text:
    Thomas Mitchell, Appellee, v. Ernst Tosetti Brewing Company, Appellant.
    Gen. No. 19,411.
    1. Landlord and tenant, § 508

      —what not justification for forcibly ejecting tenant. Where a person orally leased certain premises of a brewing company for a saloon, and agreed to sell only the company’s beer during the term of the lease, held that a breach of the agreement to sell the company’s beer furnished no justification for a trespass of the company in entering the premises and forcibly ejecting the tenant and his property.
    2. Landlord and tenant, § 508

      —what constitutes forcible entry by landlord. Where an entry by the landlord upon premises occupied by a tenant was through the means of an armed man and a posse of hired men, held that the entry constituted a forcible entry and not a peaceable entry, though no physical resistance was made.
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Joseph H. Muhlke, for appellant.
    Pattison & Shaw, George E. Gorman and Mills & Holly, for appellee; William H. Holly, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

The plaintiff in this case was on February 28, 1906, in possession of and doing business in a certain dram-shop or saloon at the southeast corner of Halsted and Forty-fifth street in the city of Chicago. On said February 28, 1906, the defendant corporation dispossessed the plaintiff of said tenement with the strong hand. Several men employed by the defendant came into the establishment, where business was then being conducted by the plaintiff’s representative, as he says (although it was very early in the morning), and placed all the goods of the plaintiff in the street. A witness for the plaintiff (his brother and barkeeper), testified that there were about fifteen customers and a porter in the place when the men came in, and that they with himself were ordered out, and the doors locked or guarded to prevent re-entrance. Trapp, the man who led the entering and dispossessing party, on the other hand testified that while the doors were open there was nobody in the dramshop when he and his men came but the barkeeper. Trapp told this man, he says, that he would have to put him out,—‘ if he had anything to take, to take it with him, that I would put him out. ’ ’ The man did not resist, he says, but walked out, and everything in the place except the fixtures was put out after him on the street. Trapp was armed. He usually carried a gun, he says, and he looked for a gun behind the bar because, he was told that the barkeeper was “a bad man” and if there was a gun “he could not come out” (from behind the bar) “with his gun.”

The result of this dispossession was the suit in the Circuit Court, which is now before us on appeal. The plaintiff sued the defendant corporation in trespass, alleging in his declaration damage to his property, business and credit by this action of the defendant. The plaintiff was by the verdict of a jury on the trial awarded four thousand dollars, and the court entered a judgment for that amount on the verdict. The defendant appealed to this court. The defense made below was thus expressed by the special plea, which in addition to the general issue of not guilty was filed:

“And for a further plea * * * it says that before the entry by the defendant complained of, plaintiff violated his contract with the defendant, under which he obtained possession of said premises, in this that he sold other draft beer upon said premises than the beer manufactured and sold him by the defendant, which draft beer "he had agreed to sell exclusively as a condition upon which he was given possession of said premises by the defendant, whereby the defendant became entitled to the possession of said premises, and this,” etc.

In this court the errors assigned and insisted on are rulings which excluded from the evidence for the jury’s consideration certain documents and certain conversations connected with the contention of the defendant that the plaintiff had agreed to sell the defendant’s beer exclusively; rulings in giving and refusing instructions; and that the verdict is excessive and against the weight of the evidence.

There was no written lease between the defendant and the plaintiff. The plaintiff, who in 1901 thought he would like to occupy the corner in question, became a negotiator between one 0 ’Leary, who owned the lot, which then had no building on it, and the Tosetti Brewing Company, and as a result O’Leary made a ten-year lease of the ground to the Tosetti Company. This lease had no provision about how the land should be improved or occupied, although certain conditions not relevant here were attached if it should be improved by the lessee. The Tosetti Company, however, agreed with Mitchell, the plaintiff, to build a building and lease it to him at the same amount it was to pay for ground rent under its lease from O’Leary, plus all taxes and six per cent, on the cost of the building. This was evidenced by a receipt which was given to Mitchell by the Tosetti Company for $500, which was demanded of and paid to it by Tosetti as a deposit. The receipt read:

“Chicago, November 29, 1901.
. Received of Thomas Mitchell Five Hundred Dollars, being on account of premises to be erected at the southeast corner Halsted and Forty-fifth streets, it being understood that this amount is to be applied on last rent due on lease to be given. The amount of rent to be paid is the same as the amount paid by us for ground rental and all taxes and in addition thereto an amount equal to six per cent, on the cost of the building. Six per cent, to be allowed on the deposit while in our possession.
Ernst Tosetti Brewing Company,
Ernst Tosetti, President.”

About the fifth of January, 1901, the building having been completed, Mitchell took possession and continued therein until he was dispossessed as before stated on February 28, 1906. During this time he was not in default in his payments as provided for by the agreement.

Ten or eleven days before the ejection Mitchell was served with two typewritten notices, signed “Ernst Tosetti Brewing Company, Ernst Tosetti, President. ’ ’ One notified him: “That in consequence of your default, to-wit, in selling other beer than that brewed and manufactured by the Ernst Tosetti Brewing Co. in the premises now occupied by you, being the one-story brick building at the southeast corner of Halsted and Forty-fifth streets in Chicago, Illinois, the undersigned has elected to determine your lease. And you are hereby notified to quit and deliver up possession of the same to the undersigned within ten days from this date.”

The other notice read:

“To Thomas Mitchell:
The undersigned hereby demands of you all the personal property belonging to it leased to you and now used by you in the saloon business at No. 4501 South Halsted street in Chicago, Cook County, Illinois.”
This last notice referred' to certain furniture or trade fixtures which Mitchell had taken to the place at 4501 South Halsted street from' his former location at 4451 South Halsted street, where he had previously been a customer of the Tosetti Company, and certain other fixtures more in number, which had been originally placed by the Tosetti Company at 4501. As to the former, Mitchell had signed so-called “Licenses to use Personal Property” on June 8, 1900, and April 9, 1900, respectively. As to the latter he signed one March 18, 1902. This last one, like the others, after reciting that the Ernst Tosetti Brewing Company licensed and permitted Patrick Mitchell to use certain articles “heretofore placed by the said Brewing Company in the care of the said party of the second part until the said Ernst Tosetti Brewing Company shall desire to reclaim said property, which it shall have the right at all times to do,” contained this clause:
“It is understood that the said party of the second part shall use the said property only in carrying on a saloon in which beer manufactured by the Ernst Tosetti Brewing Company only shall be sold.”

It was these “licenses” which the appellant herein maintains were erroneously withdrawn from the consideration of the jury.

The day before the ejectment took place the secretary of the Tosetti Company brought to Mitchell and offered to him the $500 and interest that had been deposited by him with the Brewing Company as security. Mitchell refused to take it. Either on that occasion, before tendering the money, as Mitchell swears, or ten days previous, before serving the notices before described on him, as Doerscher, the secretary of the Brewing Company, testifies, (it is immaterial which), the secretary of the Brewing Company presented a draft of a lease to Mitchell signed by the Tosetti Brewing Company, purporting to lease the “one-story brick building at the southeast comer of Halsted and Forty-fifth streets to Mitchell for ten years from December 1, 1901, “to be occupied for saloon purposes and for no other purpose whatever.” This draft of a lease contained this covenant:

“It is further covenanted and agreed by said second party and it is a part of the consideration of this lease, that he will sell no other beer in said premises than that brewed and manufactured by said first party.”

Mitchell declined to sign it, as he was requested by Doerscher to do, until he had consulted his lawyer, and it was never signed.

At the trial, Doerscher, Carr, who was manager of the Tosetti Company from 1901 to 1906, and Mr. Muhlke, the lawyer for the defendant, testified that in conversations with Mitchell had by each of them at the time.of his going into possession of the premises, Mitchell agreed, as a condition precedent to the arrangement that was made, that he would sell no other draught beer on the premises than that made by the Tosetti Brewing Company.

After this testimony was in, the counsel for the plaintiff moved to strike it out and the court granted the motion and afterwards, by instruction, withdrew it from the jury. The first instruction (which it is contended by the defendant was erroneous) is as follows:

“The court instructs you that the agreement, if any, entered into between plaintiff and defendant, that plaintiff should sell no other draught beer than defendant’s on the premises in question, was not valid in law nor binding upon the plaintiff. Notwithstanding such agreement, if any such was made,' plaintiff had the right to sell any beer he desired and you should entirely disregard any evidence you may have heard concerning any such agreement.
- “The Court further instructs the jury that all evidence admitted by the Court and afterwards stricken out by order of the Court, and all evidence offered by either side and rejected by the Court shall be entirely disregarded by the jury.”

The language of this instruction cannot be justified in the letter of it. To say that an agreement of the kind mentioned was not valid in law nor binding on the plaintiff, and that notwithstanding such an agreement the plaintiff would have a right to sell any beer he desired, pre-supposes of course that there was no consideration for the agreement. If, as the defendant maintains and introduced evidence to prove, the entire arrangement in its inception included this feature of the sale of defendant’s beer solely, the agreement would be as valid and binding as any other contract. And if this suit were for a breach of that contract this instruction would be fatally erroneous.

