text:
    Ida Oberreich, Appellee, v. Frank Foster et al., Appellants.
    Gen. No. 14,766.
    1. Bond—what does not preclude recovery on, given on appeal. A permanent stay of execution of the judgment upon the appeal from which the bond was given, does not defeat liability upon such bond; nominal damages, notwithstanding such a stay, may be recovered.
    2. Pleading—when non est factum, should be verified. A plea of non est factum does not put in issue the execution of a bond unless it is sworn to.
    3. Pleading-—when nul tiel record obnoxious to special demurrer. A plea of nul tiel record which concludes to the country is obnoxious to special demurrer.
    4. Estoppel—to deny judgment on affirmance. In an action on an appeal bond the obligors are estopped from denying the judgment from which the appeal was taken and the affirmance of such judgment.
    5. Appeals and ebbobs—what will not reverse. An error which does not injuriously affect the party cannot be availed of to obtain a reversal.
    6. Suretyship—effect of principal’s discharge in bankruptcy. The obligation of a surety upon an appeal bond is not affected by the principal’s discharge in bankruptcy.
    7. Bankbtjptcy—what discharge does not affect. A discharge in bankruptcy obtained subsequent to the execution of an appeal bond does not affect its validity so long as the adjudication in bankruptcy was prior to its execution.
    8. Evidence—how proof of payment of clerk’s costs may be made. Parol evidence is competent to show the payment of clerk’s fees upon the institution of an action.
    Action of debt. Appeal from the Municipal Court of Chicago; the Hon. Habby Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed on remittitur.

    Opinion filed January 18, 1910.
    Poynton & Poynton and Lyman M. Paine, for appellants.
    James G. Elsdon, Cyrus Heren and N. A. Stern, for appellee; A. C. Allen, of counsel.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

A peremptory instruction in the court below in favor of Ida Oberreich, plaintiff, required the jury to return a verdict for $3,000 debt, damages $2,488.86. A judgment was accordingly rendered against the defendants which required the debt, to be discharged upon the payment of the damages. The defendants are questioning the correctness of that judgment by this appeal. The suit was brought upon a supersedeas bond. Plaintiff had recovered a judgment against defendant Poster, in the Circuit Court of Cook county, on February 23, 1905. To review that judgment he sued out of this court a writ of error. In order that the collection of the judgment should abide the result of the proceeding in error he procured a supersedeas. A surety for the payment of the judgment, should it be affirmed, being required, defendant Bozynek executed the bond now in suit, with Foster, as such surety, on January 5, 1906. The condition of the bond is that: “If the said Frank Foster shall duly prosecute his said writ of error with effect and, moreover, pay the amount of the judgment, costs, interest and damages rendered and to be rendered against him, in case the said judgment shall be affirmed in said Appellate Court, then the above obligation to be void, otherwise to remain in full force and virtue.” The judgment was affirmed on December 13,1906, and Foster not having paid it hence this suit.

Defendants first contend the suit was prematurely brought. This issue was raised by defendants pleading in abatement that, on February 11,1908, before the commencement of this suit, the Circuit Court of Cook county had entered an order staying the execution upon the judgment rendered in that court until the disposition by this court of a pending appeal, taken by Foster, from an order, entered by the Circuit Court on the last mentioned date, denying a perpetual stay of execution of that judgment. The learned trial judge sustained a demurrer to that plea. We think that ruling correct. The mere reading of the condition of the supersedeas bond is sufficient to show that a cause of action accrued in favor of plaintiff on December 13, 1906, when the judgment of the Circuit Court was affirmed. Even though execution upon the judgment had been permanently stayed, yet plaintiff would have had a cause of action and would have had a right to recover judgment for nominal damages and costs of suit. In such a case as this the permanent staying of execution would, upon proper pleadings, at most, only go to the amount of damages that might be recovered. The staying of execution could not affect the cause of action previously accrued. This holding is not inconsistent with the principle announced in Cook v. King, 7 Ill. App. 549, that an appeal or supersedeas bond is to be regarded as merely security for the payment of the judgment and that whatever discharges or satisfies the judgment discharges, also, the liability of the obligors on the bond.

Defendants, after the overruling of their plea in abatement, pleaded specially: (1) non est factum, (2) nul tiel record in respect to the affirmance, (3) that the bond was given without any good or valuable consideration, (4) that obligors received no consideration for the bond, (5) performance, (6) discharge of Foster in bankruptcy on January 30, 1906, after execution and delivery of the bond, from all provable debts and liabilities, including liability upon this judgment, (7) existence of debt, upon which the judgment in question was obtained, on November 29, 1904, when Foster was adjudicated a bankrupt, and discharge of Foster thereafter, on January 30, 1906, by the bankruptcy court, from all debts and liabilities existing at the time of such adjudication including the debt now in question, which was not a liability excluded from the operation of such discharge, (8) personal defense, by Foster, of having been adjudicated a bankrupt on November 29, 1904, and of his discharge as such on January 30, 1906, after the execution and delivery of the writing obligatory sued on, from all his provable debts and liabilities existing when he was adjudicated a bankrupt not excepted by law from discharge; that the liability subsequently converted into the judgment in question existed at the time of said adjudication and was a provable debt not excepted by law from the operation of his discharge.

Issue was joined upon the first and fifth pleas. The first plea not being sworn to the execution of the bond was not put in issue. Herrick v. Swartwout, 72 Ill. 340, 342. The bond was introduced in evidence which was all that was necessary to overcome this plea so long as it was not specifically verified. Defendants abandoned the fifth plea by introducing no evidence to sustain it.

General demurrers were interposed to the second, third, fourth, sixth, seventh and eighth pleas and sustained. The second plea—nul tiel record—tendered issue upon the existence or effect of a record and concluded to the country. Such issues are not properly triable by a jury and in that respect the plea was obnoxious to a special demurrer but no such demurrer was interposed. The declaration alleged that the judgment of the Circuit Court appealed from, and which was recited in the appeal bond, had been affirmed by ibis court. While the defendants were estopped by their bond from controverting the existence and validity of the judgment recited in that bond, they were not estopped by their bond from controverting the rendition or validity of a judgment alleged by the declaration to have been rendered subsequent to the execution of the appeal bond. Defendants were not estopped by their bond from raising the issue they did raise by their second plea. The plea raised an issue upon a sufficient defense and it was error to sustain the general demurrer thereto. The attorneys for plaintiff greatly misconceive Mix v. People, 86 Ill. 329; McCarthy v. Chimney Construction Co., 219 Ill. 616; Arnoot v. Friel, 50 Ill. 174, and other cases they cite in argument if it is supposed that, in this respect, these cases go farther than to hold that the recitals of the bond estop a denial of the judgment appealed from and that these recitals are conclusive merely as to the judgment mentioned in the bond. However, the error is, in this particular instance, immaterial and worked no injury to the defendants, for the case was tried as if issue had been joined upon the second plea. A properly certified copy of the judgment of affirmance by this court was introduced in evidence and appears in the record. “Nothing is better settled than that one is not permitted, in a court of review, to take advantage of an error that does not injuriously affect him.” Flack v. Moore, 117 Ill. App. 551.

No question has been raised and argued in this court in regard to the correctness of the ruling of the trial court sustaining the demurrers to the third and fourth pleas. The failure in this respect would be a waiver of any such question if any there were;

The sixth and seventh pleas are pleas of discharge in bankruptcy of Foster. They are in many respects insufficient and the general demurrers thereto were properly sustained. Bankruptcy is a personal defense. The pleas were pleaded jointly by Foster and Bozynek. Under no circumstances could Bozynek, a surety, be relieved of his obligation merely by the bankruptcy of Foster, the principal. The bankruptcy act, section 16, provides: 1 ‘ The liability of a person who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt, shall not be altered by the discharge of such bankrupt. ’ ’

Furthermore, upon the facts presented by these two pleas neither Foster nor Bozynek is shown to be released from liability upon the appeal bond. True, it was held-in Boynton v. Ball, 121 U. S. 457, that, while the character of a debt is changed by being converted into a judgment, yet the identity of the debt is not changed thereby but the debt remains the same although merged in a judgment. We readily accord our assent to that principle of law; but defendants are in nowise aided thereby. The pleas, viewed most favorably for defendants, show that Foster was adjudicated a bankrupt November 29, 1904, and was discharged January 30,1906; that the debt in question, upon which the judgment appealed from was rendered, existed when he was adjudicated a bankrupt; that- by the discharge he was discharged from all his provable debts and liabilities existing when he was adjudicated a bankrupt, including the debt in question, not then yet reduced to a judgment; and, that the debt in question was not a liability excluded from the operation of such discharge. These facts do not present a defense to the appeal bond. The bond was executed January 5, 1906, and contains a promise both by Foster and Bozynek,made in the most solemn form, to pay the penalty of the bond conditioned only as the bond shows. This is a promise made by Foster after he was adjudicated a bankrupt. The fact that the discharge in bankruptcy was obtained subsequent to the execution of the bond containing this promise does not affect the validity of the promise so long as the adjudication in bankruptcy was prior to such execution. Stern v. Smith, 225 Ill. 430; Wheeler v. Wheeler, 28 Ill. App. 385. What we have just said demonstrates that the trial judge was correct in sustaining the demurrer to the eighth plea as well as to the sixth and seventh pleas.

