text:
    W. A. Parkinson Company, Defendant in Error, v. M. S. Tullgren, Plaintiff in Error.
    Gen. No. 18,048.
    ,1. Evidence—when memorandum made in conversation admissible. "Where the plaintiff in making an estimate on a job figures it out on a piece of paper, giving the cost of each item, and at the bottom writes “no shoring,” which he claims had been agreed upon, and the defendant takes the paper and two days afterwards tells plaintiff to do the work, the paper is admissible as part of the conversation as tending to corroborate plaintiff’s version of it.

      2. Account stated—where statement retained without protest. Where defendant has received a statement of an account and makes payments thereon and retains it over two months without protest or objection, this is a reasonable length of time to warrant his acquiescence in its correctness, and tends to show a stated account.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed February 11, 1913.
    Henry M. Hagan, for plaintiff in error.
    Edwin L. Waugh, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff sued for a balance due on a contract for masonry work alleged to be $665.95, and defendant filed a set-off claiming a balance due him of $25.30. The jury found for plaintiff in the sum of $463.66. The only two points pressed upon our attention in defendant’s brief are that the verdict was against the weight of the evidence, and that an exhibit was improperly admitted in evidence.

The main fact in controversy involved in both contentions was whether the contract price agreed upon included the cost of shoring, for which defendant paid $342 and claimed credit.

Plaintiff was invited to make an estimate on the job. Its president figured it out on a piece of paper, giving the cost of each item, and on the bottom of it wrote “No shoring,” which he claimed had been agreed upon. He testified that he gave 1 ‘ those figures ’ ’ to defendant, and that defendant said “he would take that over to the architect,” and two or three days afterward told him to do the work. The paper was identified as the one submitted to defendant in the conversation and taken from defendant’s desk. This evidence was not denied, and, under the circumstances, we think the paper was admissible as part of the conversation and as tending to corroborate plaintiff’s version of it.

There was also evidence tending to show a stated account. Defendant did not deny receiving a statement of the account as it existed October 14th, and making four payments thereon between that time and December 23rd, a reasonable length of time to warrant his acquiescence in its correctness in the absence of any protest or objection to it. We find no good reason for disturbing the verdict, and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Barnes Mr. Presiding Justice Clark

license: Public Domain

text:
    Lyman D. Brown, Defendant in Error, v. G. H. Reinberger, Plaintiff in Error.
    Gen. No. 18,081.
    1. Corporations—promise of stockholder to pay debt of corporation. The promise of a stockholder to pay an existing account of his corporation is collateral and not original.
    2. Statute of frauds—original or collateral promise. Where the question involved is whether a promise is original or collateral, the test is whether credit is given to the person sought to be charged or to some one else.
    3. Statute of frauds—where a credit is given corporation. Where credit is given a corporation upon the promise of a stockholder to pay, the promise is collateral.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed with finding of. fact.
    Opinion filed February 11, 1913.
    Rehearing denied February 25, 1913.
    Clark, P. J., dissenting.
    Harris F. Williams, for plaintiff in error.
    Eldridge & Rose, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

On a trial before the court without a jury plaintiff (defendant in error) recovered a judgment against defendant (plaintiff in error) for $444.65, the balance due him for goods shipped in August and October, 1909, to the Illinois Garter Company in Chicago. Prior to contracting for such goods—in May according to plaintiff, in January as claimed by defendant—the latter, who was one of the officers and principal stockholders of said company, had a conversation with plaintiff in New York relative to extending the company further credit.

Plaintiff, testifying to the substance of such conversation, said: “He (Reinberger) said they had to have the goods, and he said to me, ‘Now, Brown, if you will send us more goods, I will see that you are paid in any event for any goods that you may send, and I am worth $5,000/ ” and testified that such conversation was had after refusal of the company to pay a draft of which he advised it by letter of May 7th.

Defendant testified that he neither was in New York nor saw plaintiff between January and August; that the conversation was in January and that he merely promised to pay the account the company then owed, and introduced a letter from himself to plaintiff, under date of January 20th, in which he said:

“You will remember the writer told you when in New York last, that he would personally stand good for the account that we owe you now. He again promises that he will personally pay your account that is owing now in the event the firm should not. I put this in this form that it will be a guarantee to you against any loss. * * * As stated above, I will personally guarantee the payment of your account if you will carry us along until I get this contract with A. F. & Co. signed up and realize some money on it.”

While plaintiff’s evidence was in the form of a deposition and he had no opportunity to question this letter, yet there is no intimation in the record of surprise or that it was not a genuine letter, or that there was more than one conversation on the subject. If, therefore, said letter states the oral promise correctly, then it not only was given prior to January 20th, but limited to the account the company then owed. If it did not . state it correctly and plaintiff did not intend to accept such written construction of it, then assuming, as we must, that he received the letter, his failure to reply to it in connection with his making additional shipments to the company in February and April following, is not susceptible of reasonable explanation from his point of view. If he received the letter, then it is significant that he omitted to refer to it. He offered in evidence another letter from defendant in Chicago under date of May 8th, acknowledging said letter of May 7th, from New York, and saying:

“We note that you have drawn on us. We beg to advise you that we had already sent you a check covering bill of Feb. 4th, though we had only deducted 5%. We are sending you a check covering the $67.00 bill and are deducting therefrom the 2% which we failed to deduct from the other invoice.
‘ ‘ The writer is surprised at your threats to place our account for collection. * * * You understand, the condition of our finances and know that we are a little slow. You also know that the writer told you that he would see that you would not lose anything on this account under any circumstances.”

The words “this account” are relied upon by plaintiff to corroborate his version of the conversation, but the letter is more consistent with defendant’s version of both the time and substance of the conversation, for, first, it refers to a conversation which in the nature of things must have been prior and not after May 7th as plaintiff contends, and, second, assuming, as we must, that it refers to the same conversation as does the letter of January 20th, we must conclude that the letter of May 8th referred to the account spoken of in January when the debt was $500.16, and on which there was a balance still due on May 8th of $203.14. In the meantime there were both debits and credits, but while the payments were sufficient to liquidate an additional indebtedness of $497.02, they did not at any time reduce the balance of the January account below $203.14. If reading the letter of May 8th by itself there is any ambiguity as to the meaning of the words “this account,” it seems plain that when taken in connection with the above facts and circumstances they refer to the account spoken of in a conversation had in January, the construction of which as given in the letter of January 20th plaintiff is in no position to question. There is no room for construing these words to refer to an account continuing after the time of such conversation, or to any other account than that explicitly referred to in the letter of January 20th.

This balance of $203.14 was shortly afterwards liquidated and there were no moré transactions between plaintiff and said company until the following August when defendant was again in New York and a new account was opened, for which plaintiff seeks to hold defendant responsible by virtue of the oral promise in controversy. We think the finding of the court in his favor was plainly against the preponderance of the evidence.

If the promise referred to an existing account it was unquestionably one to pay the debt of another—that of a stockholder to pay the debt of his corporation, and, therefore, a collateral one. Home Nat. Bank of Chicago v. Waterman’s Estate, 134 Ill. 461.

The claim that the promise was original is not only inconsistent with the facts aforesaid, but with the fact that the credit was given to the corporation and not to defendant, which strongly tends to show that the promise was collateral. Lusk v. Throop, 189 Ill. 127. In determining whether a promise is original or collateral, the test is whether credit is given . to the persons sought to be charged or to some one else. Lusk v. Throop, supra; Geary v. O’Neil, 73 Ill. 593. We think there can be no doubt that the promise was collateral and was a guaranty of the debt subsisting January 20th, which was paid and that defendant was not personally liable for subsequent accounts.

The judgment will be reversed.

Reversed with finding of fact.

Mr. Presiding Justice Clark

dissenting: I. think there was enough evidence in the case to warrant the trial court in reaching the conclusion that there was an original undertaking on the part of the defendant to pay for the goods afterwards shipped to the corporation he controlled, and that there should not be a reversal of the finding of the trial judge based upon the proposition that it was manifestly, against the weight of the evidence.

