text:
    James H. Rice Company, Appellee v. Michael J. Agnew, Administrator, Appellant.
    Gen. No. 14,339.
    1. Decebes—what not essential to sustain, entered pro eonfesso. Evidence to sustain the allegations of a bill need not be required by the court where the decree is entered pro eonfesso.

    2. Bills in aid of execution—extent of relief which may be awarded. If the complainant in a bill filed in aid of an execution has a judgment lien subordinate to a prior mortgage and if the mortgagor is insolvent or of questionable responsibility and the mortgaged premises are insufficient security and the mortgage does not pledge the rents, the court may through the medium of a receiver apply such rents towards the satisfaction of the judgment lien.
    3. Receives—lohen order appointing, need not convey title. An order appointing a receiver of an estate real and personal, things in action, debts, equitable interests and 'other effects of' the defendant, is ample to authorize such receiver to collect rents.
    4. Receives—when failure to require bond not reversible error.
      No harm appearing to the defendant, held, that it was not rever sible error for the court to fail to require a bond from the complainant to the defendant.
    5. Defaults—when motion to set aside properly denied. A party moving to set aside a default is limited to his specified reasons for so doing and if such specified reasons do not justify the action requested, the court in denying the motion will be sustained.
    6. Defaults—what does not require setting aside. The mere showing of a meritorious defense does not require the setting aside of a default.
    7. Amendments and jeofails—who not entitled to notice. A party duly served, who has not appeared, is not entitled to notice of an application for leave to amend.
    Bill for injunction etc. Appeal from the Superior Court of Cook county; the Hon. Hablen Q. Ball, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 22, 1909.
    Statement by the Court. October 6, 1902, the James H. Bice Co. filed a bill against Joseph McJohn and Edward McJohn, averring substantially as follows : Complainant, September 7, 1902, recovered judgment in the Circuit Court of Cook county against the defendant, Joseph McJohn, for the sum of $1,801.60 and costs. Prior to the rendition of said judgment, Joseph McJohn was the owner in fee simple of lot 16, in block 63, in the Canal Trustees Subdivision of part of the southeast quarter of section 9, township 39 north, range 14 east of the third principal meridian, in Cook county, Illinois. September 20, 1902, execution was issued on said judgment, and, October 1, 1902, was delivered to the sheriff of said county to be executed. August 7,1902, prior to the rendition of said judgment, but after the indebtedness for which the same was rendered had accrued, the defendant, J oseph Me J ohn, conveyed said premises, in fee, to the defendant, Edward McJohn. Said conveyance was made to defraud complainant and other creditors of said Joseph McJohn, and was without consideration, and said premises are now held by said Edward McJohn, in trust for said Joseph McJohn, and for the purpose of preventing a levy and sale by virtue of said execution. Said Joseph Me John has no property, except said premises, on which said execution can be levied, and although the sheriff has frequently demanded of said Joseph Me John to turn out property for him to levy on, said Joseph Me John has refused so to do. Said premises are improved with a three-story brick building, part whereof is occupied by said Joseph Me John for carrying on the manufacture of show-cases, and the remainder is vacant. The judgment remains in full force and wholly unsatisfied. The prayer is for answer, without oath, the setting aside the conveyance from Joseph to Edward Me John, an injunction and the appointment of a receiver, and for general relief.
    October 8, 1902, the defendants, Joseph and Edward Me John, were served with summons. March 2, 1904, complainant, by leave of the court, amended the bill, averring, in substance, that Joseph Me John had, since September 17, 1902, transferred, by pretended sale, etc., personal property, with the intent to hinder and defraud complainant and other creditors, and naming Mitchell McCarthy and the Graham Manufacturing Company as persons to whom such transfer was made. November 30, 1906, another amendment was made, adding new parties defendant. April 25, 1904, Joseph and Edward Me John were defaulted and the bill of complaint, as amended March 2, 1904, was taken pro confesso, as against them. January 31, 1905, an order was entered appointing William W. Johnston receiver of the estate and property of Joseph Me John, and ordered that said Joseph and his tenants attorn to the receiver and pay to him the rents. April 7, 1905, Johnston, receiver, was discharged at his request, and Fred L. Devine was substituted as receiver. June 15, 1906, the death of Edward Me John was suggested, and Michael J. Agnew, the appellant, administrator, with the will annexed, of said deceased, was substituted as defendant, and the heirs and devisees of said deceased were made defendants. September-21, 1906, Agnew, without leave of court, filed an answer to the bill. October 4,1906, Samuel Schweitzer filed a petition in the cause, averring, in substance, that, January 4, 1905, he filed a bill against Joseph Me John in the Circuit Court of Cook county, to foreclose certain mortgage liens on the property in question, and such proceedings were had therein, that said court, June 15, 1905, decreed a sale of said premises, which sale occurred June 29, 1905, and petitioner purchased said premises and appurtenances and the rents thereof at said sale for the sum of $16,038.92; that the period of redemption from said sale expired September 29, 1906, and, there having been no redemption, a master’s deed was issued to petitioner October 1,1906. The receiver appointed herein has been in possession of said premises during the whole period of redemption, and has collected $60 rent, which petitioner claims belongs to him. Petitioner prays that the receiver appointed herein be ordered to surrender said premises to him, and, also, to pay to petitioner $60, for the rent of said premises for the month of October, 1906, collected by said receiver in advance.
    October 4,1906, the court entered ah order as prayed in and by said petition. February 25, 1907, the appellant, Michael J. Agnew, moved the court to set aside the order of April 25, 1904, defaulting his testator, Edward Me John, whereupon the complainant made a cross-motion for leave to withdraw the amendments to the bill-, made respectively March 2, 1904, and November 30, 1906. The court granted the cross-motion of complainant and denied the administrator’s motions. This left the bill as originally filed. By the order of April 25, 1904, the cause was referred to a master to take proofs and report on the law and evidence. July 3,1907, the master filed his report, finding that the complainant was entitled to the relief prayed, and recommending a decree accordingly. December 17, 1907, the court rendered a decree overruling the exceptions of Agnew, administrator, to the master’s report, and confirming the same. The court finds in its decree that the conveyance from Joseph McJohn to Edward McJohn is fraudulent, and sets the same aside; finds the facts alleged in the petition of Samuel Schweitzer, and decrees accordingly, and finds that the receiver had collected, in excess of necessary disbursements, the sum of $1,583.45, and decrees that the moneys so collected, less $75, the reasonable charges of the receiver, be paid to complainant. The only party appealing from the decree is Michael J. Agnew, administrator. The record contains other matters than those above mentioned, which will be referred to in the opinion when deemed necessary.
    Thomas J. O’Hare, for appellant.
    Auden, Latham & Young, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Counsel for the defendant, appellant here, contends that the bill, being one in aid of an execution, the court was limited to setting aside the conveyance from Joseph McJohn to Edward McJohn, defendant’s testator, and that the decree, in applying the rents in payment of the complainant’s judgment, is unwarranted by the allegations of the bill, and is erroneous.

Edward McJohn and Joseph 'McJohn were served with summons October 8,1902. They neither answered nor filed an appearance,, and, April 25, 1904, more than eighteen months after service on them, an order was entered defaulting them and taking the bill, as amended, pro confes so against them, for want of an answer.

Section 18 of the act regulating chancery practice provides: “When a bill is taken for confessed, the court, before a final decree is made, if deemed requisite, may require the complainant to produce documents and witnesses to prove the allegations of his bill, or may examine him under oath or affirmation touching the facts therein alleged. Such decree shall be made in either case as the court shall consider equitable and proper55. This section has been in force since 1845, and its construction is well settled.

