author: Mr. Justice McSurely

text:
    Mary M. Arnold, Appellee, v. William E. Dodson, Appellant.
    Gen. No. 20,309.
    1. Assumpsit, action of, § 6

      —when action to recover tack purchase price of stock is. An action to recover the consideration paid for shares of stock on the ground that the purchase was induced hy false representations is an action in assumpsit and not in tort.
    2. Municipal Court of Chicago, § 8*—when jurisdiction not limited to $1000. The Municipal Court of Chicago has jurisdiction of an action to recover the consideration paid for shares of stock on the ground that the purchase was induced by false representations, although the amount involved exceeds $1,000.
    3. Assumpsit, action of, § 89*—when evidence sufficient to support verdict. Evidence in action to recover consideration paid for shares of stock, examined and held to support the verdict.
    4. Assumpsit, action of, § 92*—when instruction proper. In an action to recover the consideration. paid for shares of stock, the purchase of which was alleged to have been induced hy defendant’s false representations, held that in view of the evidence it was not error to instruct the jury that: “Statements hy a seller merely descriptive of the operation and utility of an invention or patented article, and statements as to anticipated profits or future earnings on dividends and as to the future success of business ventures are regarded as expressions of opinion, or ‘puffing,’ or ‘dealer’s talk’ upon which a person cannot base charges of fraud. No statement of one’s opinion as to what will or will not happen or exist in the future can affect a contract or render it void. Every person in making a contract is at liberty to speculate or express opinions as to future events and he cannot be held to answer for their truth or falsity.”
    5. Evidence, § 471*-—•what degree of proof required of plaintiff in civil action. In an action to recover the consideration paid for shares of stock, the purchase of which is alleged to have been induced hy defendant’s false representations, plaintiff is required to prove his case by a preponderance of the evidence and not by proof beyond a reasonable doubt.
    6. Appeal and error, § 523*—when otjection to te made to giving of oral instruction. Defendant cannot be heard on appeal from the Municipal Court of Chicago to object' to the giving of instructions below, where he has failed to comply with the rule of the Municipal Court requiring objections to the giving or refusing of oral instructions to he made immediately upon the conclusion of the charge and before the jury retire.
    7. Appeal and ebrob, § 1521

      —when refusal to require■ jury to answer special interrogatories harmless. The refusal to submit special interrogatories to the jury is not reversible error where it appears that if the interrogatories calling for ultimate facts had been submitted and answered, the general verdict would have been unchanged.
    Appeal from the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed June 10, 1915.
    Rehearing denied June 28, 1915.
    Aldrich & Aldrich, for appellant.
    David K. Tone, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from á judgment obtained by Mary M. Arnold, hereinafter called plaintiff, against William E. Dodson, defendant, in the Municipal Court of Chicago.

The plaintiff’s statement of claim alleges that on the , sixth day of November, 1911, she purchased from the \ defendant fifty shares of the capital stock of the National Machine Recorder Company (hereinafter referred -to as the Recorder Company) for the sum of $3,150; that she was induced to make such purchase because the defendant falsely represented to hers that the machines manufactured by the Recorder Company were beyond the experimental stage; that said company for about a year prior thereto had been manufacturing and selling nine machines per day for $900 each; that the International Harvester Company had purchased a number of said machines and was well satisfied with them; that said company was earning large profits and dividends on its stock by selling its machines; that its business was in a prosperous condition and by the first of January, 1912, the earnings and surplus would be sufficient to enable the company to pay a dividend of 50 per cent, on its capital stock, and that the defendant represented that he had invested $500,000 of his own money, practically all he had, in the stock of the Becorder Company. The statement of claim further averred that on the eighteenth day of July, 1912, the plaintiff was induced to and did purchase from the defendant 300 more shares of the stock of the Becorder Company for $1,600; that said purchase was induced by substantially the same false representations.

The statement of claim further alleged that on the first day of March, 1912, the plaintiff loaned to the Universal Motor Company (hereinafter referred to as the Motor Company) $5,000; that the defendant induced the plaintiff to loan this money and accept as security therefor $10,000 in par value of the stock of said Motor Company and a bill of sale of two motor trucks, by falsely stating to the plaintiff that the stock of the Motor Company had nearly all been subscribed for by responsible people; that the company wanted to exhibit its motor trucks and was in need of ready money; that the subscriptions had not been paid; that the company had a factory in which it was then manufacturing motor trucks and that it was a responsible concern; that on the twenty-eighth day of August, 1912, the defendant stated to the plaintiff that he had collected the $5,000 from the motor company and advised the plaintiff to invest said money in stock of a corporation known as the United Motor Equipment Company (hereinafter referred to as the Equipment Company); that the plaintiff did accept $5,000 in par value of the stock of the Equipment Company in payment for said $5,000 loan to the Motor Company; that she was induced to accept said stock of the Equipment Company because the defendant falsely stated to the plaintiff that the stock of the Equipment Company was all owned by his own family and one or two intimate friends; that $50,000 in cash had been paid into said company on account of its stock; that that was all the money the company needed to exploit its invention; that the company would not issue or sell any more stock to anyone; that the company was the owner of a patent invention on an automobile starter; that it owned a factory on the north side and was then ready to manufacture automobile starters.

The plaintiff’s statement of claim further avers that on or about the third day of October, 1913, she discovered that the foregoing representations made by defendant were false and untrue; that she tendered to the defendant all the shares of the capital stock and the consideration received, and demanded the return of her money, but the defendant refused to accept such stock and to return her money.

To this the defendant filed an affidavit of defense alleging a defense to the whole of the plaintiff’s demand, and further admitted that the plaintiff bought the several corporations’ stocks at and for the price set forth in the plaintiff’s statement of claim, and at or about the several dates given in said statement of claim. The defendant also admitted .that the plaintiff made the loan to the Universal Motor Company at the date named, and afterwards exchanged the note of the Universal Motor Company given to secure' the payment of said loan, together with the collateral attached thereto and the bill of sale of the two motor trucks also held as security for said note, for stock of the United Motor Equipment Company. The defendant denied that said plaintiff made such purchases of stock, or any of them, said loan or said exchange, relying upon the representations of said defendant, in her statement of claim, or any such representations. The defendant denied that he made, or authorized others to make, the representations set out in the statement of claim, or any or either of them, or any representations of any kind.

Upon the trial the jury returned a verdict against the defendant for $8,854.56, upon which judgment was entered.

Defendant urges as his first point upon this appeal that the court below had no jurisdiction of this cause, which was in tort, and the amount claimed exceeded the sum of $1,000. We do not think this point is well taken. Plaintiff’s action is not in tort but in assumpsit, to recover back the consideration paid under inducements said to be false. Cases in point are: Allen v. Hart, 72 Ill. 104; Citizens’ Gaslight & Heating Co. v. A. O. Granger & Co., 118 Ill. 266; May v. Disconto Gesellschaft, 211 Ill. 315. The Municipal Court Act of 1913, sec. 1, div. 2 (J. & A. ¶ 3314), provides that the court shall have jurisdiction of “all actions on contracts, express or implied, and actions on judgments when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars.” We read the opinions in Harty Bros, & Harty Co. v. Polakow, 237 Ill. 559, and Chudnovski v. Eckels, 232 Ill. 312, as holding that under this section of the statute the Municipal Court has jurisdiction in all cases, the amount claimed exceeding $1,000, where an action in assumpsit would lie at common law. We will not depart from what we understand to be the decision in these cases.

It might be said parenthetically that the machine which the Recorder Company was promoting was a device which could be attached to each piece of machinery in a shop and connected electrically with a registering device in the office which made a record of the running time of each machine. As the details of the device are not in controversy no further description is necessary.

Is the verdict contrary to the weight of the evidence1? The jury heard the plaintiff testify substantially that in November, 1911, she met the defendant, who stated to her that the machine of the Recorder Company was not an experiment but was perfect; that the International Harvester Company “had bought and was using them and was well satisfied with them;” that the machine cost $150 to manufacture and sold for $900; that the defendant had invested practically his own fortune, $500,000, in it; that he gave her a card containing figures which he said was a conservative estimate of what the invention would earn and did already earn and was earning, and that he had made fortunes for various people. The figures on the card indicated that the Recorder Company would make an annual profit of 125 per cent, on its capital stock. Plaintiff further testified that defendant stated to her that the company “was earning at least 20 or 30 per cent, a month,” and further that “they had been earning these large sums of money for over a year,” and that the company was in a very prosperous condition and “had a large amount of money in the bank” and that the company would pay a dividend' of 50 per cent, the first of the following year; that relying on such statements she purchased from the defendant fifty shares of the capital stock of the Recorder Company, for which she paid him the sum of $3,150. In January of the next year, plaintiff went with a friend to the office of the defendant and inquired about the dividends. Defendant then stated to her that they had expended the money that had been earned in making certain changes in the device, but that they could expect a dividend soon. He repeated in this interview the statement that the International Harvester Company had bought a large number of these machines and was well pleased with them, and also that they were selling the machines for $900.

