author: Mr. Presiding Justice Clark

text:
    John Griffiths et al., Trading as Griffiths & McDermott, Appellants, v. The Sanitary District of Chicago, Appellee.
    Gen. No. 17,125.
    1. Appeals and errors—when affirmance will be ordered where instructions are irreconcilable. Where a contractor appeals from a judgment in a suit against a sanitary district and the instructions are so irreconcilable one with another that the jury could have received from them no proper conception of the law, the judgment cannot be affirmed unless the court concludes that no result more favorable to the plaintiff could properly have been reached.
    2. Appeals and errors—when inaccurate instructions not injurious. Technically erroneous instructions advising a jury that a contractor is not entitled to recover on certain claims are not injurious when such claims cannot be allowed.
    3. Building and construction contracts—when recovery cannot be had where approximate work in contract is not required. Where a contractor enters into an excavating contract with a sanitary district by bidding, the parties are dealing at arms length, and, on the actual quantity of earth being found to be less than the estimate, the contractor cannot recover a larger amount per cubic yard for excavating than was mentioned in the contract, where from the contract itself and other sources he could have determined himself the approximate amount of the entire excavation.
    4. Building and construction contracts—rights of contractor when changes are made. WThere a contract is made for a gross sum for the construction of a piece of work and changes are after-wards made in the material used, as to size or quality, the contractor may refuse to make the changes unless by the contract he is in terms required to do so, and may acquiesce in the forfeiture of the contract and recover upon a quantum meruit for the material furnished and his labor.
    5. Building and construction contracts—when provision in contract is unilateral. A provision in a contract between a sanitary district and a contractor that nothing in the contract shall be construed to affect the right reserved by the district to reject the whole or any portion of the work should the certificate to be given on completion be found to be inconsistent with the terms of the contract, or otherwise improperly given, is unilateral, and is not binding on the contractor.
    6. Building and construction contracts—when bill for extras is not binding on contractor. Where the purpose of a contract requiring a contractor to furnish a “hill for extras” is to advise defendant of the extra labor or material furnished, an instruction stating that no recovery could be had upon any claim for extra compensation not included within a claim for extras is erroneous in so far as it limits the amount of recovery to the amount claimed in an itemized “bill for extras.”
    7. Building and construction contracts — when instruction should apply to facts of the case. In an action to recover on a construction contract, an instruction merely reciting the provisions of the contract without applying them to the facts of the case should not ordinarily be given.
    8. Evidence—what proper in rebuttal. A trial court may in its discretion refuse to receive in rebuttal evidence properly receivable as part of a plaintiff’s case in chief.
    9. Evidence—when proper foundation is not laid for admission of record. Where a contractor is suing a sanitary district for additional compensation, a record of the time the contractor’s employees spent on the work, made by a sanitary district engineer from reports furnished him by his men, is not admissible in evidence when none of the men who furnished the information testified as to the correctness of their reports.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term. 1910.
    Reversed and remanded.
    Opinion filed October 22, 1912.
    Francis W. Walker and Albert G. Welch, for appellants.
    John C. Williams, for appellee; P. C. Haley, James S. Handy and Walter E. Beebe, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This controversy arises out of a contract entered into by the appellants with the appellee, hereinafter referred to respectively as the plaintiffs and defendant, for the excavation of the rock and earth in a portion of the main drainage canal of the Sanitary District of Chicago, described as section one, and for the construction of certain work incident thereto. The action was assumpsit, the declaration containing the common counts and an additional count which alleges:

“That the defendant being a body politic and corporate, organized under an act of the legislature, entitled ‘An Act to create Sanitary Districts and to remove obstructions from the Desplaines and Illinois Rivers/ approved and in force July 1, 1889, having duly advertised for bids as required by law for the work contemplated by the agreement in said count mentioned, and having made and entered into a certain written agreement with plaintiffs in and by which plaintiffs were employed to do all the work and to furnish all the materials, tools, explosives, labor and all appliances required by said agreement in the manner and under the directions therein stipulated that should be necessary for the complete excavation and entire removal of earth, rock, glacial drift and other material from section 1 of defendant’s Main Drainage Channel; to construct certain retaining walls at the sides of said channel, to be laid in cement mortar, to lay certain slope paving and to deliver certain material for the construction of a certain levee adjacent to said channel, agreed in and by said contract to pay the plaintiffs 80 cents per cubic yard for such rock excavation, 0.429 per cubic yard for such glacial drift excavation, $2.90 per cubic yard for such retaining wall, 20 cents per cubic yard for such levee material, and 60 cents per cubic yard for such slope paving, from time to time as said work progressed; that plaintiffs promptly entered upon the performance, of said work and completed the same on or about November 1, 1897, to the satisfaction of the defendant and its chief engineer; and defendant on or about November 24, 1897, by a resolution of its Board of Trustees accepted the said work upon the report and certificate of the chief engineer, that the same had been completed and performed to the satisfaction of said chief engineer.
“That, in order to induce plaintiffs to enter into said agreement and to perform the work required therein, defendant, well knowing that plaintiffs would not be required to excavate to exceed 1,160,801 cubic yards of earth from said channel, nevertheless represented to plaintiffs in and by its advertisement for bids and by the terms of said agreement that plaintiffs would be required in the performance of said agreement to excavate approximately 1,662,476 cubic yards of such earth or glacial drift from said channel; that plaintiffs believing that defendant had ascertained the approximate quantity of earth to be so excavated refrained from making any independent investigation in regard thereto, and being ignorant of the actual or approximate quantity of glacial drift to be so excavated, but relying upon and believing in the truth of said representation of the defendant, in consideration thereof, entered into said agreement with defendant and agreed to perform the several classes of work at the various prices set out in the first count; that plaintiffs thereupon purchased a large plant, tools, and machinery for the excavation of the aforesaid 1,662,476 cubic yards of earth or glacial drift at a cost to them of $65,000, which was the fair and reasonable value of said plant, tools and machinery; that said work was performed to the satisfaction of the defendant and accepted by resolution of its Board of Trustees November 24, 1897; that plaintiff excavated all of the solid rock and glacial drift in said channel required to be excavated, to wit.: 1,160,801 cubic yards of earth or glacial drift, and 554,326 cubic yards of solid rock and constructed certain masonry slope paving, etc., as required by said contract; that defendant, though often requested, has refused and still refuses to pay plaintiffs for the excavation of the additional 501,601 cubic yards required to be excavated under said agreement, by means whereof the cost of the plaintiffs of the work required of and performed by plaintiffs under the terms of said agreement was increased by the addition thereto of the proportion of the cost of said plant, tools and machinery apportionable to 501,601 cubic yards of unexcavated earth, in the sum of $17,750.”

Other counts were added but abandoned. Fotir pleas were filed by the defendant, the first of which alleges payment; the second pleads the five year statute of limitations to all the alleged causes of action in the declaration; the third the ten year statute of limitations, and the fourth satisfaction and discharge.

The damages to the plaintiffs, as alleged in the declaration, were $150,000, the actual amount claimed being about $65,000. There was a trial before the court and a jury and a verdict rendered for the plaintiffs in the sum of $6,000. Motion for a new trial made by the plaintiffs was overruled and judgment entered upon the verdict, from which judgment this appeal has been prosecuted by the plaintiffs.

Errors are alleged in the admission and rejection of testimony; in the giving of certain instructions; in refusing to give instructions tendered by plaintiffs and in the modification of certain instructions tendered by the plaintiffs.

Work under the contract was completed about November 16, 1897. Suit was brought February 16, 1898, and a declaration consisting of the common counts filed on the same day. The one additional count relied upon, heretofore set forth, was filed November 15, 1907.

On November 29, 1897, a release was executed by the plaintiffs as follows:

“Know all men by these presents, that we, John Griffiths and Michael McDermott, co-partners doing business under the firm .name and style of Griffiths & McDermott in consideration of One Dollar ($1) to us in hand paid, the receipt whereof is hereby acknowledged, and of the full satisfaction to us by payment of the sum of one hundred five thousand six hundred forty-one and 28/100 dollars ($105,641.28) by the Sanitary District of Chicago, in full of all liabilities arising in any manner out of the certain contract between the Sanitary District of Chicago and said Griffiths & McDermott for the complete excavation and removal of all earth, rock, glacial drift, and other material from that portion of the main drainage channel of said District, known as ‘Section 1/ which contract bears date of May 23, 1894, and which was awarded said Griffiths & McDermott in accordance with the report of the Joint Committee on Engineering and Finance of said Board of Trustees, at a regular meeting of said Board, held on May 23,1894 (page 1962 of proceedings of said Board), have waived and released and do hereby waive and release, to said Sanitary District” of Chicago, its successors and assigns, and forever discharge it, of all liabilities of reserve percentage, claims or demands of whatsoever kind or nature, arising upon said contract or in any manner connected therewith, or relating thereto, excepting, however, a claim in the sum of forty-six thousand three hundred dollars ($46,300), which was retained out of the final certificate of the Chief Engineer of said District upon the order of its Board of Trustees at a regular meeting held the 24th day of November, 1897, in accordance with the report of its Committee on Engineering with reference thereto, and which sum represents the aggregate of all claims now in litigation arising out of the work on said section, and to which the Sanitary District of Chicago has in any way become interested, or been made a party defendant. Also excepting from said waiver and release of claims now held by Griffiths & McDermott against said District a certain bill for extras which was heretofore filed with the Chief Engineer of said District, setting "forth in detail the claim for extras and additional compensation which the said Griffiths & McDermott allege to be due them by reason of the execution of the work upon said section 1. Said claims for extras being numbered 1 to 11 both inclusive; hereby also releasing and forever discharging said district of any and all claims of whatsoever kind or nature, excepting only such as are hereby specifically designated.”

