text:
    The Alvey-Ferguson Company, Appellant, v. Ernst Tosetti Brewing Company, Appellee.
    Gen. No. 18,006.
    1. CONTRACTS — when instructions misleading. In action for the selling price of conveyors, an instruction that if, after the contract was signed, plaintiff and defendant agreed that certain changes should he made in the construction, and that new blueprints were to be prepared showing such changes and to be approved by defendant, and if defendant refused to approve' the blueprints showing such changes the issues should be found for the defendant, is erroneous where the evidence shows that the changes were all agreed upon at the time the contract was signed and marked upon the blueprint attached to the contract.
    2. Contracts- — when instruction is prejudicial. In an action for the selling price of conveyors, an instruction to the effect that if defendant notified plaintiff before the conveyors were completed( that it would not accept them, plaintiff is not entitled to recover the purchase price and verdict should be for the defendant, is erroneous where the only evidence of such notice is a letter containing these words, “We are not yet prepared to install such machinery and would advise you not to do anything for the present in this matter.”
    3. Contracts — effect of notice from one party that he does not intend to perform. One party to a contract cannot create a breach merely by giving notice that he does not intend to be bound.
    4. Contracts — notice of an intended breach. A mere noticei of an intended breach of a contract is not of itself a breach, though it may become so if accepted and acted upon as such by the other party, yet if not so accepted and acted upon the notice remains only a matter of intention and may be withdrawn at any time before performance is in fact due.
    5. Contracts — election on notice of intended breach. Whiere plaintiff has contracted to make and install conveyors for defendant within sixty days, and defendant sends notice that he does not intend to be bound, plaintiff may elect to consider it as a breach of the contract or treat it as inoperative and proceed with the work of construction in order to be able to perform within the stipulated time.
    6. Pleading — recovery for breach of contract. Where defendant gives notice of an intended breach of a contract of sale and refuses to complete the contract, plaintiff cannot recover the purchase price upon an indebitatus count, but must recover upon counts alleging damages for a breach of the contract in refusing to accept the goods when tendered.
    Appeal from the Circuit Court of Cook county; the Hon. Richabd
    E. Botke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed April 3, 1913.
    TiNSMAN, RaNkiN & NeltNOR, for appellant.
    SteiN, Mater & SteiN, for appellee.
   Mr. Justice Fitch

delivered tlie opinion of the court.

From a judgment in favor of the defendant, the plaintiff appeals, and assigns a number of alleged errors. The declaration is in assumpsit and consists of three special counts and the common counts. Each of the special counts sets out in haec verba, a written contract, dated April 21, 1908, between the plaintiff, a Kentucky corporation, and defendant, an Illinois corporation, by the terms of which plaintiff agreed “to construct and install,” upon defendant’s premises in Chicago, a system of conveyors according to specifications and drawings thereto attached, the construction to be completed within sixty days and the contract to be fully complied with on the part of the plaintiff when the system shall have been constructed, installed and in successful operation; for which defendant agreed to pay $2000 in instalments. The specifications state that the system of conveyors is covered by letters patent owned and controlled by the Alvey-Ferguson Co., and consists of a gravity conveyor and elevators of steel, a roller chain with flights or carriers, sprocket wheels, shafting and pulley, all supported by iron hangers and stands. The drawings consist merely of a blueprint, showing the arrangement and dimensions of the conveyors, supports and other parts of the system. It is then averred that plaintiff at once began the work of making the system of conveyors and completed and shipped the same to the defendant within sixty days in accordance with the contract; that it also furnished at the time and place of delivery, “the necessary experts, labor, materials and other facilities for the installation of said system of conveyors and was then and there ready and willing, and tendered and offered to deliver the same to the defendant;” bnt that defendant would not accept it, nor permit the plaintiff to install it, and would not pay for it. The first and second counts conclude with a clause alleging that plaintiff has been damaged to the amount of $2000. The third' count concludes in the form of indebitatus assumpsit for the contract price of the conveyors.

It appears from the evidence that the contract was signed on behalf of defendant by Otto Tosetti, its vice-president, in Chicago, in the presence of a traveling salesman of the plaintiff; that at that time certain pencil memoranda were made upon the blueprint attached to the contract, indicating sundry changes to be made in some features of the plan as shown by the blueprint, and that it was agreed that a corrected blueprint should be made and sent to Mr. Boetter, secretary of the defendant company, for his approval.' The plaintiff’s salesman then mailed the contract to the office of the plaintiff in Louisville, where it was signed on behalf of plaintiff by the plaintiff’s vice-president. Thereupon plaintiff wrote to the defendant, acknowledging receipt of the signed contract, and adding: “We will, of course, make up the conveyor exactly in accordance with our plans submitted, except for the changes which have been fully explained by our Mr. Koehler. In accordance with their promise we shall be pleased to have our drafting department prepare a new drawing showing changes and as soon as completed will send you full particulars for approval.” To this letter defendant replied on April 30th, as follows: “We are in receipt of your favor of the 27th inst., and note contents. We would say that we are not yet prepared to install snob, machinery and would advise yon not to do anything for the present in this matter.” Meanwhile, plaintiff had begnn work on the conveyors and the necessary material had been marked out and cut in defendant’s shop. On May 7th plaintiff wrote to defendant: “Deferring to onr letter of April 27th and the promise of onr Mr. Koehler, we beg’ to enclose herewith revised bine print showing arrangement of conveyors for which yon favored ns with order.” To this letter defendant replied on May 11th by telegraph as follows: “Have received bine print. Ton have onr letter April 30th, 1908, not to ship any goods. Please acknowledge.” Instead of answering this at once, plaintiff sent its salesman to see Mr. Boetter. What occurred at this interview is in dispute. The salesman testified that Boetter said that after thinking over the matter, he had concluded not to install the conveyors at that time, unless plaintiff would reduce the price; to which the salesman replied that plaintiff was making the conveyors and would go ahead with its part of the contract; and that all Boet-ter said to this was that he had no objection, if plaintiff would reduce the price. Boetter, on the other hand, testified that he told the salesman at that time that the blueprint had not been approved; that he had changed his mind and did not like the system; that he also told the salesman not to manufacture or ship the goods, and that if plaintiff shipped the conveyor defendant would not accept it nor permit it to be installed. On May 18th, plaintiff wrote to defendant, saying that it had learned from the salesman “that Mr. Boetter was inclined to cancel the contract * * * simply because he thought he could secure a conveyor system at a cheaper price;” that “the contract is a legal, binding obligation upon you, and we propose to comply with it so far as we are concerned. We trust that when you have duly considered the matter you will see it as we do. In the meantime, we will proceed with the construction and be ready to ship the conveyors within contract time.” Plaintiff then finished the construction work, and on June 15th, shipped the conveyors and mailed the hill of lading for the same to defendant at Chicago. Defendant returned the hill of lading, saying: “We have come to the conclusion that we do not want to install your conveyor system at the present time.” Plaintiff nevertheless sent workmen to defendant’s place of business to install the conveyors, hut defendant refused to permit the car containing them to he unloaded, and they were thereupon trans-shipped to Louisville and stored in plaintiff’s warehouse.

The court instructed the jury that “if you find from the evidence that on April 30,1908, the defendant notified the plaintiff that it would not accept the conveyors described in the contract in evidence, and that, at that time, the plaintiff had not completed the manufacture of said conveyors, then the plaintiff is not entitled to recover the purchase price of the conveyors, and your verdict should be for the defendantThere was no claim on the part of the plaintiff that it had completed the manufacture of the conveyors on April 30th. The evidence shows, without contradiction, that at that time the manufacture of the conveyors had hut just begun. This being true, the instruction in terms directed the jury to find a verdict for the defendant if they found from the evidence that the letter of April 30th “notified the plaintiff that defendant would not accept the conveyors.” That letter contains no such language, nor are the words of the letter fairly susceptible of any such meaning. Its words are: “We are not yet prepared to install such machinery and would advise you not to do anything for the present in this matter.” This letter was written more than fifty days before the expiration of the time within which the conveyors were required, by the terms of the contract, to he installed. Non constat hut that the defendant might he fully “prepared to install” the conveyors when the time arrived for such installation; and in the meantime, the parts had to he assembled and pnt together so that plaintiff would he ready and able to install them when that time came. By giving the instruction quoted, the court, in effect, told the jury that they were at liberty to find that the defendant intended the letter to mean something it did not say, and that if the plaintiff failed to divine therefrom a hidden intention on the part of the defendant to repudiate its contract, then the plaintiff could not recover. The instruction was clearly erroneous, and its effect could not be otherwise than prejudicial to the plaintiff.