It is contended the court erred in permitting the introduction of parol evidence to prove the payment of the clerk’s costs of $10 and the sheriff’s fees. Parol proof of the payment of these fees was perfectly proper. But, it is argued, this parol evidence was, in reality, introduced not so much for the purpose of showing what the costs were as taxed by the clerk and that they were paid, but as well to show what the clerk ought to have taxed in that suit. In Cook county the clerk’s costs are fixed at $10, by statute, to be paid by plaintiff in advance in all cases of the kind in question and no taxing of the clerk’s costs is here necessary in order to show what costs ought to have been taxed. The sheriff’s fees appear from the sheriff’s return. We find no merit in the contention.

It appears, however, that in figuring the interest upon the Circuit Court judgment an error was made of $13.01, against defendants. The judgment will be affirmed upon plaintiff’s remitting the last mentioned amount within ten days.

Affirmed on remittitur.

January 20, 1910, remittitur filed and judgment affirmed for $2,475.85.


source: Caselaw Access Project

author: Mr. Presiding Justice Chytraus

license: Public Domain

text:
    Beltine Chemical & Manufacturing Company, Plaintiff in Error, v. Anton G. Zulfer, Defendant in Error.
    Gen. No. 14,779.
    1. Statute ot Frauds—when verbal promise to pay debt of another not within. The verbal promise to pay the existing debt of another is not within the Statute of Frauds if there is a new consideration to support such a promise, as for instance, forbearance.
    2. Contracts—construction by conduct of parties. The subsequent construction of their own contract by parties, by their acts, conduct and written communications, is competent where there is a question of construction or interpretation.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed January 18, 1910.
    Statement by the Court. At the trial below the court peremptorily instructed the jury for the defendant and a judgment was rendered accordingly upon the verdict returned. To reverse that judgment the plaintiff prosecutes this writ of error. The action is assumpsit. The defense is that the promise sued on was a special promise to answer for the debt of another without any memorandum or note of such promise in writing.
    Plaintiff sells laundry machinery and on or about June 11, 1907, had an overdue account of $741.10 against the Mattman Laundry Company, a corporation, which account it was endeavoring to collect. The defendant was then president of the laundry company and held a chattel mortgage upon its personal property securing the payment, of an indebtedness of $6,972.54 owed by the company to him. One Esden was manager of the plaintiff company. On or about the last mentioned date Esden called, according to his testimony, to collect the account and told defendant that if the account were not paid suit would be brought against the laundry company. Zulfer, the defendant, then said: “If you do that I shall have to foreclose my mortgage and you will be wiped out and you will get nothing. Now, I will take that account up and pay it myself, at the rate of $100 per month.” To that proposition Esden expressed his willingness to accede and said to defendant that if he would give his notes accordingly “we will take that settlement right now.” That mode of arrangement was not satisfactory to defendant, who replied: “No, I will give no notes to any one. I will give you my word of honor that I will pay every dollar of that bill.” Esden, however, was not content with this and said he did not think that would be satisfactory to his company. Defendant then remarked : “You have your recourse then. That is all.” At that Esden said: “I will take it under advisement” and, closing the interview, defendant added: “If you take my offer that account will be mine. You are not dealing with the Mattman Laundry Company —you are dealing with me; and my word is as good as my bond. ’ ’
    Esden next saw defendant on June 24, 1907. His testimony as to what occurred then is as follows: “I told bim that we would accept the proposal—his verbal proposal—that he pay us $100 a month on the first of every month. And he sat down and wrote me a check for $100, on account, making it payable to the Mattman Laundry Company, and handed it to me with the instruction to go over and get Mr. Mattman to countersign it to us, which I did. ’ ’ The amount was credited upon the account. If this evidence tended to make out a promise by defendant, not within the statute of frauds, the trial court erred in peremptorily instructing the jury in favor of defendant. There was other testimony which a jury might regard as corroborating Esden, but there was none which developed any new or different aspect as to the nature of the promise made.
    Payments upon the account were not made promptly thereafter “at the rate of $100 a month;” but three additional payments were made, by the defendant, of $100 each, on August 3, 1907, October 3, 1907, and on January 13, 1908, respectively. While the first check, apparently, was made payable to the Mattman Laundry Company and endorsed by it, the other payments were all made by checks of the defendant, payable directly to plaintiff. After the receipt of June 24, 1907, which was made to the laundry company, the receipts given were made directly to the defendant.
    There were some written communications between plaintiff and defendant which the learned trial judge did not regard as admissible. These communications were as follows: One dated August 2, 1907, viz.:
    “Mb. A. O. Zulfer,
    163 S. Water St., Chicago.
    Dear Sir:—Kindly let bearer have check for $100 on account of Mattman Laundry Company, as per agreement. Tours Respectfully,
    The Beltine Chemical & Manufacturing Co., Per John B. Esden.”
    Below which was a reply as follows:
    “Please send receipt to me, and oblige
    Very truly,
    A. 0. Zulfer.”
    Another was as follows:
    “August 30, ’07.
    “Mr. A. Gr. Zulfer,
    163 So. Water St., Chicago, Ills.
    Dear Sir:—Kindly oblige us with your check for this and last month as per agreement on Mattman Laundry Co. account. Tours Respectfully,
    The Beltine Chemical & Manufacturing Co.
    R.”
    And a third:
    “Chicago, III., Sept. 5.
    The Beltine Chemical Co.,
    Kinzie & Sangamon Sts.
    Gentlemen:—Tour letter of 1st was received some few days ago. The writer has just got back from New Tork, otherwise would have answered your letter sooner. I will have to ask you to pass me up this month as my drafts are coming in faster than I can get money to pay them; but will not forget you the first of Oct. Very truly,
    A. G. Zulfer.”
    The last part of September or first part of October, 1907, the laundry business was sold. No payment, so far as the record shows, was made upon the account by the laundry company after June, 1907, and none was made by defendant after January 13, 1908.
    Robert S. Iles and Robert D. Martin, for plaintiff in error.
    Adler, Lederer & Schoenbrun, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

The sole question and entire controversy in this case is whether the promise of Zulfer, the defendant, to pay to the manufacturing company, the plaintiff, the account due the latter from the laundry company is an original or collateral promise. The account was an existing indebtedness of the laundry company when the promise to pay it was made by defendant. The promise was not made in writing. An agreement of forbearance to sue is a sufficient consideration to support a promise. Wickham v. Hyde Park, etc., Ass’n, 80 Ill. App. 523, 528. And an agreement to forbear may, under proper instructions, be inferred by the jury from the facts and circumstances and the acts and declarations of the parties. Webbe v. Romona O. S. Co., 58 Ill. App. 222, 227. Clearly the jury would have been justified in finding, upon the evidence adduced, that upon defendant’s promise plaintiff impliedly, in the case at bar, agreed to and did refrain from bringing immediate suit against the laundry company and accepted defendant’s proposition to pay the laundry company’s account in monthly installments of $100 each. From the evidence of what was said and done and of the manner and times of payment of the account, an implication or inference is fairly deducible that plaintiff agreed with defendant upon the payment of the amount of the account in installments and not to bring suit for recovery of the amount so long as defendant should not default. There was evidence, therefore, of a new consideration moving from plaintiff to defendant and a consideration upon which the promise defendant made to pay plaintiff the account of the laundry company could be sustained. As to the adequacy of the consideration there is no question made nor is there room for any question. Holding a chattel mortgage upon the property of the laundry company, defendant was naturally, under the circumstances here appearing, desirous that the laundry company’s plant should be sold as a going concern rather than at a chattel mortgage salé. His statements that were suit brought for the account he would foreclose and plaintiff’s claim would then “be wiped out,” indicates a scantness of security.

A condition of scantness of security would explain why it might be desirable, so far as defendant was concerned, that the business should be nursed along so as to be sold as a going concern and disclose what was the main, if not the only, purpose and object of defendant in making the promise. An eminent text writer, concerning promises such as the one we are considering, has said: “It may indeed be stated as a general rule, that wherever the main purpose and object of the promisor is not to answer for another, but to sub-serve some purpose of his own, his promise is not within the statute, although it may be in form a promise to pay the debt of another.” 3 Pars. Cont. (6th Ed.) 24.

It is contended that when a promise is made to pay an existing debt of another, although there be a new consideration moving from the promisee to the new promisor, nevertheless, unless the promise is made in writing, it is within the statute of frauds and void. In other words, the contention is that all promises, not in writing, to pay an existing debt of another contravene the statute and are utterly invalid. There are decisions, at least statements in opinions, rendered in the courts of Illinois which sustain the contention, but such is not the law in Illinois.