In Van Valkenburg v. Trustees of Schools, 66 Ill. 103, it was .insisted by a defendant, against whom the bill had been taken pro confesso, that there were numerous errors in the record, in respect to which the court say: “It is insisted that the decree is not supported by the evidence. The bill was taken for confessed as against all the plaintiffs in error, and under the construction uniformly given to the statute, the court could enter a decree even without evidence, and if the evidence was in fact heard, it is not indispensable that it should be preserved in the record. In Smith v. Trimble et al., 27 Ill. 152, it was said that when a bill was taken as confessed, the court trying the cause may, in its discretion, require proof as to all or any portion of the allegations of the bill, or render a decree on the pro confesso order without evidence. A party against whom a bill has been taken for confessed cannot therefore assign as cause of error that the proof does not sustain the allegations of the bill. It is a matter of discretion with the court, under our practice, whether he will require evidence to be produced. Harmon v. Campbell, 30 Ill. 25; Sullivan v. Sullivan, 42 Ill. 315; Cronan v. Frizell, Admr., 42 Ill. 319".

The court, on Edward and Joseph Me John being defaulted, might have entered a decree against them without hearing any evidence. Mason v. Patterson, 74 Ill. 191, 195. It was admitted by them, in suffering default, that there was a valid judgment against Joseph Me John remaining wholly unsatisfied, and that while the indebtedness existed for which the judgment was rendered, and before its rendition, Joseph Me-John, the judgment debtor, made a fraudulent conveyance of the premises described in the bill, to hinder and delay the complainant and other creditors; also, that said premises were the only property which Joseph Me John had, and that the sheriff had frequently demanded that he pay the judgment, or turn out property to satisfy it, which he refused to do. These admitted facts show that Joseph Me John was insolvent. The property conveyed by him to Edward Me John was the only property which he had, and while it was fraudulent as to creditors, it was good as between him and his grantee, Edward, and he could not use it in payment of his debts.

There is evidence that the premises fraudulently conveyed were insufficient to satisfy the complainant’s judgment. The court, in the decree, found that Samuel Schweitzer was the holder of a mortgage superior in equity to the judgment, and that, June 15, 1905, in foreclosure proceedings in the Circuit Court of Co.ok county, a decree of sale was entered, and, in pursuance thereof, all the interest of Joseph Me John in the premises was sold to Samuel Schweitzer, and a master’s deed of the premises was delivered to him. A master’s deed of the premises in question, of date October 1, 1906, was put in evidence, from which it appears that Samuel Schweitzer bid for the premises $16,038.92. There was, therefore, nothing left to apply on complainant’s judgment except the rents accruing due pending the suit.

The complainant had a judgment lien on the premises subordinate to the prior mortgage. In the case of a mortgage ben, the court, on equitable principles, and without a provision in the mortgage pledging the rents as security, will appoint a receiver and apply the rents in payment of the debt, if the mortgagor is insolvent or of questionable responsibility, and the mortgaged premises are insufficient security. Haas v. Chicago B’g Society, 89 Ill. 498, 302; First Nat. Bank v. Ill. Steel Co., 174 ib. 140, 149-50. See, also, Glos v. Roach, 80 Ill App. 283, affirmed 181 Ill. 440.

The object of the bill is the collection of the judgment out of the property, and it is averred in the bill that the premises are improved by a three-story brick building, a portion of which was occupied by Joseph Me John, the remainder being vacant, and the bill prays for general relief. We are not prepared to hold that the decree, in appropriating the rents to the payment of the judgment, is not warranted by the averments and prayer of the bill.

Counsel for Agnew object to the order appointing a receiver, on the ground that the order did not convey title to the rents, and also on the ground that the complainant was not required to give bond to Edward Me John. In the view we take of the cause, Edward Me John was not in the least damaged by this omission. The order appointed Johnston receiver of the estate, real and personal, things in action, debts, equitable interests and other effects of the defendant, Joseph Me John. This was amply sufficient to authorize the receiver to collect the rents. Moreover, the court, by subsequently approving the reports of the receivers, confirmed their acts in the premises. A fund was created by the collection of rents by the court, through the receivers, and the question was how it should be applied. Agnew, the administrator, has no greater rights than had his testator. Had Edward Me John lived, would he have had any title to or interest in the rents 1 It is admitted of record that the conveyance by Joseph to Edward McJohn was fraudulent as to the complainant, Joseph’s judgment creditor, which being so, Joseph Me John, the fraudulent grantor, was, as to complainant, the equitable owner of the rents from the time of the execution of the fraudulent conveyance to the termination of the period of redemption from the sale under the decree foreclosing the mortgage, and Edward Me John, the fraudulent grantee, took nothing by the conveyance, as to complainant, the judgment creditor; and his administrator is litigating in respect to a matter in which he has no interest. Equity looks to the substance of things. It is apparent from the record that unless the rents accruing due pending the suit are applied in payment of complainant’s judgment, it is remediless. The corpus of the property was sold under the decree foreclosing the prior mortgage, and Joseph McJohn is insolvent.

Agnew, administrator, moved the court to set aside the default of Edward McJohn, his testator, and complainant made a cross-motion for leave to withdraw the amendments to the bill, and, February 25, 1907,-both motions were heard, and the court granted the complainant’s motion and denied the motion of Agnew, administrator. It is contended by counsel for Agnew that the denial of his motion was erroneous, for the reason that the withdrawal of the amendments to the bill operated to set aside the default, and, therefore, Agnew had a right to answer, and cases are cited in support of this proposition. The motion was not made on the theory now relied on. It was made before the amendments were withdrawn, and was for an affirmative order setting aside the default on three specified grounds: 1. That complainant, March 2, 1904, amended its bill, without notice or applying for leave so to do, to Edward McJohn; and 2, complainant again, November 30, 1906, amended its bill; and, 3, that Edward McJohn and defendant, Agnew, his successor, had a good defense on the merits.

Defendant Agnew was limited to the grounds specified in his motion.

Edward McJohn was served with summons October 8, 1902, and never answered or entered an appearance, and was not entitled to notice of application for leave to amend the bill. The amendment of November 30,1906, was made nineteen months after the defendant, Edward McJohn, had been defaulted. The alleged ground that Edward McJohn had a good defense to the bill, supported as it was by an affidavit, certainly would not have entitled him, as matter of right, to an order setting aside the default. The court did not err in denying the defendant’s motion.

Subsequently, defendant Agnew made another motion to “vacate the order defaulting his testator”, on the ground stated in the first motion, and on the further ground that the withdrawal of the amendments constituted an amendment, which motion the court denied, properly, as we think.

There are various other objections in the record which we have considered, but which we do not deem it necessary to comment on in this opinion. Our conclusion, from inspection of the entire record, is that substantial justice has been done by the decree. We find no reversible error in the record, and the decree will be affirmed, appellee to recover its costs of this court, to be paid in due course of administration.

Affirmed.


source: Caselaw Access Project

author: Mb. Pbesiding Justice Adams

license: Public Domain

text:
    George G. Greenburg, Appellee, v. S. D. Childs & Company, Appellant.
    Gen. No. 14,350.
    1. Pbincipax and agent—what not breach of duty by latter. An employe of a corporation wbo purchases the business and materials of a rival concern just prior to the expiration of his term of service for the purpose of entering into business for himself at the end of such term of service, is not guilty of a breach of duty.
    2. Sales—when recovery for, made by agent to principal sustained. If an agent just prior to the expiration of his term of service purchases material, etc, of a rival concern for the purpose of going into business himself at the end of his term, an agreement to continue his service after the expiration of his contract, in consideration of which the principal is to take over, use and pay for, as its business required, the material so' purchased by the agent, is valid, and the market value of such of the materials in question as are used by the principal may be recovered by the agent in an appropriate action.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Max Ebebiiardt, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 22, 1909.
    TTlT.-ivrEyR & Cohen and Todd Lunsford, for appellant.

      Joseph Cummins and M. H. Cazieb, for appellee.
   Mb. Pbesiding Justice Adams

delivered the opinion of the court.

The plaintiff, George G. Greenburg, sued the defendant, S. D. Childs & Co., in assumpsit. The declaration consists of the common counts, and the defendant pleaded the general issue. The defendant, at the close of the plaintiff’s evidence, and also at the close of all the evidence moved the court to take the case from the jury, but the court denied both said motions and submitted the cause to the jury, who found the issues for the plaintiff and assessed his damages at $2,000, and the court overruled motions by the defendant for a new trial and in arrest of judgment, and rendered judgment on the verdict. The plaintiff had been in the employ of the defendant for about seventeen years prior to J anuary 1,1904. In December, 1903, and shortly before J anuary 1,1904, when plaintiff’s term of employment would expire, he purchased the stock, business and good-will of T. P. Moore & Co., intending to go into business for himself when his term of employment with the defendant should expire.