But this suit is not for a breach of that contract, if it exists; and if this instruction means, as applied to the facts in this case, that the agreement, if it existed, was entirely irrelevant to the issues involved, and that the cause must be considered without reference to it, and that all the evidence concerning it was therefore withdrawn from the consideration of the jury, then, in our opinion, it is erroneous only in its phrasing and the literal signification of its words, but is right in substance and effect and furnishes no reason for a reversal of this judgment. Neither the ruling on the “contract” nor the withdrawal of the evidence contained in it could have, we think, any effect on the unlawfulness of the defendant’s action or the measure of damages which might be used.

If the “contract” existed, as the defendant contends, and was broken, as it also contends, this afforded no justification whatever for the action of the defendant. It never was the law here nor in any civilized country that on the breach of a contract the penalty, whatever it might be, could be enforced with the high hand, and that the injured party should be in his own person, prosecutor, witness, judge, jury and sheriff all at once. Such a condition would be a worse “menace to the community” than that of “broken'promises” described in the argument of defendant’s counsel.

Aside from the position being very doubtful that the breach of the contract to sell Tosetti beer exclusively would be a ground, under the circumstances, for a termination of the lease, even if everything that the defendant contends for concerning that contract being a condition and cause of the original arrangement be assumed as true and strictly accurate, that lease was not legally terminated nor the possession of the plaintiff legally taken away from him by the proceedings of the defendant. The defendant, calling attention to a stipulation that any defense, including “Liberum tenementum” might be made.under the general issue," and citing and quoting Fort Dearborn Lodge v. Klein, 115 Ill. 177, insists that the defendant had the right, on a condition of the leasing being broken, to enter peaceably, and that the entry involved here was peaceable. We do not regard it so. For an armed man to bring a posse of hired men, armed or unarmed, into a man’s open place of business, have them enter at several doors simultaneously, and, after looking for weapons, order the man or his representative out under threat of putting him out, and then place a large and heterogenous assortment of personal property out after him on the sidewalk and post a guard against re-entry, is not a peaceable entry, whether or not actual physical resistance against an overwhelming, intimidating force is made. It is a forcible entry, and it is not worth while to spend time and space in an attempt to distinguish it from the entry discussed in Fort Dearborn Lodge v. Klein, supra, where indeed, as the court remarks, the peaceableness of the entry was admitted by the pleadings.

It being a forcible entry, it was unlawful. Wahl v. Laubersheimer, 174 Ill. 338; Schwarts v. McQuaid, 214 Ill. 357; Edwick v. Hawkes, 18 L. R. Ch. Div. (1880-1881), p. 199.

• If the defendant had a right to the possession, it should have gone about recovering it by the orderly processes of law.

The court would have been fully justified, after the evidence was all in, as we think, in giving the instruction asked by the plaintiff, “to find the defendant guilty and assess the plaintiff’s damages.”

This being our view, there really is nothing further for us to consider than this: Were the instructions on damages erroneous? We do not think they were. They laid down the correct principles both as to compensatory and punitive damages in an action of trespass. Nor do we think the evidence rejected could be considered in mitigation of damages of either kind. It did not affect them. As we have before indicated, the breach of a contract furnished, in our opinion, no justification, either complete or partial, for the trespass, which should have been judged, as it undoubtedly was, by the jury without reference to such alleged breach.

In this view of the case we find no reversible error in the proceedings below. The judgment of the Circuit Court is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Brown

license: Public Domain

text:
    The Standard Brewery, Defendant in Error, v. Henry Finkelstein, Plaintiff in Error.
    Gen. No. 19,439.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by The Standard Brewery, a corporation, against Henry Finkelstein to recover $373.14 alleged to be due to plaintiff under the terms of a written contract. By the contract defendant agreed to buy beer from the plaintiff from November 1, 1910, until April 30, 1912, at a certain price per barrel and plaintiff, in consideration of defendant using the beer during said period, agreed to loan the defendant certain fixtures and to make certain improvements in the premises, the cost of which would be returned to the plaintiff in case there was a breach of the contract by defendant. The improvements were made and paid for by plaintiff. About March 25, 1912, defendant closed his saloon business and refused to take any more beer. To reverse a judgment entered in favor of plaintiff on an instructed verdict, defendant prosecutes a writ of error.
    Abstract of the Decision.
    Contracts, § 396

      —when direction of verdict not error. In an action to recover the cost of saloon fixtures and impr yvements alleged to be due under the terms of a written contract to buy beer of plaintiff, the giving of an instruction to find for plaintiff held - not error, it appearing there was no evidence in the case for the defendant to go to the jury.
    The defense made to the action was that plaintiff first broke the contract in charging him more than the contract price for beer during’ three certain months. The evidence showed that the overcharge was an oversight which was later corrected when the matter was brought to the attention of the proper officers of the plaintiff, and that defendant thereafter continued to take beer.
    Leo B. Lowenthal and Josiah Burnham, for plaintiff in error.
    Baker & Holder, for defendant in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    William Locke Rohrer, Appellee, v. Bertha Manning Hoberg et al., on appeal of Bertha Manning Hoberg, Appellant.
    Gen. No. 19,485.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Michael L. McKinley, judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.

      Statement of the Case.
    Bill in equity filed by William Locke Rohrer against Bertha Manning Hoberg, Gustav Holdor Hoberg and Jessie Cornelia Rohrer. It sets up a contract with one Bertha M. Hoberg dated April 29, 1911, for exchange of certain real estate in Chicago, on which was a residence, then owned by him, for certain real estate and certain buildings on leased ground in Santa Barbara, California, owned by Mrs. Hoberg; also that Mrs. Hoberg had defaulted on the contract and refused to carry it out, but had taken possession of and was residing on the Chicago property, and that the complainant had, after said default and refusal, conveyed an undivided half interest in the Chicago property to his wife, Jessie Cornelia Rohrer, whom he made, with Bertha M. Hoberg and her husband, Gustav Hildor Hoberg, defendants to the bill. He prayed for a partition of the property between himself and J. C. Rohrer or a sale of it and division of the proceeds, and also for a money decree against Mrs. Hoberg and her husband for the value of the use and occupation of said Chicago property, and that a receiver might be appointed to compel the payment of such rent for use and occupation or evict Mrs. Hoberg and her husband from said premises.
    To this bill Bertha Manning Hoberg and Gustav Hildor Hoberg filed their joint sworn answer on September 18, 1912.
    November 30, 1912, the complainant filed an amended bill, which repeated the allegations, (except as to certain tenders of a deed made,) and prayers of the original bill, with the addition of a prayer for a declaration in the decree that the Hobergs have no interest in the Chicago property, and for the removal of the contract as a cloud.
    To this amended bill the defendants, Bertha Manning Hoberg and Gustav Hildor Hoberg were on said November 30, 1912, ordered to plead, answer or demur by December 5, 1912.

      The solicitor of record for the Hobergs consented to this order and "indorsed his approval of it on the draft before it was entered.
    December 20, 1912, a receiver pendente lite of the Chicago property was moved for, and the Hobergs were present in court and presented affidavits in opposition thereto. The court found .(without prejudice to a contrary finding on the hearing) that the failure of the parties to consummate the contract of April 29, 1911, resulted wholly from the default of Bertha Manning Hoberg or her agents; that Bertha Manning Hoberg entered into.possession of the Chicago property on or about June 1, 1911, and had ever since been in possession thereof and had never paid any rent therefor and was insolvent. The Chicago Title & Trust Company was appointed receiver and Bertha M. Hoberg ordered to surrender possession or make a lease with the receiver.
    January 21, 1913, notice was served on solicitors for the Hobergs that on January 22, 1913, an order defaulting the Hobergs for failure to answer the-amended bill would be asked for. January 22, 1913, an order was made by the court entering the default of the Hobergs and taking the amended bill as confessed against them.
    January 29, 1913, a motion was made to vacate said order, supported by several affidavits, some of which referred only to the service of the notice on January 21, 1913, and others referred to the merits of the case as set forth in the bill, answer and amended bill. They were all made during November or December, 1912. Also in support of said motion the counsel for the defendants (Hobergs) read as an affidavit the sworn answer they had made to the original bill and an answer which they had prepared to the amended bill and desired leave to file. -The court denied said motion on said January 29, 1913, and afterwards on February 13, 1913, denied a motion to vacate said order of January 29, 1913.

      Abstract of the Decision.
    1. Equity, § 465

      —when evidence insufficient to excuse failure to plead to amended bill. Evidence held insufficient to excuse defendants for delay in filing an answer to an amended bill where, after agreeing to a period of five days to file the answer, they had not done so in fifty-three days.
    2. Equity, § 457

      —when rule prohibiting default where answer to original bill is on file inapplicable. The rule that a default should not be taken to an amended bill when an answer to the original bill is on file has no application to a case where an amended bill is filed and a consent order is entered ruling defendant to plead thereto within a certain time.
    3. Equity, § 199

      —when answer to original bill abandoned. Answer to original bill is regarded as abandoned where the defendants consent to an order ruling on them to plead to an amended bill.
    4. Equity, § 465

      —when showing as to meritorious defense not sufficient to vacate default. On motion to vacate a default decree entered on an amended bill for failure of defendants to plead thereto in the time allowed, the affidavits and proposed answer held insufficient to show a meritorious defense.
    5. Exchange of property, § 10

      —when contract may be treated as terminated. Where one of the parties to a contract for the exchange of real estate has furnished his abstract showing a good title and the other fails to do so by the time fixed by the contract, or within a reasonable time, if such is the agreement, the party not in default may treat the contract as terminated and maintain a bill to remove it as a cloud.