In Borchsenius v. Canutson, 100 Ill. 82, 92-3, there was a new consideration for a promise to pay the debt of another without any written evidence of such promise and the statute of frauds was held not to be applicable. It is also to be observed that in that case the original indebtedness was not cancelled but continued to exist.

In Power v. Rankin, 114 Ill. 52, a promise upon a new consideration to pay an existing debt of another was held valid, notwithstanding the statute of frauds, although the promise was not in writing. It was there said (p. 55): “If there is a new consideration moving from the promisee to the promisor, then the super-added consideration makes it a new agreement, which is not within the statute” and, further, concerning a promise upon a new consideration: “A promise of this character, under the rule established by the authorities, is an original undertaking, and in no manner affected by the statute of frauds.” In that case there was no cancellation of the original indebtedness or any part thereof.

To the same effect: Kee v. Cahill, 86 Ill. App. 561; Graham v. Mason, 17 Ill. App. 399.

In Wickham v. Hyde Park, etc., Assn., ib., at page 528 it was held: “It is not, as appellant’s counsel contend, necessary to the validity of the promise that the original debtor shall be discharged.”

The language used by the defendant in the case at bar indicates he intended to make an original and independent promise to the plaintiff. The language defendant used is not such as to suggest that he intended to make a promise collateral to any promise or liability of the laundry company. In testing whether promises, under circumstances such as those here involved, are original or collateral, Professor Parsons has laid down the rule that “It must be remembered, that the expressions used by the parties are the first and the most direct evidence of their intention.” 3 Pars. Cont. (6th Ed.) 21.

Defendant herein contends that Eddy v. Roberts, 17 Ill. 504, 507, lays down the rule that: “The collateral promise must not only be founded on a new consideration but be in writing,” and that the decision in that case controls the case at bar. That case has been so frequently cited, particularly in the Appellate Court reports of this state, that it requires to be considered with more than usual attention. Appellants therein, Eddy et al., brought the suit against Boberts to recover upon his promise to pay a debt of one Williams. That debt existed at the time the promise was made. It was held the declaration was insufficient for a recovery and the cause was remanded with leave to the plaintiffs to amend their declaration. The facts are stated to be that Williams, who had been engaged in the wood-cutting business, had had in his employ workmen who, under an arrangement between Williams and the plaintiffs, had obtained their pay in goods from plaintiffs’ store, and the goods were charged to Williams. At a time when Williams was indebted to plaintiffs Boberts bought him out (p. *506) and, as part of the transaction, agreed with Williams to pay his debt to plaintiffs. Then Roberts requested plaintiffs to let his hands have goods, to be charged to him, from plaintiffs’ store, but plaintiffs refused to enter into such an arrangement unless the debt of Williams were first paid. Roberts then promised that if plaintiffs would furnish goods to the hands he would pay not only for the goods furnished but also the indebtedness of Williams. Plaintiffs furnished goods but as Williams’ debt was not paid suit was brought.

There was a declaration in the suit consisting of three special counts and the common counts for goods sold and delivered. The court held there could be no recovery under the common counts and that the first two counts were not proven. The third count alleged (p. 505) that one Williams was indebted to plaintiffs; that in consideration plaintiffs would furnish goods to employes of defendant and charge the same to defendant the defendant promised to pay for such goods and also to pay the plaintiffs said indebtedness of the said Williams; that plaintiffs did furnish the said goods, etc. This count the Supreme Court held was substantially proved and that the question arose whether the verbal promise to pay the debt of Williams, therein stated, was binding in law. In considering this question the court said (p. 507) that when one is primary or principal debtor and the relation of debtor and creditor remains unchanged, both as to the right and the remedy, and no trust is created by the transaction out of which a new party’s promise arises, then such promise is in its nature collateral and not original. The court, upon the facts and state of pleadings involved, announced these principles of law that: “Where the principal and the collateral contracts are made at the same time, the credit given, or consideration passing, between the principal parties may be sufficient to sustain the collateral promise, but such promise must be in writing. Where the collateral promise is subsequent to the creation of the principal contract or debt, the collateral promise must not only be founded on a new consideration but be in writing.” And the court held that in the case then before the court the plaintiffs might recover upon the undertaking involved, although not in writing, by declaring “on the special contract as made to the plaintiffs;” but that there could be no recovery upon the third or any other count in the declaration filed.

In view of the later decisions of our Supreme Court already referred to and other decisions, we cannot accede to the correctness of the proposition that the principles of law announced in and the holding of that case are now the law of Illinois. Neither can we agree that in the first of the principles of law above stated to have been announced there is any collateral contract involved.

With reference to the case of Chicago Heights Lumber Company v. Miller, 219 Ill. 79, cited on behalf of defendant, it is sufficient to say that it is not in point, for in that case there is no pretense of a consideration moving to Miller, the promisor, from the lumber company, the promisee, for the promise to pay the debt of Frink. Upon no conceivable theory could Miller’s promise be an original valid promise.

The case of Resseter v. Waterman, 151 Ill. 169, to which we are referred, we do not find to be in point. Eesseter brought suit against Waterman because, as alleged, Waterman had induced Eesseter to become surety for John and Ole Severson by promising Besseter to obtain from Ole Severson a chattel mortgage to secure the same and also another indebtedness upon which Eesseter was previously surety. Waterman obtained no such chattel mortgage and Eesseter sustained a loss. In reality there was no promise to answer for the debt, default or miscarriage of another charged against Waterman or involved in the case.

The remark “Undoubtedly, under the Statute of Frauds the promise to pay the debt of another, after the same is incurred, is void, unless made upon a consideration and reduced to writing” in the opinion in the case of Lusk v. Throop, 189 Ill. 127, is an obiter dictum. There was no promise made after the debt of another had been incurred involved in that case.

The statement in Home Nat’l Bank v. Waterman, 30 Ill. App. 535, 549, that the original debt must be. given up in order that the new promisor should become principal in an original promise is inconsistent with Borchsenius v. Canutson, ib., and Power v. Rankin, ib., and the contrary is specifically held in Kee v. Cahill, 86 Ill. App. 561.

The written communications between the parties were competent evidence as bearing upon the interpretation of the contract between Zulfer and the plaintiff. Subsequent construction of their own contracts by parties, by their acts and conduct and written communications, is competent where there is a question of construction or interpretation. If, subsequent to the conversation in question, plaintiff in conduct and letters treated defendant as having made an original promise, that circumstance would have a probative value favorable to plaintiff, while if the plaintiff treated defendant as having made a collateral promise, that circumstance would have a probative value favorable to defendant. A similar statement may be made as to the conduct and letters of the defendant having a probative value.

According to the later decisions of the Supreme Court of this state the learned trial judge erred in directing a verdict for the defendant at the close of the plaintiff’s case. The judgment rendered upon that verdict must be reversed and the cause remanded.

Reversed and remanded.


text:
    David Beggs, Appellee, v. Supreme Council Catholic Knights and Ladies of America, Appellant.
    Gen. No. 14,799.
    This case is controlled by the decision in Beggs v. Supreme Council, etc., 146 Ill. App. 168.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Homeb Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed January 18, 1910.
    Charles O’Donnell and Oscar E. Leinen, for appellant.
    Philip J. Maguire, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

The opinion of this court in the case of Beggs v. Supreme Council, etc., 146 Ill. App. 168, disposes of this case. The reasons given in the opinion in that case for affirming the judgment there compel us to affirm the judgment herein.

Appellee herein has made a motion to strike from the record an additional record supplied and an additional abstract and this motion was reserved to the hearing. As the decision in the case is in favor of appellee upon the merits the disposition of the motion is of no consequence to him. The motion will be denied without investigation into its merits.

Affirmed.


author: Mr. Justice Mack

text:
    Sarah Lazer, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 14,658.
    1. VERDICTS-When not distiwbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. NECLIGENOE-when presninption does not arise against carrier in the event of collision. No presumption arises against the carrier and the burden is on the plaintiff to show negligence, when it is proven that the accident resulted from a collision with a car beyond the control of the defendant carrier.
    3. PASSDNGER AND cAIuuEa-care reqwireci of `imotorimen at street crossings. Drivers, gripmen and motormen of street cars are obliged to exercise a more exacting attention when they approach street crossings in a crowded city where vehicles and pedestrians may always be expected in front of them.
    CHYTBATJS, P. J., dissenting.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. JoHN W. Housron, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed January 18, 1910.
    Rehearing denied February 14, 1910.
    MARK E. GUERIN and FERDINAND Goss, for plaintiff in error; JOHN R. HARRINGTON, of counseL
    JOSEPH KOHN, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

A verdict of not guilty against the Union Traction Co. and guilty against the Chicago City Railway Company, with an award of $700 damages, was rendered in favor of plaintiff for injuries sustained by her as the result of a collision between a southbound IE[alsted street car belonging to the City Railway Company in which she was a passenger and a westbound Van Buren street car belonging to the Union Traction Company.