Plaintiff further testified that in the summer of 1912 she was induced to and did buy 300 more shares of the Recorder Company’s stock for the sum of $1,500. The evidence as to this particular purchase indicates circumstances materially different from those surrounding the first transaction, and the jury did not allow plaintiff any recovery on account of this second purchase. As plaintiff has assigned no cross-error thereon, and as of course defendant is not complaining, it is unnecessary to narrate the details of this particular transaction. From our examination of the evidence we are of the opinion that the conclusion of the jury that plaintiff was not entitled to recover this sum of $1,500 from the defendant was correct.

Plaintiff further testified that on March 1, 1912, the defendant asked her to make a loan to a company called the Universal Motor Company. It appears that this company was incorporated under the laws of Colorado in the year 1908 with a capital stock of $5,000,000. Apparently the only property it had of any value was a patent for the manufacture of motor trucks. The $5,000 in question was paid by plaintiff’s check, which was deposited to defendant’s personal credit. Defendant stated to plaintiff that the company wanted a temporary loan of $5,000 for sixty days, and that they would give her as security ten shares of stock of the Motor Company and a bill of sale of two motor trucks; that the company was prosperous and “had a factory and were manufacturing those motor trucks.” It seems to be uncontradicted that this statement concerning the Motor Company was untrue. The Motor Company did not own a factory and was not engaged in the manufacture of trucks; it was not a prosperous concern and it had never received any money from any source except from the sale of stock. When plaintiff made the loan she received a note of the Motor Company due in sixty days. At the end of this time the defendant stated to her that the company was a little slow, that the note would be paid in a short time, and suggested an extension of sixty days, to which plaintiff assented. When plaintiff again called at defendant’s office she was told by him that the Motor Company had paid him the $5,000, whereupon plaintiff gave up the security which she received on the loan. Defendant did not return her money to her but advised her to take stock for it in another concern called the United Motor Equipment Company, which he described as a “family affair,” composed of himself, his two brothers, his mother and his sister, and two outsiders; that it was about to start in the manufacture of automobile starters ; that the capital stock of $50,000 had all been subscribed for and paid and that the company had a factory on the north side and was manufacturing the starter; that it had paid $11,000 for this building on the north side and that it had bought expensive machinery and had bought the patent for the starters and was manufacturing them. Defendant stated that an offer had been made by an outsider to buy $50,000 worth of this stock, but none of it was for sale. Belying upon his representations plaintiff accepted $5,000 in par value of the stock of the Equipment Company in payment for said $5,000 loaned to the Motor Company.

Plaintiff further testified that she did not discover the truth or falsity of these statements until in October, 1913, having prior thereto believed the statements to be true; that after she discovered the falsity of the statements she tendered back the stock and demanded the money, which tender was refused by the defendant. Without narrating the details, it is sufficient to say that the evidence shows that the statements of the defendant, presuming them to have been made by him as to the property and business of the three corporations above mentioned, were untrue, and the jury were warranted in believing them to be false representations to induce plaintiff to part with her money. We have in mind only representations as to past or existing material facts and not what is called “puffing” or “dealer’s talk.”

The defense relied upon is that' defendant made no representations concerning the property of these corporations, their business or their earnings, either past or prospective. The jury considered the denials by the defendant of the representations testified to by the plaintiff, also the attempted impeachment of the plaintiff, and the testimony and circumstances claimed by respective counsel to corroborate or contradict the statements of each of the principals respectively. It appears from the verdict that the jury were of the opinion that the plaintiff had sufficiently proven her claims as to the purchase of stock in November, 1911, for $3,150, and as to the loan of $5,000 in 1912, and the transaction in connection with the stock of the Equipment Company. After giving consideration to the conflicting testimony and to what is said by counsel, we are of the opinion that we would not be justified in disturbing the conclusion of the jury. An important feature in reaching a determination on the facts was the credibility of the witnesses, and as the jury were peculiarly qualified to determine this we must defer to their opinion in this respect.

There is no reversible error in the rulings on evidence.

The court instructed the jury that:

“Statements by a seller merely descriptive of the operation and utility of an invention or patented article, and statements as to anticipated profits or future earnings on dividends and as to the future success of business ventures are regarded as expressions of opinion, or ‘puffing,’ or ‘dealer’s talk’ upon which a person cannot base charges of fraud. No statement of one’s opinion as to what will or will not happen or exist in the future can affect a contract or render it void. Every person in making a contract is at liberty to speculate or express opinions as to future events and he cannot be held to answer for their truth or falsity.”

This stated the law as favorably to the defendant as he was entitled to, and tended to correct any slightly doubtful or ambiguous words in other parts of the oral instructions.

Plaintiff was required to prove her case by a preponderance of the evidence, and the instruction to that effect was proper. This is not a criminal case, and proof beyond a reasonable doubt was not required. Grimes v. Hilliary, 150 Ill. 141; Flannery v. People, 225 Ill. 62; People v. Sullivan, 218 Ill. 419.

It might also be said that defendant cannot be heard to object now to the instructions, as he failed to -comply with the requirements of rule 8 of the Municipal Court (properly preserved in the record for our inspection) which are that “objections to the giving or refusing of oral instructions to the jury must be specific and must be made immediately upon the conclusion of the charge and before the jury retire.” See also Pecararo v. Halberg, 246 Ill. 95.

Must the judgment be reversed because of the refusal of the court to require the jury to answer the special interrogatories submitted by the defendant? Our answer is in the negative. The test of the inquiry is this: Assuming all of the interrogatories to have been answered most favorably to the defendant, and the remaining facts not embraced in the interrogatories found favorably to the plaintiff, would the special findings change the general verdict? Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132; Chicago Anderson Pressed Brick Co. v. Reinneiger, 140 Ill. 334. There were thirty-four interrogatories submitted by the defendant, and in form they resemble an examination of the jury as to the evidentiary facts appearing on the trial. After inspecting these interrogatories we are of the opinion, applying the rule just stated to such interrogatories as call for ultimate facts, that if they had been submitted aud answered the general verdict would remain unchanged. Therefore it was not error to refuse them.

Other points made by defendant, including his alleged tender during the trial, are without prevailing merit.

As we cannot hold the verdict to be manifestly against the weight of the evidence, and as no reversible errors appear to have been committed on the trial, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    City of Chicago, Defendant in Error, v. Peter Delich, Plaintiff in Error.
    Gen. No. 20,686.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed June 10, 1915.
    Statement of the Case.
    Action by City of Chicago, plaintiff, against Peter Delich, defendant, charging defendant with “resisting an officer” and “disorderly conduct” in violation of ordinances in regard thereto. On trial defendant was found guilty and fined seventy-five dollars. To reverse this judgment he prosecutes this writ of error.
    The facts disclose that a police officer met defendant in the rear of his premises and asked him to open two shanties located there. They were opened by defendant and examined by the officer. Shortly thereafter three officers came to defendant’s house and stated that they had heard he was killing sheep in the basement, to which defendant replied that this was not so. The officers stated that they had been sent to make an investigation. Defendant took them down into Ms basement, and after inspection they informed defendant that they found no evidence of any killing of sheep or cattle. That no indications of sheep killing were seen was testified to by the officers upon the trial. After this inspection in the basement, one of the officers informed the defendant that he was under arrest and attempted to put upon his hands a wrist chain, and the other officers seized his hands so as to bind them with the wrist chain. Defendant resisted this for three or four minutes, and then submitted quietly and walked up stairs and was taken to the police station in a patrol wagon.
    Abstract of the Decision.
    1. Abbest, § 25

      —when arrest without warrant unauthorised. The arrest of a person, without a warrant, on the charge of killing sheep in a basement is unauthorized, there being no statute forbidding such killing.
    2. Evidence, § 10*—when Appellate Court will not take judicial notice of city ordinance. The Appellate Court will not take judicial notice of city ordinances.
    3. Obstbucting justice, § 1*—when evidence insufficient to support charge of resisting officer. Evidence examined and held insufficient to support charge of resisting an officer.
    R. F. Kompare, for plaintiff in error.
    No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same tonic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice McSurelt

text:
    City of Chicago, Defendant in Error, v. Micha Delich, Plaintiff in Error.
    Gen. No. 20,687.
    (Not to he reported in full.)
    Abstract of the Decision. Obstructing! justice, § 1

      —when evidence insufficient to support charge of resisting officer. The judgment below is reversed on the strength of the decision in City of Chicago v. Delich, ante, p. 72.
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed June 10, 1915.
    Statement of the Case.
    See the statement of the case in City of Chicago v. Delich, ante, p. 72, the only additional facts being that the defendant in this case is the wife of Peter Delich and took some part in the altercation with the officers.
    R. F. Kompare, for plaintiff in error.
    No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurelt

delivered the opinion of the court.


author: Mr. Justice McSubelt

text:
    Carrie E. Dracass, Appellee, v. City of Chicago, Appellant.
    Gen. No. 20,852.