In so far as the oral testimony is concerned, the trial judge was in a much better position to determine its credibility than are we. The judgment should be affirmed.


author: Mr. Presiding Justice Clark

text:
    Hudson-Manufacturing Company, Appellant, v. Wishart-Burge Machine Works, Appellee.
    Gen. No. 16,992.
    1. Evidence—use made of model machine. In an action for damages from alleged improper construction of ice cream brine machines, where the machines are constructed after certain samples, it is improper to admit testimony as to use of a model constructed from blue prints before the samples were made, where it does . not appear that such evidence is material.
    2. Evidence—contents of letter. In an action for damages from the alleged improper construction of ice cream brine machines, where plaintiff attempted to show, by the testimony of a witness as to the contents of a letter written by defendant’s customer, that one of the original machines returned to defendant by the customer was returned because the customer had gone out of business, the testimony was properly excluded.
    3. Contracts—damages for improper construction of machines. In an action for damages from alleged improper construction of ice cream brine machines, where there is evidence that the machines failed to work because of defects in the plans furnished by plaintiff, it is not error to instruct the jury that if they believe the machines in question did not work successfully, and that their failure was due to their mechanical design and not to their workmanship, no basis for a claim for damages existed.
    Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed February 11, 1913.
    Lannen & Hickey, for appellant.
    Alden, Latham & Young, for appellee; Charles Martin, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit was brought by the plaintiff against the defendant for damages alleged to have been sustained by the alleged improper construction of six ice cream brine machines. It appears that the material was furnished by the plaintiff, and the manufacturing of the machines was done by the defendant. The amount claimed by the plaintiff was $5,000. A set-off was interposed by the defendant, based upon its claim for work done upon the machines. There was a verdict of a jury in favor of the defendant on its set-off in the sum of $211.59. The court required a remittitur from this amount of $100, and entered judgment for the balance.

This judgment we are asked to reverse upon the grounds, first, that it is against the weight of the evidence; second, that proper evidence was excluded; third, that an improper instruction was given.

The contract between the parties consisted of an order by the plaintiff and acceptance of the same by the defendant. By the terms of the order the defendant was to build six machines' of the same character as those built as samples under an order of the preceding month; the defendant was to furnish all the material, and the plaintiff to do all the machine and assembly work complete, at a given price. It was admitted by the plaintiff as we understand the record that if the machines were properly constructed, and the plaintiff not entitled to any damages because of defective construction, then there would be a balance due to the defendant for work done of $211.59.

We deem it unnecessary to discuss the facts of the case. Whether or not the machines were constructed the same as. the samples, whether or not the sample machines operated successfully and the new machines unsuccessfully, were questions for the jury to determine, and their finding in respect to them, having been subsequently approved by the trial court, in our opinion should not be disturbed as being against the weight of the evidence.

A witness for the plaintiff was asked the question: “Had that model machine been used?” It appears from the record that a model machine was constructed from blueprints before the so-called sample machines were made. The designer of the machine testified that in the model machine the dasher was found weak, and that the model after having been placed with an ice cream company for a test was taken back by the plaintiff. We think the court was justified in sustaining an objection to the question. Such evidence would seem to be immaterial, and no statement was made by the plaintiff of what he expected to prove. Cook v. Haussen, 51 Ill. App. 269.

An offer was made by the plaintiff to show that one of the original machines returned to the defendant by a customer, was returned because the customer had gone out of business. This was attempted to be shown by the testimony of a witness as to the contents of a letter written by the customer. The testimony was properly excluded.

The court instructed the jury to the effect that if they believed that the machines in question did not work successfully, and that their failure so to work was due to their mechanical design or plan of construction, and not to the workmanship, no basis for a claim for damages against the defendant existed. The designer of the machine, who was a witness for the plaintiff, was allowed to give his opinion that a machine made according to the blueprints would work. There was testimony on the part of the defendant, by its foreman, that a machine could not be made according to the blueprints and be fitted together, and that the manager for the plaintiff, having had his attention called to defects in the plans, consented to changes being made. The jury, from other evidence in the case, might well have come to the conclusion that the machines were returned to the plaintiff because they failed to work successfully. The giving of the instruction was therefore, in our opinion, not erroneous.

The judgment will be affirmed.

Affirmed.


text:
    Clinton R. Sherman, Appellee, v. Charles W. Pardridge Appellant.
    Gen. No. 17,010.
    1. Evidence—when inventory book copied from memoranda is admissible. Where the original memoranda of an inventory have been destroyed, and plaintiff testifies as to their accuracy, and that they were correctly transcribed in an inventory book, the latter is admissible in evidence.
    2. Evidence—-hypothetical questions not based on evidence. Where hypothetical questions are based upon the assumption that plaintiff’s theory of the case' is correct, they are admissible although not based on any evidence.

      3. Evidence—hearsay. In an action for damages from the explosion of a hot water heater, evidence of statements of the janitor since deceased is hearsay and inadmissible.
    4. Evidence—entire conversation. A question on cross-examination as to whether any one had told witness there had been an explosion will not justify the admission of the entire conversation in rebuttal, though the witness in his reply volunteers the name of the person who told him.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed February 11, 1913.
    David K. Cochrane, for appellant.
    P. H. Bishop, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Recovery was had in this case by the plaintiff (appellee) against the defendant (appellant) for damages alleged to have been caused the plaintiff in his person and property by reason of the explosion of a hot water heater in the basement of a building belonging to the defendant, the plaintiff being a tenant owning and conducting a drug store in the building.

Two special findings were made by the jury. The answer to the first interrogatory was to the effect that there was a fire in the hot water heater at the time of the alleged explosion. The answer to the second was to the effect that the plaintiff and the defendant did not before the beginning of the suit adjust and settle the matters for which plaintiff claimed damages.

The alleged errors upon which a reversal is sought are, first, that there was no evidence tending to establish the allegations of the declaration, and that therefore a peremptory instruction to find for the defendant was erroneously refused; second, that the verdict was contrary to the weight of the evidence and the motion for a new trial should have been allowed; third, that improper evidence was admitted and material evidence excluded; fourth, that the court improperly refused certain instructions tendered by defendant; fifth, that the judgment is excessive.

It appears that in the basement of the defendant’s building there was a heater which was used for furnishing hot water to the occupants of the building. There was also in the basement a boiler used for generating the steam by which the building was heated. As we understand the record, the defendant in September and October, 1906, made alterations and repairs in the steam heating and hot water plant. A new boiler was substituted for the old one, and in the firebox water coils were placed, in such a way that hot water could be furnished the occupants of the building without the necessity of using the hot water heater. By a system of coils and “T” connections the plant was able to be operated in any one of three ways: (1) by building a fire in the firebox of the large boiler and thus heating the water and letting it circulate through the hot water heater and from there to the hot water tank, or (2) by building a fire in the hot water heater, thus heating the water and causing it to circulate through the coils in the firebox of the large boiler and thence to the hot water heater, or (3) by building a fire in the firebox of the large boiler, closing the valves between the hot water heater and the “T” connections with the pipes running from the heater to the tank, thus causing the water to circulate through the coils and the hot water tank without passing through the hot water heater.

There is evidence tending to show that on October 8, 1906, plaintiff observed when he attempted to draw water from the hot water taps that there was no water supply; that only steam came from the taps; that this condition lasted during the evening until about nine o’clock, when an explosion occurred in the basement below the store; that a hole was made in the floor near where plaintiff stood, and directly over the point where the hot water heater was situated; that at the same instant flames came, up through the hole in the floor; that the glass in the front of the store was blown out and portions of it thrown across the street; that the force of the explosion was such that two men who had been sitting in the front end of the store, about 60 feet from the point of the explosion, were thrown backward; that an officer of the City Fire Department went to the basement and found the ceiling over the large boiler in flames, and that the hot water heater lay on its side, with the top torn off; that after the explosion two valves in the pipe running from the hot water heater to the hot water tank were found to be closed, and that about three-quarters of an hour after the explosion the heater was hot; that if there was no fire of any kind in the hot water heater and the valves were shut off and the pipes in the steam boiler were heated and furnishing hot water to the hot water tank there would be no tendency to an explosion in the hot water heater.

A witness for the defendant, who had charge of the work of changing the system, testified that there was a fire built in the hot water heater in the morning; that it was not allowed to burn all day; that when the witness left the place about three in the afternoon there was a fire under the steam boiler, but not in the hot water heater; that he left the janitor in charge. The janitor was not a witness, having died prior to the date of the trial.

In our opinion the facts set forth, together with the other facts appearing in the record, constitute sufficient circumstantial evidence to warrant the jury in answering in the affirmative the first interrogatory, namely, whether or not there was a fire in the hot water heater at the time of the alleged explosion; at least that their finding in this respect is not against the manifest weight of the evidence.