The sum of $46,300 mentioned in the release was afterward paid.

The bill for extras referred to in the foregoing, as filed with the chief engineer, apears to have been filed November 17, 1897, and reads as follows:

“The Sanitary District of Chicago,
To Griffiths & McDermott, Dr.
For extra labor and materials and for losses and damages sustained on section 1, Drainage Canal, as follows:
1. Cost of dam, west end of section ... .$ 379.80
2. Veneering face of walls, from base to top of rock, of backing left in as ordered ............................. 9,300.00
3. Scabbling where walls were set off and back of walls not excavated........ 6,000.00
4. To leveling up for set-offs on face of walls ................... 11,174.00
5. Loss of train of cars on overhaul____ 1,575.00
6. To 10 per cent, on 414,300 yards of excavation that the specifications called for, but upon completion we were informed this material was not there.. 17,773.47
7. To 18,222 yards delivered on overhaul, being % yard on 36,444 cars, we being allowed but 4% yards, while Heldmaier & Neu were allowed 5 yards on same sized cars, at 20 cents a yard............................ . 3,644.40
8. To loss on tax warrants received during 1896 .......................... 3,166.24
9. To loss by reason of having to shut down August 15, 1896 .............. 15,000.00
10. To loss by being compelled to change methods of work and extra cost and delay in completing same .......... 49,879.00
11. To 8,000 yards excavation delivered on overhaul, not allowed, 20 cents........ 1,600.00
Total ...........;..........$117,491.71”

It is charged by counsel for plaintiffs and admitted by counsel for defendant that the instructions given by the court to the jury are so irreconcilable one with another that the jurymen could have received from them no proper conception of the law which should govern them in arriving at their verdict. Instructions proffered by the plaintiffs were given which were in direct opposition to those given as tendered by the defendant, some of the latter having been modified by the court. It follows, therefore, that the judgment cannot be affirmed unless this court, upon a review of the evidence, is persuaded that no result more favorable to the plaintiffs could properly have been reached; in other words, that the errors in instructions as given were harmless. After a careful consideration of the huge record in the case, we are unable to reach this conclusion, and the judgment must be reversed and the cause remanded.

As there must be a new trial, we deem it our duty to pass upon the questions presented in this appeal, which necessarily must be considered by the court upon such retrial. The claim to which the principal argument, oral as well as printed, has been directed, relates to the matter of the glacial drift excavation, and apparently was attempted to be set forth by the plaintiffs in their claim for extra labor, material, etc., as item No. 6. It will be noted that the claim is for “10 per cent, on 414,300 yards of excavation that the specifications called for, but upon completion we were informed that this material was not there—$17,773.47.” Counsel for plaintiffs admit that this claim was not presented in proper form by their clients, but insisted at the trial and in this court that it should be regarded as a basis for the claim now made, to wit, that because of a mistake in the advertisement the plaintiffs were entitled to recover a larger amount per cubic yard for the glacial drift excavated, this amount being fixed in the aggregate at more than $16,000. They also insist that because of an alleged error in the profile they were deceived into the belief that there was sufficient stone between stations 739 and 754 with which to build retaining walls between these stations; that they were obliged to haul the stone for the walls between these stations an average of 1,200 feet from stations 755 to 760, and that because of such deception they are entitled to receive for this extra haul of stone a sum exceeding $6,000.

It appears from the record that there was attached to the contract as an exhibit a schedule of the “Approximate quantities on section 1, upon which bids are asked.” This apparently was copied from the advertisement, and reads as follows:

“Approximate quantities on Section No. 1
Upon Which Bids are Asked.
Cubic Yards.
Glacial Drift............................ 1,662,476
Solid Bock............................. 459,724
Retaining wall, dry...................... 60,188
Retaining wall, laid in cement ........... 60,188
Slope paving............................ 1,154
Overhaul price on a minimum quantity of 150,000 cubic yards placed in or on levee east of the Willow Springs road.”

It also appears from the record that an assistant engineer of the defendant, in making this schedule, by mistake added the number of yards of solid rock to the glacial drift, thus making the total amount of the excavation about 400,000 cubic yards more than the total amount was found actually to be when the contract was completed. It ought also to be said that this matter was discovered and reported by the engineer soon after the work commenced, and attention was called to it in reports made to the Board. It is claimed by the defendant, but not admitted by the plaintiffs, that these facts came to the knowledge of plaintiffs at an early stage of the work. It appears that the amount of solid rock actually excavated was nearly 100,000 cubic yards greater than that named in the schedule as the approximate quantity. The plaintiffs therefore were paid, at the contract price, for excavating nearly 100,000 cubic yards more of rock than was set forth in the schedule as the approximate quantity. They were paid for excavating 1,160,801 cubic yards of glacial drift, approximately 500,000 cubic yards less than the estimate. No claim is made by plaintiffs that they should be paid a larger sum than the contract price per cubic yard for excavating the rock, because the amount of the estimate was less than the amount found to be in the portion of the canal covered by their contract. On the other hand, they claim they were entitled to receive, as they did receive, the full contract price per cubic yard for this portion of the work. As to the glacial drift, the claim is that they should be paid a larger amount per cubic yard than was mentioned in the contract, because the actual quantity proved to be less than the estimate. It is insisted by the defendant that neither the profile nor the schedule should be treated as part of the contract; but in the view we take of the case it is unnecessary to discuss that feature.

Section D-13 of the contract is as follows:

“13. Quantity of Material.—A profile of the average surface of the ground approximately on the line of the main channel and also of the supposed surface of the bed rock is shown on plan ‘B.’ These profiles, though approximately correct, do not purport to be absolutely so, and are only presented as approximations, as is also the schedule of quantities attached as an appendix hereto. The contractor is to take all risk as to variations of the total quantity of material excavated, as well as the relative amount of glacial drift and solid rock.”

It would appear from the record in the case that the approximate amount of the excavation was as easily ascertainable by the engineers for the contractors as it was by the engineers for the Drainage District. In our opinion, a simple computation based upon the figures to which the contractors had access in making their bids, would have demonstrated that the schedule showed in the aggregate as the approximate quantity of the total material several hundred thousand cubic yards more than could possibly be upon the section. In any event, they could easily have informed themselves as to the approximate amount of the entire excavation. The profile prepared by the engineers of the District, and which was attached to the contract as an exhibit, merely indicated the apparent location of the rock, and was arrived at by making soundings.

Where a contract is made for a gross sum for the construction of a piece of work, and changes are after-wards made in the material used, as to size or quality, there is no question but that the contractor may refuse to make the changes, unless by the contract he is in terms required to do so, may acquiesce in the forfeiture of the contract and recover upon a quantum meruit for the material furnished and his labor. Sexton v. City of Chicago, 107 Ill. 323. The case cited is largely relied upon by the plaintiffs, as are two eases decided by this court. Sanitary Dist. of Chicago v. Lee, 79 Ill. App. 159 and Mohr v. City of Chicago, 114 Ill. App. 283. In these two cases injunctions were issued at the instance of unsuccessful bidders fór public contracts, for the reason that in one of them the plan of the structure had been changed after the advertisement was made and bids received; and the other for the reason that the design of the structure was not determined upon before the advertising for bids. In our opinion these cases establish no precedent for our consideration upon the point in question.

By section 13 of the contract, heretofore set forth, the plaintiffs took all the risk as to variations from the estimates of the total quantity of material excavated, as well as the relative amounts of glacial drift and solid rock. If the advertisement be treated as a part of the negotiations leading up to and forming the basis of the contract, it must be presumed that the entire negotiations of the parties were included in the written contract as executed. If the total amount of excavation or the relative amounts of glacial drift and rock were regarded as important, the plaintiffs should have insisted that there be inserted in the contract a provision whereby if the amount of glacial drift (and rock) should prove to be materially less than the estimate, the amount to be paid them per cubic yard be increased. Nounnan v. Sutter County Land Co., 81 Cal. 1.

The parties were dealing at arms length and presumably had equal facilities to obtain knowledge of the conditions to be dealt with. Sanitary Dist. of Chicago v. Ricker, 91 Fed. 833, 34 C. C. A. 91.

