merrick, for plaintiff in error.
    Johnson & Molthrop, for defendant in error; J. Arthur Johnson, of counsel.
   Mr. Justice BaeNes

delivered tlie opinion of tlie conrt.

On hearing before the court without a jury judgment was rendered for plaintiff for $175 for services rendered in making plans and specifications for a building for defendant Dawney. One Hoyt was made a co-defendant, hut as the evidence established no liability against him, a nonsuit as to him was taken. It is urged that the suit having been dismissed as to him should have been dismissed as to both defendants, but the fact that Hoyt was not a party to the contract, and therefore was improperly made a party to the suit, presents one of the recognized exceptions to the rule requiring in an action ex contractu against several defendants a discontinuance of the entire action when dismissed as to one of them. Mayer v. Brensinger, 180 Ill. 110 Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61.

Dawney filed a claim of set-off for damages, claiming that plaintiff had, without authority or consent, changed the plans and caused the contractor to locate and erect the building farther back on the premises than defendant wanted or directed, and thus lessened its value.

That plaintiff was hired simply to make the plans and specifications and had nothing to do with the construction of the building is conceded. Changes of plans referred to consisted of certain pencil marks on a copy thereof made by plaintiff while being consulted by Schor, the general contractor of the building, respecting certain building lines. In this conference, which was sought by Schor because of Dawney’s absence, he claims that plaintiff directed him to make a change of location from that shown by the original plans. Plaintiff denied giving any such order or direction, but testified he told Schor that he had nothing to do with the building except to make the plans, but if in Schor’s place he would observe the building lines.

We have examined the evidence and think the court was justified in finding that plaintiff made no change in the plans and that Schor assumed the responsibility of the change of location; and if the fact were otherwise as to the latter, we do not think it was a proper matter of set-off, being unliquidated damages not growing out' of the subject-matter of the contract, which was merely for services in making plans and specifications.

The judgment will be affirmed.

Affirmed.


author: Mr. Justice Barres

text:
    Harry Greenwald, Defendant in Error, v. Sebastian Ruby and Aaron Gvirman, as S. Ruby & Co., Plaintiffs in Error.
    Gen. No. 18,234.
    1. FORMER adjudication — judgment as bar to second suit. There is a distinction between the effect of a judgment as a bar or estop-pel to a second suit for the same cause of action and its effect as an estoppel where the same question is again brought in issue in another suit between the same parties upon a 'different cause of action.
    2. Former adjudication — where causes are not the same. Where plaintiff sues in one case for breach of contract for his discharge and in another to recover the salary due'under the terms of the contract, the causes of action are not the same.
    3. Former adjudication — where parties are the same. Where some controlling fact or question has been adjudicated in a former suit and is again at issue between the same parties, its adjudication in the first is conclusive in the latter, irrespective of whether the cause of action is the same in both suits.
    4. Estopped by verdict — where facts to be proved are not the same. Where plaintiff sues in one case for breach of contract for his discharge and fails to prove that he was discharged, this does not prove in another action for salary due under the contract that he quit voluntarily, and there is no estoppel by verdict.
    5. Judgment — when causes of action are not merged. In an action on a contract of employment, a recovery for instalments due does not bar another suit for instalments that subsequently fall due.

      6. Judgment — when canses 0† action are merged. Where plaintiff sues for damages for breach of contract for wrongful discharge and recovers, the judgment is a bar to all future actions upon such contract of employment; but not when he does not recover.
    Error to the Municipal Court of Chicago; the Hon. Chakles E. Jennings, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    Dellerback, Eiese & Cody, for plaintiffs in error.
    Percival Steele, for defendant in error; Harvey L. Caverder, of counsel.
   Mr. Justice Barres

delivered the opinion of the court.

The parties herein entered into a written contract whereby plaintiff in the snit below was to work for defendants for the year 1910, as a salesman, for $2,500, and was to be paid monthly on the 15th of each and every month $208, and the balance of the $2,500 December 15th. Plaintiff brought the suit for the salary due under said contract for the month of December, 1910.

In their affidavit of defense the defendants claimed that all differences between them had been adjusted in a previous suit.

On December 6, 1910, plaintiff brought another suit in the Municipal Court against defendants on said contract for his salary due for the months of September, October and November, and for damages for wrongful discharge from their employment about December 1st. In their defense thereto defendants claimed that he was not discharged but voluntarily quit at the end of November. The evidence bearing upon that issue is not shown in this record. It shows that that was one of the issues, that the jury was instructed that plaintiff could not recover for salary for the month of December, that judgment was rendered for $595, presumably for what was due as salary for the other months, and that said judgment was satisfied.

The first suit was tried in May, 1911, and had plaintiff proved the breach of contract alleged he could have recovered as damages the salary for the full month of December, less what he could have earned in other employment subsequent to his discharge. Doherty v. Schipper & Block, 250 Ill. 128. In view of the instruction given in that suit, it is apparent that he did not maintain his contention that he had been discharged, and it does not appear that defendants sustained theirs that he voluntarily quit. He may neither have been discharged nor have quit their employment. In Wright v. Griffey, 147 Ill. 496, it was said:

“There is a well-founded distinction between the effect of a judgment as a bar or estoppel to the prosecution of a second suit for the same cause of action, and its effect as an estoppel where the same question is again brought in issue in another suit.between the same parties upon a different cause of action. Where the former adjudication is relied upon as an absolute bar to a subsequent action, it must be shown that the cause of action and thing to be recovered are the same in both proceedings.”

It is apparent that the cause of action in the two suits was not the same. The former was for a breach of contract for plaintiff’s discharge, the latter to recover the salary due under the terms of the contract. But, as stated in said opinion,

“Where, however, some controlling fact or question material to the determination of both of the causes has been adjudicated in the former suit by a court of competent jurisdiction, and the same fact or question is again at issue between the same parties, its adjudication in the first will, if properly presented, be conclusive of the same question in the later suit, irrespective of whether the cause of action is the same in both suits or not. The latter is in some of the cases designated as an estoppel by verdict.”

If it is defendants’ contention that the evidence in the former suit showed that plaintiff not only was not discharged but voluntarily quit Ms employment and was for that reason found not entitled to bis salary for December, then they failed to prove it. For aught that appears in the record, plaintiff’s failure to recover damages for breach of contract was due simply to bis failure to prove that be was discharged and not to any proof that be bad quit their employment, and it may have appeared that be was ready to carry out Ms part of the contract. We do not think therefore that the proof shows an estoppel by verdict.

If not discharged and be did not quit bis employment and stood ready to perform, be would be entitled to recover bis December salary, for, as far as the record shows, the only thing conclusively decided in the former case was that be was not wrongfully discharged and not permitted to/collect bis December salary as damages for a breach/ of contract.