      On February 18, 1913, a decree was entered granting the relief prayed by the amended bill. To reverse the decree, Bertha M. Hoberg appeals.
    The assignments of error made by the appellant call in question the findings and orders of the decree of February 18, 1913, and the entry of the order of default and of taking the amended bill pro confesso and the refusal to vacate the same.
    C. Helmer Johnson and W. D. Johnson, for appellant ; Douglas C. Gregg, of counsel.
    Garnett & Garnett, for appellees; Eugene H. Garnett, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

6. Exchange of property —what not a compliance with agreement to furnish abstract of title. Where a contract for the exchange of real estate provides that in a reasonable time each party is to furnish the other with an abstract of title showing a good and sufficient title in the respective parties at the date of the contract, and the property of one of the parties is to be conveyed subject to an incumbrance aggregating a certain sum, the contract requires the abstract furnished by such party to show the title in that condition, or where such party could control it, and such party cannot say that contract has been complied with because of the fact that the abstracts to the property were shown to the other party and delivered to a certain abstract company in another State, where the land lies, and that continuations thereof were by said company written up and the abstracts and continuances were there ready for delivery, lacking only the certificates and signatures of the company, when the other party was ready to produce a proper deed and close the deal.


text:
    James J. Loughlin, trading as James J. Loughlin and Company, Defendant in Error, v. G. Heileman Brewing Company, Plaintiff in Error.
    Gen. No. 19,544.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by James J. Loughlin, trading as James J. Loughlin and Company against G. Heileman Brewing Company, a corporation, and J. A. Johnson to recover a certain sum claimed to be due for plumbing work done in Johnson’s saloon under a contract with Johnson for the Brewing Company. Upon Johnson’s failure to appear, an order of the court was entered on January 24, 1913, which, after reciting a rule upon Johnson to appear instanter and his being called in open court, and also service of process “a sufficient number of days prior to the time required of said defendant to appear as aforesaid to now require of said defendant that said defendant either appear in this cause at this time or that said defendant suffer judgment by default for want of such appearance,” proceeded as follows:
    “It is on motion of the plaintiff ordered by the Court that judgment be entered herein against the defendant John A. Johnson by default for want of an appearace. ’ ’
    No further order or judgment was made by the court concerning Johnson until April 17, 1913, when “the plaintiff moves the Court that the default of the defendant, John A. Johnson, entered herein on the 24th day of January, 1913, be vacated and set aside, which motion the Court sustains and the same is hereby vacated and set aside and for naught esteemed.”
    Subsequently the suit was dismissed as against Johnson and a judgment was recovered against the Brewing Company alone for $314.35. To reverse the judgment, the Brewing Company prosecutes a writ of error.
    Defendant urged as ground for reversal that plaintiff having elected to proceed to judgment against Johnson, the alleged agent, the election was final and he could not thereafter hold the alleged principal.
    Edwin H. Cassels, Francis Adams, Jr. and Kenneth B. Hawkins, for plaintiff in error.
    D. K. Cochrane, for defendant in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 112 —when order of default not default judgment. An order of court held to be a mere order of default inartificially expressed and not a default judgment.

2, Principal and agent, § 8 —when evidence sufficient to establish agency to contract. In an action against a brewing company to recover for plumbing work done in a saloon which was operated by a third party, whom the plaintiff claimed was authorized by defendant to contract for the work, held that a judgment in favor of plaintiff was sustained by the evidence.


text:
    Charles J. Fischer, Defendant in Error, v. General Sales and Monument Company (Defendant), Henry Mayer (Defendant in Error), E. D. Bosworth, Plaintiff in Error.
    Gen. No. 19,567.
    Garnishment, § 130

      —when assignment of benefit of contract protected. Where an insolvent corporation had a contract to furnish work and materials to a customer and assigned it to an officer of the corporation and the contract was performed by the assignee after the assignment, held that the assignment was not of an existing claim or indebtedness making it invalid as a preference so that a creditor of the corporation in an attachment proceeding in which the customer was summoned as garnishee would he entitled to reach the sum due from the garnishee or the profits of the assignee as against the latter, who performed the work and was an intervening claimant in the proceeding, it also appearing that the creditor was instrumental in procuring said assignee to take the contract.
    McSurely, J., dissenting.
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and judgment here.
    Opinion filed October 13, 1914.
    Garnett & Garnett, for plaintiff in error; Cyrus L. Garnett, of counsel.
    Arthur E. Walsh, for defendant in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

Charles J. Fischer sued the General Sales and Monument Company in the Municipal Court of Chicago March 5, 1913, for $250 lent to it. He began the suit by attachment and caused one Henry Mayer to be summoned as garnishee. Henry Mayer answered that he was indebted to the General Sales and Monument Company in the sum of $270, and although the attachment was contested it was sustained and the plaintiff had judgment on May 13, 1913, against the defendant for $250. This judgment is not complained of. But on May 10, 1913, leave was given on his motion to E. D. Bosworth to appear, “as an intervening claimant of any goods, chattels, choses in action, credits or effects that may be in the hands of the garnishee and to maintain any rights therein that said intervening claimant may have, and said intervening claimant shall, upon such appearance, be admitted as a party to this suit so far as respects the title of said intervening claimant to the property herein in question.” And on the same day the said Bosworth filed an inter-plea in which he set up that before the Fischer suit was instituted the General Sales and Monument Company had in good faith ‘ sold, assigned, transferred and set over” to him, for a valuable consideration, the only claim and contract it ever had against Mayer; that Bosworth had accepted the said assignment and that the. garnishee had been notified of that before his answer. This interplea was verified by the oath of one Scott, who swore that he was agent for Bosworth.

On May 21, 1913, the cause came on for trial before the court without a jury as to the issues'between the plaintiff and the intervening claimant, and on May 24, 1913, the court found the issues for the plaintiff and that the right to said fund was in the plaintiff, and entered a judgment in favor of the plaintiff Fischer for costs against the intervening claimant and a judgment that the defendant, the General Sales and Monument Company, should have and recover of and from the garnishee (on his answer) the sum of $270, and that the total of said moneys so to be recovered by the defendant should be had and recovered for the use of the plaintiff Fischer. The stenographic report of the proceedings filed in the case recites under the hand of the judge of the Municipal Court that he held “that the assignment from the defendant General Sales and Monument Company to E. D. Bosworth was void.” To reverse this judgment of May 24, 1913, this writ of error is sued out.

Although this seems a hard case for the plaintiff, who is merely seeking to recover $250 which he too trustfully confided to a concern which was not deserving of confidence and was evidently in a failing or impecunious condition and ought never to have taken it, we cannot see our way to do otherwise than to reverse the judgment of the Municipal Court and enter such judgment here as shall adjudge to Bosworth, the intervening claimant, the sum which the garnishee, Mayer, answered that he owed the defendant, the General Sales and Monument Company.

The elaborate argument which is made by counsel for defendant in error, on the invalidity of assignments which operate as preferences by corporations to officers or directors, is, in our opinion, without application here. This is a very different case.

An entirely insolvent and broken corporation had on its hands a contract which required it to furnish work and material,, which it is plain it could not do. If there were a default in the contract it would be liable in damages—perhaps under the circumstances not a practical, but certainly a theoretical disadvantage and risk to it. By the hand, of its business manager, as well as its president, it turned over to Bosworth, who was one of its officers, not an existing claim and indebtedness against Mayer, which would have been a preference, but this contract to be performed. Bosworth performed it and is entitled to the amount which then became due on it. It was not performed until after it was assigned, and no indebtedness accrued until then. The garnishee was mistaken, naturally and in good faith undoubtedly, but still mistaken, in answering that he was indebted to the General Sales and Monument Company. He was indebted to Bosworth.

If there can be any doubt as to the technical validity of the assignment by the president of the Company between December 10, and December 18, 1912—which we doubt, for it was not, as we before said, a preference that was made, but a liability or business engagement which was disposed of—there certainly was, under the circumstances, an equitable assignment made by the circumstances and the action upon them taken by Richardson (the president of the Company) and Bosworth respectively. As against Bosworth’s claim, once that action had been brought to Mayer’s knowledge and he was notified that in reliance on Richardson’s assignment Bosworth and not the Company had carried out the contract and furnished the stone and labor agreed for, tieither Mayer nor the Company could possibly have set up any claim of the Company for the amount stipulated in the contract which the Company had abandoned and Bosworth had performed, to set up a monument in St. Boniface cemetery. The garnishing creditor is in no better situation than the attachment debtor in his claim against the garnishee.

There is, moreover, in this case an additional circumstance placing the plaintiff in a position of disadvantage in his contention with Bosworth. It appears in the evidence that he was, to some extent and apparently for the purpose of securing a portion at least of the commission which was to come to him on this contract” of Mayer, instrumental in procuring Bosworth’s undertaking the contract. This brings an element of estoppel into the case-against him. But even without it, the judgment of the court below would not be justified.