      (Not to ho reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed June 10, 1915.
    Rehearing denied June 28, 1915.
    Statement of the Case.
    Action by Carrie E. Dracass, plaintiff, against City of Chicago, defendant, to recover damages for personal injuries received from a fall on the sidewalk on Sixty-first street in Chicago. The verdict was for $6,750, reduced by remittitur to $5,750, for which amount- judgment was entered! From this judgment, defendant appeals.
    Plaintiff charges that at the place of the accident the Sixty-first street sidewalk passes under a railroad viaduct, and that defendant permitted a depression to be and remain in the sidewalk at this point, and permitted large quantities of snow and ice to accumulate in and around said depression, making it dangerous for persons using the sidewalk, and that she was thereby caused to fall, receiving injuries. Many witnesses testified that the walk was sunken and water would accumulate in the sunken place and freeze, making hummocks of ice, some say four or five inches high. One witness described the place as “full of holes and bumps eight to twelve inches in height.”
    John W. Beckwith and N. L. Piotrowski, for appellant; David B. Levy, of counsel.
    Byan & Condon and Gormar, Pollock, Sullivan & Livingston, for appellee.

      Abstract of the Decision.
    1. Municipal coepoeations, § 1013

      —when liable for injury to pedestrian by ice on sidewalk. In an action against a city to recover for personal injuries caused by falling on the sidewalk, evidence that there was a depression at the point where plaintiff fell in which water was allowed to accumulate and freeze, mailing hummocks of ice, and that snow was also allowed to accumulate there, is sufficient to warrant a finding that defendant was guilty of negligence.
    2. Municipal coepoeations, § 1063*—when pedestrian using icy sidewalk not guilty of contributory negligence. In an action against a city to recover for injuries caused by falling on a sidewalk, the evidence showed that there was a depression at that point in which hummocks of ice had been allowed to accumulate; that there had been a fall of snow on the morning of the accident which somewhat a covered the ice; that plaintiff was, at the time of the accident, walking slowly and carefully, choosing her way; that the snow covered the depression into which she stepped and her foot went down into it at least five or six inches. Held, that the evidence was not sufficient to show contributory negligence on her part.
    3. Municipal coepoeations, § 1025*—when city charged with knowledge of dangerous sidewalk. A city is charged with knowledge of the condition of a sidewalk in which, for a length of time, a depression has existed and in which ice and snow have been allowed to accumulate.
    4. Municipal coepoeations, § 1013*—when city liable for dangerous condition of sidewalk. Where an injury is caused by slipping on ice which had accumulated in a depression in the sidewalk and had been covered that morning by a fall of snow, the proximate causes of the injury were the depression and the ice, and the city cannot relieve itself from liability on the ground that it did not know and could not have known of the presence of the snow.
    5. Municipal coepoeations, § 1227*—when objection for failure to allege notice to city of injury must be raised. In an action against a city for personal injuries caused by falling on a sidewalk, an objection that the declaration contains no allegation of notice to the city is no avail when made after verdict.
    6. Damages, § 124*-—when verdict not excessive. In an action for personal injuries where the evidence shows that plaintiff received a fracture of the tibia and fibula, -with dislocation and tearing of the ankle ligaments,' and other injuries, that for several months she was obliged to use a wheel chair, then crutches, and at the time of the trial, nine years after the accident, was obliged to use a cane in walking, that she suffered great pain and was permanently injured, a verdict for $6,750 is not excessive.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSubelt

delivered the opinion of the court.


author: Me. Justice McSurely

text:
    Clarence B. Shaffner, Appellant, v. M. L. Greenwald, Appellee.
    Gen. No. 20,909.
    (Not to he reported in full.)
    Appeal from the Circuit Court of' Cook county; the Hon. Lock-wood Honore, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed June 10, 1915.
    Statement of the Case.
    Beplevin by Clarence B. Schaffner, plaintiff, against M. L. Greenwald, defendant, to recover an automobile. The jury found the right of possession in the defendant and a writ of retorno issued. From this judgment, plaintiff appeals.
    The facts disclosed are as follows: That plaintiff was a clerk employed in the office of his father, Benjamin M. Shaffner; that prior to May 1, 1912, plaintiff owned the automobile in question, which he had sent to a repairing company for overhauling; that this work was not paid for and the repairing company secured a judgment for $102.75 against plaintiff, and levied upon and took possession of the automobile. Some time before this, at the request of Benjamin M. Shaffner, the plaintiff and the defendant, Greenwald, indorsed his note for the sum of $250, which note was then discounted by a man named Ensign. Ensign finally sued on the note and had judgment against both Shaffner and Greenwald. Shaffner thereafter sent a letter to Greenwald requesting that he should help in preventing a levy threatened by Ensign upon his judgment. An arrangement was made by which Benjamin M. Shaffner was to pay this judgment in instalments, but Shaffner failing to do this, the defendant, Greenwald, was compelled to pay the judgment. About May 1, 1912, the defendant was at the office of the Shaffners to persuade them to repay him the amount he had paid on the Ensign judgment. Plaintiff told defendant that he had no money, but told him about the automobile which had been levied upon by the repairing company. Defendant offered to cancel his claim on the Ensign matter and to pay the repairing company the amount of its judgment if plaintiff would give defendant a bill of sale for the automobile; and on that date an unconditional bill of sale conveying the automobile in question was executed by the plaintiff and delivered to Greenwald, and on the following day Benjamin Shaffner executed a written order on the repairing company to turn over the automobile to the defendant. The defendant paid the repairing company its claim and received the automobile. Pour days thereafter plaintiff swore to an affidavit for the replevin of the automobile and obtained possession of it.
    Abstract of tlie Decision.
    1. Chattel mortgages, § 7

      —when Mil of sale not a mortgage. Evidence examined in a replevin suit to recover possession of an automobile held under a bill of sale claimed to have been given as a mortgage and held sufficient to support a finding that the bill of sale was an absolute conveyance and not a mortgage.

      B. M. Shaffner, for appellant.
    Comerford & Cohen, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Me. Justice McSurely

delivered the opinion of the court.

2. Replevin, § 50 —when tender of return of consideration necessary. When, in a replevin suit, it is claimed that the bill of sale under which defendant holds the chattel was in fact a mortgage, plaintiff is not entitled to the possession of the property unless he tendered defendant the amount due on the mortgage and kept the tender good.

3. Damages, § 250*—when error in instructing as to measure of damages cured 6y remittitur. A judgment for defendant in replevin will not be reversed on the ground that the jury were improperly instructed as to the measure of damages and that the verdict was improper in assessing the defendant’s damages at a certain sum, where an order was entered remitting that amount of damages.


text:
    Anton Supolski, Appellee, v. Ferguson & Lange Foundry Company, Appellant.
    Gen. No. 20,990.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed June 10, 1915.
    Statement of the Case.
    Action by Anton Supolski, plaintiff, against Ferguson & Lange Foundry Company, defendant, for personal injuries received while employed by defendant in a foundry plant owned and operated by it. From a verdict and judgment for plaintiff for $3,000, defendant appeals.
    The evidence shows that in the yard of defendant’s plant was an appliance for breaking scrap iron, called a “drop.” By means of a derrick a heavy metal ball was raised to some considerable height and allowed to fall on the pile of scrap below, breaking the iron into bits. This would cause pieces to fly in all directions. Plaintiff was a “chipper” employed in cleaning castings, and his usual place of work was in the yard perhaps about twenty feet west of the drop. A piece of flying iron struck him, as he was going, as he says, to his tool box near by, inflicting the injuries complained of.
    For plaintiff it was claimed that «the accident was caused by defendant’s failure to comply with the provision of the statute entitled “an act to provide for the health, safety and comfort of employes in factories,” etc., approved June 4, 1909, in force January 1, 1910 (J. & A. if 5386), which is as follows: “All dangerous places in or about mercantile establishments, factoriés, mills or workshops, near to which any employe is obliged to pass, or to be employed, shall, where practicable, be properly enclosed, fenced or otherwise guarded.”
    No enclosure or fence guarded the drop. Nearby was a shanty, the presence of which it is argued satisfied the requirement to have the dangerous place “otherwise guarded.” This shanty was about six or ten feet west of the drop, was about four feet wide, seven feet long and seven feet high, the witnesses not being in accord on the measurements. The wall of the shanty nearest the drop was strongly built. Plaintiff worked at a point west of the shanty, which witnesses say was from ten feet to over thirty feet from it. It was conceded that while at this place plaintiff was in danger from the flying pieces of iron, but it was claimed that it was intended that plaintiff and other employees when warned that the metal ball was about to drop should either enter the shanty or step behind it to avoid being struck. There was testimony that the employees were so instructed, although this was denied.