It is insisted upon by the defendant that the weight of the evidence was to the effect that there had been a settlement and release of the claim for damages before suit was brought. This claim is predicated upon the testimony of a son of the defendant, who was acting as his agent, and that of a cashier in his office. The substance of the testimony upon which reliance is placed, as we understand the contention of the defendant, is that negotiations were had for the renewal of a lease after the explosion and fire; that the plaintiff wanted a longer lease, and that the defendant, through his son, acting as his agent, agreed to give him a longer lease without raising the rent above $62.50 per month; that defendant was to put in a steel ceiling and a radiator and “fix the store up so that it would be in good condition, Mr. Sherman was to be perfectly satisfied.” No release in writing was taken, and the testimony of the plaintiff directly contradicted in material respects that of Mr. Partridge, the agent, and cannot be said to be at variance in some of its essentials' at least with that of Miss Dailey, the cashier. The latter stated that she did not think the subject of the fire was mentioned. Under these circumstances we think the court would not have been warranted in directing a verdict for the defendant upon the theory that a settlement of the claim had been made, nor can we say that the evidence so clearly preponderates in favor of the defendant that a' new trial should have been granted on that account.

Complaint is made that the court improperly refused to allow the following question to be propounded to Mr. Pardridge, the son and agent of the defendant: “At that time did Mr. Henderson (the deceased janitor) tell you whether or not there was a fire in the • hot water heater?” It is insisted by the defendant that error was committed in refusing to allow this question to be answered, because of questions which were asked on cross-examination by plaintiff’s counsel. These questions and answers are as follows: “Q. Did anybody tell you whether or not there was any explosion in the basement? A. Mr. Henderson told me there had been an explosion in the basement. Q. Did he tell you where he was when the explosion took place ? A. I think Mr. Henderson said he was in the basement of the building on the opposite side of the street.” Objection was made to these two questions, and after the answers had been received- motions to strike out the answers were made. We think these motions should have been granted. The answer to the first question as to whether or not anyone told the witness there was an explosion in the basement, did not require the witness to divulge who gave him the information. He volunteered the information that he was told by Henderson. We do not regard the error such as should cause a reversal. Nor do we think that the witness should have been allowed to give further parts of the alleged conversation under the circumstances. The question propounded to the witness when called in rebuttal, “at that time did Mr. Henderson tell you whether or not there was a fire in the hot water heater?” was improper for several reasons. If it be assumed that the time mentioned was the same time as that in which the conversation upon which he was cross-examined took place, the question still was open to objection as being suggestive if not leading. Counsel for the defendant offered to prove by the witness that Henderson told him at the time of the conversation about the explosion of the water heater, that there was no fire in the heater at the time the heater exploded, and objection to the offer was sustained. To have allowed the proof to be introduced would have violated the rule against the allowance of hearsay testimony. The testimony could not properly have been received as proof of the substantive fact (if it was a fact) that there was no fire in the hot water heater at the time of the explosion. The matter called out on the cross-examination, namely, that Henderson told the witness that there had been an explosion in the basement, and that he said he was in the basement of the building on the opposite side of the street when the explosion took place did not, in our opinion, tend to prove that the explosion was caused by the fact that there was a fire in the heater.

It is further claimed by the defendant that error was committed in admitting the testimony of the plaintiff as to the conditions found in the basement after the alleged explosion, and also the testimony of Hausman, the engineer, for the fire department, upon the same matter. We think the evidence was competent. Like evidence was received from two of the defendant’s witnesses.

Hypothetical questions propounded to a witness for the plaintiff are objected to as erroneous on the ground that they were not based on any evidence. The questions, as is usual, were based upon the assumption that the plaintiff’s theory of the case was correct, and we think there was no error in allowing them to be answered.

Objection is made that the plaintiff was allowed to put in evidence his cash book, ledger and inventory to establish the value of the goods in the store. The plaintiff testified that he made the inventory, assisted by a clerk; that part of the time one of them called off the articles and the other wrote them down, that at other times the proceeding was reversed; that the memoranda were then copied in the inventory book and that the original memoranda were destroyed by the fire. The plaintiff testified to the accuracy and correctness of the original memoranda and also the copy transcribed in the book. We think the evidence was admissible. An insurance adjuster, called as a witness by the defendant, placed the value of the property at about the same figure. The size "of the verdict might have been warranted by his testimony.

The charge in the declaration that the plaintiff received injuries to his person seems practically to have been lost sight of in the trial, and little mention is made of the matter in the briefs.

The court gave one instruction as tendered by the plaintiff and twenty-one as tendered by the defendant, some of them of great length. It is claimed by the defendant that the court erroneously refused to give five of the ten instructions not given. We have examined these instructions with care, and also the twenty-one instructions as given, and think that the jury were fully advised as to the law which should govern them in the consideration of the case. The essentials of the refused instructions were either fully covered by other instructions, or the instructions were so defective in disregarding various elements in the case, that the refusal to give them does not in our opinion constitute error.

. The judgment will be affirmed.

Affirmed.


text:
    William H. Barrett and Charles R. Barrett, Trading as Barrett & Barrett, for use of William H. Barrett, Defendant in Error, v. John Regan, Plaintiff in Error.
    Gen. No. 17,613.
    1. Set-out and counter claims—when set-off not allowed. In an action on contract, set-off for damages for the breach thereof will not be allowed defendant when he has himself failed to perform his obligations thereunder.
    2. Contracts—where not assignable, account may be assigned. The fact that a contract is not assignable does not prevent an account matured under it from being assigned.
    Error to the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed February 11, 1913.
    Myer S. Emrich, for plaintiff in error.
    H. M. Pierce, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

On December 3, 1902, Barrett & Barrett, beer merchants, were thrown into involuntary bankruptcy. Prior to that time the defendant, John Began, who is the plaintiff in error here, had been buying beer of them. On February 6, 1905, an order was entered in the United States District Court directing the trustee, the Equitable Trust Company, to deliver the accounts receivable and books of account of said firm to the plaintiff, William H. Barrett, upon receipt of a certain quitclaim deed. Thereupon the Trust Company transferred and assigned all the interest of the bankrupt firm in their accounts to the said Barrett. Barrett brought suit on account for $162.50, claimed to be owing by the defendant to the bankrupts. In defense the defendant introduced in evidence the following agreement:

“Chicago, Dec. 5, 1901.
“I hereby agree to use beer furnished by Barrett & Barrett exclusive in my place on No. 502 North Clark St. for the term of five years and five months from date, for the following consideration.
“They are to furnish me four barrels each month for five months gratis, and three barrels per month for five years, gratis for the balance of the term. For the balance of the beer which he can sell Mr. Began agrees to pay $5.00 per barrel net.
Tours respectively,
John Began.
“Accepted, Barrett & Barrett.”

As we understand the contention of the defendant, it is, that there can be no recovery upon the admitted balance of account owing by the defendant to Barrett & Barrett and assigned to the plaintiff, because the contract was not assignable, and that the defendant— the suit having been brought in a justice court—was entitled to a set-off of $200 (being the largest amount for which a set-off may be interposed in a justice court), because of a failure of Barrett & Barrett to carry out the contract for the full period of five years.

There is testimony to the effect that a receiver for Barrett & Barrett continued to do business for a time; that on December 5, 1902, two representatives called upon the defendant to ascertain why he refused to accept beer as usual, and were told by him that he had made other arrangements, having entered into a contract with another brewery to furnish beer. Defendant denied that the conversation took place.

The -trial court held, as requested by the defendant, that the contract above mentioned was not assignable. He was not asked to hold, and did not hold, that the matured account was not assignable.

We have carefully examined the record for evidence that the defendant suffered loss because of a breach of the contract, but have been unable to find any. It is stated in the brief that his loss was over $800. This presumably is based upon the amount of free beer he was to get under his contract during the unexpired term. It is clear that under the contract he would not be entitled to the free, beer unless he continued to trade with Barrett & Barrett and pay for the beer that he obtained from them. There is no proof of the set-off. Defendant asked for a continuance of the case on the ground of surprise, but a proper affidavit was not filed.

We find no reason for reversing the judgment of the Circuit Court, and the same will therefore be affirmed.

Affirmed.


text:
    Matson B. Hill, Appellee, v. Adolph B. Carson, Appellant.
    Gen. No. 17,949.
    1. Brokers—evidence of negotiations admissible. Where a real estate broker has made a prima facie case that he had been employed by defendant to make exchange of property, he may testify as to conversations with other agents, although defendant was not present, in order to show his part in the negotiations leading to such exchange.
    2. Evidence—harmless error. Where plaintiff has offered a certified copy of a deed in evidence, and it has been erroneously admitted and defendant has testified to or admitted all the material facts disclosed by it, the error is harmless.
    3. Municipal court—when interrogatory for jury improper. In an action by a broker for commission in the Municipal Court of the City of Chicago, where defendant has filed an affidavit of merits denying that he engaged plaintiff, it is improper under rule 17 to submit to the jury the interrogatory for defendant, “Was the property placed with plaintiff, * * * the exchange to be made on or before June 1, 1910?”
    Appeal from the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed February 11. 1913.
    Adams, Bobb & Adams, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; Frederick C. Hack and Walter B. Jacobs, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

There was a recovery in this case by appellee (plaintiff) against the appellant (defendant) after a trial before the court and a jury, for commission alleged to have been earned by the plaintiff in effecting the exchange of property owned by the wife of defendant.