T. F. Moore & Co. was a corporation engaged in the same business as the defendant and a competitor of defendant. The plaintiff testified that he paid $5,000 for what he purchased from T. F. Moore & Co., an'd that shortly after his purchase he had a conversation .with J. A. Smith, the defendant’s president, which he relates substantially as follows: Smith began the conversation, saying he had learned that I had purchased the Moore business and was going into business for myself, which I said was correct. He said that I had been in defendant’s employ a great many years, and he had placed absolute reliance and faith in me, and did not want me to leave, and that, if I would discontinue the Moore & Co. business, with the understanding that none of the assets or anything of Moore & Co. were to go to any competitor of defendant, defendant would take the materials, dies or machinery I had on hand, just as rapidly as the orders on hand, or other requirements, called for them, and pay me for them. I said that would be satisfactory to me, and agreed to dismantle the Moore plant immediately, which I did. Part of the stuff in the Moore plant was conveyed to the manufacturing end of defendant’s business, 155 West Jackson'street, and the machinery was taken to defendant’s new building, 279 East Monroe street. My salary was increased $500 per year, and I made a new contract with defendant for three years. Nothing was put in writing. Smith further said that if I would remain with defendant I would become a director in the company, and would be given stock, in consideration of money or other credit. There was no agreement at that time how much stock I was to have or how much I should pay for it. A few days later it was held out to me that I would be made a director in the company, and that, when I paid up $3,000, I would he given $10,000 worth of stock in the company.

The plaintiff further testified: The materials taken to defendant’s place of business were brass, german silver, copper, bronze and sheet iron, and small stuff, jump rings, slabs and stuff of that kind. The machinery was taken to the Monroe street plant. A large number of dies and tools, also completed work and some work partially completed, were taken to defendant’s place. Smith said that defendant would deliver the completed goods and credit them on my account, and as to the uncompleted goods, he would credit me for the material in them, and that such of the dies as orders would require to be used, he would compensate me for their value.

Mr. Jerome A. Smith, defendant’s president, called by defendant, testified that he was in his seventy-fifth year, and denied that he ever had any conversation with the plaintiff in reference to taking, using or paying for any of the Moore stock. He testified that he once had a conversation with the plaintiff, in which he offered to sell him stock, which conversation occurred before anything came up about the Moore matter, and that he never offered to plaintiff $10,000 of stock, at its par value, for $3,000.

L. D. Childs, defendant’s treasurer, testified that he was present during part, but not all, of the conversation between plaintiff and Mr. Smith, and did not hear any conversation between them on the subject of taking over the Moore stock.

Whether or not there was such agreement as testified to by the plaintiff, depends mainly on the testimony of the plaintiff and Mr. Smith, and it was for the jury to decide as between them, which evidence was the more credible. That plaintiff purchased the Moore stock, for the purpose of going into business on his own account, that the stock, after the conversation between plaintiff and Mr. Smith, was conveyed to the defendant’s premises, as plaintiff testified, and that a considerable part of it was used in filling orders in the defendant’s business, the evidence tends to prove and the jury were warranted in believing. The plaintiff was in charge of the metal department of defendant’s factory, and orders received by the defendant went to that department, and the plaintiff must have known what parts of the Moore stock were used in filling orders in defendant’s business.

That the defendant regarded the plaintiff as trustworthy is evident from the fact that it had retained him in its employ for seventeen years, and that no fault had been found with him on the score of integrity or otherwise is shown by the fact that defendant protested against his quitting its employ, and raised his salary from $2,500 to $3,000 per annum, as an inducement for him to remain with it. Mr. Smith testified that, in his conversation with the plaintiff, he said to him that he had been with defendant for a good many years, that defendant liked him, and that he, Mr. Smith, was very sorry that he had made up his mind to leave defendant. This was a very great endorsement of the plaintiff as to capability and integrity, to go to the jury. It was a significant circumstance for the consideration of the jury that, immediately after the conversation between plaintiff and Mr. Smith, the plaintiff sent the materials which he had purchased, with the intention of going into business for himself, to the defendant’s premises. This, if the agreement between him and Mr. Smith was as plaintiff testified, was the natural thing to do. Mr. Smith testified that he did not know of the removal of the Moore stock to the defendant’s factory, but Mr. Duckgeischel, who, Mr. Smith testified, was foreman of manufacturing at the factory, called by defendant, testified that the Moore stock was moved to the factory about January 1, 1904, that parts of it were used in manufacturing articles ordered, and that he gave to the plaintiff memoranda of such parts as were so used.

The evidence in the case is voluminous, occupying over 500 pages of typewriting, and it is impracticable to refer to it specifically in this opinion. Suffice it to say that the evidence is, as we think, after very careful consideration of it, sufficient to sustain the verdict. We will now refer to the contentions of the defendant’s counsel.

They contend that the court should have taken the case from the jury, on the ground that plaintiff, as defendant’s agent, placed himself in a position in which his interest was such as tended to cause him to be neglectful of his employer’s interests; and counsel cite numerous authorities as to the duties, obligations and limitations of an agent, which, as we think, have no application to the facts of the case. The plaintiff purchased the business, stock and good-will of the Moore plant, with the intention of going into business for himself, when Ms then term of employment with the defendant would expire. This, certainly, he had a perfect right to do. He did not make the purchase for the defendant, but for himself, to be used in his own business and not in defendant’s. Assuming plaintiff’s testimony to be true, for the sake of the argument, he disclosed to defendant’s president his purchase and his intention in making it, and in the agreement between him and Mr. Smith they stood at arm’s length, in respect to what should be done with the property purchased, in the event of plaintiff consenting to Mr. Smith’s urgent request that he would remain in defendant’s employ for a further term of three years, in which case plaintiff would have no personal use for the property, which consisted of materials, orders, some wholly and some partially completed, and some not yet filled, etc., and Mr. Smith proposed that the defendant would use the property in its business as rapidly as such property should be required in filling orders or otherwise. We are unable to perceive that the' plaintiff, in' accepting this proposition from the president of his principal, violated in any respect his duty as agent. It is true that the plaintiff was in charge of defendant’s metal department, in which such of the purchased property as was used was, but this was by the defendant’s authority, and the agreement was that the property would be used as rapidly as would be required by orders, and there is no evidence that it was otherwise used.

Counsel contend that plaintiff’s testimony is, that the defendant should have all the purchased property, and that he violated the agreement by selling parts of it to others. The evidence is that plaintiff sold to others than defendant belts, pulleys and machinery, which were not articles which cut any figure in the competition between defendant and other like companies, and there, is no evidence that any of the things so sold were required in the defendant’s business. Defendant did not agree to take all the Moore property purchased by the plaintiff, but only such as might be required to fill orders, or otherwise in its business. Plaintiff testified that the understanding between him and Mr. Smith was, that none of the assets of Moore & Co. were to go to any of the competitors of defendant. There is no evidence that any of the articles were sold by plaintiff to any competitor of defendant. It is contended that the agreement testified to by plaintiff was that he was to be paid for the articles used in defendant’s business in stock of the company. The plaintiff, after relating in full the agreement made by him with Mr. Smith, testified: “There was no agreement, at that time, as to how much I should pay for stock, or how much stock I should have. A few days later, in a conversation, it was held out to me that I would be made a director in the company; that, when I paid up $3,000, I would be made a director in the company; that when I had paid up $3,000 I would be given $10,000 worth of stock”. He further testified that the amount due him from defendant, on account of use by defendant of the property, orders, etc., purchased by him from the Moore Co., never amounted to $3,000. Mr. Smith, as we have seen, testified that any talk which he had with the plaintiff, in which he offered to sell him stock, was “before this Moore matter came up at all.” In view of the foregoing evidence, we think it plain that a suit by plaintiff against defendant for stock could not be maintained. Plaintiff, however, relies on the following, which occurred in the cross-examination of the plaintiff: “I expected to ask for the stock, in accordance with the agreement, when the matter had accumulated $3,000. The agreement I had with them was, when I paid them $3,000 I was to receive this stock then.