The court charged the jury by instructions given at the request of the defendant that no recovery could be had by reason of the failure to find the amount of the glacial drift as estimated in the original advertisement. He further instructed the jury that by the release heretofore referred to the plaintiffs had waived all claim to the 1.4 cents per cubic yard for the amount of glacial drift by them excavated and that no recovery in this action can be had for or on account of said claim. The court also instructed the jury that the profile did not purport to be a definite and accurate representation of the location of the rock, and was presented and attached to the contract only as an approximation ; that the presenting of the profile to plaintiffs by the defendant was not a guaranty that the rock would be found in the precise location indicated by the said profile; that therefore the expense that may have been occasioned to plaintiffs by reason of having been obliged to haul the rock for the purpose of constructing the walls between stations 739 and 754 was not recoverable.

The effect of these instructions, was to advise the jury that there could be no recovery by the plaintiffs upon the two items of their claim which we have been considering. As in our opinion no recovery could be had upon them, the instructions, even if technically erroneous, which we do not decide, had no injurious effect upon the rights of the plaintiffs.

The next matter for consideration is the claim of plaintiffs for damages alleged to have been occasioned on account of directions given by the chief engineer of defendant as to the method of excavation at the sides of the prism of the channel. This item- would seem to be identical with No. 3 of the bill of extras, supra. The amount of the claim is the exact amount of the verdict rendered by the jury, and it might be conjectured was the basis of the recovery. The testimony in respect to this item of claim was contradictory, and it is insisted by the defendant that it conclusively shows that no damages were suffered by the plaintiffs. The defendant, however, is not complaining of the judgment. The plaintiffs, on the other hand, insist that the recovery, under the evidence, should have been for about $11,000 upon this item, and claim that they were injured in respect to the matter by instructions given by the court, which also referred to the fourth item of their claim. This fourth item appears to be based upon item No. 4 of the bill for extras.

By instruction No. 7, .given at the request of defendant, the jury were informed that under the terms of the contract “if the chief engineer and his assistants have determined and ascertained the measurements and calculations of the quantities and amounts of the several kinds of work done and performed under said contract, that such measurements and determinations are final and conclusive in this action, and no recovery can be had in this action for any overhaul or additional work claimed by the said plaintiffs which have been determined and settled by the said chief engineer and his assistants.”

Clause O of the contract provides “that nothing herein contained shall be construed to affect the right hereby reserved of the said party of the first part to reject the whole or any portion of the aforesaid work should the said certificate he found to be inconsistent with the terms of this agreement, or otherwise improperly given.” It has been held in similar cases that this provision of the contract is unilateral; that inasmuch as the decision of the chief engineer was not to bind the Sanitary District it could not bind the contractor. Harlev v. Sanitary Dist. of Chicago, 107 Ill. App. 546; Smith v. Sanitary Dist. of Chicago, 108 Ill. App. 69; Sanitary Dist. of Chicago v. McMahon & Montgomery Co., 110 Ill. App. 510. It is sufficient to say that we agree with this construction of the contract and therefore hold that the instruction referred to was improperly given.

We think that instruction No. 4%, by which the jury were advised that no recovery could be had upon any claim for extras or additional compensation not included within the claim for extras, was erroneous in so far as it advised the jury that the amount of recovery was limited to the amount claimed for the items respectively in the “bill for extras.” The purpose of the “bill for extras” as we construe section 18 of the contract, was to advise the defendant of the extra labor or material furnished by the contractors, and it did not bind the contractors to the amount claimed.

Instruction No. 8, given at defendant’s request, merely recited one of the provisions of the contract, without applying it to the facts of the case. We think the instruction served no useful purpose, and should not have been given.

By instruction No. 21, tendered by the defendant, the jury were advised in effect that if the requirement of the chief engineer that the retaining walls be constructed in cement mortar did not materially change the character of the work provided for in the contract, the plaintiffs were bound by the provision of the original contract as to price, and were not entitled to recover anything on account of the claim made by them for additional compensation for the construction of such wall. The plaintiffs offered to prove by three witnesses that the wall was not a random rubble wall, as is described in paragraph 7 of the contract. The testimony, however, was offered in rebuttal, and objection was made to it on the ground that it was not rebuttal. We are not prepared to say that the court abused its discretion in refusing to receive the testimony when offered. If it had been offered as part of the plaintiffs ’ case in chief we think it would have been competent.

The defendant, in order to show the length of time claimed to have been spent by sundry employees of the plaintiffs in doing the work upon the wall heretofore referred to, offered in evidence, and there was received, a large number of papers designated as “force reports.” These appear to have been certified to by an assistant engineer of the defendant as being correct. The testimony showed that they were made by several men, called “force account men,” who went over the section each day and counted the number of employees at work at the time. There was also evidence tending to show that the men were expected, on their return trip over the section, to check their work by again counting the men. The names of the men were not taken, but a memorandum was made in a book for the information of the assistant engineer. It was also shown that there were wall inspectors on the work, who filled out and turned in to the engineer’s office every day a card containing the number of men employed on the wall that day; that the assistant engineer went out on the work himself once a week for the purpose of checking up; that he entered the reports of the “force account men” and wall inspectors in a time book in the engineer’s office, which he checked back with the reports; that he made up a statement from these time books at the end of the month upon blanks furnished by the defendant for that purpose, giving the number of days for each occupation worked, with the rate of wages; that this was made out in lead pencil and checked back with the time book from which it was taken, and then after errors, if any, had been corrected, was copied in ink and turned in to the superior of the assistant engineer. It was further shown that defendant did not pay anything out upon the basis of these accounts, and that no separate account was kept distinguishing one part of the wall from another.

Objection was made to the reports on the ground that they were secondary evidence, and for other reasons. It was testified to, and apparently not contradicted, that the reports do not purport to show the cost of the base of the wall or the offsets, as distinguished from the rest of the wall. As the testimony given by several of the witnesses for the defendant in respect to the cost of constructing the wall seems to have been based to'some extent, if not entirely, upon the “force reports,” the question as to their admission in evidence is of importance.

It is argued by the defendant that the reports constitute a public record. It would appear from the evidence that they were made largely to enable the engineering force of the defendant to ascertain how the actual cost of the work compared with estimates of same theretofore made—whether more or less—and also to guide the engineers in their future work. They do not appear to have been used as a basis of settlements at any time. We are not referred to any statute which requires the keeping of them, thus constituting them a public record. It has been held that documents are not to be regarded as public records unless they are made under the sanction of law and official duty. Tucker v. People, 117 Ill. 88. In the case of Chisholm v. Beaman Machine Co., 160 Ill. 101, the following language is used:

“Where there is original evidence that laborers were employed, and that their time was correctly reported by persons having personal knowledge of the facts, and that these reports were made in the ordinary course of business, and in accordance with the duty of the persons making-them, and in point of time were contemporaneous with the transactions to which the reports related; and where this original evidence is combined with proof by the person receiving the reports, that he correctly entered them as reported in the time-book in the usual course of his business and duty, the entries so made are admissible as evidence to show the amount of work done.”

This language is cited by the defendant as bearing out its contention. We note in the same case, however, the following language:

“Where the clerk, who makes the entries, has no knowledge of their correctness, but makes them as the items are furnished by another, it is essential that the party furnishing the items should testify to their correctness, or that satisfactory proof thereof—such as the transactions are reasonably susceptible of—from other sources should be produced.”

The defendant’s counsel also cited from 5 Ency. of Evidence, 259, the following:

“Where an entry is made by one in the performance of his duty, of facts reported to him by another in the discharge of a duty devolving upon such other by virtue of Ms employment, it is nevertheless admissible.”

Counsel omitted, however, the following, which appears in the same section:

“But preliminary to the admissibility of such evidence it should be shown by the one making the report, if he be living, that such report was true.”

In the case before us the men who furmshed the items and who went into the field to get the information as to the number of men, namely, Beck, Messenger, Cooney and Dempsey, and perhaps others, were not called to testify as to the correctness of their work. The reports made by these men were said to have been copied two or three times, and finally to have resulted in the papers adduced at the trial. In our opinion the facts do not warrant the conclusion that the reports constituted a public record, and the proper basis for their introduction was not laid.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    William Whitney, Defendant in Error, v. The Fred D. Jone Company, Plaintiff in Error.
    Gen. No. 17,208.
    1. Pleading—when affidavit of merits of defense improperly stricken. Where the practice in. the Municipal Court of Chicago requires a defendant to set up his defense by an affidavit of merits and a rule of court provides that if a defense is “clearly unfounded in law” the affidavit may be stricken out, in an action for salary and commissions, an affidavit that the employee was discharged for cause on working for a competitor in violation of his contract and asking for a recoupment, alleging that the affiant does not know the “exact length of time during which the plaintiff sold goods for a competing firm,” nor the amount of goods so sold, should not be stricken.
    2. Municipal courts—right to assessment of damages by jury. If a defendant in the Municipal Court of Chicago pays the jury fee, he is entitled to have the damages assessed by a jury, even if the affidavit of merits is stricken, provided he demand that there be such an assessment by a jury.
    3. Master and servant—when employee working for competitor may be discharged. Where an employee contracts to devote his entire time to his employer and secretly sells goods of a competing firm, he may be discharged and is not entitled to either his salary or commission.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed October 22, 1912.
    Julius N. Heldman and Simon LaGrou, for plaintiff in error.
    McEwen, Weissenbach, Shrimski & Meloan, for defendant in error; Jerome J. Cermak, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In this case there was a recovery by the defendant in error of $643.84, being for two months’ salary at $75 per month and commissions claimed to be due for sales made.