But it is claimed that all causes of action on the contract merged in the first judgment. “The law is well settled, that, on a contract for the payment of money by instalments, assumpsit will usually lie to recover each instalment as it falls due, without waiting for the last to mature.” Hamlin, Hale & Co. v. Race, 78 Ill. 422. When plaintiff brought bis former action, the December instalment was not due, but the instal-ments for previous months were. A recovery for in-stalments due is not a bar to a suit for instalments that subsequently fall due. But where the plaintiff brings bis suit for damages for breach of contract for wrongful discharge and recovers, the judgment is a bar to all future actions based upon such contract of employment. Doherty v. Schipper & Block, supra.

The only question remaining to be considered is whether the verdict and judgment were against the preponderance of the evidence. Plaintiff claimed that be was notified by defendants in the beginning of December that they would send for him if they wanted Mm, and be stood ready to respond to their call. Defendants denied making any such arrangement and claimed that plaintiff left of his own accord. The determination of the real fact was submitted to the jury, and we cannot say that its verdict was against the weight of the evidence.

The judgment will be affirmed.

Affirmed.


text:
    Amy L. Paulding, Defendant in Error, v. Carolina White, Plaintiff in Error.
    Gen. No. 18,264.
    Appeals and errors — where affidavit of defense is not filed in time. Where the record does not contain defendant’s affidavit of defense tendered after the time in which to file it had gone by, this court without knowing its contents cannot say that this trial court abused its discretion.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    Cairoli Gigliotti, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Barres

delivered the opinion of the court.

On January 12, 1912, plaintiff filed her statement of claim alleging a contract of hire and that defendant owed her $42.85 thereunder. On January 17th, defendant entered her appearance and time for filing her affidavit of defense was extended five days. On January 24th, default was taken for want of an affidavit of merits and judgment entered for said amount.

In the statement of facts certified to by the court, it appears that on the day judgment was entered and before default was taken, defendant tendered an affidavit of defense, which both the clerk and the court refused to receive on the ground that the time to file the same had gone by.

The only question the record brings before us is whether there was an abuse of discretion on the part of the court in such refusal. The nature or contents of the affidavit defendant presented are not preserved in the record. Without knowing them, we cannot say that the court abused its discretion, it otherwise appearing that the action was taken in accordance with the rules.

The judgment is affirmed.

Affirmed.


text:
    Joseph Lenhardt, Defendant in Error, v. Joseph Stein, Trading as Joseph Stein & Co., Plaintiff in Error.
    Gen. No. 18,296.
    Appeals and ekbobs — when ease in municipal court is not properly preserved for review. The proceedings at the trial of a case in the municipal court are not properly preserved for review when at the end of what purports to he a transcript of the evidence are merely the words “which was all of the evidence offered or adduced on the above trial,” followed hy the written name of the trial judge.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    Byron C. Thorpe, for plaintiff in error.
    Stedman & Soelke, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

The assignments of error in this ease rest wholly upon the proceedings had at the trial. They are not certified to. At the end of what purports to he a transcript of the evidence are the words “which was all of the evidence offered or adduced on the above trial,” followed by the written name of the trial judge. This cannot he deemed a compliance with paragraph 6, section 23 of the Municipal Court Act, which designates how proceedings at the trial may be preserved for review.

Notwithstanding this irregularity which defendant in error urges upon our attention, we have reviewed the evidence and believe substantial justice was done.

The judgment is affirmed.

Affirmed.


text:
    Gallaher & Speck, Defendant in Error, v. J. B. Madsen, Trading as J. B. Madsen & Co., Plaintiff in Error.
    Gen. No. 18,335.
    1. Evidence — burden of proof when issue is whether agreement is express or implied. In an action for labor and material furnished, where plaintiff proves facts from which an implied agreement arises, it devolves upon defendant to prove his claim of an express agreement.
    2. Evidence — sufficient to raise implied agreement. In an action for labor and material furnished, evidence that plaintiff did the work as requested under no express agreement as to price is sufficient to raise an implied agreement to pay what it was reasonably worth.
    3. Municipal court — propositions of law. Rule 23 of the Municipal court as amended includes section 61 and certain other sections of the Practice Act, which make it possible to submit written propositions to be held as law in all civil proceedings in the municipal court except quasi criminal.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at tlie March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    Rehearing denied and opinion filed April 8, 1913.
    Stedman & Soelke, for plaintiff in error.
    Maddock & Jaeee, for defendant in error.
   Mr. Justice Barres

delivered the opinion of the court.

This was a claim for labor performed and material furnished at defendant’s special instance and request. The main question at issue was whether the agreement therefor was express or implied. The court, before whom the case was tried withoiit a jury, held that there was an implied agreement and rendered judgment for plaintiff in the sum of $94.89.

No propositions of law were submitted to the court, and plaintiff in error does not point out in his argument any specific rulings on evidence. Only questions of fact, therefore, remain for our consideration, and upon a review of the evidence we cannot say that the court’s finding was manifestly against its weight.

In what purports to be a statement of facts and questions of law involved, is the statement that the court held “that in the absence of an express agreement to the contrary, there was an implied promise on the part of defendant to pay what the work and material so furnished were reasonably worth, and that the burden of proof was upon the defendant to show that there was an express contract, as contended by him, to do the work in question for $40.” Technically the burden of proof in a case does not shift, but the burden is upon the defendant to make out his defense. It does not appear that the court made any such holding on a submitted proposition of law, and we do not find any such ruling in the course of receiving evidence. Speck, an officer of plaintiff, testified that he was requested to do the work; that he made an estimate thereon, but no express agreement as to price, and proved the market value of the services and material. Under that state of the record, in whatever form the question was raised, the court evidently ruled that plaintiff having proven facts from which an implied agreement arose, it devolved upon defendant to prove his claim of an express agreement. We think the court had sufficient evidence before it to reach the conclusion shown in the record.

The judgment will he affirmed.

'1Affirmed.

Upon consideration of a petition for a rehearing herein the following additional opinion was filed on April 8,1913.

Per Curiam. As ground for rehearing it is urged that the provisions of section 61 of the practice act, relating to submission of written propositions to be held as law, are not applicable to the practice in the Municipal Court, and certain decisions are cited as tending to support the contention. But it will be observed that since they were rendered, rule 23 of the Municipal Court has been amended so as to include said section 61 with certain other sections of the practice act, which it makes applicable to all civil proceedings in the Municipal Court, except quasi criminal, so far as consistent with the provisions of the act establishing that court.

The petition is denied.