Q. Well, then they don’t owe you anything except stock?

A. Well, you can just put it that way if you wish; I will take the stock.

Q. I want to know, Mr. Greenburg, whether they were to pay you in stock or to pay you in money?

A. They were to pay me in stock.”.

The meaning of this evidence is that plaintiff was to have $10,000 of stock in the defendant company when he should have paid to defendant $3,000, which payment was to consist, as we understand, of credits for the Moore material used by defendant amounting to $3,000, which they never did.

Plaintiff, at the expiration of his three year term of employment, left defendant’s service, for no reason shown by the evidence except that his term had expired, taking with him what remained unused of the Moore stock. The agreement of the defendant to use such part of that stock as it might require, was evidently for plaintiff’s benefit, andas an inducement for him to remain in defendant’s employ.

It is next contended that the case should have been taken from the jury, because there was no proof of the cost of that part of the Moore stock used by defendant. It is argued by counsel that it was not competent to prove the market value of that part of the property used by the defendant, but only what it cost the plaintiff ; and inasmuch as the plaintiff purchased the stock, business and good-will of the Moore Co. in bulk and as a whole the cost of any specified part of the property is unaseertainable. The argument assumes that plaintiff purchased the Moore property as agent for the defendant, and invokes the law that having so done, he could not make a profit by selling it to the defendant, his principal. We have already shown that plaintiff purchased the property for his own use in business which he intended to establish, after his then term of employment would expire, and not at all as defendant’s agent. Strictly speaking, there was no sale by plaintiff to defendant of that part of the Moore property used in the defendant’s business, unless the agreement itself can be considered a conditional sale.

The defendant’s agreement, according to plaintiff’s testimony, was to take the property as rapidly as the orders in hand or other requirements called for it, and to pay plaintiff for it. No price was fixed by the agreement, and the court properly admitted evidence of its market value.

Defendant’s counsel, referring to the abstract of the testimony of the witness Starrett, says that the court allowed evidence of the market value of certain material as if new, whereas it was second-hand. The objection was not made till after the witness had testified as to values, and defendant’s counsel moved to strike out all the witness’ testimony as to values, which motion the court denied. We do not think the ruling reversible error.

It is objected that the court- ruled out certain questions asked the plaintiff on his cross-examination, as to whom he paid the money for the Moore stock, and how much he paid for the good-will of the business, etc. It would seem sufficient to say that the matter which the questions called for was immaterial; but, subsequently, plaintiff answered that the money was paid at various times, and named several occasions when he paid and persons to whom he paid.

Plaintiff’s exhibit 16 is claimed by defendant’s counsel to have been erroneously admitted in evidence. The evidence with regard to the exhibit is, that from January 1, 1904, plaintiff made memoranda on slips of paper of goods used from the Moore stock, as they were used, and subsequently the original memoranda were all copied and as they were copied the slips of paper were destroyed, and the memoranda, as copied, all appear on exhibit 16. The exhibit is a statement of the plaintiff’s claim. The exhibit was shown to Mr. Smith, when he was on the witness stand, and he admitted in February, 1907, it was handed to him by Mr. L. F. Childs, defendant’s treasurer. Mr. Childs testified that, February 15, 1907, a copy of the statement was left with him. The suit was commenced May 20, 1907, and from February 15,1907, till the former date, no objection seems to have been made to the account by Mr. Smith. A partial inventory of defendant’s stock, made in 1904, and identified by Mr. Childs, defendant’s treasurer, partially corroborates exhibit 16.

We do not think the admission in evidence of exhibit 16 warrants a reversal of the judgment. The admission of other exhibits of plaintiff is objected to, in gross. We find no reversible error in the admission of any of them.

The court charged the jury orally. Therefore, the charge was continuous and a unit; yet some one has taken the liberty of dividing the charge in the record into parts and numbering the parts from 1 to 24 inclusive. The charge is also so divided and numbered in the abstract, and defendant’s counsel refer to the numbered parts, in their argument, as if they were separate instructions. Beading the charge as a unit, we think it substantially correct, except as to that part of it which refers to sales by an agent and ratification by the principal. As before said, there was, strictly speaking, no sale to defendant of the Moore goods used in its business, and if they were taken and used in accordance with the prior agreement testified to by the plaintiff, there was no necessity for ratification.

We cannot sustain defendant’s contention that the damages are excessive. They are $585.75 less than the plaintiff’s claim which shows that the jury were not influenced by partiality for the plaintiff. We think the verdict sustained- by the evidence, and find no substantial error in the record.

The judgment will be affirmed.

Affirmed.


author: Mb. Presiding Justice Adams

text:
    R. Hall McCormick, Plaintiff in Error, v. Potter-Herrick Wall Paper Mills, Defendant in Error.
    Gen. No. 14,354.
    1. Landlord and tenant—what competent to rebut defense of eviction. A resolution by a corporate tenant which tends to show its desire to relinquish the demised premises, is competent upon the question of the good faith of the defense of eviction.
    2. Landlord and tenant—how question of eviction determined. Whether there has been an eviction, in any ease, depends on the intention of the landlord, as shown by the evidence; held, in this case, that the levying of a distress warrant and the locking of the door of the demised premises did not, under the- evidence, constitute an eviction which would défeat the recovery of rent.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeteb, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed March 22, 1909.
    Ernest Saunders, for plaintiff in error.
    Bulkley, Gray & More, for defendant in error.
   Mb. Presiding Justice Adams

delivered the opinion of the court.

The plaintiff, McCormick, January 22, 1906, leased to the Potter-Herrick Wall Paper Mills, by written lease, the five-story and basement building numbered 65 and 67 South Water street, and the two upper floors of the building numbered 61 and 63 .South Water street, in the city of Chicago, in Cook county, Illinois, from May 1, 1906, till April 30, 1911, reserving as rent the sum of $27,500 per annum, payable in monthly installments of $458.33 each, in advance, on the first day of every month of the term. The rent for the months of November and December, 1907, not having been paid, the plaintiff, December 4,1907, issued a distress warrant directed to Joseph W. Mattes, authorizing him to distrain personal property of the defendant, for the rent, and Mattes levied on 2362 bundles of wall-paper situated on the upper floor of the building numbered 61 and 63 South Water street, and filed the distress warrant, with his return thereon, in the Municipal Court, where such proceedings were had before the court and jury that the jury rendered a verdict for the sum of $549.99, and the court, after overruling a motion of plaintiff for a new trial, rendered judgment for said sum and $68 custodian’s fees, and for costs. To reverse this judgment is the purpose of the writ of error.

The plaintiff put the lease in evidence, and proof was made that the rent for November and December, 1907, had not been paid, whereupon defendant’s attorney stated that the defense was that the defendant had been evicted from the demised premises, and defendant’s attorney tendered to plaintiff’s attorney a certified check for $540 for rent up to December 4, 1907, which tender was refused.

The defendant’s claim is that it was evicted by plaintiff from the premises December 4,1907, and that such eviction discharged it from payment of the rent after December 4, 1907.

William Croak, called by defendant, testified, in substance, that Mr. Saunders, plaintiff’s attorney, took him to the leased premises as custodian of the property on which the distress warrant was levied, and that he first went to the fifth floor of the building numbered 61 and 63, then returned to the office and remained in the rear of the building on the first floor till the place was about to be locked up for the night, when he returned to the fifth floor and put a padlock on the door, and on the night of December 6, 1907, he fastened the door with lock and chain, so that it could not be opened without unlocking, or breaking the chain; that he had been at the premises every day since he so fastened the door and the lock and chain were still on it, and the key in his pocket. It was December 17, 1907, when the witness testified. Croak further testified that no one authorized him to lock the door, and that defendant’s attorney asked him who put him there, and he said Mr. Saunders, and that he, Croak, declined to take off the chain.