We do not think that the intervening, claimant is liable to account to the defendant or the garnishing creditor even for the small profit of $12.40 which he will make if he secures the amount due on this contract. There was a possibility of loss undoubtedly through changed market, transportation or labor conditions, as well as of profit, when he took over the contract. We think he is entitled to the $270 in the hands of the garnishee, and we so find and reverse the judgment entered by the Municipal Court of Chicago on May 24, 1913, and give judgment here that the intervening claimant, E. D. Bosworth, have and recover of the garnishee, Henry Mayer, the sum of $270, for which in the answers of the garnishee he declared himself indebted to the defendant, the General Sales and Monument Company, and have execution therefor, and that on payment of said sum by the garnishee to the intervening claimant, E. D. Bosworth, the said garnishee, Henry Mayer, shall be forever released and discharged from the payment of said sum to any other person whatever.

Reversed and judgment here.

Mr. Justice McSurely dissents.


text:
    William McMurray et al., trading as the Bank of Big Wells, Texas, Defendants in Error, v. M. George and Company, Plaintiff in Error, and National Produce Bank of Chicago.
    Gen. No. 19,600.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.

      Abstract of the Decision.
    Sales, § 329

      —when judgment for purchase price sustained by the evidence. In an action for the purchase price of onions claimed by the plaintiff to have been purchased by an agent of defendant at a shipping point in Texas, and claimed by defendant to have been ordered on the theory of a "'consignment for sale,” a judgment in favor of plaintiff held sustained by the evidence.
    Statement of the Case.
    Action by William McMurray, F. F. Petty and J. E. Franklin, trading as the Bank of Big Wells, Texas, against M. George and Company, a corporation, and National Produce Bank of Chicago, a corporation, to recover the purchase price of onions claimed to have been purchased by an agent of M. George and Company at a shipping point in Texas. The plaintiff sued as an assignee of the seller. On trial without a jury the suit was dismissed as to the defendant National Produce Bank of Chicago, and a judgment was entered in favor of plaintiff for $822.50. To reverse the judgment, the defendant M. George and Company prosecute a writ of error.
    Fred H. Atwood, Frank B. Please, Charles O. Loucks and Vernon R. Loucks, for plaintiff in error ; Harold L. Reeve, of counsel.
    Mather & Hutson, for defendants in error; William. A. Sheehan, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Walter S. Bogle, Defendant in Error, v. L. Weber, Plaintiff in Error.
    Gen. No. 19,610.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by Walter S. Bogle against L. Weber in the Municipal Court of Chicago. The action was in tort, and as stated in the statement of claim was “for the reasonable value of repairing the walls in the halls of the building owned by the plaintiff at 668 Roscoe street, Chicago, Ill., which were damaged by defendant or her agent in moving defendant’s furniture from said building on or about May 1, 1912. ’ ’
    The walls damaged were the halls of a building in which defendant had leased apartments from the plaintiff. Her lease being about to expire she made, as the stipulation of facts on which the case was tried states, “a contract with Murphy Bros, to remove her said furniture from said apartment and agreed to pay and did pay Murphy Bros, a certain specific sum of money for moving all of said furniture and Murphy Bros, agreed to move said furniture without damaging the same and to deliver said furniture safely at another apartment.
    “Murphy Bros, was a firm or copartnership having an office and place of business in the City of Chicago and were engaged in the business of drayage and teaming. Prior to the malting of the contract aforesaid, the defendant had never employed Murphy Bros, in any capacity and had had no business relations with Murphy Bros. Defendant gave no directions as to the manner of moving said furniture to,Murphy Bros., the said contract providing simply that Murphy Bros, at its own risk so far as defendant was concerned should' move said furniture from said apartment and receive as compensation therefor the said price agreed on.”

      Abstract of the Decision.
    Landlord and tenant, § 197

      —when tenant not liable for injury to premises. Where a tenant contracted with persons to move her furniture from an apartment building and the movers damaged the walls of the halls of the building and suit was brought by the owner of the building against the tenant to recover the damages, held under a stipulation of facts in the case that the movers were independent contractors and that the tenant was not liable.
    It was further stipulated that Murphy Bros, were careless in moving the said furniture and in so doing damaged the walls in the halls of said apartment building, and that if the plaintiff was entitled to recover at all against the defendant he was entitled to recover $22.50.
    A trial was had without a jury and plaintiff recovered a judgment for $22.50. To reverse the judgment, defendant prosecutes a writ of error.
    Edwin H. Cassels, Francis Adams, Jr., and Kenneth B. Hawkins, for plaintiff in error.
    Guerin, Gallagher & Barrett, for defendant in error; Earl B. Wilkinson, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Abraham Greenblodt, Defendant in Error, v. Chicago Railways Company, Plaintiff in Error.
    Gen. No. 19,620.
    1. Municipal Court of Chicago, § 13

      —when statement of claim sufficient to inform defendant as to nature of case. A statement of claim in a fourth-class case in the Municipal Court for personal injuries, held to reasonably inform the defendant of the nature of the case within the meaning of section 40 of the Municipal Court Act, J. & A. ¶ 3352.
    2. Municipal Court of Chicago, § 28

      —When judgment will not he reversed for insufficiency of statement of claim. The fact that a statement of claim in a fourth-class case in the Municipal Court for personal injuries did not allege that plaintiff was in the exercise of due care when injured, held not sufficient ground for reversal of a judgment, where nothing was done in the court below to save such point for review except a motion for an arrest of judgment after verdict.
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    John W. Walsh and Frank L. Kriete, for plaintiff in error; John R. Guilliams, of counsel.
    William Cullen Burns, for defendant in error; A. H. Ranes, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This writ of error is to reverse a judgment for $500 entered by the Municipal Court of Chicago on May 29, 1913, on the verdict of a jury, in favor of Abraham Greenblodt, plaintiff below and defendant in error here. The cause does not come here upon the merits, the evidence not having been preserved for our consideration. The question before us is merely whether the judgment should be reversed because of insufficiency of the “statement of claim.”

The action was one of the fourth class, brought in “Tort,” and the statement of claim, omitting the description of the injuries received by the plaintiff, is: “Plaintiff’s claim is for the sum of one thousand dollars sustained by him through the negligence of defendant on or about July 9, 1911. While driving in a wagon on Western Avenue in said city between Division Street and Chicago Avenue defendant’s street car was recklessly and carelessly driven against plaintiff’s wagon, causing plaintiff to be thrown to the ground severely injuring him,” etc.

The Municipal Court Act provides that in cases of this class:

“If the suit be for a tort, it” (the statement of claim) “shall consist of a brief statement of the nature of the tort and such further information as will reasonably inform the defendant of the nature of the case he is called upon to defend, but nothing herein contained shall be construed to require the statement of claim in any action for a tort to set forth the cause of action with the particularity required in a declaration at common law.”

We think that to any person unversed in the intricacies of the law it would never occur that the ‘ ‘ statement of claim” in this case did not “reasonably inform” the Railways Company of the nature of the case it was called on to meet, and despite the elaborate and ingenious arguments of the counsel for plaintiff in error, that because the statement of claim does not assert that the plaintiff was in the exercise of due care when injured, this judgment ought to be reversed, although no objection appears to have been made to the statement as insufficient and nothing done in the court below to save any such point except to make a motion for an arrest of the judgment after verdict, we must decline to be so astute, and thus overthrow the evident purpose of the Municipal Court Act in regard to common-law pleading. So far as we know, all decisions of the Appellate Court or the Branch Appellate Courts of this District have been uniform on this point or analogous ones; e.g., Toledo Computing Scale Co. v. Tyden, 141 Ill. App. 21; Rayfield v. Sans Souci Park, 147 Ill. App 493; Schulze v. Gottschalk, 152 Ill. App. 20; Bender v. Lundberg, 152 Ill. App. 326; McDowell, Stocker & Co. v. Sharp, 157 Ill. App. 165; Bekins Household Shipping Co. v. Grand Trunk Ry. System, 162 Ill. App. 497; Gilman v. Chicago Rys. Co., 185 Ill. App. 396.

Until, if ever, the higher tribunal shall hold'otherwise, we shall adhere to the doctrine of these _cases. The judgment of the Municipal Court is affirmed.

Affirmed.


author: Mb. Presiding Justice Brown

text:
    John D. Casey, Administrator, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 19,653.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 13, 1914.
    Rehearing denied October 27, 1914.
    Statement of the Case.
    Action by John D. Casey, administrator of the estate of Harold Budil, deceased, against City of Chicago to recover damages for the death of plaintiff’s intestate, a child of five years, under the Campbell Act of Illinois, J. & A. ¶¶ 6184 et seq. The declaration charged that the City of Chicago negligently permitted a street in said City to be and remain in an unsafe and dangerous condition in that it had a hole in it which made it rough and uneven, by means whereof the plaintiff’s intestate “was struck and injured by a cake of ice which fell from a wagon because of the said wagon running into said depression and hole in said street.” The cause was tried before a jury, who found for the defendant, and the court, after a motion for a new trial and a motion in arrest of judgment had been made and overruled, entered a judgment of nil capiat and for costs against the plaintiff. To reverse the judgment, plaintiff prosecutes a writ of error.
    Plaintiff urged as ground for reversal that the court admitted improper evidence and excluded proper evidence ; that it erred in giving certain instructions and in refusing certain tendered instructions.