The court also instructed the jury that “if you find from all the evidence in this case that after the contract in evidence was signed, the plaintiff and defendant agreed that certain changes should be made in the manner in which the conveyors in question were to be constructed or erected, and that new blue-prints were to be prepared by the plaintiff showing such changes, and were to be approved by the defendant, and if you further find from the evidence that the defendant refused to approve the blue-prints prepared by the plaintiff showing such changes, then you should find the issues for the defendant.” We think this instruction was misleading and should not have been given without some modification. It appears very clearly from the evidence that the changes thus mentioned were all agreed upon at the same time the contract was signed, and the changes agreed on were then and there marked in pencil upon the blueprint which was attached to the contract. While it is true that the evidence also shows that plaintiff agreed to send the defendant a corrected copy of the blueprint and that the plaintiff caused such a corrected copy to be prepared and sent to the defendant, yet there was ho claim on defendant’s part that the revised blueprint did not correctly show the changes which had been agreed upon, and the record shows that Mr. Boetter made no objection whatever to the corrected copy of the blueprint, but laid it aside without any examination or investigation, and based his telegraphic request or direction not to ship the goods upon other and entirely different grounds, viz: that he “did not like the system,” had “come to the conclusion that the system would not suit.” The instruction as given was not at all applicable to the facts as related by defendant’s own witnesses.

As the case must be tried again on account of these errors, it is only fair to the parties that we should briefly state our views upon some of the other questions which have been raised and discussed in the briefs of counsel, and will probably be raised upon the second trial. Appellee’s counsel urge that there is a well established principle of the law to the effect that a vendee in an executory contract for the manufacture and delivery of goods has the right to repudiate his contract at any time before the goods are fully manufactured and delivered, by giving notice to that effect, and that if he gives such a notice, it then becomes the duty of the vendor to go no further in the performance of his part of the contract, the vendee in such case being answerable, not for the contract price of the goods, but for such damages as the vendor has sustained in consequence of the vendee’s breach of contract. Many cases will be found in which such a rule is stated without apparent qualification. Clark v. Marsiglia, 1 Denio, 317; Danforth v. Walker, 37 Vt. 239; Davis v. Bronson, 2 N. Dak. 300; Moline Scale Co. v. Beed, 52 Iowa 307; Collins v. Delaporte, 115 Mass. 159; Butler v. Butler, 77 N. Y. 472; Thorn v. Danzinger, 50 Ill. App. 306; Horr v. Slavik, 35 Ill. App. 140. An examination of these cases, however, will show that most, if not all, of them proceed upon the theory that an explicit notice given by a vendee in an executory contract to the vendor to stop performance is equivalent to an absolute physical prevention of performance, and therefore, ipso facto, constitutes a present breach of the contract, even though the time for performance has not arrived. This theory is given as the underlying principle of such cases in 2 Mechera on Bales, pp. 946, 947, sec 1092. The Supreme Court of Illinois, however, has several times held that the giving of a notice by the vendee to stop performance, or a notice that the vendee will refuse to accept the goods sold if tendered, does not, per se, create a breach of the contract, except at the election of the vendor. In such cases it is held that the vendor may elect to treat the notice as a breach of the contract and sue at once for damages occasioned thereby, but he is not bound to do so. He may, if he prefers, elect to keep the contract alive notwithstanding such notice, being ready and able at all times, in such case, to perform his part of the contract. Kadish v. Young, 108 Ill. 170; John A. Roebling’s Sons’ Co. v. Lock Stitch Fence Co., 130 Ill. 660; Lake Shore & M. S. K. Co. v. Richards, 152 Ill. 59.

In Kadish v. Young, supra, the authorities upon this question are cited and analyzed in an elaborate opinion by Mr. Justice Scholfield, and the conclusion is reached, following what is said to he the “well settled doctrine of the English courts,” that “a buyer cannot thus create a breach of contract upon which the seller is hound to act.” On page 182 of the opinion, it is said: “If a party is not compelled to accept the declarations of the other party to a -contract that he will not perform it, as a breach, it must logically follow that he is under no obligation to regard that declaration for any purpose. * * * Nothing would seem to be plainer than that while the contract is still subsisting and unbroken, the parties cam only be compelled to do that which its terms requireand on page 181, it is said: “After breach of a contract, as before herein intimated, we do not, at present, question that it is the duty of the party entitled to damages to do what he reasonably may, without prejudice to his rights, to lighten the burden falling on his adversary.” (Italics ours.)

John A. Roebling’s Sons’ Co. v. Lock Stitch Fence Co., supra, was a case where, after a contract for the manufacture and delivery of fence wire had been partly performed, the buyer notified the seller not to make any further shipments. The seller disregarded the notice, shipped the remainder of the wire, and upon the refusal of the buyer to receive it, sold it at auctiou and then brought suit for the difference between the contract price and the amount realized at the auction sale. The trial court instructed the jury that after receiving the notice not to ship any more of the wire, “the plaintiff had no right to proceed further in the performance of the contract, unless such notice should be withdrawn by the defendant.” The Supreme Court held that this instruction was manifestly erroneous, and reversed the case for that reason, saying. ‘ ‘ One party to a contract cannot, by simply refusing to carry out his part of it, compel the other party to rescind it. The latter has a right to keep it alive notwithstanding such refusal. This doctrine was clearly announced in Kadish et al. v. Young et al., 108 Ill. 170.”

In Lake Shore & M. S. R. Co. v. Richards, supra, it is said (p. 80): “It is well settled that where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies: He may treat the contract as rescinded, and recover upon quantum meruit so far as he has performed; or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance, sue and recover, under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing.” To the same effect are Chalstran v. Board of Education, 244 Ill. 475, and 'Waggeman v. Janssen, 74 Ill. App. 38. If the injured party has the right of election, it would be manifestly absurd to say that the other party may control the exercise of that right, or may insist that the right shall only be exercised in such a manner as to be of no avail to the party injured.

Whatever may be the rule in other jurisdictions upon this question, the cases above cited would seem to clearly establish the rule in this state to be that one party to a contract cannot create a breach merely by giving notice that he does not intend to be bound by it. Under these authorities, a mere notice of an intended breach of a contract is not, of itself, a breach of the contract, though it may become so if accepted and acted upon as such by the other party. If not so accepted and acted upon, the notice remains only a matter of intention, and may be withdrawn at any time before performance is in fact due. A similar rule seems to be recognized in Pennsylvania. Zuck v. McClure, 98 Pa. St. 541; Unexcelled Fire-Works Co. v. Polites, 130 Pa. St. 536. In the present case, appellant elected to treat the notice given by appellee as inoperative, and refused to consider it as a breach of the contract. Appellant had the right to so elect, and in our opinion, in view of the fact that the contract expressly required the conveyors to be constructed within sixty days, appellant had the further right after such election to proceed with the work of construction, in order that it might be ready and able at all times during the stipulated sixty days to perform its part of the contract. We are inclined, however, to agree with appellee’s counsel that appellant cannot recover the purchase price, as such, upon the indebitatus count, but that it must recover, if at all, upon the counts alleging damages for a breach of the contract in refusing to accept the goods when tendered.

For the reasons indicated, the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Frank Pokorney, Appellee, v. Binner-Wells Company, Appellant.
    Gen. No. 18,023.
    1. Master and servant — when no continuous undertaking shown. Where a watchman employed by defendant company informs defendant’s superintendent, as his duty requires, that cans of benzine were left in a building contrary to the rules, and such superintendent replies, “All right; I will take care of it,” a continuous undertaking on the part of defendant to see that no benzine should ever be kept inside the building is not established.
    2. Evidence — when not competent for person to construe language used hy him. In an action for personal injuries caused by an explosion of benzine, it is not competent for a superintendent of defendant company to attempt to construe his language used when he told plaintiff, a watchman, that he “would take care of it” when told that benzine was left in a building contrary to rules, when there is no other evidence to the same effect and such construction is contrary to his evidence and that of plaintiff as to what was in fact said.
    3. Master and servant — instruction as to whether promise made for plaintiff’s safety or security of property. Where action is brought for injuries caused by an explosion of benzine, and the evidence shows that defendant’s superintendent told plaintiff, a watchman that he “would take care of it” when plaintiff reported that benzine was left in a building contrary to rules, it is error to refuse an instruction that if plaintiff’s report had reference to the protection of defendant’s property and not to his security, then the report or promise in connection therewith cannot support a recovery, where the distinction referred to therein is not made clear in other instructions.

      4. Master and servant — instruction directing verdict. An instruction that if from the evidence and under the instructions the jury believe that plaintiff has established the allegations in a certain count, defendant should be found guilty, is erroneous where plaintiff, a watchman for defendant, was injured by an explosion of benzine, and the declaration does not aver that plaintiff, who reported its presence in the premises, complained that it was dangerous to him or that defendant’s alleged promise to keep it outside was made because of any alleged fear of personal danger, or that plaintiff was thereby induced to remain, and an instruction is refused which points out the distinction between a complaint made for plaintiff’s safety and one made for the security of defendant’s property.