An affidavit of defense was filed by the defendant which set up in the form required by the rule that affiant, being an officer of the defendant, had, as the affiant believed, a good defense to all of the plaintiff’s demand. It further set up that there was a contract between plaintiff and defendant, by which plaintiff was to receive a salary of $75 per month and 6%% on all goods sold after collection for the same had been made; that plaintiff agreed to devote his entire time and attention to the business of defendant and to faithfully serve it; that plaintiff was discharged in September, 1910, for cause. The affidavit further alleged that for a long time prior to that date the -plaintiff, while in the employ of defendant, was secretly carrying merchandise of another firm by the name of Strelitz Brothers, who were competitors of the defendant; that he had made arrangements prior to his discharge by the defendant to enter the employ of Strelitz Brothers, and that his only purpose in continuing with the defendant was to obtain information as to the defendant’s business. The affidavit further recited that the plaintiff was not faithfully serving the defendant nor devoting his entire time to the business of defendant, by reason whereof he was discharged for cause. The affidavit then proceeds with a claim in the nature of a demand in recoupment, and concludes by alleging that the defendant has suffered damages in excess of the amount claimed by plaintiff to be due him, and asks for judgment in its favor.

This affidavit was on motion of the plaintiff 1 ‘ stricken out,” and a judgment entered in favor of the plaintiff for the full amount claimed in his statement. We think this action was erroneous. Buie 22 of the Municipal Court provides that if it appears from the affidavit that the defense relied upon is “clearly unfounded in law” the affidavit may be “stricken out” and judgment entered as may be just. We think in this case, the defense relied upon was not “clearly unfounded in law.” The statement included, as heretofore stated, a claim for two months’ salary as well as for commissions claimed to have been earned. The affidavit of defense alleged that under the contract plaintiff was to devote all of his time to the business of defendant and, in effect, that he had not done so. It is perfectly clear, we think, that an employee in such a case as this is not entitled to payment, either of salary or commission, if the evidence shows that he did not comply with the provisions of his contract with his employer, but on the contrary worked in the interest of someone else, a competitor of his employer, and devoted part of his time to the service of such other employer in violation of his contract.

The principal argument on behalf of the plaintiff, who is the defendant in error here, is as to that part of the affidavit which relates to the claim in recoupment made by the defendant, and emphasis is laid upon the fact that in the affidavit affiant states in effect that he does not know the “exact length of time during which the plaintiff sold goods for a competing firm,” nor the amount of goods so sold. It may be that the defendant did not know and could not know the amount of time that was spent by plaintiff in selling goods for a competing firm, nor the amount of goods so sold by him. Under common-law pleading the defendant would have been permitted to set up the matter in a plea and in it fix the damages claimed at any amount it chose. • Under the practice in the Municipal Court, however, the defense must be .shown by affidavit. Under these circumstances the most that could be expected of the defendant would be to put in the affidavit an estimate of the amount claimed by it. At the trial it might be able' to prove by the testimony of plaintiff or in other ways the amount of its damages.

The record discloses the fact that a jury was demanded by the defendant. Under these circumstances it would seem that he was entitled in any event to have an assessment of damages by a jury, provided the jury fee was paid. Williams v. Gottschalk, 231 Ill. 175; Chicago Sect. Elec. Underground Co. v. Congdon Brake Shoe Mfg. Co., 111 Ill. 309; Reed v. Horne, 73 Ill. 598. The point, however, is not raised by the assignments of error.

We think the court erred in entering the order “striking out” the affidavit of defense, and the judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    John E. Baumrucker, Defendant in Error, v. The Fred D. Jones Company, Plaintiff in Error.
    Gen. No. 17,311.
    Municipal court—affidavit of merits. Where an employee sues In the municipal court for money due under contract of hiring, an affidavit of merits which sets forth that defendant has a meritorious defense and that plaintiff was discharged because he violated the contract by doing business for a competitor, is improperly “stricken out.”
    Error to the Municipal Court of Chicago; the Hon. William N. Gemhill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed October 22, 1912.
    Julius N. Heldman and Simon LaGrou, for plaintiff in error.
    McEwen, Weissenbach, Shrimski & Meloan, for defendant in error; Jerome J. Cermak, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In this case a recovery was had for the sum of $510.09, being for salary and commissions claimed to be due the plaintiff from defendant upon a contract of hiring.

An affidavit of merits was filed,' made by one of the attorneys for the defendant, which stated that the deponent verily believed that the defendant had a meritorious defense to the cause of action. The affidavit then proceeds to set forth the fact that plaintiff was discharged from his employment because of alleged misconduct, particularly in that he violated his contract, which provided for exclusive employment by the defendant, by doing business for Strelitz Brothers, who were competitors of the defendant. Becoupment for an indefinite amount was claimed in the affidavit, and a judgment was asked in favor of defendant. This affidavit was “stricken out” and judgment was rendered by the court, as upon default.

For the reasons set forth in an opinion filed this day in a similar case against the same defendant (William Whitney v. The Fred D. Jones Co., general number 17,208), ante, p. 116, we think the affidavit of merits was improperly “stricken out.” The judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    The Shafton Company, Appellee, v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant.
    Gen. No. 17,498.
    1. Cabbiees—when not liable for conversion. Where plaintiff has accepted and paid the freight at destination on several cars of watermelons consigned by him, he cannot afterwards maintain an action of conversion against the initial carrier for misrouting them.
    2. Bills of lading—parol evidence cannot vary. Parol evidence cannot be introduced to prove that carrier agreed to ship by a certain route, even though the agent of carrier erased words designating route before the bill of lading was issued.
    3. Bill of lading—when silent as to route. Where a bill of lading is silent as to route, it is as though there were a provision therein giving the carrier a right to select any usual route, and such provision thus inserted by law is as unassailable by parol evidence as any of- the express terms of the contract.
    Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walkeb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed.
    Opinion filed October 22, 1912.
    Jeffery, Ott & Campbell, for appellant; John Nash, of counsel.
    Charles A. Butler, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

The plaintiff, through its agent, delivered to the defendant at Blodgett, Mo., during the month of August, 1907, nine carloads of watermelons for transportation to Chicago. The freight was transported promptly, arriving at Chicago three or four days from the date of shipment, having been delivered by the defendant to the Illinois Central Railroad, and by the latter brought to Chicago. It was stipulated to be a fact that the contents of these cars when delivered to the- defendant at Blodgett were in good, sound, merchantable condition, and that they were in like condition upon the tracks of the Illinois Central on the arrival of the cars in Chicago. The plaintiff paid the freight and accepted the cars.

It is claimed by the plaintiff that the defendant violated its several contracts by routing the cars to Chicago via the Illinois Central instead of via the C. & E. I. and Wabash. Bills of lading were offered in evidence which bore upon their face severallly “via C. & E. I. at East St. Louis,” and “via Wabash;” but in each instance the words quoted appear to have been erased. The testimony of the defendant’s agent was to the effect that the agent of plaintiff handed to the witness the bills of lading, which had been prepared by some one acting for plaintiff and that the witness then told him that he could not observe the routing, and thereupon drew a pencil through the words indicating such routing and placed his signature upon them. The testimony of the agent of the plaintiff, however, was as follows: “In the course of my conversation with Mr. Friend (agent of the defendant), he said I would have to make a kind of a scratch between the routing, that is his instructions from the head of him, whoever was ahead of him, but that would not make any difference, that would be shown on the regular waybill, C. & E. I., as I instructed; that is, the routing as I had it on there, would be shown on the waybills. During the course of the conversation he kind of made two lines between the routings; he made lines, whatever they are that appear on the routing. When he did that to them I said that I must have that routing as I instructed him, otherwise I cannot use it for the Chicago market, and he said it positively will be that way. By way of explanation he said the instructions of the man that is ahead of him, looks after this station at that time of the year, that is his instructions from everybody, he cannot make an exception for us or anybody else; got to follow his instructions. He said I would have C. & E. I. delivery or whatever routing it contains on each one, and that there would not be any objections at all, because there would be C. & E. I. delivery; that we should not be worried about it at all.” This testimony was to some extent corroborated by a witness for the plaintiff, who testified that he was present when the conversation occurred. The agent of the defendant denied that he made any such assertion. Recovery was had apparently for the difference between the market prices for watermelons delivered on the Wabash and C. & E. I. and those obtained by plaintiff upon rates by it from the Illinois Central track.