      Abstract of the Decision.
    1. Municipal corporations, § 972

      —duty to maintain streets in safe condition for children. A city is charged with a duty subject to certain general limitations and conditions to keep its streets in a reasonably safe condition, not only for ordinary travel, but also for children at play using the streets in a manner common and usual for children in a city.
    2. Municipal corporations, § 968

      —when defective street constitutes proximate cause of death of child. Where a child playing in a street was killed by a cake of ice falling from a wagon because the wagon ran into a hole in the street, held that the negligence of the driver of the wagon would not excuse the negligence of the City in permitting the holes to be in the street if such negligence of the City was the proximate cause of the accident.
    3. Negligence, § 53

      —proximate cause. For an act of negligence to be the proximate cause of an injury, it need not be the sole or exclusive proximate cause, but it must be a proximate cause, either alone or concurrently with some other.
    4. Municipal corporations, § 1100

      —sufficiency of instructions. In an action against a city for the death of a child caused by a cake of ice falling from a wagon when the wagon ran into a hole in a street, held that the instructions given did not properly present the law material to the issues, where the court gave instructions to find the defendant not guilty if the street was reasonably safe for travel and the negligence of defendant was not the proximate cause of the accident, and refused to give an instruction requested by plaintiff to the effect that though the driver of the wagon was guilty of negligence contributing to the accident such negligence would not prevent recovery if the negligence of the defendant was the proximate cause of the injury.
    5. Negligence, § 223

      —sufficiency of instruction as to liability for unforeseen accidents. A portion of an instruction telling the jury “that a person or corporation is not liable or responsible for injuries or accidents which could not have been foreseen or expected by a reasonably prudent person as a result of its negligence,” held improper if standing alone as making the liability of defendant depend upon whether the precise injury complained of and the manner of its occurrence ought to have been foreseen, but held that the giving of the same was not reversible error where it was followed by a clause which explained or developed the preceding clause by speaking of “any accident or some accident.”

      Elmer & Cohen, for plaintiff in error.
    William H. Sexton, John W. Beckwith and N. L. Piotrowski, for defendant in error; David R. Levy, of counsel.

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

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

   Mb. Presiding Justice Brown

delivered the opinion of the court.

6. Evidence, § 232 —when portion of coroner’s verdict inadmissible. In.an action against a city for the death of a child alleged to have been caused by a hole in a street, a part of a coroner’s verdict which purported to determine' that the condition of the street caused the accident, held not competent evidence for the jury.


text:
    Tabor Coal & Supply Company, Defendant in Error, v. Isaac Cohen, Plaintiff in Error.
    Gen. No. 19,687.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action in the Municipal Court of Chicago by Tabor Coal & Supply Company, a corporation, against Isaac Cohen on an account stated for coal sold and delivered by plaintiff to defendant. The statement of claim described the demand as follows:
    “For $200 being an account stated and rendered and balance agreed upon between plaintiff and defendant on or about the 28th day of December, 1912.”
    The defendant in his amended “Affidavit of Merits” denied that there was any “account stated” or “balance agreed on” at any time, and denied that he was indebted to said plaintiff in any sum for any coal. To reverse a judgment entered on a finding for plaintiff, defendant prosecutes a writ of error.

      Abstract of the Decision.
    1. Account stated, § 25

      —when finding sustained by the evidence. In an action on an account stated for coal sold and delivered where the defendant denied there was any “account stated,” held that a finding in favor of plaintiff was sustained by the evidence.
    2. Account stated, § 24—admissibility of evidence. In an action on a stated account for coal sold and delivered, held not error to exclude testimony concerning the quality of the coal where the quality was not an issue on the trial.
    3. Evidence, § 107

      —what sufficient to establish identity of spealeer over telephone. Evidence held sufficient to establish the identity of a person speaking over a telephone so as to render the telephone conversation admissible where the speaker gave his name to witness and declared his intention of making a payment by check of a certain amount and the witness received the check for such amount the next morning.
    Levy & O’Donnell, for plaintiff in error.
    Smejkal, Klenha & Krasa, for defendant in error; Hwass & Luebeck, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Waldomar Selemin, Defendant in Error, v. Latrobe Steel and Coupler Company, Plaintiff in Error.
    Gen. No. 19,699.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by Waldomar Selemin against Latrobe Steel and Coupler Company, a corporation, to recover for personal injuries. The declaration on which the cause was sent to the jury consisted of two counts. The first of these alleged: That the defendant “owned, possessed, managed, operated and controlled” a machine for testing iron couplers, consisting of a heavy hammer, to which hammer was attached at the top thereof a certain chain,, which chain fastened by a hook, by which hook and chain the hammer was raised for the purpose of causing it to descend and strike the material placed beneath it and thereby test the strength of said material; that at that time the plaintiff, then a minor of tender years and a Russian subject, was working for the defendant as a servant; that the defendant, by its foreman, “who was not a fellow-servant of plaintiff and to whom plaintiff owed the .duty of obedience, carelessly and negligently fastened said chain on said hammer in an insecure and unsafe manner, and so that said hammer was likely to become unfastened and fall by reason thereof and without any act on the part of the operator of said hammer to cause it to fall,” which defendant knew, etc., and plaintiff did not know, etc., “and while plaintiff at all times in the exercise of ordinary care and caution for his own personal safety and in performance of his duty to said defendant as sl servant as aforesaid, was in the act of placing a certain knuckle under said hammer for the purpose of testing the same, said hammer became unfastened from said chain and hook by and through the carelessness and negligence of said lefendant as aforesaid, and fell to and upon the hand of plaintiff, ’ ’ thereby severing the fingers from the plaintiff’s hand.
    The other count alleged that the defendant by the foreman, who was not a fellow-sérvant, etc., “carelessly and negligently ordered plaintiff to place a certain knuckle under said hammer for the purpose of testing same, while the chain and hook upholding said hammer was weakly, insecurely and insufficiently fastened and so that said hammer was likely to fall by reason thereof without any act of the operator to cause it to fall, which defendant knew or by the exercise of due care ought to have known and which plaintiff did not know and did not assume the risk thereof, and could not have known by the exercise of ordinary care, ’ ’ and that while the plaintiff was, in obedience to said order, placing a knuckle under said hammer, etc., the hammer, by reason of the aforesaid negligence of the defendant, fell on his hand.
    Besides the general issue, a plea of the statute of limitations was filed, to which an amended replication was made by leave of court during the trial. The replication was, in effect, that the suit was brought before the plaintiff had come of age. A trial of the cause before a jury began March 31,1913, and on April 2,1913, terminated by a verdict for plaintiff in the sum of twenty-five hundred dollars. On the last day before the cause was finally taken by the jury, counsel for the defendant moved the court to suspend the trial of the cause until the next day to enable the defendant to present the testimony of one O. F. Heywood. This motion was supported by affidavit of the counsel that Heywood was a material witness for the defense, and that he expected him to testify to certain matters (set forth in the affidavit), and that Heywood resided in Pittsburg, Pennsylvania; that he had started from there April 1, 1913, to come to Chicago to testify in the cause, but had telegraphed that his train was delayed and that he could not arrive in Chicago until about 5 P. M. on the second. Tuesday, April 1, being a legal holiday the court had not convened. Counsel for the plaintiff consented that the counsel for the defendant might state to the jury that the defendant claimed that the witness would testify as stated in the affidavit, but refused to admit that the witness would testify to all the matters mentioned therein, specifying those which were thus excepted. The motion to suspend or continue was then denied. The entire affidavit of counsel was read to the jury by him, but he indicated the parts which stated what the plaintiff refuse^, to admit the absent witness would have sworn to.
    Abstract of the Decision.
    1. Appeal and error, § 1712

      —when assignments of error waived. Assignments of error which are not argued may be considered as waived.
    2. Pleading, 249

      —when allowing filing of amended, replication not error. Permitting plaintiff during the trial to file an amended replication to a plea of the statute of limitations, held not error.

      A written motion for a new trial and a motion in arrest of judgment were made after the verdict and before the judgment and overruled. To reverse a judgment entered on the verdict, defendant prosecutes a writ of error.
    Defendant urged as grounds for reversal: That the court erred in allowing plaintiff to file an amended replication during the trial, contending that an issue was by the replication submitted to the jury which it had not been sworn to try; that there was no evidence in the record tending to prove that the defendant was guilty of the negligence charged in either count of the declaration on which the cause was submitted to the jury; that if it could be held that any negligence was shown, it must have been the negligence of plaintiff’s fellow-servant, for which the defendant is not liable; that the plaintiff was guilty of contributory negligence; that the plaintiff assumed the risk of the danger which resulted in the injury.
    Herrick, Allen & Martin and Frank E. Harkness, for plaintiff in error.
    C. H. Johnson and Daniel Belasco, for defendant in error.