      Appeal from the Superior Court of Cook county; the Hon. Habby C. MobaN, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed April 3, 1913.
    F. J. CaNty and P. L. McArdle, for appellant; J. C. M. Clow, of counsel.
    Feahcis X. Busch, Feauk A. Bockhold and Edward E. ShiNNICk, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

Plaintiff recovered a judgment for $800 damages for injuries sustained while endeavoring to put out a fire in defendant’s premises. Defendant is in the printing business, and used benzine to clean its presses. The benzine came in five-gallon cans, which were ordinarily kept out-doors upon a shelf or platform constructed for that purpose outside of one of the windows of the press-room. Plaintiff was employed by defendant as a night watchman. His duties required him to visit each floor of the building hourly during the night, “see that everything was all right” and “pull the box” or time-clock on each floor. He had been doing this work for four years and during that time he had put out three small fires in the building. About three weeks before the accident, he told the superintendent that some of the cans of benzine had been left “inside the window.” The superintendent said “All right; I will take care of it. ’ ’ The plaintiff testified that after this conversation he did not see any cans inside the room until just before the accident, which happened at ten o’clock at night. At that time, in making his rounds, he smelled smoke, and going into the press-room, found a fire in a box in the corner. Near the box was an empty — or nearly empty — benzine can. He pushed the can aside and as he did so, it “blew up” with a “flurr” (as the plaintiff expressed it) setting fire to his clothing and burning him severely.

The case went to the jury upon a single count of the declaration, which averred that the defendant “in and about its business had and used certain cans of a highly explosive substance, to-wit: benzine,” and knew, or should have known, that the presence of said cans of benzine in the premises was dangerous on account of the fact that defendant also had “rags, waste papers and other highly inflammable substances” in the premises; that prior to October 14,1908, plaintiff complained of the presence of said benzine in the premises and of the danger thereof, and that defendant then and there “promised and undertook with the plaintiff not to keep said benzine in said premises, but to keep the same on the window-sills outside of said premises and away from the said combustible material;” that defendant disregarded its promises and negligently allowed said cans of benzine, on the day aforesaid, “to remain within the said building near to combustible material,” which combustible material “took fire,” and that the plaintiff, not knowing the benzine was inside the building, and relying upon, and misled by, the promise of defendant “to keep said benzine out of the premises,” attempted to put out the fire and was burned by an explosion of the benzine, without any fault on his part.

It is contended by appellee’s counsel that the conversation above related between the plaintiff and the superintendent is sufficient to establish “a continuous undertaking” on defendant’s part to “keep the benzine out of the premises” — that is, to see to it that no benzine should ever be Jcept inside the building, which, it is claimed, is the legal effect of the “complaint and promise” set up in the declaration. We are unable to agree with this view of the evidence. A “continuous undertaking” of that sort would amount to a contract of insurance. If it be conceded that the superintendent had the implied authority to make a contract of that nature with the plaintiff, still it was incumbent on the plaintiff to show that such was the understanding and intention of the superintendent, when he said to the plaintiff: “All right; I will take care of it.” There is nothing in these words alone, or in the circumstances under which they were uttered, tending to show that he intended thereby to agree to do anything more than to attend to the immediate cause of complaint. As above stated, there was a shelf outside for these cans of benzine, and one of the witnesses testified that “it was against the rules to have benzine cans on the inside or away from-where the benzine belongs.” It was the duty of the plaintiff to report any violation of defendant’s rules in that respect, and the only reasonable conclusion to be drawn from the superintendent’s statement, under such circumstances, is that he agreed “to take care of” the reported violation, by having the cans removed to the shelf where they belonged. The trial court permitted the superintendent to testify, over defendant’s objection and exception, that when he said that he “would take care of it,” he meant that he “would speak to the foreman of the floor and see that it would not be done again.” There was no other evidence to that effect, and it was not competent for the superintendent thus to attempt to construe his own language, and give it a meaning contrary to the evidence of both himself and the plaintiff as to what was in fact said.

The defendant requested an instruction to the effect that if the jury believed from the evidence that the report made by the plaintiff to the superintendent had reference to the protection of the defendant’s property and not to the security of the plaintiff, “then such report, or any promise made in connection therewith, if any, cannot support a recovery against the defendant.” This the court refused, and this action of the court is assigned as error. Appellee’s counsel do not deny that this instruction states a correct proposition of law, applicable to one theory of the facts in this case, but claim that, in substance, it was covered by other instructions. It is true that by other instructions the jury were told what were the necessary elements of proof in order to recover under the allegations of the declaration, hut the declaration does not allege that the promise was made with reference to the safety of the plaintiff, and in none of the other instructions is the distinction referred to in the refused instruction made clear. We think defendant was entitled to have the distinction in this respect clearly pointed out, and that it was error for the court to refuse the offered instruction.

The error in refusing this instruction was increased by the giving of the fourth instruction, given on behalf of plaintiff. In part, that instruction said to the jury: “If you believe from the evidence, under the instructions of the court, that the plaintiff has established the allegations in the first additional count of his declaration by a preponderance of all the evidence, you should find the defendant guilty.” It has several times been held that this instruction should not be given in any case involving the question of assumed risk, unless the declaration contains an averment that the plaintiff did not assume the risk, or sets up facts equivalent to such an averment. The declaration does not aver that the plaintiff complained that the presence of benzine inside the premises was dangerous to him, or that defendant, in making the alleged promise to keep the benzine outside, did so because of any alleged fear of the plaintiff that he was in any personal danger therefrom, or that plaintiff was thereby induced to remain at work. In Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544, after reviewing a number of cases in which a similar instruction was held erroneous, or was criticised, the court said (p. 551): “It will be seen from the decisions referred to that if it is proper to give the instruction at all, it can only be justified where the declaration is a complete statement of a cause of action. As the instruction directed a verdict for the plaintiff if he had proved the facts alleged in his declaration, it could not be cured by other instructions.” It was essential to a recovery in this case that plaintiff should show, by a preponderance of evidence, that the alleged complaint and promise had reference to his personal safety, as distinguished from a complaint of danger to property from fire, and a promise to lessen that danger; and though the fourth instruction was prefaced by the clause “if you believe from the evidence, nnder the instructions of the court,” yet, as above shown, the only offered instruction, which clearly pointed out this distinction, was refused.

For the errors indicated, the judgment of the Superior Court will be reversed and the cause remanded for a new trial.

Reversed and remanded.


author: Mb,. Justice Fitch

text:
    John P. Foerster, Appellee, v. Elisabetha Enzenbacher, on appeal of George N. Stieber, Appellant.
    Gen. No. 19,194.
    1. Chanceby — when hill is in nature of hill of interpleader. A bill is in the nature of a bill of interpleader where it alleges that complainant made a contract with an owner of real estate for the sale thereof, whereby complainant was to retain the price obtained above a certain amount if a specified number of lots were sold, that he made a contract with a salesman based thereon, providing for certain commissions, that such owner has brought an action for the amount retained on the ground that the specified number of sales were not made, and that the salesman has begun an action for commissions on the ground that the sales were made, and complainant prays that both actions be restrained and the rights of the parties determined and offers to pay what appears to be due, if any.
    2. Actions ANn uffeNses — when remedy at law inadequate. Where complainant by contract with an owner of realty was to receive a portion of the proceeds of the sale thereof if a specified im:,'bev of lots weie sold, and employed a salesman who was to receive certain commissions if the required sales were made, such complainant has no adequate remedy at law when it appears from his bill, praying that actions by the salesman and by the owner be enjoined and the rights of the parties determined, that he would have no defense to the action by the salesman for commissions, yet if he should fail to establish in the action by the owner that he is entitled to the proceeds retained, the salesman would have received a large sum to which he is not equitably entitled, and that a judgment in the action by the salesman would not protect him against a judgment in favor of the owner.
    3. Chancery — when defendant cannot complain if action is enjoined till rights of parties under contract determined. Where la salesman makes a contract with a real estate dealer providing for certain commissions if a specified number of lots are sold, which, to his knowledge, is based on a contract between the dealer and the owner providing that certain proceeds of the sales may be retained if the required number are made, such salesman cannot complain if his action for commissions is enjoined until the amount of gross profits can be determined.
    Appeal from the Superior Court of Cook county; the Hon. M. L.' McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed April 3, 1913.
    Rehearing denied April 17, 1913.
    Theo. C. Robinson, for appellant Stieber.
    Edmund S. Cummings, for appellee.
   Mb,. Justice Fitch

delivered tbe opinion of the court.