The claim of the plaintiff as stated in its brief is predicated upon the proposition that because of the miar outing there was a conversion of the goods by the defendant. Conversion has been defined to be “an unauthorized act, which deprives a man of his property permanently or for an indefinite time.” Union Stock Yard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill. 554. We have had no case cited to us, and we think none can be found, where a defendant has been held for the conversion of property when the admitted proof in the case was that possession of the property had been turned over to the plaintiff and accepted by him before the commencement of the suit. We have been referred to many cases of constructive conversion, such as where a consignor obtained recovery because of delivery to the consignee, after the consignor, who was the owner, had exercised his right to stop the goods in transit, but in none of these cases was it shown, as in the case before us, that the goods had been turned over to the consignor and owner and accepted by him.

It is insisted by the plaintiff that a bill of lading may be shown by parol not to express the contract between the shipper and the carrier. The case of Lake Shore & M. S. R. Co. v. National Live Stock Bank of Chicago, 178 Ill. 506, is cited as authority upon the proposition, and in the brief this portion of the opinion is italicized: “Like all recepits, such bills of lading, so far as they are receipts, may be explained, modified or contradicted by parol proof.” We do not find in these words any support for the contention made by the plaintiff. There is no question as to the receipt of the freight by the defendant. As to the rest of the bill of lading, under all of the authorities it constituted a contract. In Hutchinson on Carriers, section 167, it is said: “But bills of lading except as to the recital or acknowledgment of the receipt of the goods and of their quality and condition when received, are strictly written contracts between the parties and come within the general rule which prohibits the introduction of parol evidence to contradict or vary such contracts.” This doctrine finds support in a list of cases supplied by the author from nearly every jurisdiction in the country, and we have been cited to no case, either in this state or elsewhere, holding a contrary doctrine.

It is argued by the plaintiff that the bills of lading are ambiguous. We find no ambiguity in them. It is true the shipper, by its agent, expressed a desire to have the routing via C. & E. I. or Wabash, but was informed that the agent had no authority so to route, and when the contract was executed and delivered it contained no such routing. It seems to have been held uniformly that where a bill of lading is silent in respect to the line by which the goods are to be forwarded, its effect is the same as if a provision were therein inserted that the carrier should have the right to select at its discretion any customary or usual route which is regarded as safe and reasonable, and that this provision being thus inserted into the contract by law is as unassailable by parol as any of the express terms of the contract. Snow v. Indiana, B. & W. R. Co., 109 Ind. 422; White v. Ashton, 51 N. Y. 280; Simkins v. Steamboat Co., 11 Cush. (Mass.) 102; Hudson Canal Co. v. Coal Co., 8 Wall. (U. S.) 276.

The judgment of the Municipal Court will be reversed.

Reversed.


text:
    Barbara Schottler, Administratrix, Appellee, v. Edward J. McArdle et al., Appellants.
    Gen. No. 17,548.
    1. Attorney and client—no lien on fund acquired through suit. An attorney has no lien for legal services upon moneys coming into his possession through bringing suit for an administratrix, and the Attorney’s Lien Law of 1909 (R. S., c. 82, § 55), has no application.
    2. Attorney and client—right to contract with beneficiaries in action for wrongful death. Where an attorney receives money through an action for wrongful death brought in the name of an administratrix, he cannot retain the money for legal services by virtue of a contract made with some of the beneficiaries, and must account to the administratrix.

      3. Death—right of usees to control suit. All of the usees In a suit for damages on account of wrongful death cannot he bound by the action of one or more of them, less than the full number.
    4. Attorney and client—right to contract with employee appointed administrator. It is doubtful whether attorneys may cause an employee to he appointed administrator of an estate and then make a binding contract with such administrator fixing the amount of fees to be allowed them for their legal services.
    Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slttsseb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 22, 1912.
    McArdle & McArdle, for appellants.
    Harris F. Williams, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

The appellee was appointed by the Probate Court of Cook County as administratrix of the estate of Thomas Burke. Thereafter suit was brought in her name, as such administratrix, by the law firm of Sullivan & McArdle, against the City of Chicago for damages under the statute for causing the death of the intestate. After the suit was brought, but before hearing, the firm of Sullivan & McArdle dissolved and the case was taken over by the firm of McArdle & McArdle, appellants. Thereafter suit was brought in the name of appellee, as administratrix, against Swift & Company, also charged with responsibility for the death of the intestate. Such proceedings were had that a settlement was effected with the City and Swift & Company, a judgment being rendered by consent against the City for $750, which judgment was afterwards sold for $727.63. This amount, together with the sum of $750, obtained from Swift & Company in settlement, came into the hands of the appellants. The appellants made a check to the appellee for $710.73, keeping the balance of the fund, which, less expenses, amounted to $727.63, claiming the same as their fees for services. Thereafter suit was brought in case by the appellee, as administratrix, against the appellants for such balance. There was a trial before the court and a jury, the jury finding for the appellee and assessing her damages at $437.60. The court required a remittitur of $193.41 and entered judgment for $243.09, upon such remittitur being filed.

We are asked to reverse the judgment upon the ground that the verdict was against the weight of the evidence in that, first, there was not a demand made; second, there was a settlement by which appellee was bound. It is also insisted that there can be no recovery in the present proceedings in tort, because the appellee, by receiving and accepting a check on July 31, 1906, assented to the retention by the appellants of the balance of the money.

The case seems to have been tried upon the theory that the appellants had a lien for legal services upon the fund which came into their possession. We think this was erroneous. In the case of Dougherty v. Hughes, 165 Ill. 384, it was held that in the absence of an express agreement out of which an equitable assignment arises, an attorney acquires no lien upon a judgment rendered in a suit prosecuted by him, nor upon the money recovered by means of his legal services. To the same effect are Humphrey v. Browning, 46 Ill. 476; Forsythe v. Beveridge, 52 Ill. 268; La Framboise v. Grow, 56 Ill. 197; Nichols v. Pool, 89 Ill. 491 and Story v. Hull, 143 Ill. 506. It has been held that an administrator is personally liable for their fees to attorneys whom he employs. It also has been held that under some circumstances an attorney has a general or retaining lien which attaches to all papers or documents, etc., which the attorney receives professionally as distinguished from a charging lien. Sanders v. Seelye, 128 Ill. 631. We have been able to find no case, however, which is authority for the proposition that an attorney has a lien upon moneys which come into his possession but which can only properly be distributed upon an order of the Probate Court.

On July 1, 1909, a statute became in force in this state, entitled, “An Act Creating Attorneys’ Liens and for the Enforcement of Same,” Section 55, Chapter 82, B. S. This was three years after the rights of the parties to this suit were fixed, and even if it had been earlier adopted would have had no application.

The appointment of appellee as administratrix of the estate was procured through the instrumentality of Mr. Ardle, then of the firm of Sullivan & McArdle and one of the appellants.

The contention of the appellants is, that when it was determined to bring the second suit a new contract was made between the appellants and one or more of the beneficiaries, whereby appellants were to be paid fifty per cent, of the amount recovered, and it is insisted that this contract is binding upon the appellee.

We know of no principle of law under which all of the usees in a suit for damages on account of wrongful death can be bound by the action of one or more of them, less than the full number. This suit was under the control of the administratrix. McIntyre v. Sholty, 139 Ill. 171, and cases cited. The administratrix, as it appears from the record, entered into the usual bond in the Prohate Court for the faithful administration of the trust. As administratrix she must account to the Probate Court. Although the amount recovered is not part of the assets of the estate, and belongs, less expenses of administration, to the next of Mn of deceased, still the sureties upon the administrator’s bond are liable. Goltra v. People, 53 Ill. 224. She is entitled to credit for attorneys’ fees paid by her, only so far as the Probate Court finds that such fees are reasonable. In our opinion the appellants should have paid over to the appellee the full amount recovered from the City and Swift & Company. They should have made application to the Probate Court. for an order fixing the amount of attorneys’ fees, and then have been paid by the administratrix the amount so fixed by the Probate Court. It is extremely doubtful whether attorneys may cause an employee to be appointed administrator of an estate, and then make a binding contract with such administrator fixing the amount of fees to be allowed them for their legal services.. Under such circumstances the parties are not dealing at arms length. In this case appellants contend that no contract for fees was made with appellee. Appellee insists the contract was that they should be paid one-fourth of the amount collected if the cases were settled, and one-third if there were a trial.

For the reasons stated we think the trial court would have been justified, if so requested, in instructing the jury to find a verdict for the full amount claimed by the appellee in her declaration. Miller v. Pinkney, 164 Ill. App. 576. Such an instruction, however, was not tendered, and no cross-errors are assigned.

The judgment is affirmed.