The only questions that arise on this record are, (1) whether the verdict is against the preponderance of the evidence, and (2) whether the damages are excessive.

The undisputed facts in relation to the accident are that the fender of the westbound car struck the rear wheel of the southbound car as they were crossing Halsted and Van Burén streets, respectively. The damage to the car was slight.

If plaintiff’s evidence was true, the injuries included a three months’ miscarriage and, under the circumstances, the verdict cannot be deemed by us to be excessive. The answers elicited on the cross-examination of the plaintiff’s witnesses and the expert medical testimony offered by defendant would clearly have justified a finding against the miscarriage, but we cannot say that the clear preponderance of the evidence compelled such a finding.

If the duty of both defendants toward the plaintiff had been the same it would have been difficult to justify a verdict against the City Bailway Company if the Traction Company were found not guilty, inasmuch as the latter ran into the former at a place where they had equal rights of way; but the City Bailway Company owed plaintiff the duty to exercise the highest care consistent with the practical operation of its business, whilst the Traction Company owed only the exercise of ordinary care.

It is true that no presumption of negligence arises against the carrier and that the burden is on plaintiff to show negligence, when it is proven, as in this case, that the accident resulted from a collision with a car beyond the control of the defendant. Wolf v. Traction Co., 119 Ill. App. 481.

While the testimony alone of plaintiff’s witnesses would have justified a directed verdict for this defendant, the error in overruling the motion therefor was waived by defendant introducing testimony. On a similar motion made at the conclusion of all the testimony, the entire evidence in the case whether introduced by plaintiff, this plaintiff in error or its co-defendant, is to be considered.

The evidence of witnesses for the Traction Company, while presented for its exoneration, tended to support the charge of negligence of the plaintiff against the City Railway Company in this that the City Railway Company’s car having stopped on the north side of Van Burén street, was started south after the Traction Company’s car was started west across Halsted street, and that the view of the crossing was clear. The jury was justified if it believed this version of the facts in finding that the motorman took his chances of clearing the street before the Van Burén street car could reach his track, and that as against a passenger, the attempt so to clear the crossing was not the exercise of that highest degree of care owing to her.

As the court said in Chicago City Ry. Co. v. Fennimore, 199 Ill. 9, 14: “It is the doctrine of this court, that drivers, gripmen and motormen of street cars are obliged to exercise a more exacting attention when they approach street crossings in a crowded city where vehicles and pedestrians may always be expected in front of them.”

As we are unable to say that the preponderance of the evidence is clearly against this view of the facts, the judgment must be affirmed.

Affirmed.

Mr. Presiding Justice Chytraus dissenting.


text:
    Friedericke Tuebbecke, Appellee, v. A. M. Rothschild & Company, Appellant.
    Gen. No. 14,760.
    Malicious pbosecution—what acquittal of criminal charge does not tend to establish. The termination of a criminal prosecution, on account of which the action is brought, in favor of the plaintiff, does not tend to prove either the element of malice or that of want of probable cause.
    Action for malicious prosecution. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

      Reversed with finding of facts and judgment here.
    Opinion filed January 18, 1910.
    Benson Landon, for appellant; William S. Forrest, of counsel.
    John C. King, J. E. Ingram, James D. Power and Emil A. Meyer, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

This was an action for malicious prosecution brought by appellee against appellant for having, as she alleged, falsely and maliciously charged her with the larceny of certain goods from its store.

A similar action was brought by the same complainant against Siegel, Cooper & Company, for a similar prosecution at about the same time on charges of larceny alleged to have been committed just after the alleged larceny from appellant.

In that case a judgment for $500 in favor of the appellee herein was reversed and a judgment entered in this court in favor of Siegel, Cooper & Co. Siegel, Cooper & Co. v. Tuebbecke, 133 Ill. App. 312.

All of the facts as recited in the opinion in that case were again testified to in the present case. One jury disagreed and the second jury brought in a verdict for $5,000 against the appellant. The trial judge in overruling the motion for a new trial at first required her to remit down to $2,000. Thereupon, the plaintiff and her counsel, having retired for consultation, returned and the following proceedings were had:

“Mr. King: In this case my client would like to have the court make it $2,500, for the reason that her expenses have been very great.

The Court: I am willing to please the lady in that particular. I will make it $2,500.

Mr. Landon: Just to please the lady?

The Court: Yes.”

The judgment was rendered for $2,500.

In overruling appellant’s motion to direct a verdict the court stated:

“I see the full force of the opinion of the higher court in a similar case, and I hope that all the parties connected with this trial, including the parties themselves, see the force of it. That seems to preface the ultimate end of this trial, and of course any person who does not see it that way is hardly honest with themselves and with those who they are associated with. * * * The opinion of the Siegel-Cooper case is not res adjudicate/, in this case, but it is nearly as bad. It is true two judges have allowed the.case to go to the jury, but they did not have the opinion of the Appellate Court to face as I have.”

In overruling the motion for a new trial the trial judge said:

“I believe that the final fate of this case is foretold by the opinion of the higher court in the Siegel-Cooper case. The law is uniform, and it is inconceivable to me that the higher court will apply one law to Siegel and Cooper and a different law to an adjoining merchant upon the same street in the same city. The circumstances of the two cases are almost identical and the witnesses are almost identical.

“No one connected with the trial in this court will likely be satisfied with my course. Indeed, I am not satisfied with it myself. I have endeavored to adjust this controversy between these parties, without success. I did so because I was confident, and I am still confident, that by a settlement the plaintiff will enjoy more gratification and have more money than she will in any other way.

“As I have stated, I am myself dissatisfied with the course that I have taken and intend to take, and you will all be dissatisfied. * * * There always is a bare possibility that the most conservative judgment may be wrong, but I am unwilling to deprive the plaintiff of that bare possibility of ultimate success in this trial. From my standpoint that is all there is in the future for her. * * *

“I am going to deny the motion for a new trial. If the Appellate Court refuses to allow a verdict of a few hundred dollars to stand against Siegel and Cooper, upon substantially the same evidence, furnished by substantially the same witnesses, and recently, it is supreme folly for any of us to expect that the same court will allow a verdict and judgment of $5,000 to stand against an adjoining merchant upon the same street whose business is located only a few blocks from the other.

“I have determined reluctantly to accord the plaintiff and her counsel the bare possibility if they desire by allowing this case to go to the higher court in the sum of $2,000. ’ ’

We concur entirely in the criticism of counsel for appellant that the trial judge clearly indicated that in his judgment the plaintiff had failed to establish want of probable cause for the prosecution, and it is to us as it is to him, inconceivable why the trial judge under these circumstances should have refrained from directing a verdict or, after verdict, should have hesitated to grant a new trial.

The parties do not differ materially as to the principles of law applicable to the case. The burden is on the plaintiff to establish affirmatively malice, lack of probable cause and that defendant acted through its agent or servant.

Defendant’s acquittal in the criminal case is no evidence whatsoever either of malice or of any lack of probable cause; therefore the court erred in refusing to charge the jury, as requested by the defendant, that the fact that the criminal prosecution terminated in plaintiff’s favor, does not tend to prove either the element of malice or the element of want of probable cause. Under all of the circumstances of this case, even if there had been evidence from which the jury would have had the right to infer want of probable cause, the refusal to give this instruction would have been such error as to have required a reversal and remanding.

Before remanding, however, it is necessary to ascertain whether there is any evidence in the record from which the jury could have reached its conclusion.

According to the testimony the complainant in the criminal proceedings was one Olson, a special police officer for a detective agency which was under contract, both with Rothschild & Company and with Siegel, Cooper & Company, for the protection of their places of business. He claimed to have seen the plaintiff take one boy’s waist and other property from Rothschild & Co. on January 17. He did not, however, arrest her because, as he says, the goods were worth less than $1, but followed her and her sister across the street into Siegel, Cooper & Company’s store, where he claims to have observed them taking other property. Thereupon they were arrested and were proceeded against on a complaint charging them with larceny from Siegel, Cooper & Company. Six days later, at the time of the hearing before a justice of the peace on the charge of larceny from Siegel, Cooper & Company, Olson, at the direction of the head of the detective agency by which he was employed and on the advice of an assistant state’s attorney, who was in charge of the prosecution, made the complaint of larceny from Rothschild & Company which forms the basis of the proceedings in this case. He subsequently appeared before the grand jury. Only in this way is the defendant connected with the prosecution.

Olson was called as a witness on behalf of the plaintiff, and testified that he was detailed at Rothschild’s in 1902, at different tunes, but he did not remember whether or not he was detailed there on January 23; that he was in the employ of a detective agency at that time. He further testified that he received his orders from the detective agency and did not take orders from Rothschild & Company or any one in the store of Rothschild & Company, and that he made his reports to the agency.

Defendant’s secretary, called as a witness by plaintiff, testified that in January, 1902, the McGuire & White Detective Agency was employed by defendant to perform police protection, looking after shoplifters, that Olson was not working directly for defendant but in its store for the McGuire & White Agency.