      Abstract of the Decision.
    1. Master and servant, § 126

      —when safeguards insufficient. In an action to recover for personal injuries received by plaintiff while employed in defendant’s foundry plant, the evidence showed that the injury was caused by a piece of flying iron striking him as he was going to his tool box near his usual place of work; that the iron causing the injury was from scrap iron which was being broken by a “drop,” an appliance for breaking scrap through raising a heavy metal ball to a considerable height by means of a derrick and letting it fall on the iron; that the operation caused pieces of metal to fly in all directions; that plaintiff’s usual place of work was about twenty feet west of the “drop”; that the only safeguard provided was a shanty situated six or ten feet west of the drop; that the shanty was about four feet wide, seven feet long and seven feet high, and the wall nearest the drop was strongly built; that plaintiff was in danger from the flying scraps while working at his usual place of employment. It was held that the shanty was not a sufficient safeguard within the meaning of the Act of June 4, 1909 (J. & A. If 5386), which provides that “all dangerous places in or about * * * factories, mills or workshops, near to which any employe is obliged to pass, or to be employed, shall, where practicable, be properly enclosed, fenced or otherwise guarded.”
    2. Master and servant, § 158*—what safeguard required. The provision of the Act of June 4, 1909 (J. & A. If 5386), that “all dangerous places * * * near to which any employe is obliged to pass, or to be employed, shall * * * be properly * * * guarded,” contemplates the protection of employees while they are working in their usual and customary places of work and passing to and from such places, by some protecting screen or device at the source of danger.
    Miller, Gorham & Wales and W. G. Shockey, for appellant.
    Frank A. Rockhold and Charles C. Spencer, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

3. Master and servant, § 158 —when safeguard of dangerous appliance practicable. In an action by an employee to recover for injuries caused through being struck by pieces flying from a pile of scrap iron, which was being broken by dropping on it from a considerable height a heavy iron ball, evidence examined and held to support a finding that it was practicable to safeguard employees against the flying pieces by some surer means than a shanty six or ten feet from the drop and seven feet high.

4. Appeal and error, § 1565*—when modification of improper in-' struction harmless. One who has requested an improper instruction cannot complain of a doubtful modification of it by the court.


author: Per Curiam.

text:
    Illinois Improvement & Ballast Company, Plaintiff in Error, v. Inger C. Heinsen, Executrix, Defendant in Error.
    Gen. No. 21,200.
    (Not to Ibe reported in full.)
    Error to the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed June 14, 1915.
    Statement, of the Case.
    The judgment óf the trial court was affirmed for lack of bill of exceptions and failure to assign errors on the common-law record, the facts of the case not appearing.
    David B. Maxwell, for plaintiff in error.
    Moses, Rosenthal & Kennedy, for defendant in error; Julius Moses and Walter Bachrach, of counsel.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Per Curiam.

Abstract of tlie Decision.

Appeal and errob, §, 1746 —when judgment affirmed where MU of exceptions stricken. Where the bill of exceptions has been stricken from the record and no errors have been assigned upon the common-law record, the judgment will be affirmed.


author: Mr. Presiding Justice Smith

text:
    Henry D. Laughlin, Appellee, v. Charles H. Norton and Henry P. Norton, Appellants.
    Gen. No. 19,412.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and judgment here with finding of facts.
    Opinion filed June 21, 1915.
    Statement of the Case.
    The court abides the conclusions reached in its former opinion in this case (187 Ill. App. 257), which was reversed by the Supreme Court (267 Ill. 476) because of an insufficient finding of facts. After restating its. views in substantially the language of its former opinion, the court adds the following statement of facts: The court finds that on January 18, 1905, appellee, Laughlin, loaned to appellants, Charles- H. Norton and Henry P. Norton, the sum of $1,891.95, mentioned in a certain contract of assignment of that date between the Namekagon Land & Lumber Company and said Nortons as parties of the first part and appellee Laughlin as party of the second part, and that said money, together with other moneys of appellants, was applied on a certain contract for the purchase of lands by John H. Savage from the North Wisconsin Lumber Company, known and referred to in the record as Contract No. 530; that prior to the making of the contract dated May 6, 1905, between appellants and appellee, hereinafter mentioned, said Laughlin elected to avail himself of and to exercise the option given him in the assignment contract of January 18, 1905, and to purchase the contract and the lands described therein; and in consideration thereof and other good and valuable consideration, appellee Laughlin agreed to release and discharge the said loan of $1,891.95.
    And the court further finds that by a contract in writing entered into on May 6, 1905, the appellee, Henry D. Laughlin, agreed to pay appellants $2,046.82 (being the amount of the cash payment which thé appellants had made on contract No. 530 when they acquired it) on or before two years from and after May 6, 1905, with interest thereon at the rate of five per cent, per annum to date of payment; that appellants kept and performed their agreements and covenants in said contract of May 6,1905, but said appellee Laughlin failed to make such payment of $2,046.82, or any part thereof; that said appellee Laughlin, by a contract entered into between himself and appellants, dated October 31, 1905, agreed to pay appellants the further sum of $1,251.35 upon the performance by appellants of said last mentioned contract, and also to assume and pay five deferred payments under a certain contract known as No. 527, dated November 6, 1903, between the North Wisconsin Lumber Company and John H. Savage, mentioned and referred to in the contract of October 31, 1905; that the first of said deferred payments fell due November 6, 1905, and amounted to $1,125.80, and that said appellee delivered to appellants his check, dated October 30, 1905, for $1,125.80, in part performance of said agreement dated October 31,1905, and that the amount so advanced was paid to the North Wisconsin Lumber Company in satisfaction of the said payment due November 6, 1905, on said contract No. 527, and appellee was notified of such payment; that appellants performed and carried out said contract of October 31, 1905, except in the matter of the procurement of the consent of the North Wisconsin Lumber Company to the assignment to said Laughlin, provided for therein; that the procurement of the consent of said lumber company by appellants was waived by said Laughlin; that the total amount of said sums of $2,046.82 and $1,251.35, so agreed to be paid by said appellee Laughlin to said appellants, with five per cent, interest thereon to date, amounts to $4,885.58; that said appellee Laughlin advanced to appellants the sum of $1,000 on May 21, 1907, as a loan, and that said loan, with interest at five per cent, thereon to date, amounts to $1,398, which amount appellants concede in their statement of set-off and in their briefs filed herein should be credited to appellee Laughlin; and the court finds that there is a balance due appellants from appellee Laughlin of $3,487.58 after allowing all just credits.
    Castle, Williams, Long & Castle and Mighell, Gunsul & Allen, for appellants.
    Defrees, Buckingham, Ritter & Eaton, for appellee; Marquis Eaton and Don K. Jones, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.


author: Mr. Justice Dibell

text:
    Peter Schoenhofen Brewing Company, Appellant, v. John Dailey and Joseph A. Weil, Appellees.
    Gen. No. 5,943.
    1. Appeal and error, § 1571

      —when inclusion in judgment of defendant not served not reversible error. A judgment will not be reversed for the inadvertent entry thereof in favor of three defendants, one of whom was not served, where the record was amended during the pendency of an appeal and an additional record filed in the Appellate Court.
    ■ 2. Principal and surety, § 52*—burden of proving release of sureties by principal accepting obligor’s note. In an action against sureties on a bond, they have the burden of establishing by a preponderance of the evidence that they were released from liability by the acceptance by the principal of the obligor’s note in payment of the secured debt.
    3. Principal and surety, § 54*—sufficiency of evidence to show release of surety by principal accepting obligee’s note. The evidence held not to show that the principal in a bond accepted the obligee’s note in payment of a secured debt so as to release the sureties on the bond. -
    4. Payment, § 6*—when acceptance of note payment of pre-existing debt. The acceptance by a creditor of a debtor’s note for the amount of a pre-existing indebtedness does not constitute payment unless the former agrees to take the note in absolute payment.
    5. Principal and surety, § 54*—when judgment should be for

      plaintiff in action against sureties. Judgment should be rendered for the plaintiff in an action against the sureties on a bond, where the evidence shows that the former merely accepted the obligee's note as evidence of the secured debt and not in absolute payment thereof.
    6. Payment, § 6