Paul Krech testified, substantially, that he was connected with defendant in December, 1907, and that Mr. Saunders came to defendant’s office and introduced Mr. Mattes to him and said he, Mattes, was appointed custodian, and that a distress warrant had to be levied, and witness asked if that meant that Mattes had to remain there, and Saunders said no, and witness took them to the fifth floor and showed them the bundles of paper, and Saunders said that there was enough to satisfy the warrant, and also said that it was not his intention to interfere, in any way, with the conduct of defendant’s business, and suggested that Mr. Mattes should come round there once a day, and that he, Saunders, and Mattes would see that everything was intact. That appeared to be satisfactory. Mattes came along December 4th and took an account of the bundles in the room, and next morning I found the room locked, and that it was impossible to enter it. I have had no access to the room since December 4th. We used the room for the storage of wall-paper in the daily course of our business. I immediately looked for other premises, and a few days later I found premises at 51 and 53 North Desplaines street, and last Thursday began to move out the stock, and am still moving it. On cross-examination witness testified that, three or four weeks before December 4th, he saw Mr. Bradley, the landlord of numbers 53 and 55 North Desplaines street, in regard to leasing said premises, and that, the day before he testified, he took a lease from him.

The plaintiff, in rebuttal, offered in evidence the following letter from R. H. McC. Potter, the defendant’s president, to the plaintiff, after proving the signature of Mr. Potter:

“I am in receipt of your letter of November 5th. In reply can only say (as I stated in yonr office some months ago) that the question of rental of the property now leased by the Potter-Herrick Wall Paper Mills, is a matter to be taken up with that concern. I am a stockholder and director, but this must be determined by the majority of the votes of the directors. I can only say unofficially, however, knowing the bankrupt condition of the concern, that anything which will decrease its expenses will be acceptable, and as a large creditor, very naturally I should favor any plan resulting to the advantage of the concern. We have been making a strenuous effort to realize on the assets of the concern as profitably as possible, but something will have to be done very soon to wind up its affairs. A meeting of the creditors will take place some time this month, when it will be determined what will be done. In the meantime, however, I can only state unofficially (as above) that I think any disposition you can make , of the property would be approved by the company. I had understood that the entire space was to be. rented by a wholesale grocery house, named 'Sexton. The creditors have been delaying their action, pending the result of this prospect.

Tours very truly,

R. H. McG -Potter”.

On objection by the defendant this letter was excluded. At a meeting of the defendant’s directors, held November 29, 1907, all the directors being present, the following resolution was unanimously adopted:

“Whereas, this company is about to wind up its affairs in the city of Chicago, and is desirous of vacating the premises now occupied by it at 65-67 South Water street in said City. And whereas the estate of Leander McCormick of said premises has proposed to find a new tenant for said premises, and release this company from all liability, under its existing lease as soon as a new lease is entered into. Now, therefore, be it resolved, that in consideration of the above agreement on the part of the landlord, the said landlord be given authority to immediately lease said premises”.

The minutes of the meeting, including the foregoing resolution, were offered in evidence by the plaintiff and were excluded on defendant’s objection. The court erred in excluding the offered evidence. It tended to prove that the defendant was anxious to rid itself of the leased premises, and bears on the question of its good faith in claiming that it was evicted by the plaintiff. The evidence of Croak, the custodian, is that he was unauthorized by plaintiff, or any one, to lock the door of the room in which the wall paper levied on was, and the evidence of Mr. Krech, the defendant’s witness, shows that it was not the plaintiff’s intention to interfere, in any way, with the defendant’s business, beyond issuing the distress warrant.

There is not a particle of evidence that the defendant had any occasion, after the levy, or any need, to use the room in which the paper levied on was stored. It had, three or four weeks before the levy, been negotiating for a lease of other premises, and obtained the lease the day next before the trial.

Whether there is an eviction, in any case, depends on the intention of the landlord, as shown by the evidence. Hayner v. Smith, 63 Ill. 430; Lynch v. Baldwin, 69 ib. 210; Morris v. Tillson, 81 ib. 607; Kistler v. Wilson, 77 Ill. App. 149; Dennick v. Ekdahl, 102 ib. 199.

In Hayner v. Smith the court quote with approval the following language of the court, in an English case, with reference to eviction: “I think it may now be taken to mean this—not a mere trespass and nothing more, but something of a grave and permanent character, done by the landlord, with the intention of depriving the tenant of the enjoyment of the demised premises”. The language quoted is also cited with approval in Lynch v. Baldwin, supra, and in Morris v. Tillson, 81 Ill. p. 623, the court say: “The rule laid down in Hayner v. Smith and wife, 63 Ill. 430, and followed in Lynch v. Baldwin, 69 Ill. 210, and Walker et al. v. Tucker, 70 id. 528, is, that acts by the landlord, in interference with the tenant’s possession, to constitute an eviction, must clearly indicate an intention, on the part of the landlord, that the tenant shall no longer continue to hold the premises”. In Eice v. Dudley, 65 Ala. 65, the same rule is announced, the court citing Hayner v. Smith. To constitute an eviction, there must be an interference with the possession of the tenant by the landlord or with his consent. Ogden v. Sanderson, 3 E. D. Smith, 166, 169. The testimony of Croak, defendant’s witness, is that he was not authorized by any one to lock the door, and there is no evidence that the plaintiff consented to or knew that it was locked.

In Morris v. Tillson, 81 Ill. 607, cited supra, the court say: “Nor do we think any delay of the officers, in executing the writ, unauthorized by Morris, however liable it might render them, could be held to be an eviction by Morris”.

The evidence does not sustain the defendant’s claim that it was evicted from the demised premises, or any part thereof, by the plaintiff. In view of what has been said, we do not deem it necessary to say anything with regard to the instructions. Inasmuch as the cause must be remanded for a new trial, we think it proper to call attention to the fact that there is no evidence in the record warranting the allowance of $68 as custodian’s fees, nor has our attention been called to any statute in respect to such fees.

The judgment will be reversed and the cause will be remanded for further proceeding not inconsistent with this opinion.

Reversed and remanded.


author: Mr. Presiding Justice Adams

text:
    Stella Rayfield, Defendant in Error, v. Sans Souci Park et al., Plaintiffs in Error.
    Gen. No. 14,367.
    1. Contributory negligence—when minors may be guilty of. Children between the age of 13 and 14 years are charged with the duty of exercising ordinary care and if they fail to do so and their negligence contributes to the injuries complained of, recoveries will be barred.
    2. Contributory negligence—when minor guilty of. Held, that the plaintiff in this case, a minor between the age of 13 and 14 years, was guilty of such contributory negligence as barred a recovery, it appearing that she was injured while using a “maze,” located in a public amusement park, as a playground.
    3. Negligence—when doctrine res ipsa loquitur does not apply. Held, that the doctrine of res ipsa loquitur did not apply in this case in which a child, between the ages of 13 and 14 years, while in an amusement park was injured by falling glass in what was called a “maze.”
    4. Negligence—when owner not liable for acts of concessioner. The owner of an amusement park who rents concessions therein is not liable for any acts of negligence by the concessioner where it appears that such concessioner was in the exclusive possession and control of the particular portion of the park in question.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed.
    Opinion filed March 22, 1909.
    Wheeler, Silber & Isaacs, for plaintiffs in error; Frederick D. Silber, of counsel.
    Alden, Latham & Young, for defendant in error.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

This is a writ of error to reverse a judgment rendered in a suit by Stella Bayfield, a minor, by her next friend, against Sans Souci Park, a corporation, and the Marshall Amusement Company, also a corporation. The case is one of the fourth class, in which no formal pleadings are required, but, in lieu of a declaration, the plaintiff, in case the suit is for a tort, is required by section 40 of the “Act in relation to a Municipal Court in the city of Chicago”, to file “a brief statement of the nature of the tort, and such ' further information as will reasonably inform the defendant of the nature of the case he is called upon to defend”. In this case the plaintiff filed an amended bill of particulars, or statement, which is as follows:

“Defendant, Sans Souci Park, maintained an Amusement Park to entertain the public in Chicago; charged an admission fee for each person and permitted certain concessions to be and remain upon the grounds to amuse the public; that it became the duty of said defendant, Marshall Amusement Company, the latter being a concession located within said Sans Souci Park, to exercise reasonable care to have the grounds, buildings,, appurtenances, etc., of said concession in a reasonably safe condition, in order that the public and plaintiff lawfully within said concession of said Marshall Amusement Company should not be injured. That while plaintiff was using ordinary care, she was injured on account of the failure of the defendants to use ordinary care to keep certain glasses located in said concession, Marshall Amusement Company, in a proper and safe condition of repair. That said defendants also negligently and carelessly placed and allowed glass to be placed in said concession which was too thin for the purposes for which it was to be used. That the defendants also negligently failed to properly secure certain of the glasses used in said concession, and by reason of the negligence of the said defendants one of the glasses broke and fell out of its frame when slightly touched by the plaintiff, and fell upon her, whereby she was injured”, etc.