Affirmed.


author: Mr. Justice Barnes

text:
    Eugenie Blake, Appellant, v. DeJonghe Hotel & Restaurant Company, Appellee.
    Gen. No. 17,361.
    1. Municipal courts—when partial invalidity of section of act does not destroy entire section. The fact that part of section 22 of the Municipal Court Act, relating to the filing of records on appeal, has been declared unconstitutional, does not render the entire provision relating to appeals unconstitutional.
    2. Appeals and errors—when appellee estopped to question defective hill of exceptions. An amendment to a bill of exceptions improperly allowed by the successor of the trial judge cannot be complained of by an appellee where the record shows that the amendment was expressly agreed to.
    3. Appeals and errors—when hill of exceptions will he presumed regular. Where a bill of exceptions signed November 23, 1910, bears the file mark of December 8, 1910, when the trial judge was no longer in office, and the question of its regularity is not otherwise raised, in the absence of any showing to the contrary, the presumption of regularity will be indulged.
    4. Municipal courts—objections need not be saved to refused propositions of law. The Municipal Court Act, sec. 38, permits a review of a cause when no exceptions to refused propositions of law were saved.
    5. Innkeepers—who are guests. Where a person registers at a hotel and is given a weekly rate for no definite period, such arrangement of itself does not change the person’s status from a transient or guest to a mere lodger.
    6. Innkeepers—what shows negligence. Where a guest of the hotel hands the clerk in charge of the office a box of jewelry for safe-keeping and it is placed in a safe and a key in the inner door of the safe is left in the lock, so that one opening the outer door would have easy access to the jewelry, which is stolen by a night elevator boy, it would seem to show a failure by the proprietor to exercise reasonable care.
    7. Innkeepers—what shows negligence. Where a hotel keeper posts notices of the existence of a safe for the keeping of valuables of guests, and a box of jewelry given the office clerk for safekeeping is placed in a safe used mainly for keeping stationery and similar articles, and is not placed in a safe in the manager’s room constructed for keeping money and jewelry, the proprietor is liable for its loss by theft.
    8. Innkeepers—guests need not state value of jewelry deposited. Under the Act of 1909, for the protection of innkeepers, it is not necessary for a guest to acquaint the innkeeper with the approximate value of jewelry delivered for safe-keeping in a safe.
    9. Appeals and errors—when final judgment will be entered in the appellate court. Where on reversal of a case heard by the court without a jury, the undisputed record shows damages in excess of plaintiff’s own estimate, the Appellate Court will enter judgment for at least that amount even though there was incompetent evidence of value received.
    Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch. Appellate Court at the March term, 1911.
    Reversed and judgment here.
    Opinion filed October 22, 1912.
    Pain, Campbell & Kasper, for appellant; Frederick J. Kasper and James L. Coleman, of counsel.
    Roy D. Keehn, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This is a case of the first class brought for the loss of jewelry delivered to defendant for safe keeping while plaintiff was a guest at defendant’s hotel. It was tried by the court without a jury and the finding was for defendant.

Certain objections to consideration of the record are urged by appellee. First: It is contended that as that part of Section 22 of the Municipal Court Act, relating to the filing of records on appeal, has been declared unconstitutional, the entire provision relating to appeals is unconstitutional, and that, therefore, no statutory right of appeal in such a case exists. In this we do not concur, and the motion to dismiss the appeal will be denied. .

Second: It is urged that an amendment to the bill of exceptions was improperly allowed by the successor of the trial judge, and, therefore, cannot be considered. The question is not raised by any motion, but if it were, inasmuch as the record shows that such amendment was expressly agreed to, appellee should not be permitted to complain.

Third: Attention is called to the fact that the bill of exceptions, though signed November 23, 1910, bears the file mark of December 6, 1910, when the trial judge was no longer in office. The question of its regularity is not otherwise raised, and, in the absence of any showing to the contrary, the presumption of regularity will be indulged.

Fourth: It is further urged that no exceptions to appellant’s refused propositions of law were saved, and that, therefore, the court’s ruling is not subject to review. The contention is that Section 38 of the Municipal Court Act dispenses with formal exceptions only to rulings “against the objection of the party complaining.” The act is remedial in its nature and broad enough in its spirit and purpose, as we think, to embrace matters to which no objection is required, and to warrant onr review of the ruling, even if Section 81 of the Practice Act is not applicable.

Fifth: It is urged that appellant was a lodger and not a guest. Defendant is a hotel company and kept a hotel or inn. Plaintiff came to Chicago on a temporary visit and registered at defendant’s hotel. She arrived there July 12, 1910, and remained until July 21st. When assigned a room, she was given a rate of $21 per week for no definite period. This arrangement of itself did not, as contended by appellee, change her status from a transient or guest of the hotel to a mere lodger. Hancock v. Rand, 94 N. Y. 1; Bullock v. Adair, 63 Ill. App. 30; Moon v. Yarian, 147 Ill. App. 383.

Passing to appellant’s contentions, we find the material facts to be that upon registering, she handed the day clerk in charge of the office a box of jewelry for safe keeping, and said nothing about its value. From what the clerk said about a receipt at that time it is clear that a demand therefor, if necessary, was duly waived. Two or three days afterwards it was found that the box was missing from the safe. Suspicion was directed to a night elevator boy, who, in the meantime, had disappeared without drawing his salary, and who, as the evidence tends to show, in some way got into the safe and stole the jewelry. Part of it was subsequently recovered through the police. He had been employed in the capacity aforesaid about two weeks, and when the night clerk in charge of the office had occasion to leave it for a few minutes, the boy was called in so the office would not be left without some one there. The night clerk testified that on the night of July 13th the boy was called in on such an occasion, and that the safe was locked when the clerk left duty in the morning. Whether the safe was at any time unlocked during that night or so left that one could easily get to its contents does not appear. It does appear, however, that a key in the inner door was left in the lock so that one opening the outer door had easy access to the jewelry, and that the boy on that night, or the next, stole the jewelry. If these facts do not sufficiently show failure to exercise the reasonable care required of even a gratuitous bailee (Gray v. Merriam, 148 Ill. 179), to keep in proper condition a safe into which appellant, by the statutory notices, was impliedly invited to leave her jewelry for safe keeping, the following facts sufficiently establish neglect for which defendant should be held liable.

Both the night and day clerks testified that the office safe was used mainly for keeping stationery and similar articles; that it was not the safe constructed for keeping money and jewelry, but that the safe for that purpose was kept in manager DeJonghe’s room. The latter then was the safe that was referred to in the posted notices, and kept under the terms of the statute for appellee’s protection. Appellant might well assume, from the posted notices of the existence of such a safe for the deposit of valuables, that they would be placed in the safe kept for that purpose. Under such circumstances we think it was negligence to deposit the jewelry in an insecure place not de-signed therefor, as the clerk well knew. The failure to place the jewelry in the proper safe cannot be charged to the guest.

The court, in accordance with said pleas and theory of defense, refused to hold as law certain propositions submitted by appellant which, we think, were appropriate to the case, and that in so doing there was error. Two of said propositions were as follows:

(4) Section 1 of an act for the protection of innkeepers of June 9,1909, applies to a deposit of jewelry by a guest with an inn-keeper for safe keeping in a safe provided by such inn-keeper. Section 3 of said act does not apply.”
“(5) Neither by common law nor under the statute for the protection of inn-keepers of June 9, 1909, is it necessary for a guest to notify the inn-keeper of the special or approximate value of jewelry where such guest deposits said jewelry with the inn-keeper for safe keeping in a safe provided by such innkeeper.”

Section 1 of said act relates to liability of an innkeeper for loss of “money, jewelry and other valuables of his guests,” when he provides a safe or other repository for their safe keeping and posts proper notices that he will receive the same. Section 3 relates to liability for loss of “any baggage or other article of property of such guest” delivered for safe keeping, and contains this proviso:

“Provided, that before such guest shall deliver to such hotel proprietor, or his employees, any trunk, valise, traveling case or other receptacle containing property or effects of special or unusual value for safe keeping or for any purpose, he shall notify such hotel proprietor to that effect, and acquaint such hotel proprietor with the approximate value thereof, and upon his failure so to do, such hotel proprietor shall not be liable to such guest for the loss of or damage to, such contents of such trunk, valise, traveling case or receptacle.”

Applying the doctrine of ejusdem generis to the words “and other valuables” in Section 1, the term “valuables” must be held to refer to articles like money or jewelry, or articles of value that are ordinarily kept in packages that may be readily placed in a safe expressly constructed as the statute contemplates for their safe keeping. And, applying the same doctrine to the words “or other article of property,” in Section 3, and the words “or other receptacle,” in the proviso therein, they must be held to refer to some form of baggage like a trunk, valise, traveling case or whatever receptacle a traveler might seek to have checked in a room ordinarily used for the safe keeping of baggage. In re Swigert, 119 Ill. 83; Gundling v. City of Chicago, 176 Ill. 340; Gaither v. Wilson, 164 Ill. 544.

The purpose of the statute in requiring the guest to notify the proprietor of the approximate value of property or effects of special or unusual value contained in a trunk or other form of baggage, is manifestly to enable the proprietor to protect himself against claim for the loss of such specific contents by giving such trunk or similar receptacle greater care than he would otherwise give ordinary baggage. The statute makes a clear distinction between valuables like money, jewelry or similar articles of worth when delivered to be kept in a safe, and when contained in a trunk or similar form of baggage delivered over to be checked as such. The inn-keeper’s liability for loss of the former may be to the amount of $250, but not more than $150 for loss of the latter, depending upon the character of the receptacle; and he becomes absolutely exempt from liability for the latter unless before the delivery of the baggage, the guest acquaints him with the approximate value of articles of special value contained therein, and demands a check or receipt for the receptacle. No such notice or demand is required as a condition precedent to liability for the loss of an article delivered to be kept in a safe. We, therefore, think the court erred in refusing to hold such propositions to be the law. By such refusal, it indicated that plaintiff’s claim was properly denied if she did not acquaint the clerk with the approximate value of her jewelry delivered for safe keeping in a safe. This she was not required to do.