McGuire testified that the agency had a contract with defendant to protect its store from and to keep such men there as was necessary for that purpose, charging defendant $5 a day for the services of each man.

It is clear from this testimony that Olson was not an employe or under the orders of defendant. There is no proof that on the day he made complaint he was working at defendant’s store. It is proved that he made the complaint solely because of the instructions of the assistant state’s attorney and under McGuire’s orders. Whatever might have been defendant’s responsibility for his acts committed while working in the store, we are unable to see on what theory it can be held liable for a prosecution begun and carried on, so far as the evidence shows, without its knowledge by an employe of an independent contractor.

Moreover in our opinion the entire evidence utterly fails to show a lack of probable cause or any malice in the prosecution.

The judgment will be reversed with a finding of facts and judgment thereon for defendant.

Reversed with finding of facts and judgment here.


text:
    Julius Bender, Defendant in Error, v. Paul Lundberg, Plaintiff in Error.
    Gen. No. 14,780.
    1. Sales—what does not justify rescission. If the title to goods sold has passed to the vendee, the fact of their disrepair (the vendee being under an obligation to put them in good condition), does not justify rescission.
    2. Measure oe damaqes—in action for goods bargained and sold. The measure of damages for goods bargained and sold, the title to which has passed to the buyer, is the purchase price, and not the difference between the contract and market price.
    3. Municieae Court—how bill of particulars in fourth class case construed. In fourth class cases a bill of particulars is not to be construed with the same strictness as is a formal pleading.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed January 18, 1910.
    John C. Trainor, for plaintiff in error.
    Mayer, Meyer & Austrian, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

In the Municipal Court of Chicago judgment was rendered on findings by the court in favor of plaintiff for the sum of $217.50.

Defendant came to plaintiff’s store to buy a pair of second hand scales and was induced also to purchase a certain cash register, on the plaintiff’s refusal to sell the former without the latter. The key to the purchased register was missing, but a register of the same kind was shown to the defendant. Plaintiff gave defendant a document, retaining a duplicate signed by defendant, reading as follows:

“Julius Bender,

MANUFACTURER OF STORE AND OFFICE FIXTURES.

Entire Stores and Stocks of Merchandise of Every Description Bought for Cash.

Office and Salesrooms 230-232-234-236-238 W. Madison Street, Corner Peoria.

Chicago, Nov. 5th, 1907.

Sold to Paul Lundberg,

2629 113th Str., Cor. State, Roseland.

Terms Net Cash.

No delivery on premises in

C. O. D. sale without payment.

201812—1 Computing Scale

1 No: 83 National Register, 111057........................$235.00

Allow for 1 Computing Scale.................................. 12.50

Balance ..............................................................$222.50

Deposit .............................................................. 5.00

Balance ______________________________________________________________$217.50

“We guarantee register to be in first-class condition, and to remain in good working order for two years, and furnish all keys and two rolls of paper of each.

“Scale guaranteed to be second-hand and almost new. $45 more cash balance 15 month. Order accepted. Julius Bender, Max Meyer, agent.”

The goods were delivered at defendant’s store the next day. His son, who was in charge of the store, would not accept the register, but wanted to keep the scales. The driver brought both back to the store of plaintiff, who has since retained them for defendant, to whom they were again tendered at the trial.

When the goods were delivered none of the parties present were able to work the register. Defendant’s son supposed that it was out of order. According to plaintiff’s testimony, denied by defendant, plaintiff phoned to the son that he would send a man out the next day to look it over, and that if he took them back he would keep them in the store on defendant’s own responsibility. The driver’s testimony, denied by defendant, was that he stated that they would send a man out that afternoon or the next day to show how it worked.

One witness who was present at the time of delivery and who tried to work it but could not make it add, said that a spring seemed to be broken, but this same witness was unable to make it add at the trial, whereas another witness, who knew the machine, demonstrated at the trial that it worked all right. A machinist testified that he had put it in good repair just before it was delivered.

The trial judge was clearly justified under the conflicting testimony in concluding that the machine was in good condition when tendered, and that the inability to work it was due, not to a broken spring or to any other defect, but to a lack of knowledge on the part of defendant’s son and the other witnesses.

Under such a finding of facts, the plaintiff would be entitled to recover the purchase price. The sale was executed; the goods were specified and a partial payment made. Even though plaintiff was under a duty to put the goods in good condition and to deliver them, nevertheless the title had passed at the time of the sale.

The defendant’s refusal to accept the goods as tendered could not without plaintiff’s assent thereto effect a rescission of the sale and revest the title in him. If plaintiff testified truthfully, he never consented hut on the contrary notified defendant that he held the goods in storage for him. The measure of damages for goods bargained and sold, the title to which has passed to the buyer, is the purchase price, not the difference between the contract and the market price. Ames v. Moir, 130 Ill. 582; Osgood v. Skinner, 211 Ill. 229.

While the evidence would not justify a recovery under the common count for goods sold and delivered, but only for goods bargained and sold, a bill of particulars alleging a sale and delivery is not to be treated with the same strictness as a formal pleading in fourth class cases where written pleadings are dispensed with. Dunsworth v. Wood Machine Co., 29 Ill. App. 23. The allegation of delivery will be regarded as surplusage. Moreover, no objection was made in the trial court on the ground of such variance.

The judgment will be affirmed.

Affirmed.


text:
    Chicago Addition Mangle Company, Appellee, v. W. H. Lutes Company, Appellant.
    Gen. No. 14,801.

      Evidence—when offer of proof upon cross-examination improper. An offer to prove a matter upon the cross-examination of a witness is improper if the subject-matter of such offer was not competent upon cross-examination.

      Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed January 18, 1910.
    Boyle, Mott & Haight, for appellant.
    Hoyne, O’Connor, Hoyne & Irwin, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

Plaintiff, appellee, sold laundry machinery to appellant, whose president Lutes had formerly been connected with it. In March, 1905, plaintiff’s manager Gilbert had prepared and signed and delivered to Lutes two copies of an agreement fixing the prices of the goods, but despite repeated requests had never received back either of them signed by defendant. Nevertheless goods ordered were sold at the prices fixed in the document. Towards the end of 1906, plaintiff complained that the prices were too low, and according to Gilbert’s testimony, it was then agreed that they should be advanced 10%, defendant charging its customers the same advance. Lutes denied such an agreement but admitted on cross-examination that Gilbert had proposed it and that he was satisfied to do so if he ■ could get his price. Subsequently machines were sold to defendant and billed at the advanced price. Lutes, moreover, at about the time of the advance, wrote to a customer, notifying him that goods had been advanced more than 10%. Invoices were always rendered at the time of delivery; a statement was rendered on the first of each month for the balance then due. Defendant never made any objection to the amount of the invoices, but on the contrary repeatedly promised to pay the balance claimed until just before this suit.

Plaintiff sued under the common counts for $1,652.56 and interest thereon. ' Defendant admitted owing $1,449.36, less certain overcharges evidence of which was excluded. The court without objection fixed $1,735 as the maximum and $1,449.36 as the minimum verdict. The jury returned a verdict for $1,596.31.

Appellant says in its brief that it does not purpose to complain so far as items, other than the alleged overcharges, are concerned.

It complains particularly, first, that there was no sufficient proof of a final account stated; second, that in the absence thereof, evidence that it had paid $1,433.75 instead of $1,040 for two machines, at a time prior to the beginning of and not included in the account sued on, as an overpayment for plaintiff’s convenience, should have been admitted and the difference allowed as a set-off under defendant’s plea of the common counts; third, that evidence of the personal animosity between Gilbert and Lutes should have been admitted.

We find no merit in appellant’s contentions. The jury were instructed orally, without any objection, and fairly on all issues. They were fully justified under the evidence in finding an account stated or in rendering a verdict based on goods sold and delivered for an amount in excess of that allowed by them. s

A specific offer of evidence of overcharges was excluded but this offer was made during the cross-examination of plaintiff’s witness, and was improper as cross-examination, inasmuch as it was offered solely to sustain defendant’s plea of set-off. Subsequently defendant was permitted to ask its own witnesses in regard to this matter, bnt the testimony was so vague and indefinite that the court properly ordered it stricken out. Defendant’s counsel at the time said that “the evidence is not as clear as I expected it to be.” There was no error in the court’s ruling.

The troubles, if any, between Gilbert and Lutes were not pertinent either to the main issues or to the question of Gilbert’s credibility. Evidence bearing on them was properly excluded.

The judgment will be affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    Lucy L. Stillman, Plaintiff in Error, v. Braman H. Loveless, Defendant in Error.
    Gen. No. 14,786.
    Landlord and tenant—when demise for illegal purposes defeats recovery for rent. If the agent of an owner with the knowledge of such owner rents premises to he used for gambling purposes and such premises are so used, an action for the recovery of rent will not he sustained.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed January 18, 1910.
    J. H. Westover, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

Plaintiff in error brought suit in the court below to recover rent for her premises No. 166 Clark street, Chicago, under a lease and guarantee under seal, signed by the defendant in error guaranteeing the payment of rent and the performance of the lease by N. I). Gardner, the lessee. The lease was for the term of one year from May 1, 1907, the premises to be occupied by the lessee as a rooming house, and for no other purpose. The rent sued for was for the months of November, 1907, to March, 1908, both inclusive, at $175 a month. .