This is an appeal from an interlocutory order granting an injunction restraining George N. Stieber, appellant, from prosecuting, until the further order of the court, a suit brought by him against appellee, John P. Foerster, in the Municipal Court. The bill of complaint recites that on September 9, 1909, Foerster was engaged in the real estate business in Chicago, and on that date, he entered into a contract with Elisa-betha Enzenbacher, who was the owner of sundry real estate in Chicago; that by said contract he was constituted and appointed her exclusive agent for a term of three years, for the sale of said real estate, with authority to execute contracts of sale, and that if he should be successful in disposing of seventy-three or more lots during the term of three years, then the owner “hereby agrees to give said second party three years more in which to dispose of the balance of the lots upon the same terms and conditions as herein stipulated;” that the owner agreed to accept a net price of $250 per lot, and appellee was authorized to retain all amounts received in excess of that price, as his compensation for selling the same, with a proviso, however, that if appellee should fail to sell seventy-three lots within three years, then he should receive only one-half of such excess upon sales of the corner lots and certain others therein mentioned. The contract also provided that the owfier should not be liable for any commission “unless a transaction is actually closed, either by deed or contract, for more than $250 per lot sold, and special assessments, if any.” This contract was executed in the presence of appellant Stieber, who signed his name as a witness thereto. The bill then avers that thereafter, and on the same day, appellee entered into a contract with Stieber, by the terms of which Stieber was employed as a real estate salesman for the term of three years, “and thereafter if the agency of the property herein referred to is retained by said first party” (appellee), and that Stieber should receive as compensation for his services “one-half of the gross profits to be realized” on the sale of certain property therein described, being the same property described in the previous contract with Elisa-betha Enzenbacher. In the first contract there is a provision that the compensation of Foerster shall be paid “as soon as a sale of said property is consummated by either party,” and in the second contract is a provision that the compensation of the salesman shall be paid “as fast as collections are made.” The bill further alleges that appellee and Stieber actively interested themselves in making sales of said lots, and in fact sold, within three years from the date of the contract, seventy-four and one-half lots; that one of such sales, for fifty-one and one-half lots was made only two days before the expiration of said three year term, for an aggregate price of $12,875 (which is exactly $250 a lot); that said Elisabetha Enzenbacher refused to recognize that sale as a bona fide sale, and notified appellee, on September 18, 1912, that his agency was terminated, and that he was not authorized to act further for her with respect to the subject matter of the contract; that two lots, which were sold in August, 1912, were sold for $2750, and that the excess over the net price of said lots amounted to $2210.02; that two others were sold for $1100, upon which the excess or profit was $600; that Elisabetha Enzenbacher claims that appellee is not entitled to any part of said excess, but that she is entitled to the full purchase price of all said lots, for the alleged reason that appellee did not sell seventy-three lots prior to September 9, 1912; and that upon this theory she had brought suit in the Superior Court against appellee to recover all of such excess; that soon after, said Stieber also brought suit against appellee in the Municipal Court, claiming one-half of such excess or gross profits, upon the theory that more than seventy-three lots had been sold during the three year term of the Enzenbacher contract; that while appellee insists and maintains that he has actually sold more than seventy-three lots in accordance with the terms of that contract, and concedes that Stieber is entitled to an accounting upon that basis, “nevertheless, because of the conflicting claim of Elisabetha Enzenbacher that your orator did not sell said seventy-three lots, your orator may be required to pay said sums of money in controversy twice;” that the rights of all the parties to said suits at law depend upon the same questions of law and fact, but that the whole controversy cannot be settled in either of said suits; that for these reasons said law suits are “vexatious, harassing and annoying” to appellee. The bill prays that a decree may be entered finding that appel-lee did in fact sell more than seventy-three lots during the three year term of the Enzenbacher contract, and is, therefore, entitled to an extension of such contract for another three years, and to receive the stipulated profits on that basis; that an account may be taken of the several transactions and sales and of the moneys received and paid ont thereon; that the rights and liabilities of all the parties may be ascertained and adjusted, the appellee offering to pay to either of the others what, if anything, shall appear to be due to them; that the defendants may be restrained by injunction from proceeding further with their said law suits, and for general relief. Upon the filing of the bill, complainant moved the court to grant a preliminary injunction as prayed. This motion was placed upon the contested motion calendar and after a hearing on the motion, it was ordered that Stieber be enjoined, until the further order of the court, from prosecuting his suit in the Municipal Court, and that appellee file a bond of $2,000, which was done. From this order Stieber has appealed to this court.

The contentions of appellant are, in substance, that the bill cannot be sustained, either as a bill of inter-pleader or a bill quia timet, and that the complainant has an adequate remedy at law. It is true that the bill is not, strictly speaking, a bill of interpleader, and yet its object and purpose are practically the same as those of a bill of interpleader. It lacks several of the ordinary characteristics of a pure bill of interpleader, such as the lack of the usual allegations that the complainant has no interest in the subject matter, that he is indifferent between the contesting parties, that he does not collude with either of them, and that he offers to bring the money into court. But while this is true, the bill does fall within that class of cases known as bills in the nature of a bill of interpleader. The difference between a bill of interpleader and a bill in the nature of a bill of interpleader is stated in Heath v. Hurless, 73 Ill. 323, to be this: That in the latter form of bill the complainant seeks not only to have the conflicting claims of the defendants against himself adjudicated, but also some affirmative relief, whereas in a bill of interpleader strictly, he only asks that he may be at liberty to pay money or deliver property to the party to whom it rightfully belongs, and that he may thereafter be protected against the claims of both. In this case the prayer of the bill seeks affirmative relief, and therefore falls within the definition thus given of a bill in the nature of a bill of interpleader. Such a bill is maintainable even if it appears that the complainant has an interest in the subject matter of the controversy (Brocklebank v. Lasher, 109 Ill. App. 627; Carter v. Cryer, 68 N. J. Eq. 24), or if it omits the allegations that he is indifferent between the contesting parties and does not collude with either of them (Van Winkle v. Owen, 54 N. J. Eq. 253; Koppinger v. O’Donnell, 16 R. I. 417); and in such a bill the offer to bring the money into court is not one of the essential elements. (Morrill v. Manhattan Life Ins. Co., 183 Ill. 260.) If it shall seem necessary during the progress of the suit, the payment of the money into court may be required by a proper order to that effect.

As to the contention that the complainant has an adequate remedy at law, we are of the opinion that under the peculiar facts set out in the bill, all of which must be taken as true upon this appeal, the remedy at law is not adequate. As the matter now stands, ap-pellee would have no defense to Stieber’s suit in the Municipal Court, and yet if he should fail to establish Ms claim that he is entitled to all the excess of the proceeds of the sales of lots over $250 per lot, Stieber would then have received a large sum of money to which he is not equitably entitled. A judgment in the Stieber suit would not protect appellee against a judgment in favor of Elisabetha Enzenbacher. According to the bill, Stieber made his contract with full knowledge of the Enzenbacher contract, and with reference to it. He cannot, therefore, justly complain if he is required to wait until it can be determined what amount of gross profits were actually realized.

For the reasons indicated, the order of the Superior Court is affirmed.

'Affirmed.


author: Mr. Justice McSurely

text:
    Marguerite Frank, Appellant, v. Alonzo J. Frank, Appellee.
    Gen. No. 17,063.
    1. Divobce — what is sufficient to justify desertion. In a kill for divorce, reasonable cause to justify a desertion, where the cause is claimed to be the ill conduct of the deserted party, must be such conduct as would of itself entitle the other party to a divorce.
    2. Divorce — what is collusive desertion. Where the wife sues for divorce on the ground of desertion, in order that the husband may sustain his contention that the desertion was collusive, it must appear that the wife assented to the desertion for the purpose of obtaining a divorce.
    3. Divorce — where hill is improperly dismissed. A bill for divorce filed by the wife, charging desertion, is improperly dismissed for want of equity where the husband admits that he deserted his wife for the space of two years and does not show that his conduct was with reasonable cause.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed April 3, 1913.
    Rehearing denied April 17, 1913.
    Smith & Wallace, for appellant.
    Oscar D. OlsoN, for appellee.
   Mr. Justice McSurely

delivered tlie opinion of tlie court.

This is an appeal from an order dismissing for want of equity, a bill for divorce filed by Marguerite Frank, charging desertion.

The evidence on behalf of the complainant tended to show that on June 9, 1907, her husband left her, and that she had not again seen him for over two years thereafter. The husband, by his answer and testimony upon the trial, admits this, but says that by her violent and unwifely conduct, complainant gave him ample cause for leaving her, and that they parted by mutual consent, and therefore it is argued that it was not a desertion without any reasonable cause as contemplated by the statute as one of the grounds for a divorce.

It appears that the married life of the parties was disturbed by many differences of opinion, mostly over money matters, which degenerated into hitter quarrels. Each party respectively testified as to occurrences where one party subjected the other to physical abuse, but each insists that any acts of physical violence were exclusively by the other party. The husband’s story of the circumstances of the separation on June 9, 1907, is, that shortly after one of their periodical quarrels he said: “We will part; you go your way and I mine,” and that she replied, “All right,” and that thereupon he left.

Can desertion under such circumstances be said to be with reasonable cause? We do not think so. It has been held that the reasonable cause to justify a desertion, where the cause is claimed to be the ill conduct of the deserted party, must be such conduct as would of itself entitle the other party to a divorce. (Fritz v. Fritz, 138 Ill. 436; Walton v. Walton, 114 Ill. App. 116). It is not claimed here that Mrs. Frank’s conduct of itself would entitle her husband to a divorce, and the so-called “mutual consent” to the separation is not a reasonable cause for desertion, within the meaning of the statute.

If it should be argued that the desertion was collusive, it is sufficient to reply that to be collusive it must appear that Mrs. Frank assented to the desertion for the purpose of obtaining a divorce. No such showing is made, but on the contrary it is uncontradicted that she remained in the apartment three days after her husband left, as she says, “thinking he was fooling and that he would come back.”

The husband admits that he deserted and absented himself from his wife for the space of two years, and as this conduct on his part was without reasonable cause, she was entitled upon her bill and the evidence before the court to a decree of divorce under the statute. The order of the trial court is reversed and the cause remanded with directions to enter a decree in accordance with the prayer of the bill.