The first matter discussed in the briefs is the question as to whether or not the verdict is sustained by the evidence. After a careful examination of the record we are of the opinion that the proof sustains the verdict, at least that the verdict is not so contrary to the weight of the evidence as to call for a reversal of the judgment.

The assignments of error as to the alleged admission of improper evidence need scant consideration, because of the nature of the defense interposed by the defendant. Rule seventeen of the Municipal Court is as follows:

“In First and Fourth class cases for the recovery of money only, the defendant shall file an affidavit sworn to by himself, his agent or attorney, stating that he verily believes the defendant has a good defense to said suit upon the merits to the whole or a portion of the plaintiff’s demand, and specifying the nature of such defense whether by way of denial or by way of confession and avoidance in such a manner as to reasonably inform the plaintiff of the defense which will be interposed at the trial, and evidence of only such defenses as are set out in said affidavit shall be admitted on the trial.”

The suit was originally brought against Mrs. Carson as well as the defendant, afterwards being dismissed as against her. In conformity with the rule defendant filed an affidavit specifying as the nature of his defense that the defendant never owned the premises in question ; never made any arrangement as agent, principal or attorney with the plaintiff for exchange of the property set forth in the plaintiff’s statement of claim; that defendant did not at any time contract with the plaintiff to exchange the property in question for the premises known as 4027 Kimbark avenue; that he is not jointly liable with Helen S. Carson by virtue of any contract; that defendant is not indebted to the plaintiff for any money due by reason of a claim set forth in plaintiff’s statement of claim and affidavit.

It is first objected that error was made in allowing plaintiff to state that he was a licensed real estate broker. In the statement of claim plaintiff alleged that he was employed by the defendant as a broker, and. the defendant not having interposed the defense that the plaintiff was not duly licensed that question was not open. The error, if any there was, was harmless.

It is complained that the plaintiff was committed to testify as to conversations had with a Mr. Smith and Mr. Slaughter, who were, as we understand it, real estate agents interested in the negotiations. We think it was proper (having made a prima facie case that he had been employed by the defendant to make the exchange) for him to detail conversations had with these gentlemen, although the defendant was not present, in order to show his part in the negotiations which it was claimed resulted in the consummation of the exchange.

It is next objected that error was permitted in the allowance in evidence of a certified copy of a warranty deed from Mrs. Carson to Mr. Hoover. It appears from the record that the defendant himself testified to substantially all the material facts disclosed by the deed itself when examined as a witness for the plaintiff, under section 33 of the Municipal Court Act. In the statement preceding the brief and argument of the defendant it seems to be admitted that Mrs. Carson exchanged the property in question for that of Hoover, and defendant" testified that Mrs. Carson signed the deed conveying the building on July 2nd; that the defendant had made the contract in writing prior to the execution of the deed; that he was acting for Mrs. Carson in the matter; that abstracts were exchanged, guaranty policy furnished, etc. In this state of the record we think that the error in admitting the certified copy of the deed was harmless.

Two interrogatories were submitted to the jury, one of which they answered to the effect that the plaintiff was the procuring cause of the exchange of the property between Mrs. Carson and Hoover. The second interrogatory was as follows: “Was the property placed with the plaintiff, Matson B. Hill, to be exchanged for residence property, the exchange to be made on or before June 1, 1910?” This interrogatory was not answered by the jury, and it is alleged that error was committed by the court in receiving the general verdict over the objection of the defendant that it should not be received because the interrogatory had not been answered, and in overruling the motion of the defendant to instruct the jury to retire and answer the interrogatory. We agree with the defendant that the interrogatory should not have been submitted to the jury. It follows therefore that the refusal of the motions made by the defendant in regard thereto did not constitute error. The defendant in the affidavit of merits, as heretofore appears herein, denied that he had placed the building in question in the hands of the plaintiff for exchange. It is nowhere suggested in the affidavit of defense that the arrangement was that the exchange should be completed before June 1, 1910. There was testimony to the effect that in a conversation the defendant stated he would like to have the transaction closed by June 1st in order to surprise Mrs. Carson who was away from home, but we find no evidence in the record that the agency was limited to that date.

Complaint is made that one instruction tendered by the defendant was erroneously refused. In so far as it differs from another instruction which was given, this tendered instruction referred to the same matter as the second interrogatory, namely, the proposition that a certain time had been fixed in which the exchange must have been made in order to entitle the plaintiff to commission. We think the instruction was properly refused. The judgment will be affirmed.

Affirmed.


text:
    Daniel J. Gillen, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,921.
    1. Civil service—no office of police patrolman exists in Chicago. In an action by a police patrolman who was wrongfully discharged and afterward reinstated, against the City of Chicago for salary during the period when he was prevented from serving, it is incumbent on him to show the legal existence of the office of police patrolman and his legal right to hold it, and for such purpose a city ordinance appropriating money for the payment of salary to the person acting as such officer is not competent, nor is the city estopped from denying that he was a de jure officer by the fact that its civil service commission has certified pay rolls containing his name, or filed charges against him as patrolman, where the evidence does not establish the fact of the existence of the office or position of police patrolman.
    2. Municipal corporations—an “office” must he created hy statute or ordinance. In the City of Chicago there exists no “office” or “position” of police patrolman, no statute or ordinance having created such office, and it cannot be created by a resolution of the common council.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed February 11, 1913.
    Rehearing denied and opinion modified and refiled February 26, 1913.
    William H. Sexton and Edward T. Wade, for appellant.
    A. D. Gash, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Judgment in this case was rendered against the City of Chicago for the salary to which plaintiff claimed to he entitled for the period of several years during which he was prevented from acting as a police patrolman. It appears that he was wrongfully discharged (City of Chicago v. Gillen, 222 Ill. 112) and was afterwards reinstated. The case was heard by the Superior Court without a jury, on a stipulation of facts. The stipulation included ordinances of the city, resolutions of the common council, and other proceedings, making in this respect, so far as we are able to determine, a record substantially like that before the court in the case of Bullís v. City of Chicago, 235 Ill. 472. In the case last referred to the Supreme Court held in effect that there could be no recovery based upon the evidence in the record. A previous suit had been brought by Gillen against the City of Chicago, and it was held by this court, under the authority of Bullís v. City of Chicago, supra, that no recovery could be had. Gillen v. City of Chicago, 150 Ill. App. 207. Thereafter the present suit was begun by Gillen. The judgment rendered in this court in the first suit was not pleaded in the Superior Court in this case as res adjudicata. Counsel now representing the appellant took no part in the trial of the case in the Superior Court. It is quite clear that the cause of action, parties and subject-matter are identical, and they are frankly admitted to be so by counsel for the appellee in his brief. It is stated in the brief: ‘ ‘ Gillen, the appellee, when he lost his case in this court upon the theory of his being an officer and entitled to the salary as appropriated, started this suit to recover, as an employee, the moneys or wages appropriated for him in the position or employment of patrolman. In the stipulation appellant stipulated that appellee had made numerous attempts to secure employment but could not secure any employment and that during the interval he was unable to earn any wages on account of not being able to obtain employment and that during said interval he received no wages nor salary.”