      —when bringing note into court sufficient surrender to permit recovery against sureties of original debt. A note accepted by a creditor as evidence of the amount of an indebtedness secured by a bond is sufficiently surrendered to permit a recovery on a bond securing the original debt, where the instrument is produced in court, made a part of the record and submitted to the control of the court.
    Appeal from the Circuit Court of Peoria county; the Hon. Theodoke N. Gbeen, Judge, presiding.
    Heard in this court at the April term, 1914. Rehearing denied October 8, 1914.
    Reversed and remanded.
    Opinion filed July 31, 1914.
    Lackner, Butz, Von Ammon, McGregor & Johnston and Clarence W. Heyl, for appellant.
    H. S. Miller and J. F. Bartley, for appellees; Richard A. Barr, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

This suit is an action in debt brought by the Peter Schoenhofen Brewing Company, a corporation, in the Circuit Court of Peoria county against Harry W. Essman, John Dailey and Joseph A. Weil, on a bond signed by Essman as principal and by Dailey and Weil as sureties, whereby they became obliged to pay the brewing company the sum of $1,500 in case the said Essman did not pay for beer to be furnished him by the company. The bond was dated October 12, 1908, and this suit was brought September 5, 1912. Dailey and Weil waived service of process and entered their appearance, but Essman was never served with process and the court below had no jurisdiction over him. The declaration alleged that the said Essman did not pay the brewing company for the goods furnished him, but failed to do so, in the sum of $1,500, whereby an action accrued to the plaintiff below to demand of said defendants said sum. Defendants below filed a plea of nil debet; a plea that the defendants Dailey and Weil, were released from the obligations of the bond because their principal, Essman, had paid the brewing company the sum mentioned, prior to the commencement of this suit; a plea alleging that said Essman had well and truly performed all things specified in the condition of said bond; and a plea alleging that after the execution of the bond and before the commencement of this suit, the brewing* company had accepted from said Essman his promissory note for the sum of $1,500, in full payment of any and all indebtedness incurred by Essman under said bond, and that the payment by means of said note was made without the knowledge or consent of either Dailey or Weil. Beplications were filed to these pleas and the cause went to trial before the court without a jury, by agreement. The court below found the issues in favor of the defendants, Dailey and Weil, and gave them a judgment against plaintiff below ior costs, from which judgment plaintiff below appeals.

Through inadvertence in entering up the judgment in the court below, it was made to appear that the judgment was in favor of all three of the original defendants, including Essman, upon whom service was never had, and appellant contends that the judgment of the court below should be reversed for that error. The record of the court has been amended in that respect, however, and an additional record filed here, showing that the judgment entered is solely in favor of defendants, Dailey and Weil. This mistake of the clerk of the court below in writing up his record may be corrected by the court at any time, so that the record shall speak the truth, if there is anything of record by which to amend, and the court having done so in this instance, the matter is no longer material here.

During the trial of this cause it was stipulated that Essman was indebted to appellant at the time of the trial in the sum of $1,373.68, after allowing him all just credits, and the only defense sought to be interposed by appellee was that on the ninth day of June, 1910, Essman gave appellant his note for the sum of $1,437; that said note was accepted by appellant in full payment of the account due it from Essman; and that thereby appellees were freed from any obligation under said bond. This defense was an aErmative one and the burden fell upon appellees to establish it by a preponderance of the evidence. The only evidence introduced by appellees in support thereof was the deposition of Essman, in which he stated that he paid his account by means of said note; that the note was in payment of everything he owed the brewing company ; that he had given the company certain accounts to collect and that the company was to give him credit on said note for said collections; and that the note had never been returned to him. This evidence is directly contradicted by that of one Becker, formerly traEc manager for appellant but not in its employ at the time of the trial, and therefore a disinterested witness, and by Baltes, a branch manager for appellant and employed in its shipping department at the time of the execution of the note in question. Their testimony is to the effect that the note was not accepted in payment of Essman’s account and indebtedness by appellant, but merely as an evidence of it, and that the amount of said note was never credited on Essman’s account. In our opinion, appellees have failed to prove by a preponderance of the evidence that the note which was given by Essman to the brewing company was accepted by the company in payment of Essman’s debt, and it has been frequently held by the courts of this State that the taking of a note for a pre-existing debt is not payment, unless it be agreed to take the note in absolute payment, or unless the creditor has parted with the note so as expose the debtor to the danger of double payment. Hercules Iron Works v. Hummer, 49 Ill. App. 598; Schumacher v. Edward P. Allis Co., 70 Ill. App. 556; 30 Cyc. 1194. In our judgment, therefore, the defense here sought to be interposed was not established.

At the close of the proofs appellant submitted to the court certain propositions which it asked to have held as the law applicable to the case, and the court below held all of them. They were, in substance, that on the proposition whether or not the note in question was given in payment of the indebtedness due, the burden of proof rested upon the appellees; that if a note is accepted by a creditor from a debtor in amount equal to a pre-existing debt and there is no arrangement that the note is to be received in payment of the debt, and there are no circumstances from which it may be inferred that the parties intended the note to be given in payment of the debt, it must be held as a matter of law that the note was not given in payment of the debt but merely to evidence the same; and that it is incumbent upon the party claiming that a note was given in payment of a pre-existing debt to prove that 'there was an express agreement that it should be so received, or to prove such facts and circumstances that it will appear that it was the intention of the parties that the note should be accepted in full payment. The court below acted correctly in holding these propositions to be the law applicable to this case, but in our judgment, upon these propositions and the evidence presented, should have found in favor of appellant.

Appellees contend that where a note has been given to evidence a debt, the creditor cannot recover upon the debt itself or upon a bond given to secure the payment thereof, unless such creditor surrender the note for cancellation before the trial, and they cite numerous authorities in support of that contention. The authorities cited, upon examination, do not fully support this contention; but they do hold that the creditor should surrender the note at the trial, to protect the debtor against a double liability. This was praetically done by appellant on the trial of this ease in the court below. The original note was produced by appellant at the trial and offered in evidence, thereby proving that it had not been assigned but was still the property óf appellant. The note from that time on was a part of the record of the trial court in this case, and it has been incorporated in the bill of exceptions and the transcript of the record now on file in this court. This court now has complete control of the original note and this, in our judgment, constitutes a complete surrender of the note by appellant.

For the reasons stated above, the judgment of the court below is reversed and the cause remanded for further proceedings in conformity herewith.

Reversed and remanded.


author: Mr. Presiding Justice

text:
    Jennie Mahlstedt, Executrix, Appellee, v. Ideal Lighting Company, Appellant.
    Gen. No. 5,902.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.
    Heard in this court at the April term, 1914. Rehearing denied April 8, 1915.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action brought by Jennie Mahlstedt, executrix of the last will and testament of Daniel Mahlstedt, deceased, against the Ideal Lighting Company to recover damages for the death of the plaintiff’s intestate caused by the explosion of gas which escaped into a cellar from a gasoline lighting and heating plant installed by the defendant. From a judgment for $6,333 in favor of the plaintiff, the defendant appeals.
    The Ideal Lighting Company was a corporation engaged in the manufacture for sale of gasoline lighting and heating systems. Daniel Mahlstedt, husband of appellee, was a farmer. Whiteside Brothers were merchants, and H. Busier was a salesman for appellant.
    The appellant, at its factory, delivered to Mahlstedt a lighting and heating outfit for installation in his farm house, pursuant to an arrangement that had been made with him by Busier. The appellant then sent Whiteside Brothers an invoice of the items, “Sold to Dan Mahlstedt and charged to Whiteside Brothers,” with a letter saying: “We trust you will lose no time in installing the outfit for our customer.” The arrangement was that Whiteside Brothers should furnish some necessary material for the installation and attend to the work, and that appellant would send an expert to help on the last day of the work, and to start the plant. The work was started by one of the Whiteside Brothers, and the carburetor and a gasoline tank were placed in a hole in the yard twenty or thirty feet from the building, where, if uncovered, they would be exposed to the direct rays of the sun. Busier came the next morning, stayed all day and was active in the work. The system was started in the evening on Busier’s suggestion, and Mrs. Mahlstedt used it in preparing supper. There was something more to be done, and Busier and Whiteside left Saturday with the intention that Whiteside should return and complete the work. The tank and carburetor were left uncovered although they should have been covered, to prevent heating from the sun’s rays befare using the plant in daylight. The next day, Sunday, was a bright, hot day. The family used the plant, and towards night were unable to light a burner, and Mahlstedt going into the basement of his house to investigate, lighted a match and was fatally injured by an explosion of gas.
    Whiteside Brothers had previously purchased similar lighting systems for their customers, and had some but not much experience in installing them. This sale was brought about by Busier applying to White-side Brothers to accompany him in a canvass of the country, and one of the brothers was with Busier at the time of the sale in question. When Mahlstedt removed the machinery from appellant’s factory he apparently did not know whether he was buying it from appellant or Whiteside' Brothers, and when he asked whom he should pay, he was told by one of appellant’s officers that it made no difference, he could pay either, as he pleased. An invoice was sent to Whiteside Brothers subject to a commission discount. It is contended by appellant that the transaction amounts to a sale and installation of the plant by Whiteside Brothers, and that it is not liable for defects in installation; and that the evidence showed no defect in the machine. There was little question but that the cause of the accident was the effect of the sun’s heat on the gasoline in the carburetor during Sunday, and that had it been covered before it was so heated, the accident would not have occurred. Whiteside testified that when he left Saturday night he told Mahlstedt that the carburetor must be covered before using to prevent heating the gasoline, and that Busier, who was taking part in the conversation, said it would not make much difference. There was evidence that Busier said he had never before installed a plant, but it did not appear that Mahlstedt heard him say it or knew that fact.
    Abstract of the Decision.
    1. Negligence, § 20

      -—when manufacturer of gas plant liable for explosion. Where the manufacturer furnished a gasoline lighting and heating plant for installation in a residence, and through the negligence of those in charge of the work an explosion occurred and killed the purchaser, the evidence in an action against the manufacturer held to show that the latter and not a retail hardware dealer who installed the plant was the seller and answerable for the accident.