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

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

3. Master and servant, § 702 —when contributory negligence and fellow-servant relation questions for jury. In an action by a servant against his employer to recover for personal injuries received while placing certain iron couplers on a machine, for testing the strength of the couplers by a heavy hammer, where at the time of the injury the hammer on being partly raised unexpectedly fell by becoming detached from a hook connected to the hammer by defendant’s foreman, held under the facts of the case the questions whether plaintiff was guilty of contributory negligence or whether the foreman was a fellow-servant were questions for the jury upon which their verdict in favor of plaintiff was conclusive, it appearing that the plaintiff was an inexperienced minor, that the manner of performing, the work was unsafe, that the foreman was plaintiff’s “boss,” and that the foreman had knowledge that the hook did not fasten securely to the hammer.

4. Master and servant, § 359 —assumption of risk. Where a youthful and inexperienced servant was injured while engaged in placing iron couplers on a testing machine for the purpose of testing the same with a heavy hammer, held under the facts of the case that the doctrine of assumption of risk was inapplicable.

5. Master and servant, § 561 —necessity of proof of specific negligence alleged. In an action by a servant against his employer for personal injuries, the specific negligence charged in the declaration must be proved to warrant a verdict for plaintiff.

6. Master and servant, § 694 —when proof sufficient to sustain allegation in declaration. In an action by a servant against his employer to recover for personal injuries, plaintiff’s testimony held sufficient, if believed by the jury, to sustain an allegation in plaintiff’s declaration that the injury resulted from obeying a negligent order of defendant’s foreman.

7. Trial, § 33—when refusal to adjourn for day not abuse of discretion. Refusal of court during the trial to adjourn for a day to allow a witness for defendant to -arrive from another State on the ground that the train which the witness had taken was delayed on account of floods, held not an abuse of discretion.


text:
    John F. Devine, Administrator, Plaintiff in Error, v. Mary Steffen et al., Defendants in Error.
    Gen. No. 19,726.
    1. Wills, § 493

      —rules as to lapsing of legacy where legatee dies before testatrix. Where the payment of a legacy charged upon land is by the terms of a will postponed until the arrival of the legatee at a certain age, or to some other fixed time in the future, the legacy lapses if the legatee dies before the time arrives, and the postponement of the payment was made on account of the circumstances and for the good of the. legatee. If, however, the postponement was made on account of the circumstances of the estate or for the benefit or aggrandizement of the estate, the legacy does not lapse but vests in and passes to the personal representative of the legatee in case of his death before payment. But these rules are not conclusive as against evidence of the intention of the testator.
    2. Wills, § 493

      —when words in will do not prevent lapsing of legacy. Where a will charged a legacy upon land to be paid to the legatee, his heirs and assigns when he is twenty-one years of age, and the legatee died before the testatrix, held that the use of the words “his heirs and assigns” did not show that the testatrix intended the legacy to go to the heirs of the legatee in view of other provisions in the will and the circumstances of the family at the time the will was made.
    Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    J. Julius Neiger and Blum & Blum, for plaintiff in error.
    Charles Werno, for defendant in error Mary Steffen.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

The complainant in this case below is the plaintiff in error in this court. His bill was dismissed for want of equity by the Superior Court of Cook county. His assignments of error, in effect, merely call in question the rightfulness of the decision as a matter of law.

The bill of complaint with its exhibit alleges that the complainant is the duly appointed administrator of the estate of Michael Huber, deceased; that one Maria Anna Huber died March 1, 1895, leaving a last will and testament, of which the material parts are as follows:

‘ ‘ Second. I give and bequeath to Michael Huber, the son of my deceased son, Michael Huber, the sum of $1,000, which shall be paid to him without interest when he is 21 years old, by and out of the share hereinafter devised and given to my son Thomas Huber, as hereinafter further stated and set forth.
“Third. I give and bequeath to Thomas Huber, the son of my deceased son Michael Huber, the sum of $1,000, which shall be paid to him without interest when he is 21 years of age, by and out of the share hereinafter given and devised to my daughter, Maria A. Rick, nee Huber, as hereinafter stated and set forth.
“Fourth. I give, devise and bequeath to my son, Thomas Huber, the following described real estate, to-wit” (describing an improved lot in Chicago) “and to his heirs and assigns forever, but upon the express condition that said Thomas Huber or his heirs and assigns shall pay the sum of $1,000 to Michael Huber, his heirs and assigns, being the bequest hereinbefore made to said Michael Huber in No. 2 of this will.
‘ ‘ Fifth. I give, devise and bequeath to my daughter, Maria A. Rick, nee Huber, the following described real estate, to-wit” (describing another improved lot in Chicago). “And this bequest is made upon the express condition that said Maria A. Rick shall pay the full amount of the incumbrance upon” (describing both lots and the incumbrance); ‘ and upon the further condition that said Maria A. Rick shall pay the sum of $1,000 to my grandson, Thomas Huber, his heirs and assigns, being the bequest hereinbefore made to said Thomas Huber in the third clause of this will.”

That Michael Huber died March 8, 1898, being then only nineteen years old; that he left him surviving his mother, Wilhelmina Roth, his half brother, William P. Both, and his half sister, Martha M. Both, his only heirs at law; that Thomas Huber and his wife, Mary T. Huber, after the death of Maria Anna Huber, took possession of the lot devised to Thomas Huber and have ever since lived on the same; that by virtue of the will of Maria Anna Huber the sum of one thousand dollars became upon her death a charge and lien on said real estate devised to Thomas Huber and was payable to Michael Huber upon his arriving at the age of twenty-one years, and by reason of his death became due to his estate in the month of March, 1900, at which time he would have been twenty-one years of age had he lived so long; that said sum of one thousand dollars has never been paid and is due with interest from April 1, 1900, and that the complainant as administrator is entitled to receive it and to have the premises bequeathed to Thomas Huber sold under the orders of the court for the purpose of paying the same; that Mary Steffen, Mary T. Huber and Thomas Huber claim to have an interest in the property. ’ Therefore the bill prays for an answer and that an account may be taken and that Thomas Huber, or some of the defendants, may be decreed to pay to the complainant the sum that.shall appear to be due on taking the account; that in default of payment the premises may be sold as the court may direct to satisfy the debt and costs, and in case of a failure to redeem, the defendants shall be foreclosed from any equity of redemption.

The Hubers answered, denying that the complainant was entitled to relief, and calling for strict proof of the allegations of the bill. Mary Steffen did the same, but added to the allegations a statement that she was now the owner in fee simple of the lot so devised to Thomas Huber by Maria Anna Huber, having acquired the title thereto by a master’s deed from a master in chancery of the Circuit Court of Cook county in pursuance of a decree of said court.

By a certificate of evidence it appears that the various allegations of fact in the bill and answer were proved, and that at the time of the death of Maria Anna Huber she left her surviving as her only heirs at law and next of kin Thomas Huber, her son, Mary A. Schumacher, her daughter, and Michael Huber and Thomas Huber, her grandchildren, who were the children of her son, Michael Huber, who predeceased her; that on October 22, 1902, while Thomas Huber and Mary T. Huber, his wife, were occupying the premises devised to Thomas (Lot 11 in Hapgood & Barry’s Subdivision of the N. ½ of Block 24, of the Canal Trustees’ Subdivision in 33-40-14), they executed to one Charles Wemo as trustee a trust deed mortgage on said premises to secure the payment of three thousand dollars to Mary Steffen, which trust deed mortgage was foreclosed in the Circuit Court of Cook county thereafter, a decree of sale having been entered on June 15, 1908, and that since October 18, 1909, the said Thomas and Mary T. Huber have been occupying a portion of said premises only, and that portion as the tenants of Mary Steffen, the said Mary Steffen having received a master’s deed of the premises on said last mentioned date; that the estate of Maria Anna Huber was declared settled by the Probate Court of Cook county on the 27th day of May, 1901, and the executor discharged.

The only question for us to consider is whether the legacy of one thousand dollars made by Maria Anna Huber to Michael Huber lapsed by reason of his death before he arrived at the age of twenty-one years, or was so vested in him (although its payment was postponed) that the right to it when he died passed to his personal representative, to be enforced when Michael would have become twenty-one.

The doctrine in such cases does not seem to us an obscure one. It is this: If the payment of a legacy charged upon land is by the terms of a will postponed until the arrival of the legatee at a certain age, or to some other fixed time in the future, the legacy lapses if the legatee dies before the time arrives, if the postponement "of the payment has been made on account of the circumstances and for the supposed good of the legatee. If, however, the postponement has been made on account of the circumstances of the estate or for the benefit or aggrandizement of the estate, the legacy does not lapse but vests in and passes to the personal representative in case of death before payment. But both these rules must and do give way to evidence of the intention of the testator in either direction. The intention, if it can be legally ascertained, is therefore the ultimate test.