It is argued by the appellee that the case of Bullis v. City of Chicago, supra, and the other cases to which reference will hereinafter be made, are not controlling of the case now before the court, because they were presented upon a different theory. It is claimed that the case comes within the doctrine announced in City of Chicago v. Luthardt, 191 Ill. 516. In that case it appeared the appellee, Luthardt, had been examined by the civil service commissioners of Chicago, pursuant to the Civil Service Act of 1895 and of rules adopted by the commissioners thereunder, and was certified, selected and appointed as chief clerk of the detective bureau of the Department of Police at an an- . nual salary of $1,500. He was ordered to be restored to his position by mandamus (Kipley v. Luthardt, 178 Ill. 525), and judgment for the salary he would have received during the nine months he was prevented from occupying the position was affirmed. In the case of Bullis v. City of Chicago, supra, it appeared that Bullis, having taken the examination under the Civil Service Act, was certified for appointment on March 14, 1898; that he continued in his employment until November 1, 1903, when he was suspended by the chief of police under charges, and after hearing thereon before the civil service commissioners was discharged on January 15, 1904. On certiorari proceedings begun by Bullis in the Superior Court of Cook county, the proceedings so resulting in his discharge were quashed and the judgment affirmed by the Supreme Court. Powell et al. v. Bullis, 221 Ill. 379. He was reinstated on June 1, 1906, and thereupon began a suit for his salary from the date of the suspension until his reinstatement. Judgment was entered in his favor in the Superior Court and affirmed in the Appellate Court (138 Ill. App. 297). The judgment, however, was reversed by the Supreme Court. (235 Ill. 472), because, as held by that court, improper evidence was introduced. This evidence consisted of Article 1 of Chapter 51 of the Revised Code of the City of Chicago, extracts from proceedings of the city counoil of January 5, 1903, also appropriation ordinances for corporate purposes of the City of Chicago for the years 1901, 1903, 1904, 1905 and 1906. Passing upon the question, the court said:

“This resolution and the appropriation ordinances were offered for the purpose of showing the number of patrolmen authorized to be appointed. The resolution referred to the' number of police officers authorized to be appointed under the appropriation budget of 1901. Since the resolution was not competent neither was the ordinance. The other appropriation ordinances were not competent, for it is not claimed that if there was no statute or ordinance establishing the office it could be legally established by the appropriation of money, by ordinance, to the payment of a salary to the person acting as an officer, and clearly it could not be. (Moon v. Mayor, 214 Ill. 40, supra, Kenneally v. City of Chicago, 220 Ill. 485, supra). Section 1477 of the revised code, in providing that the police department should embrace as many patrolmen ‘as has been or may be prescribed by ordinance,’ cannot be regarded as creating any office of patrolman. (Moon v. Mayor, supra). The word ‘prescribed,’ as there used, is equivalent to ‘established.’ On this record, whatever may be the fact, this evidence offered by appellant to prove that he was a police patrolman was not competent for that purpose.
“It is argued that the appellant is estopped to deny that the appellee was a de jure officer by the fact that charges were filed against appellee as a patrolman. The classification of the officers and places of employment in the city by the civil service commission could not establish an office which was not in existence before. The carrying of appellee’s name upon the payroll or the certification by the civil service commission of pay-rolls containing his name was not evidence of the legal existence of his office of police patrolman. (Kenneally v. City of Chicago, supra). If there was no such office as that which appellee was claiming to hold, it was wholly unnecessary to file charges against him to discharge him from the employment of the city. He might be discharged at any time without cause and without notice. The fact that charges were preferred against him and a hearing had has no element of an estoppel.”

In a preceding part of the opinion the court said:

“The appellee by his suit was demanding the salary of the officer of police patrolman, and it was therefore incumbent on him to show the legal existence of the office and his legal right to hold it. (Stott v. City of Chicago, 205 Ill. 281; People v. City of Chicago, 210 Ill. 479; McNeill v. City of Chicago, 212 Ill. 481; Moon v. Mayor, 214 Ill. 40; Kenneally v. City of Chicago, 220 Ill. 485).”

The mere fact that, as stated by appellee’s counsel, the theory of the case now presented to the court is different from that of the preceding suit brought by the appellee, does not, in our opinion, warrant a recovery, providing the facts as disclosed in the two cases are substantially the same. If, as held in Bullís v. City of Chicago, supra, the evidence shown in the record did not establish the fact of the existence of the office or position of police patrolman, and if the evidentiary facts upon that proposition in that case and this are substantially the same, as we hold them to be, then a recovery may not be allowed in the case now under consideration. We are unable to make the distinction attempted to be drawn by counsel for appellee between the words “position” and “office.” In the Luthardt case, supra, the court apparently found that the “office” or “position” of chief clerk of the detective bureau existed. In the Bullís case the finding seems to have been that no “office” or “position” of patrolman existed in the City of Chicago; that such a position or office had not been created by ordinance, and that such a position or office could not be created by resolutions of the common council.

For the reasons stated the judgment of the Superior Court must be reversed.

Reversed.


author: Mr. Justice F. A. Smith

text:
    William Brossman, Appellee, v. Brake Standard Machine Works, Appellant.
    Gen. No. 16,998.
    1. Damages—when not excessive. A judgment for $3,500 is not excessive where part of the thumb was amputated, thus impairing the strength of the hand and the power to grasp small objects.
    2. Damages—when no passion or prejudice. A verdict for $5,000 does not show passion or prejudice where part of plaintiff’s thumb was amputated and the strength of his hand and his power to pick up small objects was thereby greatly reduced.
    3. Appeals and errors—conduct of counsel. Where an attorney manifests a disposition to bring immaterial matters into a case in the examination of jurors and witnesses, the verdict may be set aside on that ground if such procedure affects the verdict or produces passion or prejudice.
    4. Damages—casualty insurance. In an action for personal injuries, examination of witnesses regarding defendant’s casualty insurance is properly excluded where there is no basis for it.
    5. Evidence—statements made when affidavits were secured. In an action for personal injuries, it is not error to admit a statement by one witness to others, when affidavits for defendant were secured, that by signing the affidavit they were not signing their lives away, and that the making of the affidavit was a mere matter of form.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed February 11, 1913.
    Hams L. Howard, for appellant.
    Irving W. Baker and Charles E. Heckler, for appellee ; C. E. Heckler, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This is the second time this case has been before this court. A judgment for the plaintiff on the first trial was affirmed in Drake Standard Mach. Works v. Brossman, 135 Ill. App. 209. The Drake company appealed from the judgment of this court to the Supreme Court, and secured a reversal solely upon the ground that there had been errors in the rulings of the trial court upon questions of evidence. Brossman v. Drake Standard Mach. Works, 232 Ill. 412.

The evidence upon the second trial contained in this record is substantially the same as that offered on the first trial with the evidence which the Supreme Court held incompetent omitted. Some additional evidence on behalf of the plaintiff is contained in the record to the effect that the break in the hook which caused the injury was in part an old break. A full statement of the material facts appears in Drake Standard Mach. Works v. Brossman, 135 Ill. App. 209, and any further statement at this time is unnecessary.

It is contended on behalf of appellant that appellant was not guilty of any negligence, and the appellee was guilty of contributory negligence. Upon these questions of fact two juries have passed, and we are not convinced from an examination of the record that the verdict of the jury is manifestly against the weight of the evidence. We are, therefore, not authorized to set aside the verdict upon the ground that appellant was not guilty of any negligence or that appellee was guilty of contributory negligence.

The jury returned a verdict of $5,000 for the injuries sustained by appellee. This the court considered too large and required a remittitur of $1,500 by the appellee, and upon this remittitur being made, entered judgment on the verdict for the sum of $3,500. The injury was such as to require the amputation of part of the thumb of appellee’s hand. The record does not show at just what point the thumb was removed. We are not prepared to say, upon an examination of the evidence and consideration of all the facts and circumstances developed therein, that the verdict and judgment is too large. The evidence tends to show that the strength of appellee’s hand is impaired, and the power of grasping small objects is greatly reduced. We are of the opinion that the damages awarded are not excessive. Neither do we think that the amount of damages awarded shows passion or prejudice on the part of the jury.

It is urged that improper questions were put to the jurors in the examination as to their qualifications to serve as jurors. We think that appellee’s attorney manifested a disposition to bring into the case, immaterial matters both in the examination of the jurors and in the examination of witnesses, and if we could see from the record that this procedure upon the part of appellee’s counsel had in any way affected the verdict or produced any passion or prejudice on the part of the jurors, we would not hesitate to set aside the verdict upon that ground. We are unable, however, to reach the conclusion that this conduct produced any such effect. The examination with reference to casualty insurance with the Fidelity & Casualty Insurance Company of New York should not have been made or attempted. Upon objection it was properly ruled out by the court. There was no basis for it, and only harm" could result to appellee from such examination. One question was allowed by the court which we think was objectionable because of its being leading and suggestive—that was in regard to the appearance of the portion of the hook, and whether it was an old crack at the point of breakage. We think the error was trivial, and did not prejudice the case.

Complaint is made as to the admission of a conversation between witness Lindner and others at the time of securing certain affidavits by appellant with reference to the condition of the hook by the breaking of which the injury was caused. The witness testified that one of the witnesses said with reference to signing the affidavit that they were not signing their lives away, and that the making of the affidavit was a mere matter of form. We do not think the admission of this evidence was error.