Petition denied.


author: Mr. Justice F. A. Smith

text:
    Augusta E. Carlberg, Appellee, v. Spiegels House Furnishing Company, Appellant.
    Gen. No. 17,095.
    1. Damages — When not excessive. Where tlie representatives oí defendant, a furniture concern, selling goods on the instalment plan, unlawfully enter and search plaintiff’s home, a judgment for $1,000 is sustained.
    2. Agency — when principal liable for wilful acts of agent. A principal is liable for the wanton and wilful acts of its agents in the line of their employment and in the course thereof, while pursuing the business of the defendant.
    3. Damages — when punitive, may be recovered. Where the employes of defendant commit a trespass in entering plaintiff’s house and assaulting her, it is proper to instruct the jury that they may give punitive or exemplary damages.
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed March 25, 1913.
    Mayer, Meter, Austrian & Platt, for appellant.
    At.ANsoN C. Noble and Quin O’Bbien, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Appellee, hereinafter called plaintiff, recovered judgment in the Superior Court against appellant, hereinafter called defendant, for trespass in the Wilful and wanton forcible entry of the home of plaintiff and an assault upon her by the servants of the defendant. The plaintiff, an elderly woman, was living with her husband at 573 East Fiftieth Place in the City of Chicago. Neither the plaintiff nor her husband had ever had any dealings with the defendant, and never had any of its goods in their possession or in their house. The defendant, a large furniture concern, sold goods on the instalment plan, and about a year prior to the time of the occurrence complained of in the declaration, it sold a conch, a couch pad and couch cover to one Frank Trautman, who lived at 5621 Prairie avenue, Chicago. He paid some instalments on the purchase price, and then moved to some other address. His wife was plaintiff’s daughter, but the daughter did not live with the plaintiff and had not lived with her since her marriage. In the fall of 1907, there was a small balance of the purchase price of the goods above mentioned remaining unpaid.

The evidence shows that the defendant kept a crew of men, called collectors, who were under the direct supervision of the manager of its collection department. They had wagons called “return goods wagons,” and were sent out regularly by the manager of the collection department to collect instalments due to the defendant, and in default thereof, to seize and bring back the goods.

In October, 1907, the defendant, by its manager, sent its collecting crew to plaintiff’s home with directions to collect the money due on certain furniture sold to Frank Trautman, or bring back the goods. Mr. Fort was the foreman of the crew. After several unsuccessful attempts to get into plaintiff’s house, Fort went to the front door and rang the bell. This time the plaintiff opened the outer door of the vestibule, and, according to her testimony, was greeted with the statement, “We got you this time. I am here to get the couch and I am going to get it,” and said he was going to search her house. This she refused permission to do, and undertook to close the inner door of the vestibule, but Fort put his foot in the door and threw himself against the door, and jammed the plaintiff between the door and the wall, and held her there until he called his assistants who came at his bidding. He there detained her, using force, while his men went through the house and searched it from room to room. In the meantime Fort indulged in abusive language to the plaintiff. Finding nothing they drove away.

The plaintiff, on the trial, recovered a judgment against the defendant for $1000, from which this appeal is prosecuted..

It is urged as a ground for reversal that the verdict and judgment was contrary to the great weight of the evidence. In that connection it is claimed that the preponderance of the evidence shows that the entry into plaintiff’s house was peaceable, and the search was permitted and participated in hy the plaintiff. Upon a careful examination of the evidence, we think that it justifies the verdict of the jury. We are unable to perceive any ground, upon the merits of the case, for interfering with the verdict and judgment.

The defendant is liable for the wanton and wilful acts of its agents in the line of their employment and in the course thereof, while pursuing the business of the defendant. Keedy v. Howe, 72 Ill. 133; Singer Mfg. Co. v. Holdfodt, 86 Ill. 455; Ziegenhein Furniture Co. v. Smith, 116 Ill. App. 80. The evidence shows that the employes of defendant were engaged in the business of the defendant at the time of the trespass for which suit was brought, and that their acts were wanton and wilful, and performed in the line of their employment and under the instructions of the manager of the collection department of defendant. The defendant is clearly liable for the acts shown in the record. Lake Shore & M. S. R. Co. v. Brown, 123 Ill. 162; New York Life Ins. Co. v. People, 195 Ill. 430. We are unable to say that the judgment in this case is so grossly excessive as to require a reversal.

It is urged that instruction No. 2, given at the request of the plaintiff, told the jury that if they believed from the evidence that a trespass was committed as charged in the declaration, they might give punitive or exemplary damages. The objection made is that there was no such trespass shown as charged in the declaration. There is evidence upon which to base the instruction.

We do not think instruction No. 3, given at the request of tlie plaintiff, is subject to criticism or is erroneous.

It is also urged that instructions Nos. 16 and 17, requested by the defendant and refused by tbe court, should have been given. In these instructions the jury were told that the plaintiff was not entitled to recover punitive or exemplary damages. It was not error to refuse these instructions, for the record contains evidence which warrants the recovery of punitive damages.

We find no substantial error in the record, and the judgment must be affirmed.

Affirmed,.


author: Mr. Justice F. A. Smith Mr. Justice Barnes

text:
    Second National Bank of Saginaw, Michigan, Appellee, v. John Claney et al., Appellants.
    Gen. No. 17,103.
    1. Pleading — where defendant waives right to insist upon sufficiency of affidavit. Where defendant obtains leave to file an amended affidavit after a former affidavit has been stricken from the files, he waives the right to insist upon the sufficiency of the first affidavit.
    2. Negotiable instruments — defenses. An affidavit of merits to an action on promissory notes in effect that the notes were for the accommodation of the payee and without consideration, were given with the understanding that defendants were not to be called upon to pay them, and were negotiated without the consent of defendants, and that defendants expect to prove plaintiff was aware of the circumstances under which they were obtained, does not show a defense and is properly stricken from the files.
    3. Jury — assessment of damages. Where a party demands a jury under the Municipal Court Act, he is entitled to have the issues made up in the' case tried by a jury,, but unless a special demand is made at the time does not have the right to have a jury assess the damages on default.
    4. Damages — when court may assess. Where defendant demands a jury at the time he enters his appearance, but does not demand a jury for the assessment of damages upon default, it is not error for the court to assess the damages.
    Babnes, J., dissenting.
    Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 25, 1913.
    Adams, Bobb & Adams, for appellants.
    Musgrave & Lee, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Appellee brought an action in the Municipal Court against appellants on two promissory notes signed by appellants. The declaration in the usual form was filed and attached thereto were copies of the notes sued on and an affidavit of claim.