Testimony of the plaintiff as to the value of the jewelry was received in the form of a deposition. •Some of it was largely hearsay in character, she appearing to have been informed by inquiry of jewelers as to such values, and many of the questions and answers designed to qualify her to testify as to values were technically incorrect and properly objected to. .But whether competent or not, her estimate of the value of all the jewelry lost was $3,225, a sum less than that given for one single piece by the jeweler from whom it was bought, whose qualifications to testify were not questioned. He placed the value of that piece at $4,000.

As most of the jewelry was purchased several years ago in different parts of the world, it is apparent that no better evidence of its value can be produced at another trial; hence the judgment will not only be reversed, but judgment will be entered here on the undisputed record showing damages to at least the amount she claimed—namely, $3,225 and costs.

Reversed and judgment here.


text:
    Joseph F. Nickerson, Appellee, v. E. M. Suplee, Harry McRoy and Harry C. Maley, Appellants.
    Gen. No. 17,396.
    1. Remase—of one joint debtor. A release of one joint debtor, wherein the creditor reserves his right against the others, is construed as a covenant not to sue.
    2. Judgments—motion for order of satisfaction. The only proper issue that may be raised on motion for an order of satisfaction of a judgment is whether the judgment has been satisfied.
    3. Covenants—what agreement is covenant not to sue. An agreement not to sue certain debtors, but not to discharge them from demands on a certain judgment, and to release only such debtors from all rights of action, etc., thereon and that the agreement is to be construed as a covenant not to sue such debtors to release another debtor from liability thereon, and that in three years the creditor will discharge of record such specified judgment as to said debtors so released, will be construed' merely as a covenant not to sue such debtors.
    4. Judgments—when motion for order of satisfaction properly denied. Motion for an order of satisfaction of a judgment is properly denied where the only evidence of satisfaction is an agreement that is construed merely as a covenant not to sue two of the debtors thereon.

      Appeal from the Superior Court of Cook county; the Hon. Joseph EL Fitch, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 22, 1912.
    George C. Otto, for appellants.
    Lackner, Butz & Miller, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from a denial of a motion made by appellants November 22, 1910, for the entry of an order of satisfaction in full of a judgment for $3,553.25, rendered against them December 31, 1903, in favor of appellee.

The motion was based upon an agreement entered into about March 5,1904, between appellee and two of the appellants, McRoy and Maley. The execution and delivery of the agreement is not denied by appellee, and only issues of law arise, first, as to the legal effect of the agreement, and, second, whether the relief sought could be granted on said motion.

The agreement is in three paragraphs, which, for convenience, will be numbered. The consideration expressed was the transfer to appellee, Nickerson, of ninety-two shares of stock (value not stated), in the Merchants Record Company, and the resignation of McRoy as a director of said company. In said agreement, said Nickerson agrees as follows:

1. “That * * * I do hereby release and discharge the said Harry McRoy and Harry C. Maley from all rights of action, claims and demands which I have against them on two certain judgments and certain judgment notes” (specifying them and including the judgment in question and the judgment note, signed by all appellants, on which it was rendered).

2. “It is understood, however, that it is intended' by this agreement to release and discharge only the said Harry McRoy and Harry C. Maley from any claims, rights of action or demands which I have' against them on said notes and judgments, and that this agreement shall be considered as a covenant not to sue said Harry McEoy and Harry C. Maley thereon. But it is further expressly understood and agreed that nothing herein contained is intended to release or shall in any way be construed as releasing the said E. M. Suplee from that one of the aforementioned notes signed by him, or from the judgment rendered thereon, or from any liability under said note or said judgment, and it is understood and agreed that said last mentioned note and said last mentioned judgment shall remain in full force and effect as against said E. M. Suplee. And I further agree that if said Suplee shall pay the sum of fifteen hundred dollars on said judgment within two years from this date, I will release said judgment against him also.”

3. “I further agree that I will, within three years from this date, release and discharge of record, so far as the said Harry McEoy and Harry C. Maley are concerned, the judgment heretofore entered against said Harry McRoy, Harry C. Maley and E. M. Suplee on the 31st day of December, 1903.”

Appellants admit that if the agreement stopped at the end of the second paragraph, it would be construed merely as a covenant not to sue McEoy and Maley, but contend that the third paragraph, taken in connection with the last provision of the second, constitutes a covenant that by a certain time, the judgment shall in any event be released and discharged of record. It is urged that otherwise it has no meaning, and to render it operative the court should apply the familiar rule that the court will look to the entire instrument and, if possible, give it such construction that each clause shall have some effect and perform some office, and adopt such construction, if it can consistently and reasonably be done, as will render the whole contract operative. Hayes v. O’Brien, 149 Ill. 403. It is urged that the agreement being complete as a covenant not to sue without the third paragraph, to give such paragraph effect it should be construed as a covenant to release and discharge after the lapse of three years.

Eeleases of one joint debtor, wherein the creditor reserves his right against the others, have generally been construed as covenants not to sue, in order to effectuate the intention of the parties. Vol. 34, Cyc. 1085. That rule of construction is followed in this state. Parmelee v. Lawrence, 44 Ill. 405; Mueller v. Dobschuetz, 89 Ill. 176; Dupee v. Blake, 148 Ill. 453.

Analyzing the entire agreement with both rules in mind we find in the second paragraph not only an express provision that the agreement is to be construed as a covenant not to sue, but also that nothing in it is intended or shall be construed as releasing Suplee from said judgment; and such intention is also manifest in the third paragraph wherein it expressly limits the agreement for a release and discharge to McBoy and Maley, and thus is consistent with the other parts of the agreement in the expression of an intention not to release Suplee at any time unless he paid $1,500. To construe the third paragraph as a covenant to release and discharge of record at the end of three years just, to give it some meaning under the first -rule invoked, would require us to ignore the second rule which makes the intention not to release one debtor the test in determining that it is a covenant not to sue as to the others. The latter rule compels us to hold that the agreement is a covenant not to sue McEoy and Maley, and we cannot under the former rule give the third paragraph a meaning that would be inconsistent with the rest of the agreement.

Whatever construction may be given to the third paragraph, the court was not called upon, under the motion in question, to construe the agreement further than to determine whether or not it shows satisfaction of the judgment. That such motion is the proper method of procedure, after the judgment has been paid and satisfied, is not questioned. Russell v. Hugunin, 2 Ill. (1 Scam.) 561; Harding v. Hawkins, 141 Ill. 572. But, as we understand it, the only proper issue that may be raised upon such a motion is whether the judgment has been paid and satisfied. In the case at bar, the only evidence before the court was the agreement itself. From it alone full payment could not be- inferred, else the judgment could have been declared satisfied any time after it was made. Neither was it an agreement to release and discharge McRoy and Maley from all demands under the judgment, else it would also operate as a release of Suplee, contrary to its express intention. Satisfaction as to them would make it satisfaction as to all. Winslow v. Leland, 128 Ill. 304. There being no proof therefore of full payment or satisfaction of the judgment, the court properly denied the motion.

Affirmed.


text:
    Otto Schumann, Appellee, v. International Harvester Company, Appellant.
    Gen. No. 17,412.
    1. Master and servant—when court may say whether tool is simple tool. Where a monkey wrench is not specifically described, the court as well as the jury may say from the undisputed evidence relating thereto whether it is a simple tool.
    2. Master and servant—use of simple tool. The master is not liable for injuries received from the use of a simple defective tool though he had notice of the defect, but the servant assumes the risk.
    3. Master and sERVANT-r-direcfed verdict. Verdict should be directed for defendant where, in an action for personal injuries, plaintiff’s testimony is the only evidence in the case and tends to show that defendant handed him a defective monkey wrench which slipped when used and caused the injury complained of.
    Action in case for person injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed.
    Opinion filed October 22, 1912.

      D. A. Okebaugh, for appellant; Edgar A. Bancroft, of counsel.
    Harry W. Standidge, for appellee; Theodore G. Case, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff (the appellee) recovered a judgment for $300, as damages for personal injuries received while in the employ of the defendant (the appellant). Upon the conclusion of the testimony for plaintiff, defendant moved the court to direct a verdict in its favor. The errors assigned are upon the court’s refusal so to do. No evidence was introduced on behalf of the defendant. The counts in the declaration upon which the case was tried charged the defendant with negligence in furnishing plaintiff, and ordering him to work with, a certain defective monkey wrench which, while plaintiff was using the same to unscrew a certain bolt or nut, slipped off said bolt or nut and caused plaintiff’s hand to come in contact with the teeth of a saw, thereby lacerating it.