Finding no material error in the record, the judgment is affirmed.

Affirmed.


text:
    Norah Smith, Appellee, v. Royal League, Appellant.
    Gen. No. 17,019.
    Fraternal benefit societies—when death met because of violating criminal laws of state or engaging in unlawful undertaking. Where the contract of insurance provides that recovery on the policy is barred if the insured meets his death while in the act of, or as a result of, violating the criminal laws of the state, or in consequence of engaging in an unlawful undertaking, no recovery may be had where the evidence shows that the insured without provocation struck a police officer a violent blow, that he pursued the officer who ran away to avoid him and that the officer fired when the insured was committing assault, or assault and battery, and inflicted the wound which caused death.
    Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed.
    Opinion filed February 11, 1913.
    Mann & Miller and Arthur J. Donovan, for appellant.
    Gallagher & Messner, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

A judgment was entered in the Municipal Court of Chicago for $2,098 in an action brought by Nor ah Smith, appellee, against the defendant, Royal League, appellant, on a fraternal benefit certificate issued by the defendant to one Edward Smith, the husband of appellee.

The declaration filed consisted of six counts, the last four of which were subsequently withdrawn. Nine special pleas were filed to the first and second counts. The pleas alleged that the defendant was a fraternal beneficiary society, organized and doing business under the laws of Illinois; that the member, Edward Smith, signed an application in which he agreed to comply with and that his membership and all interests of the persons entitled to the benefits should be subject to the laws, rules and usages of the order then in force or which might thereafter be adopted; and that the same condition was expressed in his certificate. The pleas' also alleged that before and at the time of the death of said Edward Smith, the following by-law was in full force and effect:

“Should any member die in consequence of engaging in a duel or by the hands of justice, or meet death while in the act of or as a result of violating the criminal laws of any state or municipality, or in consequence of his engaging in any unlawful or foolhardy undertaking, or if he shall die as the result of any wrongful act or acts on the part of his beneficiary, then all rights of his beneficiary, family, heirs and dependents, shall be thereby absolutely forfeited and terminated, and neither his beneficiary, family, heirs or dependents shall have any claim whatever upon this society,” etc.

¡Replications were filed .to these several pleas, traversing the allegations as to cause and manner of death.

Under the contract as pleaded and stipulated in the record, the only question of fact presented to the trial court for determination was, did Edward Smith meet his death while in the act of or as a result of violating the criminal laws of the state of Illinois, or in consequence of his engaging in an unlawful undertaking? The determination of this question of fact in the affirmative, as we think it must be upon the evidence, ends the case under the provision of the contract quoted. Upon a careful review of the evidence, we are of the opinion that it proves by a clear preponderance that Edward Smith was guilty of committing an assault and battery upon the person of Mirtell B. Parker, a policeman, at the time he received the injury resulting in his death. The great weight of the evidence shows that one Quigley had either accidentally or intentionally driven his wagon over a barricade which had been placed across Curtis street where some asphalt pavement had been newly laid. Quigley was either stopped or arrested by Parker, the policeman. Parker was getting the names of witnesses and writing them in a book when Edward Smith forced his' way through the crowd to where Quigley and the officer were standing, and interfered with the officer in his arrest of Quigley. Some words passed between the officer and Smith, and while the officer was standing there quietly, getting names of the witnesses and recording them in his book, Smith struck the officer a violent blow. There is some dispute in the evidence as to whether he fell to the ground or not as a result of the blow, but the officer endeavored to avoid Smith and ran south on Curtis street and around the corner west on Madison street. Smith pursued him with such speed that he was all the time within a very few feet behind the officer. Many of the witnesses say that Smith struck at the officer while he was pursuing him. Many testified that the officer was knocked down by another blow from Smith at a point about fifty feet west of Curtis street on Madison street, and that Smith went down on top of the officer, or alongside of him, and there was some scuffling while Smith and the officer were on the ground or sidewalk. The testimony of seven witnesses is to the effect that Smith struck and kicked the officer after he was down. The ‘ officer, while he was down, drew his gun and fired a shot at Smith. Many witnesses say that .Smith fired the first shot while he was either on top of the officer, or right over him, hut all the evidence tends to establish the fact that when the officer fired the first shot Smith was still committing either an assault or an assault and battery upon the officer. The officer immediately fired a second shot, causing the wound or injury which resulted in Smith’s death. These facts are supported by the overwhelming weight of the evidence produced on the trial. In our opinion, the evidence supports the defense set up in the plea, and there cannot be any recovery on the contract sued on.

It is unnecessary for us, holding this view of the evidence, to discuss the other assignments of errors and questions argued in the brief. The judgment of the court below is reversed.

Reversed.


text:
    North Shore Hardware Company et al., Appellees, v. Wellington D’Arcy and Charles A. Wightman, Appellants.
    Gen. No. 17,971.
    1. Mechanic’s lien—apportioning on several- buildings. In an action to enforce mechanics’ liens for materials furnished under one contract in the construction of four buildings on separate lots, where the owner of one of the lots, as mortgagee in a building loan on the other three lots, has made payments on the contract without any directions as to the application of such payments, the lienor may apply payments as he chooses, and where he has applied them on the property owned by the mortgagee, the latter and the contractor, owning the other three lots, are not in position to complain of a decree apportioning the liens on the remaining mortgaged lots.
    2. Mechanics’ liens—waiver of on one property does not affect other properties in a contract. The waiving of a mechanic’s lien as to one of the houses of properties for which materials have been furnished under contract does not operate as a waiver upon all of them.

      Appeal from the Circuit Court of Cook county; the Hon. John Gibbons,' Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed February 11, 1913.
    Charles S. Graves, for appellants.
    Hubert E. Page, for appellee, North Shore Hardware Company.
    Robert W. Dunn, for appellee, John D. McKay.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

A decree to enforce a mechanic’s lien was entered in the Circuit Court of Cook county in favor of appellee on the petition of the North Shore Hardware Company and the answer thereto in the nature of an intervening petition by John D. McKay, and the proofs in the cause.

Appellant Wightman owned the .four lots in question. He made an arrangement or agreement with appellant D’Arcy whereby he was to convey three of the lots to D’Arcy, and make D’Arcy three building loans of $3,000 each on the three lots for the purpose of enabling him to build the three houses, and to pay D’Arcy $400, in consideration of which D’Arcy was to build Wightman a house on the fourth lot similar to the ones which he proposed building on the other three lots.

The original bill was filed by the North Shore Hardware Company against D’Arcy, the owner of the three lots in North Evanston. D ’Arcy entered into an agreement with the Hardware Company to furnish hardware material and supplies for the construction of the four buildings on four different lots,—two of the houses being at the corner of Bennett avenue and Isabella street, one house designated as the Central street house in the record, and the one called the Hartrey avenue house. The properties were not contignous except the two separate lots at the corner of Bennett avenue and Isabella street in Evanston. The entire contract covered the four properties for the sum of $210 per house, or an aggregate of $840.

A similar contract was made by D ’Arcy with appellee McKay, intervener, who testified that his contract was to furnish plumbing material and supplies to the four houses for the sum of $1,600, or $400 per house; $175 per house was to be paid as each house was “roughed in,” and for the balance D’Arcy was to give McKay security to be held by him until D’Arcy was able to dispose of the houses. There is no substantial controversy as to the amount of the materials and work furnished by the lienors.

Wightman, according to his agreement with D ’Arcy, made conveyances of the three lots or properties to D’Arcy, and D’Arcy executed a mortgage or trust deed upon each one of the three properties for $3,000 each, and delivered them to Wightman, and signed a receipt for the money represented by them although no money was actually paid at the time. D’Arcy thereupon made the contracts above mentioned for material and labor for the construction of the four houses, and as work progressed, appellant Wightman paid out to the contractors and to D’Arcy for his pay roll, for himself and expenses connected with the loans, and for other purposes, the entire amount of the three loans, being the sum of $9,000.

The decree is substantially in accordance with the prayer of the petition and intervening petition, and apportions the amount due to the lienors upon the three properties conveyed to D ’Arcy. It appears, and the decree finds, that the payments were made by appellants to the lienors in accordance with the terms of the contract as the materials were furnished and the work done without any direction as to the application of the payments. The lienors applied or credited the several payments made by the owner to the Hartrey avenue property. These payments were more than sufficient to pay the amount furnished by them to that property, and the surplus was applied by the decree equally among the three remaining properties upon which the liens were decreed.