For this general statement of the doctrine applicable to this case we may cite: Carper v. Crowl, 149 Ill. 465-483; King v. Withers, Cases Tempore Talbot 116, and 2 Equity Cases Abridged, 656. Also the same case with the notes and cases cited therein in 5 Gray’s Cases on Real Property, p. 266, especially Evans v. Scott, 1 House of Lords Cases 43-57; McCartney v. Osburn, 118 Ill. 403; Underhill on Wills, sec. 328; Theobald on Wills (7th Ed.) ch. 44, p. 579; Parker v. Hodgson, 1 Drewry & Small, 568; 1 Jarman on Wills, ch. 25, sec. 5, star page 834; Cholmondelay v. Meyrick, 1 Eden 77, note; Cassem v. Kennedy, 147 Ill. 660; Powers v. Egelhoff, 56 Ill. App. 606.

The postponement in this case was evidently in consideration of the circumstances of the legatee, not of the estate, and it is plain, therefore, we think, that the legacy lapsed unless there is sufficient evidence that the intention of the testator was to the contrary. Upon our decision whether there is such sufficient evidence must depend our disposition of the cause. We do not think there is. The plaintiff in error relies strongly on the use of the words “his heirs and assigns” after the name of Michael Huber in the fourth paragraph of the will. Incidentally it may be noted that counsel for plaintiff in error in their argument fall into a mistake, which counsel for defendant in error does not correct but apparently accedes to, in saying that clause five of the will “does not employ the language that clause four does, and while it requires the payment to the grandson” (Thomas Huber) “it does not require payment to his heirs and assigns.” The provision is identical in the fourth and fifth clauses as to the two grandsons as shown in the transcript of the record before us.

But it must be admitted that the use of the words indicated lends some plausibility to the argument that the testatrix intended the right to the legacy to vest on her death although the payment was postponed. But reflection and authority combine not only to negative its conclusiveness, but also to deny it any considerable persuasiveness. The meaning of these words, we think, so far as they could be given any meaning, was that when the time arrived for the payment of the legacy it was to be paid to the legatee unconditionally as an absolute gift and not for life or in trust. But they really were practically without meaning. It is said in Underhill on Wills, p. 445, sec. 332:

“It is very well settled that the mere addition of words of succession or representation to the name of the legatee, * * * is never sufficient alone to save the legacy and to prevent the operation of the rule of lapse. * * * The presumption that the testator did not intend to prevent a lapse is strengthened by the addition of the word ‘assigns,’ as in the case of a gift to A and his heirs and assigns.”

We think, on the other hand, that the circumstances of the family at the time the will was made in 1893, and the fact that the natural link between the grandmother and grandson had been broken by the death of the latter’s father, militates against the theory that she intended the grandson’s heirs to take in case of his death before he was twenty-one. The heir to the larger part of his estate would be even then one not of kin to the testator; she might marry again, as she did, and before Michael was twenty-one, have other children who would also be heirs' of Michael but not of kin to the testator.

And the fact that it was expressly provided that when the legacy was to be paid at the legatee’s twenty-first year, it was to be without interest, looks in the same direction.

These considerations also outweigh in our mind such a merely technical consideration as that the bequest is made to the legatee not in terms “when he is 21 years old,” but “which shall be paid to him when he is 21 years old,” which difference Williams in his work on Executors, as quoted (but not necessarily approvingly, as counsel argue) by our Supreme Court in Kingman v. Harmon, 131 Ill. 176, thinks significant.

We think the chancellor below was right in his decree, and it is affirmed.

Affirmed.


text:
    Charles A. Nowak, Defendant in Error, v. Clarence H. Geist, Plaintiff in Error.
    Gen. No. 19,742.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1913.
    Dismissed.
    Opinion filed October 13, 1914.
    Rehearing denied October 27, 1914.
    Statement of the Case.
    Bill filed by Charles A. Nowak against Clarence H. Geist. A decree was entered, the material parts of which follow.
    After reciting that the cause had come on to be heard on the report of a master in chancery dated March 3, 1913, to whom it had been referred under an order of the court of August 3, 1911, and on certain testimony, exhibits, stipulations, objections and exceptions, the court found:

      “1. That the Master by Paragraph 29 of his said Report specifically states that he comes into court with a request for further instructions on the specific point, to-wit, should the defendant be considered a trustee for the use and benefit of the complainant in all of the transactions that took place in regard to the Hammond Illuminating plant subsequent to February 1,1903, and be made to account to the complainant for one-half the profits that accrued to the defendant by reason thereof.
    “2. That inasmuch as the Court is of the opinion that the defendant is a trustee * * * and that the Master has not completed the account necessary to be taken and stated between the complainant and defendant, it is unnecessary and inappropriate at this time for the Court specifically to pass upon the various objections and exceptions of the complainant and defendant to said report and rulings upon said objections and exceptions are reserved until the coming in of the completed report of the Master to be filed in this cause.
    “3. That under all the evidence taken in this cause the defendant, Clarence H. Greist, was and became on the termination of the partnership between the parties hereto, to-wit, Feb. 1, 1903, a Trustee de son tort for the complainant, Charles A. Nowak, of an undivided one-half interest in the six hundred shares of stock of the Hammond Illuminating Company, and of the, franchises of proceeds thereof in East Chicago, Indiana Harbor and Whiting,—unless the Master finds that said franchises were paid for by the $83,790.66 paid by the Union Gas Company—and of all the accretions of whatsoever kind or character thereunto belonging or appertaining including * * * and as such Trustee said defendant must account to the complainant in this cause for each and all of the aforesaid in kind * * * or if he has disposed of the same then he must show what disposition he made thereof and what he received therefor * * * including said franchises and the proceeds thereof.” * * *
    The court then decreed that:
    “Stillman B. Jamieson, Master in Chancery * * * who now has the cause under consideration to take and state an account between the parties hereto, be instructed that on the taking and stating of said account he shall require said defendant to state his account showing what disposition he made of the franchises in "Whiting, East Chicago and Indiana Harbor, together* with the proceeds thereof and of the six hundred shares of stock of the Hammond Illuminating Company, together with all accretions,” etc. * * * “And said Master shall state said acount on the basis of one-half of all the assets and profits therefrom acquired by the defendant and being held by him as Trustee belonging to the complainant, and that any and all loss, if any, sustained by the defendant subsequent to February 1st, 1903, in relation to said property or transactions shall be paid by and charged to him individually. * * * Finally, the Master is instructed and directed to make Ms report touching the matters heretofore referred to Mm as explained and made more specific by these instructions and present the same, together with the evidence produced before him and his conclusions of law and fact thereon, to this Court with all convenient speed.”
    The defendant Geist immediately prayed an appeal from the decree, which the chancellor on June 7, 1913, denied.
    Thereupon the defendant Geist on August 26, 1913, sued out a writ of error from this court to the Circuit Court, and filed a transcript of the record in the cause to the date of the decree.
    An application for a supersedeas was made to a judge of the Appellate Court in vacation and allowed on bond. Later the defendant in error appeared and on December 6, 1913, filed a motion to dismiss the writ of error at plaintiff in error’s costs, because:
    “The decree or order in question is not a final decree, and
    “The statutes of this State provide for writs of error on final decrees or orders only, and not upon preliminary or interlocutory decrees or orders such as the present one, and
    “The hearing of the case was not completed in the trial Court, and this is an effort to have the Appellate Court hear by piecemeal the litigation between the parties hereto.”
    Abstract of the Decision.
    1. Appeal and error, § 272

      —when decree not final. A decree adjudicating an important point in litigation, held to be an interlocutory decree and not such a final decree as to give the Appellate Court jurisdiction to review the same.
    2. Appeal and error, § 1138

      —effect of dismissal of writ of error. Dismissal of a writ of error quashes an order that the writ shall operate as a supersedeas.

    This motion was pressed and opposed by counsel for the respective parties with written suggestions, in which the question was elaborately argued, but in an oral argument on the merits thereafter, the defendant in error expressed a desire for an adjudication on the merits of the cause as far as it had gone.
    Stephen A. Day, for plaintiff in error.
    Angus Roy Shannon and Chauncey M. Millar, for defendant in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Ellestein Blayney by Joseph H. Blayney, Defendant in Error, v. J. Arthur Cotton, Plaintiff in Error.
    Gen. No. 19,774.
    1. Damages, § 233

      —sufficiency of verdict on assessment of damages after default. Where a recorded verdict of a jury on assessment of damages after entry of default stated that “we the jury find the defendant guilty and assess the plaintiff’s damages at” a certain sum, held that the words “find the defendant guilty and” were obviously inserted by mistake and were surplusage.

      2. Pleading, § 285

      —when additional count to declaration may he filed. Allowing plaintiff to file an additional count to his declaration after entry of default and assessment of damages and before final judgment, held not error where the court required notice to the defendant and gave him time to plead.
    3. Pleading, § 383

      —when additional count states no new cause of action preventing it to he added after verdict. Where the original declaration averred that the defendant “carelessly, negligently and improperly” operated his automobile, an additional count averring that defendant “wilfully, wantonly and maliciously and with gross disregard of the life and limb of the plaintiff” operated his car, held not to state a new cause of action so that it could not he-'added after verdict.
    4. Judgment, § 132

      —when denial of motion to vacate default and for other relief not an abuse of discretion. Overruling of a motion made by defendant to vacate a default judgment, to vacate the verdict, to vacate the default, to quash execution and strike an additional count from the files, to grant a new trial and leave to plead, held not an abuse of discretion, where affidavits in support of°the motion stated that defendant had been informed by his attorney that the case had been abandoned and another affidavit tended to show a defense.
    • Error to the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Charles Daniels, for plaintiff in error.
    Blaisdell & Ranes, for defendant in error; Harry F. Brewer, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This writ of error is brought to reverse a judgment of the Circuit Court of Cook county for three thousand dollars, entered by that court on January 25, 1913, under the following circumstances:

The defendant in error, Ellestein Blayney, September 13, 1912, sued the plaintiff in error, J. Arthur Cotton, in an action of trespass on the case for personal injuries alleged to have been incurred through the negligence of Cotton in running her down with an automobile as she was alighting from a street car. The summons taken out from the Circuit Court September 13, 1912, was returnable to the term of the Circuit Court to be holden on the third Monday of November, 1912, as it might legally be. It was personally served on Cotton September 18, 1912, and was filed in court September 24, 1912.