The case was tried before the court without a jury and judgment was entered for the defendant in error, and this proceeding in error is prosecuted to reverse the judgment.

The evidence for the plaintiff showed the lease and the guarantee and that all rent under the lease had been paid up to and including the month of October, 1907, and that rent for five months amounting to $875 remained unpaid.

Several defenses were set up by the defendant in error, but the defense relied on was that the plaintiff in error, either personally or through her agent, rented the premises and permitted them to be used for a gambling house.

The evidence tended to show that the plaintiff in error had no knowledge that the leased premises were used for any purpose other than that indicated in the lease, and that she had not seen the premises for many years at the time of the trial; that she lived in Washington, and her agent in Chicago had sole charge of the property. It further appeared without controversy that during the period for which recovery was sought the premises were vacant.

The evidence, however, further tends to show that when the lease in question was negotiated it was stated to the agent of the plaintiff in error that the lessee wanted the premises, and intended to use them, for gambling purposes. The evidence shows that while the lessee occupied the premises he conducted therein a gambling house. There is no doubt from the evidence that as between the agent and the lessee it was understood that the premises were to be used, as they were used, for gambling purposes. The evidence does not show that this was made known to the plaintiff in error. She testifies positively that it was not made known to her that the premises were to be occupied for that purpose. But she acted through an agent, and in this action she must be charged with the knowledge of her agent, and must suffer the legal consequences of her agent’s actions and knowledge. If she employs agents to manage her property who deceive her, or permit her to be deceived, as to the use of her property she must be held to their acts and their knowledge in an action on the lease. The result is that she cannot recover; and under the evidence produced the judgment of the lower court is right. The law will not lend its aid to enforce illegal contracts.

The question presented in Frank v. McDonald, 86 Ill. App. 336, is not the question presented in this case. Without intending in any way to express assent to the ruling in that case, we think the case at bar presents the question as to the validity of a lease and the right to recover rent thereon when bóth the parties entered into the lease for the unlawful purpose of using the same and allowing them to be used for gambling.

Affirmed.


text:
    Jacob Meltzer et al., Appellants, v. City of Chicago et al., Appellees.
    Gen. No. 14,794.
    1. Nuisances—what constitute. Held, that a wooden stand erected upon the roof of a building within the fire limits of the city for the use of spectators was a nuisance which it was the duty of the municipality to abate.
    2. Estoppel—application of doctrine, in pais, against municipality. The doctrine of estoppel in pais applies to municipal corporations only to the extent that it leaves the courts to decide the question by all the circumstances of the case and to hold the public estopped or not as right and justice may require; and it does not apply where a city official has exceeded his authority in issuing a permit in violation of a city ordinance.
    3. Ordinances—prohibiting erection of wooden stands valid. Held, that the wooden stand erected in this case upon the roof of a building within the fire limits of the city was within the ordinance invoked against it and that such ordinance was not unreasonable and void.
    4. Commissioner of Public Works—when building permit void. A building permit issued by the Commissioner of Public Works confers no right if such commissioner was without authority to issue it.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed January 18, 1910.
    Statement by the Court. This is an appeal from a decree dismissing appellants’ bill for want of equity, and granting relief on the cross-bill of defendants.
    The bill of complaint is in substance as follows: Jacob Meltzer and Meyer Meltzer respectfully represent that they are residents of the city of Chicago, county of Cook and state aforesaid, and are the owners in fee simple of the property commonly known as 797 (also known as 799) West Taylor street, in the city of Chicago aforesaid, and have been the owners thereof for about the space of three years and over; that the rear part of said lot is next to and ajoining a certain large space of ground commonly known as the National League Baseball Park, which said ground is enclosed by a certain fence around it, and upon which said ground and inside of said fence in the proper season certain games are being played commonly known as the game of baseball; that orators, on or about the first day of March, A. D. 1907, being desirous of erect-' ing a building upon the rear end of their said lot next to and adjoining said baseball park, went to the building commissioner of the city of Chicago with their plans and specifications for said building, and then and there informed said building commissioner that they were desirous of constructing their building so as to enable them to safely use the roof thereof for observatorial purposes; that said building commissioner thereupon approved the plans and specifications for said building then and there, knowing that said building was to be built at an extra and additional cost to orators so as to enable them safely to use said roof for observatorial purposes; that they thereupon proceeded to erect said building at such additional cost then and there, making the walls thereof of a thickness of thirteen (13) inches and building the roof upon certain heavy joists so that said roof might be strong and safe enough to keep at least three hundred persons thereon without any danger to them; that during the construction of said building the city of Chicago, which is hereby made a party defendant hereto, through its building department, caused several inspections to be made thereof and approved the same, and from time to time offered such suggestions and made such demands as it deemed advisable in order to secure the safety of said roof, all of which was done at a great expenditure on the part of orators, and which would not have been done except for the purpose of insuring the safety of the said roof for the use thereof for spectatorial purposes, and during all of which time orators were ready and willing, and offered to construct their building to the satisfaction of the said building commissioner of the city of Chicago; that in the construction of said building they violated no ordinance and no law of this state, and that said building and the roof thereof is safe and secure enough to hold thereon at least three hundred persons without any danger to them.
    Complainants further represent that on or about the 18th of March, A. D. 1907, they applied to the building commissioner of the city of Chicago for a permit to use said roof for spectatorial purposes for 100 persons, and that thereupon said commissioner caused said building and roof to be inspected and issued to complainants the following permit:
    “City of Chicago—Department of Buildings.
    OFFICE OF THE COMMISSIONER OF BUILDINGS.
    No. A-10,809—$5.00. March 19, 1907.
    Permission is hereby granted to Mr. Meltzer to erect a grandstand on roof; use 100 persons; mnst comply in every respect with City ordinance.
    No. 799 W. Taylor street.
    This permit is granted upon the express conditions that the said Mr. Meltzer in the erection of said building shall conform in all respects to the ordinances of the City of Chicago regulating the construction of buildings in the city limits, and may be revoked at any time upon the violation of any of the provisions of said ordinances.
    By order of the Commissioner of Buildings.
    (Signed) Peter Bartzen, Commissioner of Buildings.
    Amount of permit, $............
    Deceived the amount indicated hereon.
    (Signed) John E. Traeger,
    City Collector.”
    That complainants, at the request of said building commissioner through his deputies, caused a railing to be constructed around the roof of said building all in accordance with the requirements of said building commissioner, and that since the nineteenth day of March aforesaid, complainants have been using said roof and permitting persons to go on and use said roof for spectatorial purposes for hire, thereby yielding to complainants a considerable income.
    That on or about the first day of September, A. D. 1907, the said city of Chicago again caused said building to be inspected, and advised complainants to construct a fire escape on said building; although there is no ordinance or law requiring same, complainants immediately caused a fire escape to be put on said building, which said fire escape was duly inspected and approved by said city of Chicago, as is evidenced by a certificate of inspection, in the words and figures as follows, to-wit:
    City of Chicago—Department of Buildings.
    office of the commissioner of buildings. Certificate of Inspection.
    No. 2735. Sept. 16, 1907.
    Central Iron Works.
    This is to certify'that I have examined fire escape on building located at No. 797 West Taylor street, and find same built in a good, substantial manner, and conforms to Section 1094 of the Building Ordinance of the City of Chicago of date March 13, 1905.
    (Signed) Joseph Downey,
    Vaughan. Commissioner of Buildings.
    Beceived the amount indicated hereon.
    (Signed) E. J. Magekstadt,
    City Collector.”
    That on or about the twentieth day of June, A. D. 1907, the said city of Chicago, through its said building commissioner, requested complainants to place on file in said city of Chicago an engineer’s certificate of inspection of the roof of said building, with which demand complainants immediately complied, and did place on file with the department of buildings of said city of Chicago an engineer’s certificate of inspection made by Thomas & Kelley, inspectors.
    That they have had several and repeated conversations with Joseph Downey, commissioner of buildings of the city of Chicago, and some of his deputy commissioners, all of whom assured complainants that said building and roof thereof was in a safe and secure condition, and complainants represent that they repeatedly offered to comply with such other and further reasonable demands that the city of Chicago might make to further secure the safety of said building, but that no further demands were made of them, hut they were repeatedly assured that the same was safe and secure.
    " That on or about the twenty-first day of September, A. D. 1907, without any notice thereof to complainants, the city of Chicago, through George Shippy, superintendent of the police department, who is hereby made a party defendant hereto, caused a certain number of policemen of the city of Chicago to be stationed at the entrances and exits leading to and from said building, and prohibited persons from going to said premises or upon the roof thereof, and that said city of Chicago threatens to continue said conduct and to prohibit complainants the use of said building as aforesaid.