Appellants appeared, demanded a jury and filed pleas and an affidavit of merits. This first affidavit was, by order of court, on motion, stricken from the files for insufficiency. Appellants took leave to file an amended affidavit of merits, and on May 9, 1910, filed their amended affidavit of merits. This affidavit was also deemed insufficient by the court and, on motion, it was ordered that the appellants’ pleas and affidavit of merits be stricken out for want of a sufficient affidavit of merits, and appellants were ruled to file instcmter a new affidavit of merits; but they declined to file a further affidavit of merits and elected to stand by the one last filed and stricken out. Thereupon the court entered the default of appellants and assessed the damages and entered judgment against them for $5,139.99. From that judgment this appeal is prosecuted.

The sufficiency of the first affidavit of merits is not open for consideration in this court. Appellants did not stand by that affidavit, but obtained leave to file an amended affidavit of merits, thereby waiving the right to insist npon the sufficiency of the first affidavit.

The second or amended affidavit of merits does not state facts showing a defense to appellee’s cause of action. It says that in effect the notes were for the accommodation of the payee and without consideration, and were given with the understanding that defendants were not to he called upon to pay them; and were negotiated without the consent of the defendants; and that defendants expect to prove that plaintiff was aware of the circumstances under which the notes were obtained. Randolph on Commercial Paper, Pars. 472, 476; Hodges v. Nash, 141 Ill. 391; Naef v. Potter, 226 Ill. 628; McSherry v. Brooks, 46 Md. 103. The pleas and affidavit were, therefore, properly stricken from the files by the court.

Appellants contend that inasmuch as they filed their appearance within the statutory period with the clerk of the Municipal Court and at the same time demanded a trial by jury and paid the jury fees, they were entitled to have the damages, if any, assessed by a jury. We do not assent to this contention. The effect of the Municipal Court Act is that when a party demands a jury in writing in that court, he is placed in the same position as he would have been in the Circuit Court without such demand; i. e., have the issues made up in the case tried by a jury. This does not mean that he would have a right, without a special demand made at the time, to have a jury assess the damages on default.' Hurd’s R. S. Chap. 110, Sec. 59; Chicago Sectional Elec. Underground Co. v. Congdon Brake Shoe Mfg. Co., 111 Ill. 309; Palmer v. Harris, 98 Ill. 507; Kassing v. Griffith, 86 Ill. 265; St. Louis A. & T. H. R. Co. v. Miller, 43 Ill. 199. A written demand for a jury in the Municipal Court is not equivalent to a demand for a jury after default upon an assessment of damages in the Circuit Court. No demand for a jury after default on the assessment of damages is shown by the record. It is true that the hill of exceptions shows that after default the case was referred to the court to assess damages “over objection and exception by the defendants.” This, however, amounted to nothing more than a general objection to making any assessment upon the default entered. It was not an error, therefore, for the court to assess the damages.

There was no dispute as to the amount of damages to be assessed. If a jury had been called the court would have instructed them to find a verdict for the exact amount of the judgment.

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

Affirmed.

Mr. Justice Barnes

dissenting: I cannot agree with the conclusion that defendants were not entitled to a jury for the assessment of damages. We have held to the contrary. Ungar v. Feuer, 172 Ill. App. 204. Under the Municipal Court Act, if a defendant wants a jury he must demand it and pay the fees therefor at the time of entering his appearance, but there is nothing in the act to indicate that the demand is limited to a trial of the issues. It should be sufficient for all purposes. It would be quite as consistent to require a second payment of fees as a second demand.

But, if necessary, objection to the order referring the assessment of damages to the court was equivalent to a request for a jury for that purpose. It had no other significance, for counsel had saved his points on all other matters. I think defendants were deprived of a statutory right, and for that reason the case should be reversed.


text:
    Peter J. Marren, Appellee, v. Chicago & Northwestern Railway Company, Appellant.
    Gen. No. 17,998.
    1. Negligence — question of fact for the jury. Where plaintiff, a motorman, is injured, by collision with a train in attempting to run his car across the railroad tracks, the question of contributory negligence on the part of plaintiff is a question of fact for the jury to be determined from the evidence.
    2. Railkoads — motorman has right to assume railroad, will obey the law. A motorman in attempting to run a street car across railroad tracks has a right to assume that the railroad will obey the city ordinances as to the speed of its trains over the crossing and will give proper warning of their approach.
    Appeal from the Circuit Court of Cook county; the Hon. Edwabd M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 25, 1913.
    CalhouN, Lyeord & Sheean, for appellant; Edward M. Hyzer, of counsel.
    Thomas E. Rooney and Ferdinand Gross, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Appellee, Marren, brought suit against appellant to recover damages for injuries sustained November 30, 1909, in a collision between a street car of the Consolidated Traction Company, which was being operated by Marren, as a motorman, and a work train of appellant. Appellee recovered a judgment for $3,000, and from that judgment appellant prosecutes this appeal. By peremptory instructions, the third, fifth, seventh and eighth counts of the declaration were withdrawn from the consideration of the jury at the trial.

The collision in question occurred on Lawrence avenue, an east and west street in Chicago, at the point of the intersection of that street with the railroad tracks of appellant. At Lawrence avenue the tracks of appellant curve to the northeast for a distance of about 250 feet from the crossing, and then at that point they curve sharply in the same direction, so that from a distance of about 250 feet from Lawrence avenue the view of an approaching train from the north was entirely obstructed to persons intending to cross the tracks in Lawrence avenue.

Appellee, Marren, was the motorman of a car which approached the railroad tracks in question about seven o ’clock in the morning from the west. When the street car reached the railroad crossing, a freight train was passing to the north on the westerly railroad track, and the car, on which appellee was motorman, stopped about 15 feet west of the most westerly railroad track. After the north-bound freight train had passed Lawrence avenue, the evidence for appellee tends to show, that the flagman of appellant, who was stationed at the intersection, waved his flag as a signal that the track was clear and that Marren’s car might proceed to cross the tracks. Following the flagman’s signal, the conductor of Marren’s car, who was in the street and in advance of the car, called out to Marren to come ahead, and gave him a signal to start his car. Marren started his car, and as it was moving the conductor stepped upon the car. Appellee’s evidence tends to show that before starting his car Marren looked both to the north and the south, but his view to the north was obstructed by the rear end of the passing freight train, and his view, in any event, if the freight train had not been there, would have been obstructed from a point 250 feet north of the crossing. When Marren’s car had about reached the west rail of the most easterly railroad track, a work train of appellant, not running on any schedule time, and going at a rate of speed concededly in violation of the city ordinance, and without giving any warning, suddenly appeared in sight, and, although Marren turned off his power and reversed the mechanism of his ear, he was unable to stop the car and move it out of the way of the train, and it was struck by the train.

Appellant, in its brief and argument, does not discuss the question of its own negligence or due care in running the train over the crossing, under the circumstances, at the speed shown by the evidence. Its contention here is, first that there was no evidence introduced on the trial tending to show that appellee was in the exercise of due care for his own safety, and second, if there was evidence tending to show that ap-pellee was in the exercise of due care for his own safety, the great preponderance of the evidence is against appellee upon that question.