      Searle & Marshall, for appellant.
    George W. Wood, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice

Carnes delivered the opinion of the court.

2. Negligence, § 82 —when purchaser may rely on assurance of safety of gas plant. Where a purchaser of a gasoline lighting and heating plant was killed by an explosion due to the carburetor and connecting pipes leading into a dwelling being left uncovered on a hot day, the deceased held not guilty of contributory negligence in attempting to use the plant in that condition, where he was assured by the seller’s agent that the failure to cover such apparatus did not preclude the use of the plant.

3. Pbincipal and agent, § 8*—sufficiency of evidence to show agency. The evidence in an action against a manufacturer to recover for the death of a purchaser, from the explosion of a gasoline lighting and heating plant, held sufficient to show that the person having supervision of its installation was the manufacturer’s agent.

4. Witnesses, § 66*—when disqualified by interest in fixing liability on party. Testimony of persons who have an interest in fixing liability on one of the parties to an action cannot be disregarded by reason of the fact that the death of an agent of such party prevents the contradiction of the testimony of such witness.

5. Witnesses, § 113*—when wife of deceased agent incompetent witness. The widow of a deceased agent cannot under section 5 of the Evidence and Depositions Act (J. & A. If 5522) testify to statements or admissions made by him within the scope of his agency to a third person.

6. Witnesses, § 113*-—when widow not competent witness. A widow is not competent at common law to testify to admissions or conversations of her deceased husband either to her or a third person.

7. Witnesses, § 113*—when widow competent witness. A widow may testify to facts relating to a transaction in which her husband was interested, but not to conversations with the latter, nor to controverted material facts which she would be presumed to have learned by means of the marriage relation.

8. Negligence, § 198*—when question of contributory negligence for jury. Whether it was contributory negligence for the purchaser of a gasoline lighting and heating plant to light a match in a. cellar into which gas had escaped, held' a question for the jury.

9. Instructions, § 4*—duty of court to give instructions on own motion. A court is not bound to give instructions on its own motion, although it must pass upon and give or refuse those prepared and tendered by the parties to an action.


text:
    Harry H. Tobias, Plaintiff in Error, v. Alma C. Tobias, Defendant in Error.
    Gen. No. 5,762.
    1. Appeal and error, § 1069

      —filing brief as joinder in error. The filing of briefs by a defendant in error will he treated as a. joinder in error.
    2. Appeal and error, § 1069*—effect of joinder in error. A joinder in error is equivalent to a demurrer to assignments of error, and raises a question of law whether there are such errors in the record as the assignments allege.
    3. Appeal and error, § 1145*—when filing of plea prevents filing of brief on merits. As a demurrer and plea cannot he entertained simultaneously on a writ of error, the filing of a plea prevents the filing at the same time of a brief on the merits from operating as a joinder in error.
    4. Equity, § 539*—vacating decree after term of rendition. A court cannot vacate a final decree on motion after the adjournment of the term at which it was rendered.
    5. Equity, §■ 554*—nature and scope of bill of review. The purpose of a hill of review, a bill in the nature of a bill of review, and of a hill to impeach a decree for fraud, is to secure the examination of a proceeding after the power of the court to vacate a decree has ended by the Expiration of the term in which it was rendered.
    6. Equity, § 561*—denial of motion to vacate decree as bar to bill of review. Since a court cannot vacate a decree after the expiration of the term in which it was rendered, the denial of such a motion made more than two years after the rendition, of a decree does not preclude the subsequent filing of a bill of review.
    7. Appeal and error, § 1145*—when denial of motion to vacate decree bar to prosecution of writ of error on bill of review. Whether the denial of a motion to vacate a decree is a bar to a subsequent proceeding in the nature of a bill of review, is a defense thereto, and is not available as a bar to a writ of error prosecuted on the dismissal of such bill.
    8. Appeal and error, § 1145

      —when plea in bar of insanity of plaintiff in error not sufficient. A plea in bar of a writ of error of the insanity of the plaintiff in error, and the appointment of a conservator before the bringing of an action by the plaintiff in error, held deficient for failure to show that the proceedings for the appointment of the conservator were binding on the plaintiff in error, or that the court had jurisdiction to make the order therefor.
    9. Insane persons, § 76*—sufficiency of plea of insanity. The incapacity of a person to do an act requiring the exercise of reason and judgment is not sufficiently alleged by pleading a previous adjudication of insanity and the appointment of a conservator.’.
    10. Appeal and error, § 1145*—when insanity of plaintiff in error bar to writ of error. The insanity of a party to an action should be set up therein as a defense, and not pleaded in bar of the prosecution of a writ of error by him.
    11. Appeal and error, § 1783*—when overruling of plea in bar amounts to confession of error. Where pleas in bar of a writ of error are held bad on demurrer, or not sustained by the proof, they amount to a confession of the errors assigned, and the judgment below will be reversed without considering whether the errors alleged were justly assigned.
    12. Appeal and error, § 1125*—plea in bar of writ of error as precluding joinder in error. Since the pleas here filed were not pleas of release of errors, they are not within section 109 of the Practice Act (J. & A. f 8646), providing that the failure to sustain a plea of release of errors shall not deprive the defendant of the right to join in error.
    13. Appeal and error, § 1071*—joinder in error after overruling plea in bar. A joinder in error will not be permitted after the overruling of a plea in bar to a writ of error.
    Error to the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh and Hon. N. E. Worthington, Judges, presiding.
    Heard in this court at the October term, 1913. Rehearing denied April 8, 1915.
    Reversed and remanded.
    Opinion filed October 13, 1914.
    O. A. Smith, for plaintiff in error.
    Sheen & Galbraith, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Harry H. - Tobias filed a bill in the court below against Alma C. Tobias to vacate a decree of divorce which Alma C. Tobias had theretofore obtained against Harry H. Tobias in the same court. The bill was not a bill of review, for it did not set out in full the bill for divorce and the decree of divorce, nor the record in the cause. The grounds on which it was sought to vacate the decree were that Mrs. Tobias was not a resident of Peoria county when she filed said bill for divorce and therefore the court acquired no jurisdiction of said suit, and also that the testimony upon which the decree was obtained was untrue and known to Mrs. Tobias to be untrue. This therefore was a bill in the nature of a bill of review and a bill to impeach the decree for fraud. A demurrer to the bill in the suit to vacate the decree was overruled, and Mrs. Tobias answered. Tobias filed five exceptions to said answer, two of which were sustained and the rest were overruled. The cause was referred to the master to take and report the proofs and his conclusions. He reported the proofs and his conclusions that Mrs. Tobias was not a resident of Peoria county when she brought that suit and obtained that decree, and that therefore the decree of divorce should be vacated. The court sustained exceptions filed by Mrs. Tobias to said report and entered a decree dismissing the bill to vacate the former decree. Tobias perfected an appeal from said decree. Thereafter, at a later term, the court entered an order upon him to pay his wife fifty dollars for costs and solicitor’s fees in this court. Later, Tobias abandoned said appeal. Thereafter, Tobias sued out this writ of error to review the said proceedings in the said suit brought to vacate the decree of divorce, and assigned errors upon the record. Mrs. Tobias obtained leave to file and filed an additional record, and Tobias moved to strike it from the files, and that motion was taken with the case. Mrs. Tobias filed two pleas. Tobias demurred thereto. Mrs. Tobias moved to carry the demurrer to the pleas back to the writ of error. The demurrer and said motion were taken with the case.