The cause was tried by the court and a jury; the defendants at the close of the evidence moved the court to instruct the jury to find the defendants not guilty, which motion the court denied and submitted the cause to the jury, instructing them orally. The jury found for the plaintiff and assessed her damages at the sum of $1,000, from which plaintiff, on the hearing of a motion for a new trial by the defendants, remitted $400, and the court overruled the motion for a new trial and rendered judgment for $600. The defendant, Sans Souci Park, maintained an amusement park in the city of Chicago, and charged an entrance fee into the park of ten cents. It granted a concession in said park to the defendant, the Marshall Amusement Co., by a sublease in writing, for which the latter company paid the Sans Souci Park a certain percentage. This was testified to by Mr. Marshall, the president of the Amusement Company, who was called as a witness by the plaintiff. What the percentage was estimated on does not appear from the evidence, but presumably, on the receipts of the Marshall Amusement Co., which company charged five cents for entrance into its concession. The amusement company maintained on its concession an arcade or maze. It appears from the evidence that in the maze there are 225 frames, in 54 of which there were mirrors, in 12 plate glass, and the remainder of them were open, for people to pass through. Mr. Brown, plaintiff’s witness, testified that he had measured one of the frames and. found it to be seven feet high, inside measurement, from the floor to the top where the glass would be. The mirror and glass were on the sides of the walks. These frames were arranged in a triangular shape, some having mirrors in them and some plain glass. Mr. Marshall testified: “In working through the maze, you work on one side, and then work on another side, then off in another direction. In some places both sides are visible to the people who go through the maze. You can’t see any one, except in certain positions”.

Mr. Brown testified: “This is my description of the arcade. You step in there, step into a square. That square would have one side opening and 'might have two exits and you would step from the first square into another square and from that square into another one, one side being open each time; you stepped into another square and finally out to the top of the arcade. These squares, as I remember them, were about two feet wide. Might have been a little more, and two feet long; they had glass in them in one place and in another place they did not have glass. In a third place there would be a mirror. In some places you can look clear through to the outer edge and you would, not know. Ton might see yourself in the mirror in any place. That is the best explanation I can give you”.

Adelaide Kerwin, called by the plaintiff, testified that the passage ways in the maze are two and one-half feet wide. There is this notation in the record of her testimony: “Witness indicates two and one-half to three feet”. In witness’ cross-examination she testified: “I noticed that the space was about three feet wide”.

In the evening of May 25, 1903, the plaintiff, in company with her father and mother and Mr. Kerwin and his daughter Adelaide, went to the Sans Souci Park, and entered the park,. Mr. Bayfield paying their entrance fees, ten cents for each of them. They visited various places of amusement, or shows, in the park, and, about nine o’clock, the plaintiff and Adelaide Kerwin came to Mr. Kerwin, who was then where the band was playing, and plaintiff asked him for some money, so she and her friend could visit some other places of amusement, and he gave her money. She and Adelaide Kerwin then went to the arcade, or maze, paid their entrance fee, five cents each, and entered. Adelaide testified, that when they first went in they felt their way around several times, because they did not want to bump into the glass; that they felt their way around till they thought they knew it, and then they said they would hide from each other, and they got away from each other; and Stella saw her, and went right forward into the plain glass and broke it and a piece of it fell down and cut her. In the cross-examination of the witness, she says: “She saw me through the plain glass, and then she walked and put her hands through the glass, while trying to get away, so that I could not see her”.

The plaintiff, after testifying that she and her cousin, Adelaide, paid five cents each and entered the maze, was questioned and answered thus:

“Q. Tell what else you did?

A. We walked in and felt our way around, and then after we had been in there a few minutes, we wanted to get separated from each other, and I started one way, and Adelaide was behind me, and I turned around and saw her and went to go forward and ran through the glass, and a piece fell down and cut me”.

On her cross-examination this occurred:

“Q. Well, now, when you struck the glass, did you turn around quick?

A. I turned around'first, and didn’t see the glass, and run right through it”.

In the examination of Mr. Brown, he testified that he thought he once heard the plaintiff say that she was playing “ditch” with her cousin and ran up against the glass; but did not remember the time of hearing it.

Mary B. Hale, called by defendants, testified that she was cashier for the Marshall Amusement Co., and was acting as such the evening in question, and saw plaintiff and her cousin then; that plaintiff was brought to her at the office, and she talked with her, and plaintiff told her that they were playing tag or ditch, and said that there was no one to blame but herself; that they were running and ran into the mirror. Witness further testified that, subsequently, the same evening, Mr. Brown and Mr. Bayfield, plaintiff’s father, came to her and inquired how it happened, both of the little girls being present, the plaintiff with her head bandaged, and witness told them what the plaintiff had said, and that plaintiff spoke up and said, “We were playing ditch and- run into the mirror”. In the evidence of the plaintiff and Adelaide, they sometimes call the play in which they were engaged ditch and sometimes tag.

Joseph F. Schumacher, called by defendants, testified that on the day of the accident, when the girls came out to the ticket office, he talked to Adelaide and she said: “We were playing tag, and this little girl ran into the mirror while I was chasing her”.

There is no contradiction of the testimony of the two witnesses last named, although plaintiff and Adelaide testified in rebuttal and Mr. Bayfield and Mr. Brown were both called as witnesses on the trial.

The plaintiff was between thirteen and fourteen years of age at the time of the accident. Minors much younger are charged with the duty of exercising ordinary care. C. & G. T. R’y Co. v. Hoffman, 82 Ill. App. 453, and cases cited, 464, 466.

Seasonable minds can reach only one conclusion from the evidence, namely, that the plaintiff did not exercise ordinary care, but, on the contrary, was guilty of negligence which caused the accident.

The evidence fails to prove that the defendants were, or that either of them was, guilty of negligence. On the contrary, we think it shown, by the greater weight of the evidence, that the maze was constructed in a safe manner and was so maintained.

Counsel for plaintiff, apparently impressed with this view, invoke the doctrine res ipsa loquitur, and devote the greater part of their argument to the discussion of it, citing numerous cases.

Counsel quote the following from C. C. Ry. C. v. Barker, 209 Ill. 321, 326: “There must be reasonable evidence of negligence. But when the thing is shown to be under the management of the defendant, or his servants, and the accident is such, as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care”.

In the present case there is no reasonable evidence of negligence of the defendants, and the case differs materially from the case cited, in that it did not appear that the plaintiff had been at all negligent, whereas in this case it appears from the evidence that the plaintiff was guilty of negligence which not only accounts for the accident, but was the immediate cause of it. This case also differs from the case cited, in that plaintiff was using the maze in an unusual and extraordinary way, viz: as a playground. The maze was intended as and was a puzzle, by reason of the arrangement of its frames, mirrors, glass, openings and devious ways, the puzzle being how to go through it. As such it was safe. It was not intended for a playground in which to play “tag”, “ditch”, or hide and seek, and the evidence of plaintiff and her cousin and companion, Adelaide, shows they knew that if they were not careful there was danger of their running against a glass or mirror and breaking it, as the plaintiff did. The Marshall Amusement Co. constructed the maze and was in exclusive possession and control of it and its site, and the Sans Souci Park could not incur liability by reason of the fact, proved by the plaintiff, that it made a lease to the Marshall Amusement Co. of the ground on which the maze was. Gridley v. City of Bloomington, 68 Ill. 47, 51; City of Peoria v. Adams, 72 Ill. App. 662, 671.