In support of the contention that there was no evidence tending to show due care on the part of appellee, it is argued that, under the facts shown in the record, as a matter of law, appellee was not in the exercise of due care as a motorman when he attempted to run his car over the railroad tracks. In support of this contention, Chicago & N. W. R. Co. v. Hansen, 166 Ill. 623; and Chicago, B. &. Q. R. Co. v. Sack, 136 Ill. App. 425, are cited. Upon the facts shown in evidence in this case; the question of contributory negligence on the part of appellee, Marren, was a question of fact for the jury. Our conclusion is, on a careful re vie v? of the evidence, that the preponderance of the evidence on the question of due care for his own safety on the part of appellee was with appellee. He had a right to assume that appellant would obey the ordinances of the city in running its train over the crossing in question. He also had a right to assume that appellant would give proper warning of the approach of its train at the crossing in compliance with the commands of the statute. Rosenthal v. Chicago & A. R. Co., 255 Ill. 552.

The judgment is affirmed.

'Affirmed.


author: Mr. Justice P. A. Smith

text:
    James F. Pride, Plaintiff in Error, v. Switchmen’s Union of North America, Defendant in Error.
    Gen. No. 18,059.
    1. Fraternai benefit societies — where application becomes a part of certificate. Where an application for insurance is referred to in the policy or certificate and made a part thereof, it must he read into the contract of insurance, and the conditions of the application are binding upon the beneficiary.
    2. Fraternal benefit societies — where member is bound by after-enacted by-laws. A member of a fraternal beneficiary society is bound by by-laws afterwards enacted where his application for insurance which is made a part of the contract so provides.
    3. Fraternai benefit societies' — change in by-laws. Where defendant beneficiary society changes its by-laws providing payment for total disability in case of “any physical disability that may permanently disqualify a member from performing the duties of a switchman,” so that indemnity is provided only in case of loss of a greater part of the hand or foot, total blindness or total deafness, and eliminates all other causes of total disability, such a change is not unreasonable with reference to plaintiff who became a member before the change and sues to recover indemnity under the former provision for injuries sustained after the change.
    Error to the Municipal Court of Chicago; the Hon. Wieliam N. Cemmdx, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    P. S. Webster, for plaintiff in error.
    Edmund S. Cummings, for defendant in error.
   Mr. Justice P. A. Smith

delivered the opinion of the court.

Defendant in error, hereinafter called defendant, is. an organization of switchmen, having for its object, among other things, the protection and relief of its members in case of disability as defined by the laws and rules of the order, or their beneficiaries in case of death. The defendant issued to James F. Pride, appellant, hereinafter called plaintiff, a certificate in •which it promised to pay $1,200 in case of total disability as defined by the laws, rules and regulations of the society, or a like amount to his wife in case of his death. The certificate was issued upon Pride’s application which provided “that all statements and answers contained in this appliction for membership, and all statements and answers made to the medical examiner shall, together with the laws governing the Switchmen’s Union of North America now in force or which may be legally adopted hereafter, be the basis and form a part of the contract between myself and the Switchmen’s Union.”

In September, 1906, the plaintiff, while in good standing in the organization, and while performing his duties as a switchman, received a serious injury to his right knee in getting on a car. This injury grew gradually worse; the knee was operated on; tuberculosis developed; the injury increased, and thereby he finally, on or about February 20, 1909, became permanently disabled from performing his duties as a switchman.

When the' plaintiff joined the order, sec. 16, art. 8 of the constitution of 1901 was in force. It provided payment for total disability for, 1st, loss of greater part of hand; 2nd, loss of foot; 3rd, total blindness; 4th, total deafness; and 5th, “any physical disability that may permanently disqualify a member from performing the duties of a switchman.”

After plaintiff joined the order and accepted the certificate, but before the injury and consequent disability occurred, the defendant, by an amended by-law, eliminated the clause last quoted from its constitution and by-laws and adopted in place thereof the following:

“Sec. 105. A member becoming totally blind, totally deaf, or suffering by means of a physical separation, the loss of four fingers of one hand, at or above the third joint, or of three fingers and thumb of one hand at or above the third joint, or the loss of one foot, at or above the instep (provided the above amputation occurs after he became a member of the beneficiary department), shall be considered totally and permanently disabled, and shall receive the fnll amount of bis beneficiary certificate, less the amount for obtaining proofs of disability, if any, and no other disability claims shall be allowed.”

Plaintiff brought an action in the Municipal Court of the city of Chicago against defendant upon the certificate, and the statement of claim relied upon the force and effect of sec. 16, art. 8 of defendant’s constitution and by-laws in force at the time when the certificate was issued. The defendant, by its affidavit of defense, set up the application signed by Pride at the time he sought membership, containing the provision above quoted, and that prior to the time plaintiff’s alleged injury occurred, the defendant had duly amended its by-laws by adopting the above quoted section 105, and that thereupon section 16 of article 8 ceased to be in force, and section 105 was in force at,., the time the plaintiff received his alleged injury. The cause was tried before the court without a jury, resulting in a finding and judgment for the defendant. There was little or no dispute as to the facts. Plaintiff made no contention that his physical disabilities brought him within the provisions of the laws of the society in force at the time he received his physical disabilities. His contention before the lower court and here is that the laws in force at the time he joined the order and when the benefit certificate sued on was issued to him, were binding upon the defendant society at the time his injuries were received.

The question then is, which by-law governs Pride, the plaintiff — the one in force when he took his insurance, or the subsequently enacted law?

It is argued that the subsequently enacted by-law, by taking the place of sec. 16, art. 8 of the constitution of 1901, in force when the plaintiff joined the defendant order, eliminated the principal and most valuable provision of said sec. 16, for it purported to take from him the most valuable part of his contract; that engaged, as lie was, in the hazardous occupation of switchman, and induced by the promise of “Benevolence, Hope and Protection,” he took his certificate and paid all his dues and assessments, only to learn when misfortune, accident and adversity had overtaken him, that he had been arbitrarily deprived of the indemnity which he had purchased. It is further urged that the change in the indemnity contract was unreasonable, in that it provided indemnity only in case of loss of a greater part of the hand or foot, total blindness or total deafness, and eliminated all other causes of total disability, and thus materially lessened the value of the certificate by eliminating an essential element of the contract.