Reversed and remanded with directions.


author: Me. Justice McSurely

text:
    Victor A. Rossbach, Appellee, v. Tincher Motor Car Company, Appellant.
    Gen. No. 17,072.
    1. Damages — breach of guaranty on automoVile. In an action for breach of a guaranty contained in the contract of sale of an automobile to supply any part shown to be defective when returned to defendant, where plaintiff returned the entire car claiming it “failed utterly to fulfill the purpose for which it was sold,” and seeks to recover on the theory that the guaranty was breached when he returned the car to defendant who failed to make it run properly, an instruction that the measure of damages was the difference between the actual value of the car at the time of said breach and what the value of the car would have been if the car had been made to run properly, plus the expenses incurred by plaintiff on account of defendant’s failure to replace any defective parts, is erroneous, since it broadens a particular and limited guaranty into a general warranty of the fitness of the ear.
    2. Damages — breach of guaranty to replace defective parts of automobile. The proper measure of damages for breach of guaranty to supply without charge any part of an automobile that is shown to be defective, is the cost of supplying such defective parts plus the loss or damage shown to he the natural and proximate result of the breach.
    Appeal from the Municipal Court of Chicago; the Hon. William H. Hinebaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 3, 1913.
    Alfred E. Barr and B. F. RicholsoN, for appellant.
    William Sheemah Carsoh, for appellee.
   Me. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment of $4,000 against the appellant for a breach of guaranty contained in the contract of sale of an automobile purchased by ap-pellee.

As there must be another trial, we refrain from any extended statement of the evidence. The guaranty which is the basis of the suit is as follows:

“GUARANTEE.

“All cars of the Tincher Motor Car,Company are sold under the guarantee that the company will supply without charge any part of the car that is shown to be defective in material or workmanship within three years from date of original sale, when such part is returned to the Tincher Motor Car Company, prepaid, for their inspection. This guarantee does not apply to tires, nor to damage resulting from accident, misuse, or neglect.”

The question before us concerns the proper measure of damages where this guaranty has been breached.

Appellee paid $6,500 for his car. There was considerable testimony showing that almost immediately after the purchase he experienced much trouble in running it. Appellant claims that these troubles were caused by the incompetency of appellee, who himself ran the car, and that the troubles did not appear under the management of a competent chauffeur. For the purposes of this opinion we may assume that the jury was justified in concluding that there was something wrong with the car. By the terms of the guaranty appellant promised to “supply without charge any part of the car that is shown to be defective in material or workmanship within three years from date of original sale, when such part is returned to the Tincher Motor Car Company, prepaid, for their inspection.”

It was not the theory of appellee upon the trial that any particular part of the car had‘been returned to appellant for its inspection, and had been shown to be defective in material or workmanship, but that the car “failed utterly to fulfill the purpose for which it was sold” (appellee’s brief), and the guaranty was breached when appellee returned the entire car to appellant, who failed to make it run properly. Hence ap-pellee claimed, and the jury was so instructed, that the measure of damages under such circumstances was the difference between the actual value of the car at the time of said breach and what the value would have been if the car had been made to run properly, plus the costs and expenses incurred by appellee on account of appellant’s failure .to replace any defective parts. Following this theory, appellee’s testimony was that at the time of the alleged breach, the value of the car, as it would have been if running properly, was the purchase price, $6,500, but that in fact it was then worth only $700, being merely its value as parts, leaving damages to appellee of $5,800; also that he had expended $500 for overhauling and replacement, making a total damage of $6,300.

This is an incorrect view of the measure of damages. The instruction of the court broadened a particular and limited guaranty into a general warranty of the fitness of the ear. This was a misconception of the import of the terms of the guaranty. (Ford Motor Co. v. Osburn, 140 Ill. App. 633). The proper measure of damages under such a guaranty is the cost of supplying such defective parts, if any, plus the loss or damage, if any; which can be shown to have been the natural and proximate result to the purchaser from the failure, if any, of the seller to supply such parts' without charge. (Phelan v. Andrews, 52 Ill. 486).

For the reason above indicated the judgment is reversed and the cause remanded.

Reversed md remanded.


text:
    McAnsh Dwyer & Company, Appellant, v. Moore Furniture Company, Appellee.
    Gen. No. 17,075.
    1. Statutory law — statute as to service by publication construed. R. S. ch. 100, § 9, relating to service hy publication, was intended to control exclusively the matter of notice hy publication in all suits at law or in equity.
    2. Process — service by publication. Under R. S. ch. 100, § 9, relating to service hy publication, providing that the first publication must be at least thirty days prior to the first day of the term of the court, in an attachment suit the court is without jurisdiction to enter an order of default less than thirty days after the first day of publication.
    3. Attachment — power to set aside default entered without jurisdiction. In an attachment suit, where an order of default is entered without jurisdiction less than the thirty days after the first day of publication required by R. S. eh. 100, § 9, the court has power at a subsequent term to set aside such order.
    4. Attachment — waiver of error in vacating default judgment. Plaintiff in an attachment suit waives any error in vacating a default judgment entered at the preceding term where he joins issue with defendant’s pleas, appears on a motion to quash portions of a deposition, consents to trial and participates therein by introducing testimony, arguing a motion for a new trial and a motion in arrest of judgment.
    5. Damages — stipulation. If a forfeit provided for in a contract for breach thereof is a penalty, in an action for a breach plaintiff must prove actual damages.
    6. Contracts — when plaintiff, must show performance. In an action for breach of a contract providing for a forfeit if goods were not shipped by defendant when shipping orders were given, plaintiff to recover must show that such orders were given.
    7. Sales — when verdict properly directed. In an action for breach of a contract providing that goods must be shipped by defendant when shipping orders are given, a verdict is properly directed for defendant where the only evidence that such orders were given is a statement to that effect by plaintiff’s order clerk who testifies that copies which were kept were burned.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 3, 1913.

      Q. J. Chott and Fraüstk E. Hayher, for appellant.
    Baker & Holder, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

The appellant, hereinafter called plaintiff, brought' an attachment suit against appellee, hereinafter called defendant, alleging a breach of contract. Upon the trial, at the conclusion of plaintiff’s case, the court peremptorily instructed the jury to find the issues for the defendant, which was done, and judgment entered which has been appealed to this court.

The ground of the attachment was the non-residence of the defendant, and service was had by publication. Suit was begun in the Circuit Court, April 14, 1909, and the first date of publication was April 16th. On May 14th plaintiff procured an order of judgment by default for the failure of defendant to appear. On May 17th defendant filed its appearance, and on May 19th its plea with affidavit of merits. On June 15th the court vacated the judgment of May 14th, reinstated the cause, and ordered that the plea filed stand to the declaration.

It is urged by plaintiff’s counsel that the court was without power to enter the order of June 15th vacating the judgment, and that the order of May 14th for judgment by default was properly entered and should not have been disturbed. We are inclined to hold that the default order of May 14th was improperly entered, for the reason that plaintiff was not then entitled to a default under the statute. Plaintiff contends that section 22 of chapter 11, Illinois Statutes, entitled “Attachments,” controls, hut we believe the enactment of section 9 of chapter 100, entitled “An act to regulate service by publication in courts of record and to repeal acts in conflict therewith,” in force July 1, 1897, was intended to control exclusively the matter of notice by publication in all suits at law or in chancery, including attachment suits. By this act it is provided that “it shall, be sufficient publication if snob notice shall be published for at least four (4) successive weeks, the first publication to be at least thirty (30) days next prior to the first day of the term of such court.” Hence, the court was without jurisdiction to enter the order of default against the defendant on May 14th, which was less than thirty days after the first day of publication. But the court did have power, even at a subsequent term, to set aside such an order. “A court has power to vacate a judgment at any time after the expiration of the term,' at which it was rendered, where the court w'as without jurisdiction to enter such judgment.” City of Chicago v. Nodeck, 202 Ill. 257 (268).

However, it is not necessary to rest our decision upon the point as to the jurisdiction of the court either to enter the default order or to set it aside, for plaintiff waived any error there might have been in vacating the judgment by joining issue with the pleas of defendant, appearing upon a motion to quash portions of a deposition, consenting to a trial and participating therein by the introduction of testimony and otherwise, arguing a motion for a new trial and a motion in arrest of judgment. Prall v. Hunt, 41 Ill. App. 140; Herrington v. McCollum, 73 Ill. 476; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61.

By the contract the defendant agreed to furnish 7,200 tables between August 1, 1906, and August 1, 1907, and plaintiff agreed to take said tables. The section relating to damages is as follows:

“It is further understood and agreed that if party of the second part fail to furnish shipping orders, that they forfeit 25c on each table that they have failed to give shipping order for, and if party of the first part fail to ship up to 30 days after monthly contract, when orders are so given, they forfeit 25c on each table not shipped.”

Counsel for both parties argue earnestly as to whether this amount of 25c. a table is a penalty or an amount agreed upon as liquidated damages. If it is a penalty, plaintiff was required upon the trial to prove actual damages, and this was not done. As was said in Gobble v. Linder, 76 Ill. 157: “No branch of the law is involved in more obscurity, by contradictory decisions, than whether the sum named in an agreement to secure performance will be treated as liquidated damages or as penalty.”