It would be rather a harsh rule that if A leases a parcel of ground to B and B takes possession and erects a structure thereon, of which he has exclusive possession and control, and by reason of unsafe construction, or the structure not being kept in proper repair, 0 is injured, that A may be held liable. There is no such rule. The court erred in not taking the case from the jury, and the judgment will be reversed.

Reversed.


text:
    William A. Williamson, Appellee, v. Hirsh, Stein & Company, Appellants.
    Gen. No. 14,372.
    1. Verdicts-—when set aside. A verdict manifestly against the preponderance of evidence will be set aside on review.
    2. Trials—lohen remarles of counsel ground for reversal. A reference to the defendants in a case as a wealthy concern is highly improper, and where not justified by any evidence in the cause may constitute ground for reversal, notwithstanding an objection to such remarks has been sustained by the trial court.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed March 22, 1909.
    Statement by the Court. This is an appeal from a judgment rendered in an action of assumpsit by William A. Williamson against Hirsh, Stein & Co. The declaration consists of the common counts. The defendant pleaded the general issue. The jury found for the plaintiff and assessed his damages at the sum of $1,422.25. The defendants moved for a new trial, which motion the court overruled and rendered judgment on the verdict.
    It appears from the evidence that the defendants, Morris M. Hirsh, William A. Hirsh and William D. Stein, doing business in the firm name of Hirsh, Stein & Co., are manufacturers of glue and gelatine, and have a factory for such manufacture at Hammond in the State of Indiana. The plaintiff, William A. Williamson, testified that for twenty-three years, twenty of them in the city of Chicago, he had been engaged in the glue and gelatine business, and that, prior to going into business for himself, he had been in the employ of Winslow Brothers & Smith, for whom he acted as manager. It is not clear from the evidence whether, at the time of the transactions hereinafter referred to, the plaintiff was in business for himself, or whether he had merely determined to go into business for himself, his employers, Winslow Brothers & Smith, having sold out their business. This, however, we do not think material.
    The plaintiff relies on a conversation which he says he had with Mr. William A. Hirsh, one of the defendants, about February 15, 1906. The plaintiff testified that, while in the employ of Winslow Brothers & Smith, he had, as manager for the last-named firm, purchased goods from the defendants, dealing with Harry Epstein, their salesman; that some time between February 1st and March, 1906, Mr. Hirsh called at his office, and said he wanted to substantiate what Epstein had been talking to him, Hirsh, about, in regard to plaintiff going into business, and said that he, plaintiff, seemed to have considerable influence with the National Biscuit Company, and that defendants wanted a contract with that company, and that it was immaterial to him, Hirsh, how they got it, so that it would be secured, and that he wanted plaintiff to help defendants secure the contract, and to use his influence to that end, and if plaintiff could get it better in his name, all right, that defendants did not care how they got it, so they got it; that the price Winslow Brothers & Smith paid would remain good for the year, and the difference between that price and the contract price with the National Biscuit Co. would be plaintiff’s compensation. Plaintiff further testified, in substance: He said he would like to have me use my influence in behalf of defendants, and asked how soon I would see the purchasing agent of the National Biscuit Co., and I said immediately, and I went to see Mr. Evans and had a talk - with him. Winslow Brothers & Smith paid ten and one-half cents per pound for the goods, to the defendant. Mr. Hirsh said he was in earnest, and left it to me to determine which way the contract could be best secured, by taking it in my name or in the name of the defendants. Prior to the time of the conversation with Hirsh I had no talk with Mr. Epstein in regard to the National Biscuit Co. The foregoing is, in substance, what was said. Pursuant to the conversation with Mr. Hirsh I went to see Mr. Evans, the purchasing agent of the National Biscuit Co., and had a talk with him. I saw him, possibly, five or six times. Witness further testified that he had no further conversation with Mr. Hirsh, and proceeded to state at great length a conversation which he had with Mr. Epstein, the substance of which is as follows: Mr. Hirsh had said that Epstein was out of the city, but would be back soon, and would call to see me. Epstein came to my office about February 15th; it might have been March 1, 1906. He said he had had a short talk with Mr. Hirsh, who told him he had been to my office and had taken up with me the matter of a contract with the' National Biscuit Co., and asked me what Mr. Hirsh had said, and I told him—(here the witness relates substantially his former testimony as to what Mr. Hirsh said to him). Mr. Epstein said that was what Mr. Hirsh had told him, and asked if I had been to see the purchasing agent of the National Biscuit Co., and I said I had, and that he, Evans, did not feel over lukewarm toward doing business with defendants; that the year before he had some trouble with him, Epstein, and that he did not want to do any more business with defendants than he could help. I told him I felt confident there would be no question in regard to securing the contract, and said it would be. well for him to go and see Mr. Evans. I next talked with Mr. Epstein, about March 1st. He said he had seen Evans and felt encouraged, and Evans had invited him to call again, and he asked me to go and see Evans, which I did. He told me that he had made a price of eleven and one-half cents, and I said it was not necessary to cut the price. Witness goes on to tell that he had a third visit from Epstein and that Epstein said matters looked favorable, and he told Epstein that he had called on Evans, and told him what Evans had said to him, and that the prospects of defendants getting the contract seemed favorable. Finally, witness says that he called up Mr. Epstein one day, and told him that Mr. Evans had decided to give defendants the contract, and made an appointment with him to lunch at the Briggs House, and another appointment for the evening, at the Sherman House, where he met and congratulated him, and Epstein said it was all right, that he had the contract. About May 1, 1906, he talked with Epstein, and he, Epstein, said that he had the matter of commissions up with Mr. Hirsh, that everything would be all right, and for plaintiff not to be in a hurry about it, to let it go till the first of the year, and he, Epstein, would see that plaintiff would have a settlement. In the meantime plaintiff had purchased glue from defendants which had not been paid for, and, about February 1, 1907, plaintiff, by Epstein’s invitation, went to defendants’ office, and found Mr. Hirsh busy, and Epstein apologized and said he would like to make an appointment for another day, which he failed to do. About August 21st, witness thinks, Mr. Hirsh telephoned plaintiff in regard to Ms account with defendants, and he asked Mr. Hirsh what he was going to do about plaintiff’s account with them, and he, Hirsh, asked what he meant—the National Biscuit Co. deal? And the witness said, “Certainly, there is notMng else between us”, and he said: “So far as the National Biscuit Co. is concerned, you can go plumb to hell. We won’t pay you a damn cent. If you don’t pay that account of yours within three days, we will sue you,” and witness told him to sue and be damned.
    On cross-examination of the plaintiff the following questions were asked and answers made:
    “Q. Then as you understood the arrangement, you were not to receive any commission or any compensation unless they secured tMs contract through your influence?
    A. There was nothing of that kind said. All I had to do was to use my influence.