It is well settled in this state by numerous decisions that if the application for insurance is referred to in the policy or certificate and made a part thereof, it must be read into the contract of insurance and the conditions of the application are binding upon the beneficiaries named in the policy; and that a member of a fraternal beneficiary society is bound by after-enacted by-laws, where the contract between himself and the society provides that he shall be so bound. Theorell v. Supreme Court of Honor, 115 Ill. App. 313; Supreme Lodge Knights of Pythias v. Kutscher, 179 Ill. 340; Fullenwider v. Royal League, 180 Ill. 621; Baldwin v. Begley, 185 Ill. 180; Scow v. Royal League, 223 Ill. 32; Royal Arcanum v. McKnight, 238 Ill. 349. The question then remains as to the reasonableness of the amendment. In our opinion, the subsequently enacted by-law cannot be held to be unreasonable under the above cited authorities. The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Michael Galdini, Defendant in Error, v. Antonio Pezzuto and Michelina Pezzuto, Plaintiffs in Error.
    Gen. No. 18,294.

      Damages — remittitur. Where plaintiff sues for balance due on a building contract and for extra work, and defendants file a claim of set-off, a judgment cannot be sustained when the verdict is against the weight of the evidence, though the trial court required a remit-titur hut it does not appear from which of the claims the court made a deduction in ordering a remittitur.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court
    at the March term, 1912.
    Reversed and remanded.
    Opinion filed March 25, 1913.
    George E. Dawson,, for plaintiffs in error.
    S. M. Schall, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The claim sued for in this case was for a balance of $400 alleged to be due on a building contract from defendants, plaintiffs in error here, to plaintiff below, and for extras amounting to $600, making the total . claim sued for $1,000.

The defendants in their affidavit of merits say, that they had paid to the plaintiff and to his sub-contractors for work and materials and for work left undone by the plaintiff more than the contract price; that plaintiff failed to carry out and perform his contract in many particulars which are specified, and that plaintiff did not furnish the labor or materials as specified in his claim for extras; and that the plaintiff is indebted to the defendants by reason of the failure of the plaintiff to perform his contract in the sum of $587.10, for which a bill of items was filed with a claim of set-off.

The jury returned a verdict for $875 in favor of the plaintiff. The court required the plaintiff to remit $275, and entered judgment for $600.

The verdict and judgment are against the clear weight of the evidence, and must he set aside and a new trial .awarded. The trial judge was of the opinion that the verdict was excessive and therefore required the remittitur. There were three general questions before the court and jury: (1) Was any balance due to the plaintiff on his contract? (2) Was he entitled to anything for extra work? and (3) Had the defendants a claim for set-off, and if so for how much? In requiring the remittitnr, which of these general questions of fact did the trial judge decide ? Did he decide the jury were mistaken as to one of these questions, and make the deduction from the verdict as to that claim, or did he make a deduction from each of plaintiff’s claims? We agree with the trial judge that the verdict of the jury was contrary to the evidence. We cannot, moreover, find support in the evidence for the recovery of $600. The motion for a new trial should have been sustained.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Duncan

text:
    Katherene M. Elliott, Appellant, v. Northern Trust Company et al., Appellees.
    Gen. No. 17,047.
    1. Wills — contract to malee a will. A contract to make a will in a particular way, based upon sufficient consideration and clearly established, fastens a trust upon the property of the promisor which is enforceable against his heirs and personal representatives.
    2. Pleading — when MU is not subject to general demurrer. A bill to recover on a contract to make a will, which otherwise discloses a good cause of action, is not subject to general demurrer because the contract is averred to be parol, while from the hill the actual contract appears to he in writing.
    3. Contracts — expression of consideration. The consideration for a contract need not he repeated in every sentence but may he expressed in the last sentence and have reference to all that precedes.
    4. Pleadings — demurrer admits material facts. A demurrer admits all the material facts averred in the hill and they must he tafeen as true.
    5. Contracts — when sufficiently certain. A contract is sufficiently certain and definite as to the subject-matter which provides, “in case I return from Alaska whatever riches I possess she shall have 50 per cent of same.”
    6. Contracts — validity. The fairness of a contract and the adequacy of consideration are judged as of the date of the contract and from the facts and circumstances surrounding its making.
    7. Contracts — when considered fair. A contract under which deceased, in consideration of five hundred dollars from complainant, his wife, promised to go to Alaska for an indefinite time and prospect for gold, and to give her half of whatever he might possess when he returned and will her all the .property of which he might die possessed, will he held fair and the consideration adequate and sufficient on general demurrer to a hill to enforce it.
    8. Equity — when divorce does not affect right to maintain action on contract. Divorce proceedings do not affect the right of complainant, the wife, to maintain her hill to enforce a contract made with her husband during their marriage and based upon a money consideration.
    9. Equity — general demurrer. Where complainant, the wife, files a hill to enforce a contract made with deceased during their marriage, it is error to sustain a general demurrer where the hill states equitable grounds for relief.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed March 26, 1913.
    George I. Haight, for appellant.
    Bastrup & O’Neill, for appellees.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

This appeal is prosecuted by Katherene M. Elliott to reverse a decree of the Circuit Court sustaining the general demurrers of all the appellees to her hill in chancery and dismissing the same for want of equity, she having elected to stand by her bill.

The bill sets forth, in substance, that appellant in August, 1894, was duly married to one Henry Curtis Elliott and that during her married life with him she largely supported herself by her occupation of china and other painting, and by giving lessons in painting, and saved by reason of her said work the sum of $500 in money; that about October, 1897, appellant and her said husband resided in Chicago, Illinois, and that he was desirous of going to the territory of Alaska to prospect for gold and other valuable minerals and did not have the means wherewith to outfit and pay the expenses to be incurred in such enterprise; that therefore appellant and said Henry Curtis Elliott entered into an oral contract, whereby the said Henry Curtis Elliott agreed with appellant that in consideration of $500 then advanced to him by her he would execute a will thereby giving to her all that he should in the future possess, and that he would proceed to Alaska and prospect for and take up mining claims and real property for the joint use of himself and appellant; that pursuant to such agreement on January 31, 1898, the said Henry Curtis Elliott signed and delivered the following instrument in writing duly witnessed as his will by two witnesses, to-wit:

. “KNOW all men by these presents, that I, Henry Curtis Elliott, hereby bequeath to my wife, Katherene May Elliott, all my earthly possessions that I now possess or shall possess, and that this, my last will and testament, shall take effect immediately after my death.

“Also, that she shall act as sole executrix without bond. Also, that she shall have the entire amount of insurance. Also, that in case I return from Alaska whatever riches I possess she shall have 50 per cent, of same to do with in her own right as she shall see fit in consideration of five hundred dollars ($500) given me in cash to make trip to Alaska.”