      The bill prays that the said city of Chicago and George Shippy, superintendent of police of said city of Chicago, and each of them, may be required to make full, true and perfect answer to this bill of complaint, and show if they can why they and each of them should not be enjoined and restrained from interfering with the free use by complainants and their patrons of the said roof for obsérvate rial purposes, and from in any manner interfering with the building or premises of complainants, and for a writ of injunction restraining the said defendants from in any manner interfering with the free use by complainants and their patrons of the said roof for observatorial purposes, and from in any manner interfering with the building or premises of complainants; and that upon the final hearing of this cause said injunction be made permanent and that complainants may have other and further relief in the premises, according to equity and good conscience.
    Defendants answered the bill denying the material allegations in complainants’ bill and denying specifically that said building and the wooden grandstand on the roof thereof was constructed in compliance with the building ordinances of the city of Chicago, and that it was a safe structure for the occupants of said wooden grandstand, and setting forth facts showing the violation of section 656 Revised Municipal Code, which prohibits wooden grandstands or tiers of wooden seats, commonly known and described as grandstands, to be erected within the fire limits where any part of such structure shall be within less than sixty (60) feet of any other building or structure, and which requires that the person or corporation desiring a permit for the construction of such grandstand shall first obtain the consent in writing of the owners of a majority of the frontage on both sides of the streets on each side of the block or square in which it is desired to erect such grandstand, and alleging a violation of this and other sections of the city ordinances and alleging that said wooden grandstand is a continuous menace to the community and to other property; that it increases the risk of fire and is dangerous and unsafe and is a menace to the life and limb of the patrons who use said wooden grandstand on the roof of said building for speetatorial purposes.
    By leave of court defendants also filed their cross-bill setting forth the dangerous condition of this wooden grandstand on the roof of said building, that it is a continuing nuisance and menace to life and limb of the occupants, and setting forth the several violations of the city ordinances in its construction and also the deviation from the approved plans in its construction; also setting forth certain city ordinances which provide in substance that any building or structure built in violation of the city ordinance shall be torn down and removed by the commissioner of buildings, and by its said cross-bill the city asks that said wooden grandstand thus unlawfully constructed upon the roof of said building in violation of the city ordinances, shall be removed or tom down by the commissioner of buildings.
    The complainants, defendants to the cross-bill, answered in substance denying the allegations of the cross-bill. The answer sets up that before and at the time of the filing of the original bill in this cause the following ordinances were in force in the city of Chicago:
    “It shall be unlawful for any person, whether owner, lessee, manager or person in control, or having charge of any building within the city, to permit the use of the roof of any house or building, whether free of charge or through admission fee, to any person as a place of observation or for speetatorial purposes, unless he has first obtained from the commissioner of buildings of the city a permit; Provided, however, it shall not be unlawful for any person, whether owner, lessee, or the person in control or having charge of such house or building to permit the roof of any such house or building to be used as a place of observation or for spectato rial purposes, for a number of persons not exceeding ten, and when no admission fee is charged.
    “723. Before issuing a permit as provided for in the foregoing section, the commissioner of buildings shall make an investigation as to whether such building is safe and secure enough to permit the presence of an estimated number of persons upon the roof thereof, and the permit so issued shall state the number of persons to be permitted on such roof. The commissioner of buildings shall see to it that every such roof is surrounded and inclosed with a railing or balustrade of sufficient height and strength to afford adequate protection.
    “724. The person requiring such permit, as herein-above provided for, shall make application to the commissioner of buildings for such an investigation, and shall pay, as a fee for such investigation and such permit, the sum of five dollars.”
    The answer then avers that, pursuant to the said ordinance hereinabove quoted, they applied to the commissioner of buildings to make an investigation as to whether the building hereinabove described is safe and secure enough to permit the presence of one hundred (100) persons upon the roof thereof; that an investigation was made and the permit in the cross-complainants’ bill of complaint described was issued; that the said roof is surrounded and inclosed with a railing and balustrade of sufficient height and adequate protection, all of which has been duly investigated by the commissioner of buildings of the city of Chicago aforesaid, and duly approved of by him, and that these cross-defendants have paid to the said city of Chicago the sum of five ($5) dollars as a fee for said investigation and permit, all in accordance with the said ordinance hereinabove quoted.
    Upon final hearing the court entered a decree dismissing the original bill for want of equity. On the cross-bill after proper findings the court decreed that the defendants to the cross-bill remove the wooden grandstand within twenty days and upon their default in so doing, the same shall be toita. down and removed by cross-complainants at the cost of cross-defendants.
    On the hearing appellants offered proof that they were owners of the property in question and that the building and grandstand on its roof were erected upon plans and specifications approved by the building commissioner of the city of Chicago, at a very considerable expense in excess of their original plans which were modified and changed to suit the requirements of that officer.
    The complainants offered in evidence sections 722, 723, 724 and 725 of the Revised Municipal Code of the city of Chicago of 1905, regulating the use of roofs for spectatorial purposes and issuing permits therefor, and specifying fees for inspection of buildings and for permits and prescribing penalty for violations of the ordinance; and proved that they had paid $5 to the building commissioner for a permit to them to erect a grandstand on the roof of their building for 100 persons and received a permit which was also put in evidence.
    Proof was also made that while the seats were being constructed Vaughan, a district inspector, was present and made no suggestion as to changing the construction, but informed appellants it would be necessary to have a fire escape constructed in the rear of the building. This the appellants constructed, and the certificate of the commissioner of buildings, to the effect that it was built in a substantial manner and conformed to the building ordinance of the city, was put in evidence.
    The building is a two flat building, as it is called in the evidence, two stories high, built of brick and stone with a stone foundation. It has two outside stairways leading to and from the roof. One, built of wood, is located in the yard on the south side of the building; the other is an iron stairway on the alley side—the north side—of the building. The wooden stairway is three feet wide and the other two feet wide.

      Evidence was offered by the defendants tending to show that the construction of the building was not in conformity with the approved plans, the height of the stand from the ground, the danger of panic, the increased fire hazard, the insufficiency of the stairways, the failure to secure consent in writing of the owners of a majority of the frontage on both sides of the street as provided by section 656 Eevised Municipal Code, failure to secure amusement license required by the ordinance and to pay for the same, that the stand is within a few feet of another building or structure of a similar kind, thus increasing the danger from fire, and that the structure is a nuisance, and is dangerous to occupants of it, and to adjoining property.
    Hornstein & Fisher, for appellants.
    Edward J. Brundage, William S. Stahl and Emil C. Wetten, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

We are inclined to assent to the proposition advanced by appellants that a municipality cannot declare a thing to be a nuisance which is not so in fact. But it has no bearing upon the facts in this case, for we think a wooden structure such as this roof stand is shown by the evidence to be, within the fire limits of the city, is clearly a nuisance as it stands, and the defendant, city of Chicago, has the clear right, and it is its duty, to abate the nuisance, unless the acts of its officers which have induced the action of the complainants in constructing the building and the seats on the roof of the building have worked an estoppel on the municipality, by making it inequitable to permit the municipality to stultify itself by retracting what its officers have done.

The doctrine of estoppel in pais applies to municipal corporations only to the extent that it leaves the courts to decide the question by all the circumstances of the case and to hold the public estopped or not as right and justice may require. C. & N. W. Ry. Co. v. The People, 91 Ill. 251; Martel v. City of East St. Louis, 94 id. 67; Lee v. Mound Station, 118 id. 304. And it does not apply where the city official has exceeded his authority in issuing a permit in violation of a city ordinance. Burton Co. v. City of Chicago, 236 Ill. 383; Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 id. 91.

This brings us to a consideration of the main question in the case, the construction of sections 656, 722, 723, 724 and 725-of the Eevised Municipal Code of Chicago, and their application to the structure of complainants. It is contended on behalf of complainants that section 656 does not apply to the subject-matter of this suit, and that sections 722 to 725, both inclusive, are applicable, and that the permit in this case was applied for and granted under these sections of the code and that these sections govern the construction and use of the structure in question. On behalf of the defendants it is urged that sections 722 to 725 were adopted by the city council in their present form in January, 1901, and that section 656 was adopted by the city council March 20, 1905. Construing these sections together, and giving to each its proper force, the legal effect of section 656 is to limit the application of the other sections to buildings and structures within the fire limits of the city which conform to the provisions of section 656.

This last named section is set out in the answer of the defendants, and its language is broad and comprehensive. “Wooden grandstands or tiers of seats, commonly known and described as grandstands,” is sufficiently general and comprehensive to include all tiers of seats erected on the ground or on roofs for spectatorial purposes within the meaning of section 722, and within the fire limits of the city of Chicago. We find no difficulty in reading and construing section 656 with other sections named. There is no conflict between them, and they should be construed together.