      Q. Whether your influence resulted in procuring the contract or not, you were to be paid commissions ?
    A. They wanted me to get the contract.
    Q. Whether the contract was procured through your influence or not, you were to receive commissions, if they got the contract?
    A. That was his proposition.
    Q. Did you put in a bid? A. I did.
    Q. In whose name?
    A. Hirsh, Stein & Company.
    Q. Did you put in a bid for Hirsh, Stein & Company?
    A. I did.
    Q. With whom did you put in your bid for Hirsh, Stein & Company?
    A. Mr. Evans. I did not put in any bid in my own name, or in the name of any one except Hirsh, Stein & Company. I put in the bid for Hirsh, Stein & Company on my first visit after Mr. Hirsh was in my office. I should say in February—the 15th of February. I saw Mr. Epstein within a week after that time”.
    The evidence shows that April 5, 1906, a contract in writing between the defendants and the National Biscuit Co. was executed, for the delivery by defendants to the company, for one year from June 12, 1906, of such quantity of gelatine as would cover all the requirements of the company, at the price of eleven and one-half cents per pound, and the evidence is that defendants delivered to the National Biscuit Co. 280,458 pounds under the contract.
    Henry J. Evans, purchasing agent of the National Biscuit Co., called by the plaintiff, testified, in substance, that he never had any talk with the plaintiff about securing the contract for defendants, or about any contract with defendants; that previous to the time plaintiff told him that his firm had sold out, he used to come to witness’ office, and they talked generally about gelatine matters, and Hirsh, Stein & Co. were mentioned as being in thp gelatine business, but this was before any question about the contract came up. Witness further testified that plaintiff talked to him about the contract, but did not say who it was for; that he said he had a good house and would like to figure on the contract, but did not bid for himself or any one else; that, as matter of fact, he had no chance to bid. As to how the contract happened to be made with defendants, witness testified that he took the matter up early in the year, and sent a letter to various parties, one of which he sent to defendants, which is as follow:
    “March 22, 1906.
    Stein, Hiesh & Company,
    Hammond, Indiana.
    Gentlemen : We are talcing up the matter of a
    Gelatine Contract for another year. Our present contract expires June 12th, and we would like your figures and a sample of the gelatine you propose to furnish us. You are familiar with the kind we used last year as we understand you are the manufacturers. Our consumption last year, from February 1st to February 1st was 231,578 pounds. If we use your gelatine it will have to be direct and not through any jobbers.
    Your prompt reply will oblige,
    Yours very truly,
    National Biscuit Company,
    Puechasing Department,
    H. J. Evans, Manager”.
    Witness testified that the only way he could make the contract was by response to the letter. March 20, 1906, Epstein wrote to witness a letter making proposals for the contract, which were accepted, with the result that the contract heretofore mentioned was executed. The witness was questioned and answered as follows:
    “Q. You listened to what he had to say; are you absolutely positive that he did not mention Stein, Hirsh & Company?
    A. I am dead positive. I will swear Mr. Williamson never said to me a word about trying to get me to make a contract with Hirsh, Stein or Stein, Hirsh, now, that I am positive of”.
    Witness further testified that Mr. Epstein procured the contract, and that no one else had anything to do with it.
    William A. Hirsh, called by defendants, testified, in substance, that, in the conversation with plaintiff, he told him if he got the contract with the National Biscuit Co. for defendants, he would pay bim the difference in price, by which he ’‘meant the difference between the price in the contract with the National Biscuit Co. .and what defendants would charge plaintiff, and that no price was mentioned. When witness saw the letter of the Biscuit Company, he sent Mr. Epstein to the company. The witness, having been recalled, testified that, in his conversation with plaintiff, he did not state to plaintiff that he would like to have him use his influence with the National Biscuit Co. on behalf of defendants; that nothing was said in the conversation about influence, or using influence.
    Harry Epstein, called by defendants, contradicted plaintiff’s testimony as to the conversation between bim and the plaintiff in, substantially, every material particular. He denied that he told plaintiff that Mr. Hirsh had told him that he had taken up the matter of the contract with plaintiff; that he did not ask plaintiff whether he had seen Mr. Evans about the contract, nor did plaintiff tell him that he, witness, should go and see Evans; nor did he, witness, ask plaintiff to see Mr. Evans; nor did witness ever confer with plaintiff in reference to plaintiff procuring the contract for defendants. He told witness, a few months after defendants had procured the contract, that he told Evans that he wanted defendants to have the contract. About a month after the contract was made, witness was at plaintiff’s office and, in discussing matters generally, plaintiff, to whom defendants had given credit, asked witness if he could not procure for him, from defendants, longer terms of credit, and said he thought he had something coming from defendants on account of the contract with the National Biscuit Co., and witness asked him if compensation had been prqmised him, and he said it had, and that was the first and only time that witness heard anything about his connection with the matter. Witness also denies having told plaintiff, when he met him at the Sherman House, that defendants had obtained the contract.
    Stein, Mater & Stein, for. appellants.
    Hugh E. Stewart and Arnott Stubblefield, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Counsel for the defendants contend that the verdict is contrary to the preponderance of the evidence; that the court erred in rulings on evidence, and that plaintiff’s counsel made improper and prejudicial remarks in his argument to the jury.

As to the weight of the evidence, the case stands thus: The plaintiff and William A. Hirsh are interested witnesses, and the plaintiff’s testimony is flatly contradicted by Mr. Hirsh. The plaintiff testified that Mr. Hirsh said that, if plaintiff would use his influence to procure the contract with the National Biscuit Co., he should be compensated in a certain manner, while Mr. Hirsh testified positively that nothing whatever was said about influence, or about plaintiff using his influence, and that he, Mr. Hirsh, told plaintiff that if he, plaintiff, should get the contract from the National Biscuit Co. they would handle it for him, and pay him the difference in price. The testimony of Mr. Evans, a disinterested and apparently candid witness, is that the giving the contract to defendants was not, in the least, owing to any influence of the plaintiff; that plaintiff did not even mention defendants to Mm in connection with the contract, and did not bid for the contract in his own or defendant’s name, or at all. Mr. Epstein, -also a disinterested witness, contradicted the plaintiff’s testimony almost in toto. The testimony of the two disinterested witnesses is corroborative of that of Mr. Hirsh. The plaintiff is, substantially, the only witness who testified in his own favor.

In Peaslee v. Glass, 61 Ill. 94, it is said: “It be-' longs to the plaintiff to make out a case. The burden of proof is upon him, and where the issue rests upon the sworn affirmation of one party and the sworn denial of the other, both having the same means of information and both unimpeached, and testifying to a state of facts equally probable, a conscientious jury can only say that the plaintiff has failed to establish his claim. Without saying that this court would set aside a verdict for the plaintiff, rendered in such cases, on the ground alone that it was not sustained by the evidence, we must set - aside one resting only upon the evidence of the plaintiff when that is contradicted not only by the defendant, but also by another witness, and there are no elements of probability to turn the scale”. The case is cited with approval in a number of subsequent cases. It is not necessary, however, to rely on Peaslee v. Glass in support of our conclusion. Were there no such case, our conclusion in respect to the weight of the evidence would be the same, viz.: that the verdict is manifestly against the preponderance of the evidence.

Mr. Evans, when called as a witness for plaintiff, was questioned and answered, on his direct examination, as follows:

“Q. Did he ever talk with you about securing the contract for the next year?

A. Yes, sir. We entered into a contract with Hirsh, Stein & Co. for the purchase of the gelatine. Here it is”.

Counsel for defendants object that the court, on cross-examination of the witness, refused to allow him to he asked what was the talk or conversation referred to hy him, in the foregoing answer; but we fail to find in the record that any such question was asked, and, subsequently, the court permitted the question to be asked as to whether the witness had any talk, at that time, with plaintiff, about securing the contract for defendants, and the witness answered, “No, sir”. We find no prejudicial error in the ruling.

Plaintiff’s counsel, in his address to the jury, said: “Now, we find the situation substantially this; the situation of affairs. Hirsh, Stein & Co. are manufacturers of gelatine here, large manufacturers, a wealthy concern.” On objection, the court ruled against the remarks, stating there was nothing in the record showing defendants to be a wealthy concern. The reference to defendants as a wealthy concern was highly improper, and we cannot tell but that it was prejudicial to the defendants, as it was calculated to be. Chicago Union Trac. Co. v. Lauth, 216 Ill. 176, 183. Assuming that counsel for plaintiff intended no wrong, he must have forgotten the evidence, as in several-instances he misstated it to the disadvantage of the defendants. The verdict of the jury is inexplicable. If the plaintiff was entitled to recover, then, in accordance with his testimony as to what the contract was, he was entitled to recover one cent per pound on 280,458 pounds, or $2,804.58, but he is awarded only $1,422.25 by the verdict. We have avoided, as far as possible, commenting on the evidence, as the case must be remanded.

The judgment will be reversed and the cause will be remanded, appellants to recover their costs of this court.

Reversed and remanded.