The hill further charges that in February, 1898, the said Henry Curtis Elliott went to Alaska, and there discovered and located many mineral claims and became owner of many-mining claims and water rights, and by such discoveries and ownership of property became very wealthy, no part of which wealth he ever gave to appellant; that about December 24, 1902, the said Henry Curtis Elliott began a suit for divorce against appellant in the Superior Court of Cook county, charging her with desertion for the space of more than two years; that appellant appeared in said cause, answered his bill and filed a cross-bill charging him with wilful desertion for more than two years, and that on January 22, 1903, the court decreed her a divorce upon her cross-bill after a hearing and the dismissal of his said bill of complaint with costs; that in her cross-bill she prayed for alimony and that he represented in that suit that he was without funds or means and unable to contribute any sum however small to her support, and believing such representations and relying thereon and not being advised as to the means then possessed by him, she, therefore, did not insist upon an order for alimony in said divorce suit, and that he then knew that he had properties of great value; that after the said decree of divorce he married one Grace Yan Wormer Elliott and lived with her until about December 30,1909, the said Grace Yan Wor-mer Elliott at the time of her said marriage knowing all the facts heretofore set forth; that on said last date the said Henry Curtis Elliott died in Alaska, leaving him surviving Grace Yan Wormer Elliott, his widow, and Henry Curtis Elliott, Jr., a minor son of himself and his said widow as his only child; that on January 11, 1910, there was filed in the office of the Probate Court of Cook county, Illinois, a certain instrument in writing, purporting to be the last will and testament of said deceased, dated September 15, 1908, which was admitted to probate by said Probate Court February 9, 1910; that said last will purports to revoke all former wills, bequeaths all Ms property, save personal effects, to the Northern Trust Company, in trust for his said widow and child, and in case there be no child or cMldren of his said son living at the time of the death of the last survivor of the two, his said son and widow, then 20% of the principal of said trust estate shall be paid in equal portions to A. J. Elliott and Ella Louise Elliott, brother and sister of the deceased, and the remainder of said fund, 80% thereof, shall by the terms of the will be used for the erection and endowment of a home for friendless cMldren in or near Chicago, to be called The Henry Curtis Elliott Home for Friendless Children, for all of which uses and purposes said trustee, by the terms of the will, is to handle and manage said funds as provided by said will; that by the terms of said last will said widow is to receive all the personal effects of said deceased, Ms clothing, jewelry, books, furmture, cooMng utensils, house fur-Mshings, etc.

It is also provided by the said will that if issue fails the son, the fund shall be allowed to accumulate until it amounts to $2,000,000. It is further averred upon information and belief that the deceased died possessed of mining stock of the value of $300,000, and the said second will is set out in the bill in extenso. The said trustee and all of said devisees are made parties defendant to the bill, with the prayer for a discovery and accounting as to all property of which the said Elliott died possessed; that the court by its decree declare said second will void and the first will valid and bindmg, and that all property of which deceased died possessed be vested in appellant and that appellees convey same to her, and prays for other and further relief.

It is the well established law of tMs state that a contract to make a will in a particular way, based upon a sufficient consideration and clearly established, is enforceable in eqmty against the heirs, devisees and personal representatives of the party to such a contract agreeing to make tbe will. Such contracts, unless void under tbe statute of frauds, or for other reasons, are construed “to bind tbe property of tbe testator or intestate so far as to fasten a trust upon it in favor of tbe promisee, and to enforce sucb trust against tbe beirs and personal representatives of tbe deceased.” Dicken v. McKinley, 163 Ill. 318; Wliiton v. Whiton, 179 Ill. 32; Hudnall v. Ham, 183 Ill. 486; Oswald v. Nehls, 233 Ill. 438; Jones v. Abbott, 228 Ill. 34; Kluseman v. Wessling, 238 Ill. 568.

It is not contended by appellees that tbe oral contract sought to be enforced in tbe case in band is void by reason of tbe statute of frauds, and as the bill does not disclose that any portion of tbe property sought by tbe complainant is real estate, no question on tbe statute of frauds can arise in this consideration. It is insisted, however, that tbe contract is in writing, as disclosed by tbe will of January 31, 1898, delivered to appellant by Henry Curtis Elliott, and that that writing is the sole evidence of what tbe contract was, and that tbe terms of tbe contract therein expressed cannot be varied by parol evidence. If this contention be conceded as well taken, we are unable to see how it can materially affect the question of whether or not the general demurrer of appellees to appellant’s bill should have been sustained by the court. Appellant states in her argument that in this suit she is seeking to recover on the contract to make a will alone. If the bill otherwise discloses a good cause of action by appellant against appellees on such a contract, tbe fact that it is averred to be a parol contract, and that the actual contract appears from the bill to be in writing in the will, will not make the bill the subject of a successful attack by a general demurrer, with the general prayer for relief in the bill. The portion of the parol contract upon which appellant bases her right to recover, the contract to make the first will, is also disclosed in the will itself. Every sentence in that will, following the first sentence thereof, begins with the word “also,” and the consideration therein named is expressed as a consideration for the doing by the testator of all the things recited as being done and promised hy the testator as set forth in all the clauses and sentences preceding the phrase, “in consideration of Five Hundred Dollars ($500.00) given me in cash to make trip to Alaska.” In other words, we think the meaning and construction of that will should he the same as if the said phrase naming the consideration had been written immediately following the words, “Know All Men By These Presents,” and preceding the next words following in the first sentence of the will. The instrument as written is not only the will hut also the contract of Elliott. It is usual to name the money consideration in the first part of a contract, and all things recited there following to he done hy the party to receive the consideration, whether in the same or other sentences there following, are referable to the same consideration, when the question is raised as to what the consideration really is for the doing of anything promised by the contract. The consideration need not he repeated in every sentence of a contract, and we see no reason why it may not he expressed in the last sentence, and have reference to all things .expressed in the preceding sentences.

It is' also declared in the cases above cited that before a contract to make a will may he enforced in a court of equity it must he certain and definite in all its parts; it must he mutual and founded upon a sufficient and fair consideration, and it must not be unconscionable, inequitable or unjust. It must also he established hy clear and convincing evidence. By the demurrer all of the material facts averred in the hill are admitted and must he accepted as true. The contract is certain and definite as to the promisor and the promisee, and it is mutual, and there is no controversy upon these propositions. It is also sufficiently certain and definite as to the subject-matter. It has been held that “one-fifth part of the estate,” “one-half of my estate,” and “all of my property left at the time of my decease” are definite and certain descriptions of property. Jones v. Jones, 124 Ill. 254; Roehl v. Haumesser, 114 Ind. 311; Howte v. Watson, 179 Mass. 30.