We prefer, therefore, to base our decision on another point presented to the trial court, which seems clear from doubt, namely, that the plaintiff has not proven the sending of shipping orders to the defendant, which was a condition precedent to the obligation on defendant to deliver any tables. The contract provides that plaintiff shall “furnish shipping orders,” and that it shall “forfeit 25c on each table that they have failed to give shipping order for,” and the forfeit of “25c on each table not shipped” assumed by the defendant was to be imposed upon its failure to ship, “when orders are so given.” It is clear, then, that defendant would be liable only on each table and on such tables for which it had received a shipping order from plaintiff, followed by defendant’s failure to fill the order. Hence before plaintiff was entitled to recover it should have shown performance of its obligation under the contract. Sagola Lumber Co. v. Chicago Title & Trust Co., 121 Ill. App. 292, and cases there cited. The only evidence on this point is that of the witness Smith, an order clerk in the employ of plaintiff, which is as follows:

• Q. “Did you send any orders to the Moore Furniture Co. to North Carolina for tables?”

A. “Yes, sir.”

He further testified that the originals were “mailed to the factory” and a duplicate copy was kept on the files in plaintiff’s office; that he had none of the duplicates, as they were burned up. This was not evidence upon which a jury could be allowed to find that there had been a default by the defendant in its obligations under the contract, for -which it should suffer a forfeiture for any specific amount of money. Plaintiff having failed to make out its case, the court properly instructed the jury to find the issues for the defendant. Plaintiff’s counsel do not seem to controvert this point in anything appearing either in its original or reply brief.

For the reason above indicated the judgment will be affirmed.

Affirmed.


author: Mr. Justice McSurely Fitch, J.,

text:
    Samuel Polakow, Appellant, v. B. A. Leafgreen, Appellee.
    Gen. No. 17,080.
    1. Masters in chancery — stipulation of solicitors as to fees. Under the statute relating to the fees of masters, the fees for examining the issues and reporting conclusions are wholly within the court’s discretion and the maximum fee for taking testimony is fixed, and the solicitors in a case have no power to hind the court hy stipulating as to the amount of such fees.
    2. Masters in chancery — effect of words in finding concerning a stipulation of solicitors as to fees. Where the solicitors in a case stipulate that the master’s fees shall he three hundred dollars and the master finds the just fee for examining the issues and reporting his conclusions thereon to be three hundred dollars “pursuant to the stipulation,” such words do not control the court hut merely serve the purpose of an estoppel of record upon the solicitors.
    3. Appeals and errors — finding of chancellor. On appeal from an order as to the costs of a hearing before a master it must he assumed that there was sufficient evidence before the chancellor to justify his finding as to the intent of a stipulation as to such costs, where there is nothing before the court indicating the agreement except the language of the stipulation.
    Fitch, J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 3, 1913.

      H. J. BoseNberg, for appellant.
    Parker & HagaN, for appellee.
   Mr. Justice McSurely

delivered tlie opinion of the court.

This is an appeal from the order of the chancellor in the Circuit Court, touching the costs of a hearing before a master in chancery. The findings on this point in the decree entered by the court are as follows:

“7th. That pursuant to the stipulation of the parties to said cause the court finds that the just fee of the Master in Chancery for examining the issues referred to him, and reporting his conclusions thereon, is $300, and for taking the testimony of the defendant $68.25. ’ ’

Appellant objects to the item of $68.25 allowed for taking the testimony of the defendant. It is not claimed that this amount is in excess of the fees allowed by statute for such services, but it is said that this item should be included in the amount of $300 allowed for examining the issues and reporting conclusions, because that was the agreement of the parties, as appears from the following stipulation:

“It is hereby stipulated and agreed by and between the solicitors for the respective parties hereto that the Master’s fee in the above entitled cause shall be taxed at the sum of Three Hundred Dollars ($300).
(Signed) H. J. BoseNberg, Solicitor for Complainant.
(Signed) Parker & Hagak, Solicitors for Defendant.”

It is claimed that it was the understanding between the attorneys that $300 was to cover all the services of the master, including the tailing of testimony. Under the statute, masters are entitled to receive “for examining questions in issue referred to them, and reporting conclusions thereon, * * * such compensation as the court may deem just,” and also a reasonable allowance not to exceed 15 cents per hundred words for taking testimony. It is apparent, therefore, that the amount of fees for taking testimony is fixed by statute and, as was said in Schnadt v. Davis, 185 Ill. 476 (484), “no more can be legally demanded of the parties, or either of them, for or on account of such services. Nor has the court power to order the payment of a greater sum or allowance for such service.” It is equally apparent that the fee for examining the issues referred to a master, and reporting conclusions thereon, is wholly within the discretion of the court, who fixes the compensation at an amount which he deems to be just. The solicitors have no power to bind the court by stipulating as to the amount of such fees. The basis of the court’s allowance is the justness of the fees, and not the stipulation of the solicitors. In this case the court found “that the just fee of the Master in Chancery for examining the issues referred to him., and reporting his conclusions thereon, is $300.” The words in the finding, “pursuant to the stipulation,” do not control the court, but merely serve the purpose of an estoppel of record upon the solicitors. Futhermore, the court found that it was not the agreement and understanding of the parties to the stipulation that $300 was to cover both the fee for examining the issues and reporting conclusions, and also for taking the testimony. This.appears from the language of the finding of the court. There is nothing before us indicating the agreement of the parties except the language of the stipulation. We must therefore assume that there was sufficient evidence before the chancellor to justify his finding as to the intent of the stipulation. We find no abuse of discretion by the chancellor, and therefore his conclusion will not be disturbed, and the decree in this respect will be affirmed.

Affirmed.

Fitch, J.,

dissenting: I agree with the view expressed in the opinion of the majority of the court that “solicitors have no power to bind the court by stipulating as to the amount of such (master’s) fees,” and I do not disagree with the chancellor’s interpreta-tioH of tlie stipulation. But in my opinion, the words, “pursuant to the stipulation of the parties, the court finds that the just fee of the master * * * is $300,” etc., show affirmatively that the court made its finding in this respect solely upon the stipulation as construed by the court, and not upon evidence heard or upon its own knowledge of the value of such services. For this reason, I think the decree should be reversed and the cause remanded.


author: MR. Justice McSurely

text:
    Arend Van Vlissingen, Appellee, v. Pabst Brewing Company, Appellant.
    Gen. No. 17,097.
    1. Pleading — when variance between declaration and proof is ground for motion to strike evidence. Where plaintiff sues to recover for services rendered in the settlement of conflicting claims concerning a certain street, and the declaration consists of the common counts and a count alleging that the services were reasonably worth $1,000, and another count alleging that defendant is indebted to plaintiff in the sum of $1,000 for services performed, there being no count to support an action for the breach of an express contract, and no evidence to support a recovery on a quantum meruit, a motion to strike out the evidence on the ground that there was a variance between the declaration and the proof is improperly denied.
    2. Instbuctions — where instruction eliminates consideration of number of witnesses. An instruction enumerating the elements the jury should consider in determining the preponderance of the evidence, and omitting any reference to the number of witnesses where the number is important, is erroneous.
    Appeal from the County Court of Cook county; the Hon. Louis M. Reckhow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 3, 1913.
    LackNer, Bijtz & Miller, for appellant.
    LeveriNG & VoN ReiNSperg, for appellee.
   MR. Justice McSurely

delivered the opinion of the court.

Arend Yah Vlissingen, hereinafter called plaintiff, recovered a judgment for $1,000 against the Pabst Brewing Company, a, corporation, hereinafter called defendant, which has been appealed to this court. Plaintiff brought suit to recover for services claimed to have been rendered for the defendant in connection with the settlement of conflicting claims concerning a certain street in Chicago, known as Front street.

The declaration consists of the common counts and a count alleging that the services rendered were reasonably worth $1,000, and another count alleging that the defendant is indebted to plaintiff in the sum of $1,000 for services performed in and about securing the opening of said Front street. No evidence was introduced to show the reasonable value of the alleged services, the theory of the plaintiff being that there was an express contract fully executed, and that nothing remained to be done except to pay the money; hence he could recover under the common counts.