The case went to the jury on the plaintiff’s testimony alone. He testified, in substance, that defendant’s agent, from whom plaintiff took orders, asked him if he had anything to do, and, upon bis saying “No,” handed him a monkey wrench and said, “Go over there and take the saw off the wheel;” that he walked over to the saw, put the wrench on the nut, tightened it up, bore down to loosen the nut, when the wrench slipped off and he struck his finger on the teeth of the saw. He further testified that he had used monkey wrenches before; that he did not examine or look at the wrench before using it; that if he had looked at it, he could have seen the defect; that immediately after the accident he did look at it and felt the “lost motion,” and could see that the screw was worn; that the bolt on the wrench would slide “if not tightened right,” and that its jaws “would not tighten up.”

The principal questions raised by the motion are whether there was any evidence tending to show negligence on the part of the defendant, and whether the doctrine as to the use of simple tools is not applicable to the case at bar.

If the jury could infer from such testimony any negligence at all on the part of defendant, it was required to do so from the fact alone that plaintiff was.handed a defective tool. There was no proof that defendant, or its agents, had any knowledge or notice of such defect, and without such proof, plaintiff could not recover unless it follows as a matter of law that the duty of inspection rested upon the defendant before handing plaintiff the tool in question. In similar cases a monkey wrench has frequently been referred to as coming within the category of a simple tool. Garnett v. Phoenix Bridge Co., 98 Fed. 192; O’Brien v. Missouri, K. & T. R. Co., 36 Tex. Civ. App. 528; Stork v. Charles Stolper Cooperage Co., 127 Wis. 318. And it has been frequently held that the duty of inspection which rests upon the master as to machinery is not imposed upon him as to simple tools, because one using a tool of simple construction may readily discover for himself its defects and the possible dangers in using it. The doctrine in this state is that for an injury received from the use of a simple tool, the master is not liable even though he has notice of its defect, and that therefore the servant assumes the risk of injury from its use. Webster Mfg. Co. v. Nisbett, 205 Ill. 273; Gunning System v. Lapointe, 212 Ill. 274; Kistner v. American Steel Foundries, 233 Ill. 35.

But appellee claims that it was a question of fact for the jury whether or not it was a simple tool. It was not specifically described, and we think the court could say as well as the jury from the undisputed evidence relating to it that the wrench was a simple tool. Applying, therefore, the doctrine aforesaid with respect to the use of simple tools, we think the court erred in denying the motion to direct a verdict for defondant. We do not think the evidence tended to show a case of the character cited by appellee, where the master puts into the hands of the servant an implement for immediate and hurried use under circumstances which might present facts for the application of a different rule as to the master’s negligence in so doing.

The judgment will be reversed.

Reversed.


text:
    Solomon Loeb and Jonas Loeb, Appellees, v. Sigmund Alexander et al., Appellants.
    Gen. No. 17,496.
    1. Landlord and tenant—covenant to pay expense of enforcing lease. In an action by a lessor against a lessee on a covenant in a lease that the lessee will pay all expenses incurred in enforcing the agreements of the lease, • proof being made of a suit brought under R. S., c. 80, § 2, for wilfully holding over, an instruction that said law was as much a provision of the lease as if it were specifically incorporated therein and that a suit brought for double rent is, in law, brought to enforce one of the covenants of the lease, is incorrect.
    2. Appeals and errors—when unnecessary to incorporate all instructions in hill of exceptions. An incorrect instruction given may be reviewed where a bill of exceptions does not purport to contain all the instructions given; it is only necessary to incorporate all the instructions where a review of a refused instruction is desired.
    3. Appeals and errors—when motion for new trial is not essential to review. A motion for a new trial is not necessary to question the propriety of giving an instruction.
    Appeal from the Superior Court of Cook county; the Hon. Willlam H. McSurely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed October 22, 1912.
    James Maher, for appellants.
    Edward H. Morris, for appellees.
   Mr. Justice Barnes

delivered the opinion of the court.

Appellees were the lessors and appellants the lessees in a lease which contained the following covenant:

‘ ‘ The party of the second part further covenants and agrees to pay and discharge all reasonable costs, attorneys’ fees, and expenses that shall be made and incurred by the party of the first part in enforcing the covenants and agreements of this lease.”

Appellees brought suit upon said covenant, and the evidence showed that they had brought various suits against appellants to enforce the covenants in the lease to pay rent and to yield possession on the termination of the lease. Proof was also made of a suit brought under sec. 2, chap. 80, R. S., for wilfully holding over after the expiration of the term of the lease.

Among the errors assigned is one to the giving of an instruction at plaintiff’s request that said section of the statute was as much a provision of the lease as if it were specifically incorporated therein, and en-forcible the same as any other covenant of said lease, and that “a suit brought to recover double rent is in law brought to enforce one of the covenants of the lease.”

In support of the instruction, appellees urge that the law writes into every contract provisions of existing statutes that are applicable to the transaction. But upon what theory such section can be applied so as to convert a statutory penalty into a covenant in the lease to pay the same, we are not enlightened. Said section has been referred to in our courts as highly penal in its nature. Chapman v. Wright, 20 Ill. 120; Stuart v. Hamilton, 66 Ill. 253. The proper action for recovery thereunder is debt, and such was the form of action employed by appellees against appellants. It would not be contended, we think, that an action in covenant could have been brought to recover such penalty. There was no express covenant in the lease to pay lessor such penalty and we are unable to see upon what principle it can he regarded as an implied covenant, which usually arises from language employed in the instrument itself.

The judgment was for $800. The amount claimed for attorneys’ fees and expenses in the other cases was only $556.60. The jury, therefore, must have included in their verdict an allowance for attorneys’ fees for the suit brought under said section. The instruction in question authorized them so to do. It is not, as appellees claim, a case of raising the point of excessive damages, not saved in the motion for a new trial, but of error in giving said instruction for which alone the case must be reversed and remanded for a new trial, and, therefore, it is unnecessary to consider any other question raised on the appeal.

Appellees, citing Hasterlik v. Strong, 107 Ill. App. 347, contend that' as the bill of exceptions does not purport to contain all the instructions given, we are precluded from considering the errors assigned as to those that are preserved. Such point would be good as to refused instructions, but is not tenable as to a given instruction manifestly erroneous, to which exception has been duly saved.

While it is true also that no exception was preserved to the denial of the motion for new trial, no such motion was necessary to question the propriety of giving said instruction. Illinois Cent. R. Co. v. O’Keefe, 154 Ill. 508.

Reversed and remanded.


text:
    Henry Clark, by his next friend, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,518.

      Damages—care required of infant to procure surgical attention. Where a ten-year-old infant sues for personal injuries and the injury has been greatly aggravated by a refusal of the mother to permit the child to receive proper surgical attention, an instruction that the child was required only to use ordinary care in procuring surgical treatment, and that the negligence of a parent in such respect would not be imputed to the child, is not objectionable, particularly where another instruction stated that defendant could only be liable for such ailments as were the natural and proximate result of the accident.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Bdwabd M. Margan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October, 1912.
    Edward J. Brundage, Clyde L. Day, William H. Sexton and N. L. Protrowski for appellant; Edward C. Fitch and David R. Levy, of counsel.
    Richard J. Fury, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from a judgment for $6,000 in favor of plaintiff for damages alleged to have resulted from an injury sustained by him when ten years of age from falling on a projecting nail in a sidewalk of the city.

After the boy was injured he was taken to a hospital for treatment. The physicians found that he had an infected wound in the left hip, and advised an operation, to which his mother objected. In two or three days he was removed to his home, and steadily grew worse with the result that at the time of the trial the left leg was smaller and shorter than the other and its muscles were atrophied, the left hip joint was stiff and without motion, and the left thigh at such an angle as to cause the bending of the spine when the leg was straightened. The physicians testified that the proper line of treatment at the time would have necessitated an incision to the hip joint, but the mother would not permit it, and that his resulting condition probably would have been very different had such treatment been followed.

It is contended by appellant that it cannot be held liable for negligence after the accident to procure proper medical or surgical treatment, and, in view of such evidence, that it was error to give the following instruction:

“The court instructs the jury that a child of ten years of age, who has sustained an injury, is only required by law to exercise ordinary care for one of his years, capacity, intelligence and experience, to procure medical or surgical treatment, and in following the- advice and instructions of his doctors or surgeons; and the negligence, if any, of the parents of such child, or either of them, in this regard cannot be imputed to the child.”

Whether or not the instruction was correct in stating what degree of care a child ten years old would be expected to exercise in procuring medical treatment, we do not see how it could have been harmful, and, so far as it stated that the negligence of the parents in that respect could not be imputed to the child, it stated the law. It did not undertake, however, to state that the defendant could be chargeable with the results of such negligence, if any. The jury were told by an instruction submitted by defendant that it was liable, if at all, for such ailments as were the direct and proximate result of the accident and not for such as arose from any other cause. They might properly have been instructed more specifically to the effect that if they believed from the evidence that the injuries were aggravated by reason of neglect to give proper medical or surgical attention, no allowance of damages could be allowed therefor, but no such instruction was given or asked for. From the instructions given the jury presumably considered these matters.

We find no justification in the law for disturbing the jury’s verdict and the judgment entered thereon.

Affirmed.