Although there was no formal joinder in error, the filing of briefs by a defendant in error has been treated as the equivalent of a joinder in error. Ferrias v. People, 71 Ill. App. 559. Section 108 of the Practice Act (J. & A. ¶ 8645) would also require us to treat the case as if there had been a joinder in error, if the pleas had not been filed. Defendant in error filed briefs, arguing’ the ease upon the merits, but on the same day she also filed said two pleas. A joinder in error is equivalent to a demurrer to the assignments of error, and raises a question of law whether there are such errors in the record as the assignments of error allege. Austin v. Bainter, 40 Ill. 82; Farwell v. Sturges, 165 Ill. 252; Cass v. Duncan, 260 Ill. 228. As demurrers and pleas cannot be entertained at the same time, the filing of the pleas prevented the filing of a brief upon the merits at the same time from operating as a joinder in error.

The first plea sought to bar the writ of error by reason of the alleged fact that more than two years after the decree of divorce was entered, Tobias obtained an order redocketing the said cause in the Circuit Court, and entered his motion to set aside and vacate the decree therein upon the same grounds upon which his bill in the present cause is based, and that said motion was heard and denied, and that this constituted an adjudication between the same parties on the same subject-matter complained of in the present bill of complaint, and therefore plaintiff in error ought not to maintain the present action. This plea is bad for several reasons. The power of a court to vacate upon mere motion a final decree which it has entered, is lost with the adjournment of the term at which such decree was rendered. Ernst Tosetti Brewing Go. v. Koehler, 200 Ill. 369; Mooney v. Valentynovicz, 255 Ill. 118. If this motion had been interposed at the term at which the decree was rendered, the court would have had jurisdiction to hear and determine the matter; but that power over the decree ended when the term adjourned without such motion being interposed. The reason for entertaining bills of review, bills in the nature of a bill of review and bills to impeach a decree for fraud, is because after the term in which the decree was rendered such action cannot be had upon mere motion. As the court had no jurisdiction to vacate the decree under that motion, its refusal to grant the motion could not bar this subsequent bill which gave the court jurisdiction to decide that matter. Again, this plea does not show that Mrs. Tobias was notified of the making and pendency of said motion, nor does it show that she appeared and submitted to the jurisdiction of the court. The plea does not, therefore, show that the deniál of the motion was or could be an adjudication of the matters now before the court. Again, it is only by most casual reference that it can be said that the plea shows that said motion was in the divorce case brought by Alma C. Tobias against Harry H. Tobias. Moreover, if said proceedings upon said motion were binding upon Mrs. Tobias, they were had some months before the present bill was filed to vacate the decree of divorce, and if any defense at all, they were a defense to the present suit in the court below, and should have been set up there, and were waived by not presenting them in the court below, and are not available to bar this writ of error.

The second plea alleged that at the time of the filing of the present bill of complaint and of the proceedings and the decree therein, Harry H. Tobias was shown by the record to be an insane person under the conservatorship of one Pemberton by virtue of a judgment rendered in the County Court of Mason county, Illinois, in a certain proceeding brought therein against Harry H. Tobias, wherein and whereby he was declared insane and unfit to manage his own affairs, and Pemberton was appointed his conservator and thereafter qualified and acted as such conservator during the whole proceedings shown by this record. This plea is defective in various respects. It does not show that the County Court of Mason county ever obtained jurisdiction of the person of said Harry H. Tobias, nor does it show anything by which it can be ascertained that said proceedings in said County Court are binding upon him or that said County Court ever had jurisdiction of him. Again, it shows nothing that would bar the right to bring the suit to vacate the decree or bar the right to a writ of error; but only shows, if anything, that the proceedings should have been so amended as to make the conservator a party complainant therein. The plea does not allege that Harry H. Tobias was ever insane, §nd it does not allege that if he had ever been insane he was not restored to reason and to capacity to attend to Ms own affairs before he filed this bill to vacate the decree ; nor does it show but that ever since he filed said bill he has been sane and competent to manage his own affairs. We do not think it sufficient as a matter of pleading to charge that a person was adjudged insane and a conservator appointed prior to the doing of some act requiring reason and judgment, because it always happens that if an insane person does, in fact, become restored to samty, he is so restored some time before the conservator is discharged and before the person formerly insane is restored to the legal control of his property by an order of court; and if he becomes sane, the fact that he does not immediately procure the discharge of his conservator ought not to affect the validity of his acts after he has become sane. Again, the matter in this plea attempted to be set up, if it were sufficient, should have been set up at the institution of the suit to vacate the decree, so as to have given an opportunity to bring in the conservator, or to obtain an.order discharging him; and it was, in fact, set np and was one of the features of the answer to which exception was sustained; and on this subject, the only question which can here be raised at the present time is whether the court ruled correctly in sustaining the exception to that part of the answer. It follows that the demurrer' must be sustained to each of the pleas.

Where pleas in bar are filed to a writ of error and said pleas are not sustained, either because found bad in law upon demurrer or because not sustained by the proofs upon trial, they amount to a confession of the error assigned, and that judgment or decree from which the writ of error is prosecuted must be reversed regardless of whether the errors assigned do, in fact, appear upon the record, and the court which finds said pleas insufficient will not consider whether the errors are justly assigned or not. Austin v. Bainter, supra; Clapp v. Reid, 40 Ill 121; Ruckman v. Alwood, 44 Ill. 183; Holt v. Rees, 46 Ill. 181; Thornton v. Houtze, 91 Ill. 199; Page v. People ex rel. Weber, 99 Ill. 418; International Bank of Chicago v. Jenkins, 104 Ill. 143; Mahony v. Mahony, 139 Ill. 14; Beardsley v. Smith, 139 Ill. 290; Martin v. Highway Com’rs Scotland Tp., 150 Ill. 158; Schaeffer v. Ardery, 238 Ill. 557; Peterson v. Manhattan Life Ins. Co., 244 Ill. 329; George v. George, 250 Ill. 251. Section 109 of the Practice Act of 1907 (J. & A. ¶ 8646) provides that a plea of release of errors, adjudged had or not sustained, shall not deprive the defendant of the right to join in error. Schaeffer v. Ardery, supra; Cass v. Duncan, supra; Lott v. Davis, 262 Ill. 148. These pleas were not of a release of errors and are not within the provisions of that statute.

We may regret that we have not a discretion to permit a joinder in error after any pleas in bar to a writ of error are overruled, if we think the ends of justice would be best served thereby, but when the legislature adopted said section 109 of the Practice Act it knew that the rule above stated had often been declared inflexible by our Supreme Court, and by limiting said section to a plea of release of errors, it shows an intention to permit the established rule to stand as to all other pleas. As the errors assigned have been confessed by the filing of these pleas, we must reverse the decree of the court below. We deny the motion to strike the additional record from the files. We sustain the demurrers to the plea and reverse the decree and remand the cause.

Decree reversed and remanded.

This case was considered and decided at the October term, 1913. Mr. Presiding Justice Whitney, to whom the case was then assigned to write an opinion, was taken ill, and died on July 18, 1914, without having prepared an opinion, and the case was afterwards reassigned.


text:
    William Burden, v. Charles Burden et al., Appellees. Joseph E. Erbland, Intervener, Appellant.
    Gen. No. 5,951.
    1. Equity, § 110

      —right of judgment creditor of partner to intervene in dissolution proceedings. Where one partner brought a dissolution proceeding against his copartner and made the latter’s wife a party in order to settle a dispute between the two over the ownership of the husband’s interest, a judgment creditor of the husband cannot, under an allegation of a conspiracy between the husband and wife to defeat his claim, intervene in the proceeding and apply the proceeds of the husband’s interest to the satisfaction of the judgment. «
    2. Appeal and ebbok, § 412*—when objection to intervention of judgment creditor of one partner in dissolution proceeding prop

      efly reserved. An objection that a judgment creditor of one partner could not intervene in a dissolution proceeding in order to subject the latter’s interest to the satisfaction of the judgment, held sufficiently raised in order to permit its consideration on appeal.
    3. Cbeditobs’ suit; § 45

      —when receiver in dissolution proceeding may be made party to action by judgment creditor against one partner. On a proper showing, leave may be granted a judgment creditor of one partner to make the receiver in a dissolution proceeding a party to a judgment creditor’s bill.
    Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 13, 1914.
    Rehearing denied April 7, 1915.
    J. A. Riely and McCalmont & Ramsay, for appellant.
    Carl E. Sheldon, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

For ten years prior to May, 1910, a mercantile business was carried on at Tampico in Whiteside county under the name of The Charles Burden Company. William Burden was one partner and a half owner. He claimed that his brother Charles was his partner, but Kate Burden, wife of Charles, had asserted that she was the partner, and she had signed many partnership papers. William Burden gave no time to the business. His wife Margaret kept the books. Charles conducted the business. His wife Kate owned the building in which the business was conducted, and had raised, by mortgage on a farm owned by her, the.money which went to make up the other half of the capital of the corporation. Disagreements arose and William filed a bill against Charles and Kate to have the partnership dissolved, the remaining goods sold, the book accounts and notes due the firm collected, the firm debts paid and one-half of the remaining assets paid to himself. He did not seek an adjudication as to whether Charles or Kate owned the other half of the property, but made them both defendants, so that they might be bound by the settlement made in the case. A receiver, was appointed and the affairs of the partnership were wound up, and a stipulation was signed, disposing* of various matters of controversy. At this stage of the ease, Joseph E. Erbland, claiming to have recovered a judgment in the Circuit Court, of Woodford county in 1897 against Charles Burden, and to have had an unsatisfied execution thereon, and to have obtained a revival of said judgment in 1908 and1 an execution thereon, returned unsatisfied, and alleging confederacy and fraud between Charles and Kate Burden to prevent Erbland from collecting his judgment, and alleging that the store and the property therein was owned by Charles Burden, obtained leave to file and filed an intervening petition,' seeking to make his judgment out of the alleged interest of Charles Burden in the partnership property and in the rents for the store building. The court ordered a certain sum retained by the receiver until a decision under the petition. After answer, this matter was heard by the master, who took and reported proofs with his conclusions adverse to the petitioner. On objections to his report, an additional report was made, finding that the court was without jurisdiction to entertain the subject-matter of said petition. The court dismissed the petition and the intervener appeals.