The contention is made by appellants that where the contract relates to separate buildings upon separate properties, no lien can be enforced against a portion of the premises; that the lien must be claimed against all the property included in the contract, and that this is true even though separate amounts are specified for the different buildings, for the courts will consider it but one contract.

It is important in considering this point to bear in mind that the only persons questioning the decree in this court are D ’Arcy and Wightman. Their relationship to the properties in question is that of owner and mortgagee. Wightman, being the owner of the four lots or properties, conveyed them to D’Arcy as above set forth for the purpose of having constructed upon the properties the buildings in question. D’Arcy cannot complain of the fact that the payments made were credited in the first instance to the Hartrey avenue lot owned by Wightman, for he did not specify on which of the three lots the payments should be credited. He is liable for the liens under the evidence, and does not occupy a position entitling him to make the contention here made by appellants. Wightman occupies a similar position for he paid out the money without specifying upon which of the three properties it should be credited. The fact that he is the apparent owner of the mortgages in question, when all the evidence is considered, gives him no equity as to the three properties upon which the liens were decreed, for he did not pay out the money on these mortgages until the work was done and materials furnished by the lienors, and he did not specify the houses or properties upon which the payments were to be applied. We think it appears that the payments were applied by the decree according to the terms of the contract, and that the lienors, receiving the payments without directions as to the application thereof, might apply them as they chose. Failing to make direction as to application of the payments, neither of appellants are in position now to complain of the decree allowing the liens proportionately upon the three lots.

Again it appears that the Hartrey avenue house was commenced first and the work upon that house was in a more advanced state at all times than upon the other houses covered by the contract. The contract plainly contemplated that the payments were to be made on each house according to the progress of the work thereon. Neither Wightman nor D’Arcy can complain of any payments applied on the Hartrey avenue house, for neither of them are injured by the application made of the payments. To have applied all payments pro rata on all four of the buildings would have been contrary to the contract.

We can see no reason for including the Hartrey avenue property in the property against which liens were claimed in the petition or intervening petition. On the evidence produced in this case, if the Hartrey avenue property had been included in the petition and intervening petition, the decree must have discharged that property as having been settled and paid for in full before the petition was filed; and the law does not require the petitioner to do a useless thing. Neither do we think that the waiving of a .lien as to one of the houses or properties operates as a waiver upon all of them under the provisions of the statute and the authorities.

We do not think that the writing submitted to McKay by D’Arcy is a contract existing between them. The contract was a parol contract. The writing submitted after the work was commenced, differs from the terms of the original agreement and was never accepted.

In our opinion, the decree does not include the profits upon the work not done, but represents the value of the contract work done in proportion to the price for the whole work for each house.

The decree is affirmed.

. Affirmed.


text:
    Amelia Schneider, Administratrix, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 17,978.
    1. Death—evidence as to earnings. Where the books of account of plaintiffs intestate cannot be found, and his widow was associated with him in business and knows the facts as to his earnings of her own knowledge, her testimony as to such earnings is admissible.
    2. Appeals and errors—harmless error. Where a street car conductor is asked by plaintiffs counsel if he said anything about “tracks” at an inquest, and defendant’s counsel in cross-examination fails to show that at such inquest he could only answer interrogatories proposed to him, defendant cannot complain.
    3. Appeals and errors—when error not preserved for review. Where no motion is made to strike out an answer made before a ruling sustaining objection, or where no exception is taken to a ruling of the court, error is not preserved for review.
    4. Instructions—abstract rule of law. An instruction to a jury which presents an abstract proposition of law and makes no application of the rule to the evidence is properly refused.
    5. Jury—affidavits after trial cannot impeach verdict. Affidavits of jurors made after trial will not be received to impeach their verdict, nor affidavits as to statements made by them.
    6. Street railroads—verdict. Verdict against street railroad company for causing death of plaintiffs intestate held not manifestly contrary to the weight of evidence nor excessive.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. William E. Deveb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed February 11, 1913.

      Weymouth Kirkland, William H. Symmes and Frank L. Kriete, for appellant; John E. Guilliams, of counsel.
    Thurman, Hume & Kennedy, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Appellee, as administratix of the estate of Frederick W. Schneider, deceased, hereinafter called plaintiff, brought an action on the case against appellant, Chicago Eailways Company, hereinafter called defendant, for causing wrongfully the death of plaintiff’s intestate. The defendant pleaded the general issue to the first count in the declaration, and to the two additional counts it pleaded the general issue and a plea of nonownership. The jury returned a verdict in favor of the plaintiff for $8,000. On remittitur of $2,000, the court overruled a motion for a new trial, and entered judgment for $6,000.

The declaration and additional counts charge in general terms negligence in the management of the car and aver that the accident occurred at or near the intersection of Milwaukee avenue with Gresham avenue in the City of Chicago. • Milwaukee avenue runs northwest and southeast, and the defendant was operating an electric car line in Milwaukee avenue. The accident occurred on July 2, 1909, about eleven o’clock at night, while plaintiff’s intestate was driving a single wagon, the sides and rear of which were covered with heavy canvas, the front end being open. The car of the defendant was going northwest on the northerly track and struck and overturned the wagon of the deceased, throwing him out and causing injuries from which he died later.

It is contended by the defendant that the verdict of the jury was not supported by the weight of the evidence. The contention of the defendant is that the wagon wMch decedent was driving was north-west bound in the south-east bound track, having just turned out of the north-west bound track to permit the passage of a car ahead of the one which collided with the wagon, and when the car was within 75 feet of the wagon, the motorman saw it and rang his bell; but after he had run about 25 feet, the horse suddenly turned into the nqrth-west bound track, and that the car was then such a short distance away from the horse that the motorman was unable to avoid the collision; and, further, that the wagon carried no light. The evidence of the defendant tends to support this theory.

The contention of the plaintiff, on the other hand, is that the wagon had been in the north-west bound track some time previous to the collision, and was turning into the south-east bound track at the time it was struck. The evidence bearing upon the question as to whether decedent was guilty of contributory negligence, and whether the defendant was guilty of negligence is conflicting. It was a question for the jury, and upon an examination of the evidence, we are of the opinion that the verdict is not against the weight of the evidence so manifestly that it should be set aside. We cannot say that the verdict of the jury is contrary to the weight of the evidence.

It is urged that the court erred in permitting the testimony of Mrs. Schneider,- the wife of decedent, as to the amount of her husband’s earnings without the production of his books of account, which Mrs. Schneider testified she kept in the course of his business, but she was unable to produce the books not knowing where they were at the time of the trial. Mrs. Schneider testified that she was associated with her husband in business and knew the facts as to his earnings of her own knowledge. In our opinion the court did not err in admitting her testimony.

Mrs. Schneider was asked if the decedent’s home had been fully paid for. The question was objected to, but the witness answered before the puling of the court. The court sustained the objection. No motion was made to strike out the answer. We do not think that the ruling was erroneous, or that the defendant was injured because the witness answered before the ruling of the court.

Mrs. Schneider was also asked how long her husband was in the hospital, and before the ruling on the objection to this question she answered, “Twenty-four days.” The court sustained the objection and struck out the answer. The rulings were correct, and we think no harm resulted to defendant.

The witness Christine Schroeder was asked:

“Did you notice his (decedent’s) condition when he was taken out?”

It had appeared from the evidence that he was under the overturned wagon, and defendant’s car had to be run back in order to take the decedent from under the wreck of the wagon. Objection to the question was sustained, and no answer was given. We do not think the ruling of the court was improper, or that defendant was injured by the question.

Defendant’s counsel asked the following question of the witness Tamillo:

“Tour wife is a relative of Miss Christine Schroeder, isn’t she?”

The court sustained an objection to the question. Complaint is made that the objection was sustained. The defendant, however, took no exception to the ruling, and the ruling is, therefore, not preserved for review.

Defendant urges that it was error for the plaintiff to ask the car conductor Kortaz if at the inquest on decedent’s death he had said anything about tracks, and the reason urged is that the witness would respond only to interrogatories propounded to him, and without evidence that he was asked and had an opportunity to answer in regard to that subject, it was improper to ask him if he had said anything about the tracks. We think there is no basis to this claim. It may be true that the witness responded only to interrogatories at the inquest, but if the answer of the wit- ■ ness to the question was unsatisfactory to the defendant, he had an opportunity by cross-examination to inquire of the witness whether or not at the inquest he had been asked anything about the tracks. He did not so do.

Mr. Kennedy, one of the original attorneys in the case, was asked on cross-examination the question:

“You’ve got this case on a contingent basis, haven’t you?”

An objection to the question was sustained by the court. The defendant, however, preserved no exception to the ruling of the court, and it is not before us for review.