According to affidavits in the case it would appear that Cotton retained one W. L. Martin, a lawyer, to appear for him and that Martin between October 14th and November 19th several times “searched the register in the office of the Clerk of the Circuit Court, ’ ’ as he says, and found that no declaration had been filed, and believing that said suit was returnable to the October term, 1912, instead of the November term, on November 18, 1912, informed Cotton that “the case had been abandoned.” The declaration was .not filed until December 5, 1912, which was, however, ten days before the beginning of the term next succeeding the one to which the writ had been made returnable. On January 3, 1913, no appearance or plea being on file for defendant, the plaintiff’s attorney applied to the court for a default. This order was thereupon entered:

“This day comes the plaintiff by his attorney and it appearing to the court that the defendant, J. Arthur Cotton, has failed to plead herein pursuant to the statute in such case made and provided, on motion of plaintiff’s attorney it is ordered that the default of said defendant be and the same is hereby taken and entered herein of record. Wherefore the plaintiff ought to have and recover of and from the defendant his damages sustained herein by reason of the premises.”

On the 17th of January, 1913, the record shows this entry:

“This day again comes the plaintiff by his attorney and thereupon reference is had to a jury to assess the plaintiff’s damages herein, and it is ordered a jury come, whereupon come the jurors of a jury of good and lawful men, to-wit” (naming them) “who being duly selected, tried and sworn well and truly to assess the plaintiff’s damages herein and a true assessment render according to the evidence adduced, say—we the jury find the defendant guilty and assess the plaintiff’s damages at the sum of Three Thousand Dollars.”

We have quoted this recorded verdict in full and italicized the words “find the defendant guilty and” to call attention to the obvious fact that they were mistakenly inserted in the verdict and were surplusage, neither adding .to nor detracting from the action of the jury in the assessment of damages, which was all that was submitted to them. The “guilt” or “innocence,” the “conviction” or the reverse, of the defendant, in other words, the issue of his negligence, was not submitted to them nor were they sworn to try it. The default had settled that issue. The default was regularly taken, and no such showing of any excuse or any diligence was made on the hearing of the motion to open it afterwards entered as would justify us in saying that the refusal of the motion was an abuse of discretion. The attorney’s negligence or mistake must be imputed to his client.

January 21, 1913, however, the attorneys for the plaintiff caused to be served on the defendant Cotton a notice that they would on January 23, 1913 (before the judge who entered the default and before whom the, assessment of damages was made, and naming hour and place), move for leave to file an additional count to the declaration (with a copy of which additional count defendant was served with the notice), and also move for judgment upon the verdict theretofore rendered. The defendant by affidavit admits the service of the notice, but says that he relied on the former statements of his attorney and believed that said cause had been abandoned. He did not appear nor did any one for him on January 23rd. The court on that day granted the leave asked for to file an additional count instanter, and further ordered that the defendant be required to plead to the additional count instanter. The court did not enter judgment upon the verdict at that time.

The additional count differed from the first count of the declaration already on file in this only: "Whereas that alleged that the defendant “so carelessly, negligently and improperly” operated his automobile as to produce the accident, the additional count averred that “wilfully, wantonly and maliciously and with gross disregard of the life and limb of the plaintiff” he operated his car.

There certainly was no sufficient excuse offered either by the defendant or his counsel, for ignoring or neglecting the notice served on the defendant on January 21, 1913. He was then apprised not only that the case was not abandoned, but that there was a verdict of some kind in it and that a judgment was imminent. Had he- then appeared, asked for the default to be opened and for leave to plead, he might have been more successful than he was later.

There was no error in the court’s allowing the additional count to be filed after the default and assessment of damages and before final judgment. The judge was considerate of the rights of the defendant in requiring notice of the motion and giving time to plead.

It has been expressly decided that a count not stating a new cause of action may be added after verdict and before judgment.

Independent Order of Mutual Aid v. Paine, 122 Ill. 625-629; Wabash R. Co. v. Campbell, 219 Ill. 312-321.

And it has been also expressly decided that an additional count, which for the first time charges the defendant in a personal injury suit with “a wanton and reckless disregard of its duty” and with “negligent, unlawful and wanton misconduct,” instead of mere negligence, does not state a new cause of action.

Blanchard v. Lake Shore & M. S. Ry. Co., 126 Ill. 416, pp. 420 and 426.

January 25, 1913, the following order was entered:

“This day again comes the plaintiff to this suit by his attorney and it appearing to the Court that the defendant has failed to plead herein as heretofore required by a rule"of this Court, on motion of plaintiff’s attorney it is ordered that the default of said defendant be taken and the same is hereby entered herein of record for want of compliance with said rule. Whereupon the plaintiff ought to have and recover of and from the defendant his damages sustained herein by reason of the premises.
“Thereupon it is considered by the Court that the plaintiff do have and recover of and from the defendant his said damages of three thousand dollars in form as aforesaid by the jury assessed, together with his costs and charges in this behalf expended and have execution therefor.”

Thus after a second default judgment was entered ■on the first default and the following assessment of damages. We see no error in it, but we call attention again to the fact that no jury has passed on the issues of negligence or of “wanton, wilful and malicious conduct.” It was a default in each case which admitted the allegations of the counts of the declaration and a judge who entered the default and thus adjudicated and recorded the admissions.

February 14, 1913, the defendant for the first time appeared. He appeared by the- attorney who it is now suggested in argument “had abandoned the case.” February 15, 1913, by the said attorney, he moved “to vacate the judgment, to vacate the verdict, to vacate default, to quash execution and strike additional count from the files, to grant a new trial and leave to plead.” Afterwards' on April 29, 1913, this motion on hearing was overruled by the court. To support it the affidavits hereinbefore mentioned and one of said defendant tending to show a defense to the charge ’either of negligence or of wanton misconduct, and to minimize the injury done to the plaintiff, were read.

We see no error in the overruling of the motion.- It was within the discretion of the court, and we do not think that discretion was abused or under the circumstances even hastily used.

Counsel for defendant place great emphasis on the liability of the defendant, which he claims exists, to imprisonment under a capias ad satisfaciendum because of the allowance of the filing of the additional count of the declaration—a liability which did not exist before that was filed. It.would seem that a good time for one to cross that bridge would be when he arrives at it. We have no interest in or disposition to decide a question not before us, but perhaps a study of the Act of the General Assembly of Illinois of June 17,1793, entitled “An Act to provide a trial by jury in all cases where a judgment may be satisfied by imprisonment” and of the cases which have construed it, may tend if not to dissipate the fears of counsel at least to temper them.

Affirmed.


text:
    W. S. Adams, Appellee, v. William D. Kerfoot and George Birkhoff, Jr., trading as W. D. Kerfoot and Company, Appellants.
    Gen. No. 19,783.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed with finding of facts.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by W. S. Adams against William D. Kerfoot and George Birkoff, Jr., trading as W. D. Kerfoot and Company, to recover brokerage commissions. The declaration contained merely the common counts, but a bill of particulars described the claim as follows:
    Abstract of the Decision.
    Brokers, § 27

      —when person not entitled to commissions from real estate agents of owner of property. A verdict in favor of plaintiff for brokerage commissions held not warranted by the evidence, it appearing that defendants were real estate agents and that they told plaintiff he could have as a commission a sum over and above a certain amount if plaintiff’s prospective buyer purchased the property, but defendants did not employ plaintiff to sell the property; and it appearing that plaintiff’s prospective buyer thereafter purchased the property for said certain amount from defendants in the name of a third party to conceal his identity from the defendants.
    ‘ Plaintiff’s claim is for money due him as a "real estate broker from the defendants under and by virtue of a contract whereby it was agreed between them that if the property at the southeast corner of Fulton and Ada streets in the City of Chicago, County of Cook and State of Illinois was sold or rented directly or indirectly to J. B. Heaney, William E. Heaney, the Heaney Galvanizing Company or any of them, or to any one whom they might suggest, that they would pay to the plaintiff the sum of $400 as commission for being the procuring cause of said sale, and plaintiff avers that said sale was made in accordance with said undertaking and agreement.”
    To reverse a judgment entered on a verdict in favor of plaintiff for $181.60, defendants appeal.
    Mason Bros., for appellants; Henry E. Mason, of counsel.
    Adams, Crews, Bobb & Wescott, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.