We are of opinion that this petition was not germane to the litigation then before the court. William Burden did not claim to own the store building, and its ownership was not involved in that suit. William had no interest in. the question whether Charles or Kate had the other half interest in the business. He was only interested in having the partnership affairs wound up, the various disputed .questions disposed of by decree, and to get his half of the final assets, and to have Kate and Charles both parties to the suit so that they should both be bound by the result. There was involved in that litigation no question whether Charles and Kate had conspired together to defeat the creditors of Charles or whether the property standing in the name of Kate was originally derived from the estate of the deceased father of Charles, as the intervener claimed, nor whether she acquired such property from the estate of the deceased father in such a way that creditors of Charles ought in equity to have resort thereto for the payment of their claims. The judgment of the intervener had no connection with the partnership business. It was obtained several years before the partnership was formed. If this intervention can be maintained, then any other creditor of Charles or William or Kate may come in and file an intervening petition and.have many other questions tried. Indeed, it appears that Margaret, the wife of William, supplied some of the money which her husband put into the business, and creditors of Margaret might come in and intervene and make her a party and seek to collect their claims out of the share ordered paid to William.

But petitioner claims that the defendants did not raise this question sufficiently in the court below. Defendants excepted to the order allowing the intervening petition to be filed. Later, at the same term of court, they entered a motion to vacate the order allowing said petition to be filed, on the ground that the court was without jurisdiction to enter such an order in said cause. They filed objections to the master’s report, although it was in their favor, on the ground that the intervener had an adequate remedy at law, had no standing in a court of equity, and that a court of equity was without jurisdiction. We are of opinion that the lack of jurisdiction of the court in this cause was sufficiently raised, and also that, if it had not been raised, it was at least the privilege of the court of its own motion to refuse to permit the pending cause to be hampered by this litigation introduced by the intervener.

But it is suggested that the money was in the hands of the receiver and he could not be made a party to an original creditor’s bill, and therefore petitioner had a right'to this intervention. Erbland would have been required to apply to the court for leave to make the receiver a party defendant to such a creditor’s bill, but we must assume that if a proper showing had been made, such leave would have been granted.

It is a serious question under the proofs whether this judgment was ever lawfully revived, and whether Erbland can, under the proofs, reach any of the money in the hands of the receiver from which to pay a judgment against Charles Burden. But we leave these questions undetermined, so that if a creditor’s bill shall be filed, its progress will not be hampered by any decision thereof in this case.

The decree dismissing the intervening petition is affirmed.

Affirmed.


text:
    Sabatino Magnani, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 5,956.
    (Not to be reported in full.)
    Appeal .from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding.
    Heard in this court at the April term, 1914. Affirmed. Rehearing denied April 7, 1915.
    Opinion filed October 13, 1914.

      Certiorari denied hy Supreme Court (making opinion final).
    Statement of the Case.
    Action by Sabatino Magnani against the Spring Valley Coal Company to recover for injuries sustained while in the employ of the defendant as a miner. From a judgment in favor of the plaintiff for $1,500, the defendant appeals.
    On August 29, 1912, the plaintiff worked without his “buddy.” The mine was to close- that day. at 1:30 p. m. Shortly after 1 o’clock the car he had in the entry was loaded. He applied to the driver to take the loaded car out, so that he could set in an empty and begin loading it, and was informed that the loaded car would not be taken out until next morning, so he could not do any further work until the car was taken out. He started walking in an entry towards the shaft, and when at a point where there was a sharp decline he was struck and injured by a trip consisting of a driver and one mule drawing, two empty cars. There was no brake on the cars and the driver had no sprags and could do nothing to lessen the' speed of the car, except with his feet, which would not impede the motion of the car to any great extent. Tn going down the incline the head car ran against the mule and the mule ran rapidly to keep out of the way of the car. After Magnani started towards the shaft, his light went out. He saw the car coming, but because his light was out the driver could not and did not see him until just before the trip reached him. When Magnani saw the car coming’ he started running from the car and going from side to side of the entry, seeking for a place of refuge, which he was unable to find. The entry was so narrow that the car could not pass him. While running, Magnani struck his head against a low place in the roof and was knocked down and run over by one or both of the cars, and seriously injured.
    Abstract of the Decision.
    1. Mines and minebals, § 108

      —when low roof in entry wap must he marked. When the roof of an entry way in a mine is so low as to be dangerous to employees rightfully traveling therein, it is such, a condition which the spirit of the Mining Act requires to be marked and removed.

      The proof introduced by plaintiff tended to show that the roadway had been brushed in from the outside for a certain distance and then at the place where plaintiff struck his head against the roof the brushing had ceased, and that there was a sharp drop in the height of the roof and that plaintiff struck his head against that. The oral evidence and a plat introduced by the 'defendant showed that forty feet inside the entry way the roof was 7.3 feet high on the right-hand side and 7.2 feet high on the left-hand side, while ten feet further on it was 4.2 feet high on the right and 5.1 feet high on the left, showing a drop in the roof somewhere within that distance of ten feet of over three feet on one side and over two feet on the other. Plaintiff testified that as he ran to get away from the trip he held his head down low.
    McDougall, Chapman & Bayne and Josep T. Skinner, for appellant; Mastin & Sherlock, of counsel.
    J. L. Murphy and James P. Lawson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

2. Mines and minerals, § 182 —when question for jury whether low roof in entry way dangerous condition. Whether the roof of an entry way in a mine was so low as to constitute a condition dangerous to miners is a question for the jury.

3. Mines and minerals, § 108*—when low roof of entry way must be marked. If the roof of an entry way in a mine is so low as to be dangerous to miners rightfully using it, it is the duty of the employer to conspicuously mark the place, to enter a report thereof in the books kept for that purpose and not to permit miners •to use the entry way until the dangerous condition is removed.

4. Mines and minerals, § 174*—sufficiency of evidence to show dangerous condition of low roof of entry way. The evidence in an action for injuries sustained by a miner who was knocked down by the low roof of a mine entry way, held to justify a finding that the place was dangerous.

5. Mines and minerals, § 106*—effect of rule prohibiting use of hauling ways by miners during working hours. A rule of a mining company requiring miners to keep off hauling ways and away from the bottom of shafts during working hours while the mine was -in operation does not constitute a defense to an action for injuries sustained by a miner from being run down by a car while he was traveling through an entry way to the shaft after he had been prevented from completing his day’s work, since such rule violated sec. 17 of the Mining Act (J. & A. If 7486), providing that men who have completed their day’s work or who have been prevented from finishing work shall come to the shaft to be hoisted out.

6. Mines and minerals, § 91*—right of miner to use passageways. The requirement of the Mining Act for places of refuge not over sixty feet apart in the sides of the passageways of a mine permits miners to use such passageways at any time.

7. Mines and minerals, § 194*—instruction as to rule prohibiting miners using hauling ways during working hours. In an action for injuries received by a miner by being run over by a car while he was on his way from work to the bottom of a shaft, the court properly declined an instruction regarding a rule of the employer requiring miners to keep off the hauling ways and away from the bottom of the shaft while the mine was in operation during working hours, since the rule conflicted with the provisions of the Mining Act permitting miners to come to the bottom of shafts to be hoisted to the surface when their work was finished or they were prevented from continuing their work.

8. Mines and minerals, § 193*—instruction as to recovery for permanent injury to miner. An instruction in an action for injuries sustained by a miner, as to his right to recover for permanent injuries, held sustained by evidence that eighteen months after the injury one knee was one and one-half inches larger in circumference than the other, although a physician testified that in his opinion the knee would be normal in six or eight months.