It is urged, however, on behalf of complainants, that if section 656 be construed to apply to the structure here in question—a wooden stand erected on the roof of a building—it is an unreasonable ordinance and therefore void. We do not think the ordinance is unreasonable. 'In our opinion it is a valid ordinance. By its terms it applies to structures within the fire limits of the city. It cannot be said that the prohibition against the erection of wooden stands or tiers of seats within sixty feet of any other building or structure within the fire limits is unreasonable, for it is a necessary precaution against the spread of fire. Such structures, if permitted to be erected close together, or close to other buildings, would be the most effective means of spreading a conflagration. As to that part of the section requiring frontage consents, it has been held that requiring such consents does not violate the constitutional maxim, which prohibits the delegation of legislative power by the body upon which it is conferred. City of Chicago v. Stratton, 162 Ill. 494; Patterson v. Johnson, 214 id. 481.

The wooden stand or tiers of seats, which the decree directs the complainants to remove from the roof of their building, were erected, as appears from complainants’ bill and the evidence in the record, about two years after the adoption of section 656 by the city council, and while the ordinance was in full force and effect. Complainants were charged with knowledge of the ordinance and its provisions. They knew that the structure which they proposed to put on the roof of their building would be, when erected, within a few feet of the adjoining building, and they should have known that it was prohibited by the ordinance. As said in J. Burton Co. v. City of Chicago, supra, complainants, in applying for a permit, must have lmown the commissioner had no power to grant it. The permit itself purports to be issued in pursuance of the ordinances of the city. The issue of the permit gave no right to complainants because the commissioner who signed it was without authority to issue it. He was prohibited from issuing the permit by the ordinance. “Every person is presumed to know the nature and extent of the powers of municipal officers, and therefore cannot be deemed to have been deceived or misled by acts done without legal authority.” Seeger v. Mueller et al., 133 Ill. 86, 95; City of Danville v. Danville Water Co., 178 id. 299; City of Chicago v. Williams, 182 id. 135.

It follows logically from the principles laid down by the above cited cases that no estoppel can ordinarily arise from the act of a municipal corporation or officer done in violation of or without authority of law. When such acts are performed under authority of law another question arises. But, in either case, where the principle of an estoppel in pais is applicable it is for the courts to decide the question, as we have seen, and to hold the public estopped or not as right and justice may require.

On the question of right and justice as between the parties to this controversy, we are unable to discover any quality of justice or equity in complainants’ position. They come into a court of equity as violators of ordinances designed and adopted to protect life and property, and ask the court to grant them equitable relief against the public authorities whose duty it is to enforce such laws and regulations for the protection of the public. Complainants by their bill show that to the extent of preparing and using their property for spectatorial or amusement purposes, where large numbers of people are invited to congregate upon the payment of admission fees, they have devoted their property to a public use; and by that act they have in effect given to the public authorities the right to regulate the use of the property for such purpose. Under such circumstances it does not rest with them to come into a court of equity and ask that the general regulations of the municipal authorities applicable to private property devoted to such purposes shall not be enforced against them, where there are elements of danger to the lives and limbs of the occupants of such property. As against the efforts of the public authorities to enforce reasonable regulations designed to protect the public who may be induced to patronize such an establishment, complainants have no standing in equity.

In view of the evidence in the record showing elements of danger in the structure, entirely apart from any weakness in the building or the stand which rests upon it, showing increased fire hazard, insufficent means of exit, danger of panic on account of the height of the structure, and a clear violation of valid city ordinances, the Circuit Court was right in denying to complainants any relief under their bill of complaint. And in view of the fact that complainants broug’ht the whole matter into a court of equity, we see no reason why the court should not decree that to be done which ought to be done, and,order the structure, which is a constant and continuing menace to life and property, to be removed, without remitting the parties to proceedings at law.

The decree is affirmed.

Affirmed.


text:
    Turnbull Joice Lumber Company, Defendant in Error, v. Chicago Lumber & Coal Company, Plaintiff in Error.
    Gen. No. 14,807.
    1. Set-off—what not proper subject of. Claims for unliquidated damages growing out of transactions not connected with, the subject-matter of the contract sued on, are not proper subjects of set-off.
    2. Damages—what not unliquidated. Even though damages maybe arrived at by computing the difference between the contract price and the market value, they are none the less unliquidated.

      3. Accord and satisfaction—when not established. Held, that the voucher in evidence in this case, not accepted, and which was sought to be returned by the party to whom it was sent, did not support an accord and satisfaction.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed January 18, 1910.
    Wobth E. Caylob, for plaintiff in error.
    Habby A. Biossat, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The Turnhull Joice Lumber Company sued the Chicago Lumber & Coal Company in the Municipal Court for a balance on a disputed account for lumber sold and delivered. On the trial of the cause the parties made the following stipulation as to the facts:

“It is hereby stipulated and agreed by and between the parties hereto that in order to avoid the necessity on the part of each of the parties to this cause of making detailed proof of all of the various items as the same are set forth in the bill of particulars of the plaintiff, and in the defendant’s set off, the facts relating to the accounts between the said parties are hereby agreed upon as follows:

“The defendant on its part admits that the plaintiff can make proof of the items shown in its bill of particulars showing a balance due the plaintiff of $879.95, and the defendant admits that the amount due the plaintiff is the aforesaid sum of $879.95 from which is to be deducted the amount of its claim as shown in its set off filed herein, namely, the sum of $705.21.

“The plaintiff upon its part admits that with respect to the first six items as shown in the defendant’s set off, the defendant did pay the sums therein mentioned for freight on cars, as therein set forth, but the plaintiff claims that the said sums were paid for. overweight on the cars in excess of the weight for which it, the plaintiff, agreed to pay the freight.

“The plaintiff further admits that with respect to the items contained in the defendant’s set off, relating to the loss in replacing orders of the Switzer Lumber Company, at Shreveport, Louisiana, that the orders as therein set forth, being seven orders, were placed by the defendant with the plaintiff and were accepted by the plaintiff; and the plaintiff further admits that it did not fill the said orders within the time specified in such orders in which they should be filled; that the defendant was thereby compelled to and did replace said orders and did then and there buy the said lumber of others and that the difference between the price agreed upon to be paid by the defendant to the plaintiff for such orders and the price actually paid by the defendant in replacing such orders are as follows:

Order No. 28023..........................................................$61.01

“ “ 2491.......................................................... 49.91

“ “ 2474.......................................................... 67.01.

“ “ 2490.......................................................... 70.93

“ “ 2473.......................................................... 43.24

“ “ 2475.......................................................... 72.07

“ “ 2489.......................................................... 41.57

“It is further agreed by the plaintiff and the defendant that any and all transactions relating to the Switzer Lumber Company as the same appear in the pleadings on file in the above entitled cause are to be treated as transactions between the plaintiff and the defendant.”

From the stipulation it appears that the controversy between the parties arises, not on the items constituting the claim of the plaintiff, but upon the items of the defendant’s set-off. With respect to seven items of the set-off, being the alleged losses of the defendant in replacing orders of the Switzer Lumber Co. which were accepted by the plaintiff and not filled, the trial court was correct in ruling that the several claims were for unliquidated damages growing out of transactions not connected in any way with the subject-matter or contracts sued upon by the plaintiff and were not proper subject-matter of set-off in the suit. This is the well-settled law in this state. Clause v. Bullock Printing Press Co., 118 Ill. 612; Robinson v. Hibbs, 48 id. 408; De Forrest v. Oder, 42 id. 500.

It is contended however, on behalf of the defendant, plaintiff in error here, that damages which can be determined by computing the difference between the contract price and the market value are not unliquidated damages, and Kelly Maus & Co. v. Caffrey, 79 Ill. App. 278, is cited and relied upon.

We are unable to follow that case. We think the defendant’s claim is for unliquidated damages as defined in Higbie v. Rust, 211 Ill. 333; Horn v. Noble, 95 Ill. App. 99; Smith v. Billings, 62 Ill. App. 77.

The only other subject of controversy in the case which is argued by counsel is a voucher, incorrectly called a draft in the record. This voucher was issued by the defendant in favor of the plaintiff for $174.74, “in full and final settlement of all accounts or claims of any character whatever which you may have against the Chicago Lumber & Coal Co. or the Switzer Lumber Co.” It contained also the following: “This voucher when dated and properly receipted by the person in whose favor it is made, becomes a sight draft without exchange, if presented within sixty days at the office of Chicago Lumber Company, 918 Fullerton Bldg., St. Louis, Mo. ’ ’ This paper was not a voucher check such as are in frequent use today. It is nothing more than a blank form of a sight draft to be drawn by the plaintiff on the defendant, which was never drawn.

The evidence shows that the plaintiff sent this paper to the plaintiff, which never received any money on it, never dated and receipted it or presented it for payment, and never in any way accepted it. The evidence satisfactorily shows that there was never any intention on the part of the plaintiff or its officers to accept the voucher as a payment, but on the contrary it did all that it could to return the paper to defendant. The contention of the defendant that this paper is, or evidences, an accord and satisfaction is without foundation and untenable.

We find no error in the record, and the judgment of the Municipal Court is affirmed.

Affirmed.