It is further urged that the damages awarded in the judgment are excessive, and reference is made to the examination of the juror Krempel on his voir dire in another case subsequent to the trial of the case before us to the effect that his sympathy “had got the better” of Trim. This was attempted to be shown on the motion for a new trial by affidavit of the juror Krempel. It is sufficient to say that the affidavits of jurors made after trial will not be received to impeach their verdict, nor will affidavits as to statements made by jurymen be received to impeach their verdict. Upon a review of the evidence we do not think that the judgment is excessive.

It is urged that error was committed by the court in refusing proper instructions asked on behalf of defendant. The court gave on behalf of defendant twenty-six instructions.

The defendant urges that the court wrongly refused instructions 30, 31, -32 and 33. Instruction 30 was properly refused. It did not state the law. Instructions 31 and 32 were covered by given instructions. Refused instruction 33 is simply an abstract proposition of law and makes no application of the rule to the evidence. It was not error to refuse it. Vallette v. Bilinski, 167 Ill. 564.

The remarks of counsel for the plaintiff in his closing argument to the jury are not to be approved. We do not think, however, they should cause a reversal of the judgment.

The judgment is affirmed.

Affirmed.


text:
    James McAlear, Trustee, Appellee, v. New York Life Insurance & Trust Company et al., Appellants.
    Gen. No. 18,021.
    1. Mechanic’s lien—apparatus used to ventilate kitchen. A ventilating apparatus installed under contract with a tenant, consisting of a metallic exhaust fan and connected metal canopy over a kitchen range, with a motor to drive the fan and a metallic pipe connection from the fan to a tile flue, though attached to the building, is a trade fixture and not the proper subject of a mechanic’s lien against the building.
    2. Mechanic’s lien—fixtures must be so installed as to become part of real estate. In order that fixtures, apparatus or machinery may be the subject of a mechanic’s lien against the building, it must appear that they are so installed as to become a part of the real estate.
    3. Mechanic’s lien—intention with which fixtures are installed. The intention with which a ventilating apparatus is installed becomes important in determining whether it is a trade fixture or an improvement to the building and the subject of a mechanic’s lien.
    4. Agency—authority of renting agent to order improvements. The improvement of a building is not within the scope of authority of one who acts as agent of the building for the renting and collection of rents.
    Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed February 11, 1913.
    Taylor & McWilliams and J. S. Dudley, for appellants.
    Culver, Andrews & King, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Appellee, J ames McAlear, trustee, obtained a decree in the Superior Court for a mechanic’s lien against a property of appellants known as the Boyal Insurance Building in Chicago for $338.30 for ventilating apparatus alleged to have been installed by Andrews & Johnson Co. in a part of the basement of that building leased by appellants to Tom Jones and used as á kitchen for his restaurant. The work was ordered by Jones. Shortly after it was installed he went into bankruptcy, and the apparatus was sold by his receiver in bankruptcy at auction and taken out.

The bill was filed July 30, 1909. It alleges that the real estate with the building known as the Boyal Insurance Building is owned by appellant, the New York Life Insurance & Trust Co., as trustee for appellant Boyal Insurance Company of Liverpool; that on'December 22, 1908, Andrews & Johnson Co., an Illinois corporation, contracted orally with Jones, a tenant of the building, to install a ventilating system in the space occupied by him; that George H. Taylor is the agent of the Boyal Insurance Building, and the agent of appellants with respect to the building; that appellants, by their agent, authorized and knowingly permitted the Andrews & Johnson Company, under its contract with Jones, to contract for the improvement; that the machinery and equipment of the ventilating system were affixed to the building in a way to make them a part of the building and a permanent improvement thereto.

That on February 13, 1909, Andrews & Johnson-Co.' assigned its claim for lien to the Mercantile Credit Co., an Illinois corporation; that on April 22, 1909, the Mercantile Credit Co., as assignee of this lien, filed a claim for lien with the Circuit Court clerk; that on July 30, 1909, the Mercantile Credit Co. assigned the claim for lien back to Andrews & Johnson Co., and afterwards and on the same day the Andrews & Johnson Co. assigned the claim for lien to appellee; that appellee was then and still is the trustee of the property of the Andrews & Johnson Co. under a voluntary deed of trust conveying all its property to appellee for the purpose of liquidation, and by reason thereof appellee is entitled to maintain the lien.

The answer of appellants denies any knowledge of the contract between Andrews & Johnson Co. and Jones, and denies authorizing or permitting that company in any way to contract for the improvement of or to improve the Boyal Insurance Building in any way; denies that material and labor were furnished or installed as alleged, or that the same formed any part of a complete or partial system of ventilation for said building, or was in any way affixed to any part of said building so as to make said labor and material or any part thereof a part of said building, or any new or permanent improvement thereof.

The evidence shows that the alleged improvement was a ventilating apparatus in the kitchen in the basement of the Boyal Insurance Building in a part of the building occupied for a restaurant by Tom Jones as a tenant. The work was ordered by the tenant. He became a bankrupt. The apparatus was sold at auction by the receiver in bankruptcy and removed. It is claimed the interest of the landlord is liable to a mechanic’s lien for the work on the ground that the landlord, through its agent, Taylor, authorized and knowingly permitted the' tenant to contract with the lienor •for the improvement. On behalf of the owner, appellant, it is insisted that the character of the work is such that it is not the subject of a lien as against the interest of the owner. The apparatus consisted of a metallic exhaust fan and connected metal canopy over the kitchen range, located under the street sidewalk, with a motor to drive the fan, and a metallic pipe connection from the fan to a tile flue. This tile flue was not a part of the work. It extended north to an air shaft in the middle of the building, and at the north end of the flue a new metal duct was put in as it was thought that the old duct was not large enough. The motor and fan were placed on a pier, or rather a recess in the street side of the foundation and fastened by lag screws or bolts in wooden plugs sunk in holes drilled in the masonry. The canopy and connecting pipe were suspended by hangers fastened from wooden wedges placed in cracks of the flagstones of the sidewalk overhead.

The items for which a lien is claimed are:

1—13 “Type L” Blower,

1— 3 H. P. Motor,

656 lbs. Galvanized iron, bolts, rivets, nails, etc.

Labor, Cartage and Carfare.

That the apparatus, or part of it, was in some way attached to the building and the sidewalk under the street, cannot be questioned under the evidence, but as between the landlord and the tenant we are of thq opinion that the material and work constituted a mere trade fixture and was not the proper subject of a lien as against the building. The distinction between ordinary materials and trade fixtures with respect to being proper subject of lien under our statute is stated in Haas Elec. Co. v. Amusement Co., 236 Ill. 452. In that case it is substantially held that our statute has modified the law with reference to ordinary material furnished, but in the case of fixtures, apparatus or machinery it must appear that they are so installed as to become a part of the real estate.

In Baker v. McClurg, 198 Ill. 28, it was held that in a building erected and used for a bakery, the brick ovens and the boiler enclosed in brick masonry, and the engines, etc., were removable by the tenant.

On the above authorities we are of the opinion that the articles furnished in this case were removable trade fixtures and were not permanent fixtures or improvements to the building. In our opinion the intention with which they were installed is important in determining whether they become part of the realty. The canopy, fan and motor were installed by the tenant for the purpose of carrying oft cooking odors from a small part of this building. They were installed under the sidewalk in a space used for a kitchen by the tenant. They formed no part of the ventilating system of the building. They were installed for the particular business then conducted by Tom Jones in a space rented by him and were not intended as a permanent part of the real estate, if it be assumed that the space under the sidewalk was a part of the premises leased. Their removal from the premises could be made without any damage to the realty. In our opinion the landlord was powerless to prevent their removal by the tenant or his receiver in bankruptcy. If the city ordered it out, it would have to be removed.

This is not a case where by the terms of the lease the tenant was expressly authorized to make the improvement. The evidence does not show that the landlord authorized any improvement. It tends to show simply that Taylor, the agent of the building for the renting thereof and the collection of rents under a written authority, had no authority to order such an improvement as the material and property involved herein constituted. He did have authority probably to prevent any damage done to the building by the construction of the canopy and installation of the fan and motor, and his acts in connection therewith may be explained and should be explained upon the theory that he was guarding the interests of appellants in seeing that the installation of the trade fixtures in question was not made in such a way as to damage the building. The improvement of the premises, or building, is not within the scope of the authority given to.Taylor as shown by the evidence.

In our opinion the decree is erroneous and it is reversed and the cause remanded with directions to dismiss the bill.

Reversed and remanded with directions.