It is insisted by appellees with much vigor that the agreement in this case was unfair to the promisor and that the consideration was inadequate, and that, therefore, it would be unconscionable to enforce it against appellees. It will be found upon an examination of the authorities that the fairness of the cpntract and the adequacy of the consideration for it are to be judged as of the time of entering into the contract. This being true, it may be said also that these questions should be considered and decided solely with reference to the parties to the contract, and particularly where the decision is on a demurrer to the bill. We would be unwilling to say that when all the facts are heard in such a case on a trial, and the court has seen and heard the parties, that the court should not to any extent be controlled in its decree by consequences that might result to the parties thereto from the decree itself. In reaching our decision, however, upon a general demurrer to the bill without any knowledge whatever of the parties or of the case, except what we have gotten from the bill and the briefs and arguments in the case, we are not at all disposed to look beyond the parties to the instant contract to arrive at our conclusion, knowing that the trial court will finally have the settling of the case after “weighing the evidence in the most scrupulous manner,” as is required in this character of cases. Viewing the case as stated in appellant’s bill, we feel that we must say that the contract in question was fair and the consideration adequate and sufficient. Henry Curtis Elliott by the admitted facts was a man with little or no means, but possessed with a spirit of energy and enterprise, and who had determined to go to Alaska in search of riches, if he could raise the money. His wife by her energy and thrift had supported herself and saved up the $500 mentioned in the contract. It was all the money she had, we may assume, and she gave it up to him at his request, and agreed that he might go to Alaska and remain an indefinite time to prospect for gold or other minerals, and leave her during his absence to still provide her own support and live without his society and aid and comfort during the time of his absence, in consideration of his agreement that he would give her half of whatever he might possess when he returned and would will her all the property of which he might die possessed. The relation of the parties to each other must be considered, as well as their conditions in life, and the expectations they might reasonably entertain as to the probable results of his enterprise, in judging of the fairness of the contract, as well as the sufficiency of the consideration. How many considerate and prudent financiers have we in the country who would run after the chance of putting all of their saved-up earnings into such an enterprise, or to divide up their earnings and invest them in parts in a hundred such enterprises on the same terms as appellant made the investment in question? The nature or substance of Elliott’s covenant or agreement with her was that of a covenant on his part to give her one-half he made when he returned and to retain for his life his half of what he made, with remainder to her in event that he owned any of it at his death, but with full power on his part to make any bona fide disposition of it during his life to another otherwise than by will. Barrett v. Geisinger, 179 Ill. 240. Many husbands would have felt duty bound in his then situation, without children, to will all the property of which they died possessed to their wives without any money consideration whatever.

The contract in question, as it seems to us, cannot be considered as unfair, and the consideration therefor insufficient, if it is judged as of the time it was entered into, and from the facts and circumstances surrounding the making of it. It is only when the results of the contract are finally disclosed that any plausible arguments can be made for the assertion that its enforcement would be inequitable and unconscionable. The main portion of the argument of appellees’ attorney is based upon the facts that appellant, if she finally succeeds, will receive or may receive something like $2,000,000 for her investment of $500, and that the widow will lose all of her rights as a widow, and the minor child all of his inheritance, and that both will be driven from the courts of justice penniless. We are not now passing upon what may be the final rights of the widow and minor child on the final hearing, nor of appellant, but simply upon the one question of whether or not the general demurrers ought to be sustained to appellant’s bill. In view of the fact that it is averred in the bill that the widow knew all about the contract in question at and before the time she married Elliott, we do not see that she is in a much more favorable position to contend against appellant’s claim than Elliott himself would be if he were resisting the bill in person.

In the case of Rutland Marble Co. v. Ripley, 10 Wall. (U. S.) 339, it was urged as a reason why specific performance of a contract should not be granted, that the contract by reason of time and changed conditions had become very unfair, unreasonable and unconscionable, and the court, in answer thereto, said:

“Besides it is by no means clear that a court of equity will refuse to decree the specific performance of a contract, fair when it was made, but which has become a hard one by the force of subsequent circumstances or changing events. Mr. Fry, in his work on Specific Performance, asserts that ‘the question of the hardship of a contract is generally to be judged of at the time at which it is entered into; that if it then be fair and just, it will be immaterial that it may, by the force of subsequent circumstances or change of events, have become less beneficial to one party, except when these subsequent events have been in some way due to the party who seeks the performance of the contract.’ Judge Story, indeed, states the rule somewhat differently, and there are some cases that support his statement; but the rule as stated by Mr. Fry must be applicable to contracts that do not look to completed performance within a defined or reasonable time, but contemplate a continuous performance, extending through an indefinite number of years, or perpetually.”

In Warner v. Marshall, 166 Ind. 88, where it was urged that the consideration or service rendered was inadequate, for the amount the promisor agreed to will, the court said:

“Mere inadequacy of consideration is not, in and of itself, a sufficient reason for refusing specific performance. But we may remark in passing, that the extent of the consideration, there having been performance, should be measured by the breadth of appellant’s undertaking, rather than the fact that the actual service was only about three and one-half years. • There are no circumstances of overreaching or even of hardship in the case. It was decedent’s own proposal. She could not take her property with her, and she procured by her agreement a loving service that she stood greatly in need of.”

The following eases on the same line will be found to fully sustain the doctrine that the fairness of the contract and the adequacy of the consideration are judged as of the date of the contract, and from the facts and circumstances surrounding the making of it, to-wit: Robinson v. Foust, 31 Ind. App. 384, 99 Am. St. Rep. 269; Howe v. Watson, 179 Mass. 30; Healy v. Healy, 55 App. Div. (N. Y.) 315; Crofut v. Layton, 68 Conn. 91; Jordan v. Abney, 97 Tex. 296; Casserleigh v. Wood, 56 C. C. A. 212, 119 Fed. 308; Morrill v. Everson, 77 Cal. 114; Southern Ry. Co. v. Franklin & P. R. Co., 96 Va. 693; Revell v. Hussey, 2 Ball & Beatty’s Rep. (Ireland) 280; Prospect Park & C. I. R. Co. v. Coney Island & B. R. Co., 144 N. Y. 152, 26 L. R. A. 610; Spencer v. Spencer, 25 R. I. 239; Price’s Adm’x v. Price’s Adm’x, 111 Ky. 771.

We do not think that the divorce proceedings referred to in the bill in any way militate against appellant’s right to maintain her bill. She is now seeking to enforce the contract to will her the property in question. It is a contract right based upon a money consideration, and not a contract right depending upon the marital relation for its validity, that is lost or extinguished when the marital relation is severed by divorce proceedings.

Our conclusion is that the bill of complaint of the appellant stated equitable grounds for relief and that the learned judge of the lower court erred in sustaining the demurrers to the bill. The decree of the court is, therefore, reversed and the cause remanded with directions to overrule the demurrers of appellees.

Decree reversed and cause remanded with directions.