The facts disclosed by the record are that an ordinance had been passed providing for the opening of South Park avenue from 115th street south to Ken-sington avenue, and a petition had been filed by the city for the confirmation of a special assessment to defray the cost of the same. Plaintiff was interested, together with a man named Wood, in twenty acres of land which was, with other property, assessed in that proceeding, and had filed objections to the assessment. A short distance from the proposed street opening there existed a thoroughfare known as Front street, which was partly occupied by the tracks of the Illinois Central railroad. A part of this thoroughfare was used by the public as a street, but the railroad claimed the whole of said thoroughfare as a part of its right of way, and it had leased that part used by the public to the City of Chicago at a nominal rental. The defendant owned or was interested in certain property fronting on Front street, which property had also been assessed for the proposed opening of South Park avenue. It too had filed objections to the assessments through its attorney, Mr. O’Connor. During the pen-dency of the special assessment proceedings "Wood, who was represented by plaintiff, also acquired an interest in certain property fronting on Front street. In preparing for the defense of the special assessment proceeding, both the plaintiff and the defendant’s attorney, O’Connor, conceived the idea that if it could be established as a fact that Front street was a public street belonging to the city, upon which the railroad company had no rights, the city authorities or the court would be convinced that the opening of South Park avenue was unnecessary and that the ordinance for the same would be unreasonable and void, and thereby could defeat the assessment suit. O’Connor, acting for the defendant, had already taken steps before the board of local improvements for the purpose of convincing the city authorities that Front street was a public street and that the special assessment proceedings should be abandoned. The plaintiff, for the purpose of preparing a defense for himself and Wood to the South Park avenue assessment suit, did considerable work in investigating old records, proceedings and maps touching Front street, and secured considerable information regarding the same and became convinced that Front street was a public street and not a part of the Illinois Central right of way. It then occurred to him that if he succeeded in defeating the special assessment proceeding and establishing the rights of the city in Front street, other persons besides himself and Wood would be benefited. He concluded, therefore, to solicit contributions from the property owners on Front street, and for this purpose approached the Chicago manager of the defendant.

A considerable portion of the record is filled with the testimony of witnesses touching what, if anything, was promised by tbe defendant to the plaintiff as a contribution for the services rendered by him as above described. The evidence tended to show that in the fall of 1907 O’Connor had told plaintiff that the defendant would pay if Front street was opened or held to be a street, and South Park avenue defeated, the sum of $1,000, but that about ten days after this the plaintiff was informed that this offer was withdrawn, and that plaintiff had replied, “All right; I am going to fight this case even if I have to do it alone.”

As we have concluded to remand this cause, we shall not attempt any statement of the conflicting evidence as to what services, if any, were in fact rendered by the plaintiff in and for the defendant. There is a considerable body of testimony tending to show that what was accomplished in the matter would have been accomplished without any assistance or aid from the plaintiff. However this may be, we are considering only, at this point, whether or not there was an express contract as claimed by plaintiff. On November 3,1909, plaintiff wrote to the defendant a letter giving his statement of the transaction. It is somewhat lengthy, and it must suffice to say that it tends strongly to corroborate the claim of defendant that the offer to pay the $1,000 above referred to was merely a voluntary act on the part of the defendant and was withdrawn a very short time thereafter. Our conclusion, after a careful consideration of the evidence, is that plaintiff failed to prove the existence of any express contract between him and the defendant.

At the close of the plaintiff’s evidence the defendant moved the court to strike out all the evidence on the ground that there was a variance between the declaration and the proof, there being no count to support an action for the breach of an express contract, and there being no evidence to support a recovery on á quantum meruit, and to instruct the jury to find for the defendant. We think this motion should have been allowed. Plaintiff having failed to prove an express contract, and having failed to introduce any evidence as to the reasonable value of the services said to have been rendered, was not entitled to go to the jury upon the counts in his declaration as filed. It should be noted in this connection that even according to plaintiff’s contention the defendant had repudiated the alleged contract in September, 1908, which was before all the alleged services had been rendered, that is, before the alleged contract had been executed on the part of the plaintiff and before the alleged results agreed upon had been accomplished; so that according to plaintiff’s own statement of the case, the contract had been only partly executed at the time the offer of the defendant to contribute was withdrawn.

Complaint is also made of an instruction given by the court at the request of the plaintiff touching the elements which should be taken into consideration by the jury in determining where the preponderance of the evidence lies. This instruction in part is as follows:

“The jury are instructed that the fact that the number of witnesses testifying on one side is larger than the number testifying on the other side, does not necessarily alone determine that the preponderance of evidence is on the side for which the larger number testified. In order to determine that question, the jury must be moved by and take into consideration,” etc.

Then follows the enumeration of a number of elements, omitting entirely any reference to the number of witnesses. It is true this instruction is practically a copy of one given in Elgin, J. & E. R. Co. v. Lawlor, 229 Ill. 621, where the Supreme Court declined to reverse the judgment on that account, but in that case the court said in substance that it might be misleading in a case where the question of numbers was important, and where no other instruction was given supplementing it, indicating that in that case the question of numbers was not important and that other instructions supplementing the one in question had been given. This is not the situation in the case before us. The number of witnesses was important, and we are referred to no other instruction supplementing the one in question. The giving of this instruction has been held reversible error in Chicago Union Traction Co. v. Hampe, 228 Ill. 346, and Sullivan v. Sullivan, 139 Ill. App. 378.

For the reasons above indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Fitch having been one of the attorneys in the special assessment proceedings described in this opinion, took no part in the consideration of the case.


text:
    Johanna Sievert, Appellant, v. Illinois Furniture Company, Appellee.
    Gen. No. 17,102.
    1. Assault — when peremptory instruction proper. In an action for an assault alleged to have been committed upon plaintiff by agents of defendant furniture company, a peremptory instruction to find tbe defendant not guilty is proper where tbe fact of agency is not proved.
    2. AgeNcy — proof. Tbe fact that one assumes to act as an agent, without tbe knowledge or subsequent ratification of tbe principal, is not sufficient to prove tbe agency.
    3. CokpobatioNs — when liable for assault. In order that a corporation may be liable for an assault, it must appear that tbe person committing tbe assault was acting under tbe authority of tbe corporation.
    Appeal from, tbe Circuit Court of Cook county; tbe Hon. Lockwood Honoke, Judge, presiding. Heard in tbe Branch Appellate Court at tbe October term, 1910.
    Affirmed.
    Opinion filed April 3, 1913.
    Charles J. O’ConNor, for appellant.
    Bernhardt J. Frank, for appellee; Lemuel M. Ack-ley, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment for the defendant in an action brought by Mrs. Johanna Sievert, hereinafter called plaintiff, for an assault alleged to have been committed upon her by the Illinois Furniture Co., hereinafter called defendant. The case was tried by a jury, and at the conclusion of the plaintiff’s evidence the court instructed the jury to find the defendant not guilty.

The point made by counsel for the defendant is that the court properly directed the verdict, as there was no evidence connecting the defendant with the alleged assault. Examination of the record leads us to the conclusion that the point is well taken and that the instruction to the jury was proper.

The record discloses no transaction between the plaintiff and the defendant, except that defendant sold to her a mattress and a washing-machine in May, 1909; that afterwards, in June, a man from defendant’s store came to her and went with her to defendant’s house, where she was shown some paper and asked to sign it, which she refused to do. It also appears to be admitted that prior to the day on which plaintiff says she Was assaulted she and some representative of the defendant had a conversation in which defendant claimed that plaintiff had in her house some furniture on which •they had a mortgage. The plaintiff testifies that on the day of the alleged assault a man came into her flat inquiring about some furniture which plaintiff had bought from a Mrs. Hornichek, a neighbor, and with bim was a man dressed in a police officer’s clothes. This man (referring to the one in citizen’s dress) plaintiff in her testimony describes as “the Illinois Furniture Company man. ’ ’ She further stated that this man said, “I am here to get the furniture,” and that she refused to let him have it; that he then caught her arms and pushed her on the sink. There was considerabletalk between them after that time, which resulted in the men leaving the place without taking any furniture. It is claimed by plaintiff that when she was pushed against the sink she received injuries to her hip, from which she had, however, recovered at the time of the trial. There is no evidence in the record that this man was in fact an employe of the defendant, and plaintiff does not testify that she had ever seen him before. To the question, “Did this man tell you * # * ■¿]ia^ pe was from -(¡he Illinois Furniture Company?” she replied “Yes.”

It is claimed by the plaintiff that this case is much like Singer Mfg. Co. v. Holdfodt, 86 Ill. 455, hut an examination of the facts in that case discloses that the question of the agency of the parties was not raised, the Supreme Court in its opinion saying: There is no controversy whether the men who took the machine * * * were the agents of appellant.” It affirmatively appeared in the case cited that the agents were acting under directions received from the head office. It has been held repeatedly in this state and elsewhere that before one can recover for the acts of an alleged agent, the fact of the agency must be proved. It has also been held that the mere fact that one assumed to act as an agent, without the knowledge or subsequent ratification of the principal, is not sufficient to prove the agency. Schmidt v. Shaver, 196 Ill. 108. Counsel for defendant has filled several pages of his brief with citations of cases in support of this proposition, but we do not believe that any further citation is necessary, as the legal propositions are well settled. It has also been held that before a corporation can be held for an assault it must appear that the person committing the assault was acting under the authority of the corporation. Haggerty v. Potter, 111 Ill. App. 433.

Holding as. we do, that under the record plaintiff had failed to make out a case against the defendant, the peremptory instruction to find the defendant not guilty was proper, and the judgment will be affirmed.

Affirmed.


text:
    Michael J. Long, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,115.
    1. Limitations — when additional count does not state new cause of action. In an action for personal injuries from defective condition of a street, where the original count alleged negligence in construction and maintenance, an additional count alleging the same negligence as to maintenance, omitting the allegation concerning construction, does not state a new cause of action, since the facts alleged would have been competent under the original count.
    2. Cities and villages — Knowledge of defect in street. In a personal injury action evidence that-a hole in a street has existed for some time and that wagons were frequently caught in it is sufficient to charge the city with knowledge of the same.
    3. Cities and villages — when •plan of construction adopted 6y city is no defense. In an action against a city for personal injuries, where it is alleged the street was negligently maintained in a defective and unsafe condition,, it is no defense that the plan of construction adopted by the city in its quasi judicial discretion is not so manifestly dangerous that the court can say as a matter of law that its adoption was negligence.
    4. Damages — when verdict for personal injuries not excessive. In an action against a city for personal injuries from a defective street, where both bones of plaintiff’s leg were broken, resulting in a shortening of the leg and stiffening of the ankle, a verdict for $7,500 is sustained.
    Appeal from the Circuit Court of Cook county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 3, 1913.
    Edward J. BrtjNdage and Clyde L. Day, for appel- • la'nt; Edward C. Fitch, of counsel.
    James C. McShaye, for appellee.
   Mr. Justice McSurely

delivered tlie opinion of tlie court.

This is an appeal by the City of Chicago, hereinafter called defendant, from a judgment against it obtained by Michael J. Long, hereinafter called plaintiff, in an action on the case for personal injuries.

Plaintiff’s declaration was in two counts, the first count alleging negligence in construction and maintenance of a certain gutter and sewer opening at the northeast corner of the intersection of La Salle and Madison streets, in Chicago. An additional count alleged that defendant negligently maintained said street gutter and sewer opening in a defective condition. To this additional count defendant filed a plea of general issue, and also a plea of the statute of limitations. Plaintiff demurred to this latter plea, and his demurrer was sustained, and defendant abided by its plea and now claims that the trial court erred in sustaining the demurrer.

We are of the opinion that the demurrer was properly sustained, for the reason that the additional count does not state a different cause of action from that stated in the original count. The original count alleged negligence in construction and maintenance, and the additional count alleged the same negligence as to maintenance, omitting the allegation concerning construction. Proof of the facts alleged in the additional count would have been competent under the original count. Therefore it cannot be said to have stated a different cause of action. Chicago General Ry. Co. v. Carroll, 189 Ill. 275. We do not consider this point as vitally important, as in our opinion the verdict and judgment can be sustained under the original count.

The testimony tends to show that the accident happened under the following circumstances: Plaintiff was employed by a newspaper in the delivery department. About daybreak Sunday morning, October 19, 1902, he was assisting another employe in delivering papers, driving a 4-wheeled wagon with one horse at a slow trot westward on Madison street. Approaching La Salle street they undertook to turn north on La Salle. Just as they turned the northeast corner, the hind wheel of the wagon caught in a hole and plaintiff was thrown off upon the pavement. This hole was about 3 or 4 inches wide and about 8 or 10 inches deep, and was located between the curb of the sidewalk at the corner, and a sewer top or manhole which was within a few inches of the curb. The part of the iron sewer top nearest the curb had been broken off, also the curbstone at the corner had been broken off, leaving, so one witness says, about four inches between the broken edge of the cover and the curb, and, as the same witness says, it was about ten inches deep from the top of the cover to- the bottom of the hole in which the hind wheel of the wagon was caught.

A number of witnesses testified that this had been the condition of this corner for a long time previous to the occurrence in question and that frequently wagons were caught in this hole. The witnesses differed slightly as to the dimensions of the hole, some of them saying that it was five inches wide and twelve inches deep. We think the jury was fully justified from the evidence before it in finding that the conduct of the city in maintaining such a situation as existed at this corner was negligence in maintenance as charged in the declaration, and that this condition had existed for so long a time prior to the accident that the defendant must be held to have had either actual or constructive knowledge of the same.

The defense of the city is that it cannot be held liable for negligence in construction where the city in the exercise of its quasi-judicial discretion has adopted a plan of construction of a gutter, street and sidewalk, by means of which the accident occurred, unless the plan is so manifestly dangerous that the court can say as a matter of law that its adoption was negligence. The most obvious answer to this contention is that the rule claimed is not applicable to the facts involved herein. In both counts of the declaration negligent maintenance was charged. The language of the additional count is that defendant

“negligently maintained said street, gutters and sewer opening in a defective and unsafe condition for use, in this, that there was a space of several inches between said sewer opening and the corner of the curb at said intersection open and unprotected * * * whereby the wheels of vehicles in turning said corner were liable and likely to go into and become fastened and wedged in said opening or space, and which said condition, the plaintiff alleges, had existed for such a length of time, prior to the accident hereinafter complained of, that the defendant knew, or by the exercise of ordinary care in that behalf would have known of said condition.”

Under this allegation it was competent to show that the rim of the sewer opening was broken and that the stones at both sides of the open hole were broken or removed. These things were not part of the plan of construction adopted by the city, but arose through negligence in maintenance, which negligence was both charged and proven.

There was no error by the trial court in sustaining the objection to the question put to the witness Carroll. The question assumed the existence of a “usual plan” adopted by the city, although when the question was asked there was no evidence of such a plan. Subsequently evidence as to the adoption of a plan of construction was introduced, so that defendant was not harmed.

It is claimed the damages are excessive. The verdict awarded plaintiff $7,500, upon which the court entered judgment. Plaintiff was 31 years old, and by the accident both bones of his right leg were broken a short distance above the ankle. The bones refused to unite, and the wound becoming infected, blood poisoning set in. Thereupon the wound was reopened and the bones wired. There was a discharge of pus for some time, which made necessary three operations. Plaintiff wore a cast upon the leg for eleven months or more, and nearly seven montlis of this time was in the hospital. He used two crutches for a long time, afterwards one crutch and a cane, and at the time of the trial used a heavy cane for support. At the point of the fracture the leg is bent, the bones not being in line with each other, the tibia crossing backward at the point of the fracture and being fully an inch out of line, while the approaching ends of the fibula have passed each other about an inch, resulting in an inch and a half shortening in the leg. There is a stiffening of the ankle and loss of motion in the ankle joint, and the action of the muscles of the foot is greatly impaired. The evidence shows that these conditions are very painful and are permanent. We are of the opinion that the plaintiff has received an injury as serious as if he had lost his leg, and we can discern no reason for concluding that the verdict of the jury was excessive.

For the reasons above indicated the judgment will be affirmed.

Affirmed.


author: Per Curiam.

text:
    William B. Walrath, Individually and as Trustee, v. Michael C. Pyplatz et al. Petition of Albert 1. Terwell, Appellant, v. William B. Walrath et al., Appellees.
    Gen. No. 19,442.
    1. Appeals and errors — When appointment of receiver cannon he questioned on appeal from interlocutory order. An appeal from an order in foreclosure proceedings allowing the receiver to make certain expenditures in maintaining the premises does not call for a review of the whole record hut only the order appealed from, so that the appointment of the receiver cannot be questioned.
    2. Appeals and errors — appeals from interlocutory orders. The statute on appeals from interlocutory orders only allows such appeals from orders as to receivers where the order is one “appointIng a receiyer or giving other or further powers to a receiver already appointed.”
    3. Appeals and ereoes — when order as to receiver not appeal-able. An order authorizing a receiver in a foreclosure proceeding to make certain expenditures in maintaining the premises is an administrative order not giving the receiver other or further powers than he had under the order appointing him, and is not appealable.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1913.
    Dismissed.
    Opinion filed April 7, 1913.
    JohN E. O’CoNNOR, for appellant Albert J. Terwell.
    Stewart Johusor, for appellee.
   Per Curiam.

In a proceeding to foreclose a trust deed in the nature of a mortgage, a receiver was appointed September 21, 1911, to take possession and charge of the mortgaged premises, collect the income therefrom, and giving “all such powers as are usual to receiverships in like eases.” There was a decree of foreclosure and sale and the sale was confirmed by an order entered September 16,1912, which provided that the receiver theretofore appointed, “be continued in office as such receiver with the usual powers of receivers in chancery until the further order of the court.” The mortgagor conveyed his equity of redemption to appellant Terwell October 23, 1912, and he moved to vacate the order appointing a receiver. His motion was denied December 30, 1912. January 28, 1913, an order was entered allowing the receiver certain items of expense incurred by him as receiver amounting to $141.44, and authorizing him “to expend monthly for and on account of the repairing and maintenance of said premises, reasonable sums for and on account of coal, plumbing, boiler and steam fittings, insect exterminating, janitor services, hardware, fixtures and supplies, and water, ash removal, gas, without further order of this court.” From this order appellant took an appeal by filing Ms bond -with tbe clerk February 3 and filing a transcript of tbe record in this court March 27, and appellee bas moved to dismiss bis appeal. Appellant cannot on this appeal question tbe appointment of tbe receiver. Tbe appeal does not bring before us for review tbe whole record, but only tbe order appealed from, tbe order of January 28, 1913. Tbe statute relating to appeals from Interlocutory Orders only allows such appeals from orders as to receivers where tbe order is one “appointing a receiver or giving other or further powers to a receiver already appointed.”

Tbe order appealed from is but an administrative order and does not give to tbe receiver other or further powers than be bad under tbe order appointing .him.

Tbe motion to dismiss tbe appeal must be allowed.

Appeal dismissed.