text:
    Florence M. Ensminger, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 22,462.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers, § 476

      —when evidence sufficient to show starting of car before passenger alights. In an action for personal injuries alleged to have been received by falling in alighting from a street car, where the evidence is conflicting whether the car, after stopping for plaintiff to alight, started before she did so, the finding of the jury thereon in plaintiff’s favor will not.be disturbed.
    2. Carriers, § 476*—when evidence is sufficient to show that fall of alighting passenger was caused by catching dress in door. In an action for personal injuries alleged to have been received by falling in alighting from a street car which had stopped to permit plaintiff to alight, but started before she did so and while her dress was caught in the car door, where the evidence is conflicting as to whether the fall was caused by the catching of her dress in the car door or by the condition of the street, the finding of the jury thereon in plaintiff’s favor will not be disturbed.
    Appeal from the Circuit Court of Cook county; the Hon. Oscab M. Tossison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1917.
    Rehearing denied June 8, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Florence M. Ensminger, plaintiff, against the Chicago Railways Company, defendant, to recover for personal injuries. From a judgment for plaintiff on a verdict for $2,200, defendant appeals.
    Charles L. Mahony and Frank L. Kriete, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Frederick Z. Marx, for appellee.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Damages, § 120*—when verdict for personal injuries is not excessive. . In an action for personal injuries, where plaintiff’s evidence shows that her left shoulder was dislocated, the ligaments of the shoulder blade and arm were torn, that she suffered nervousness, constant pain and loss of sleep and was unable to lie in bed on her injured arm or to lift it or extend it as before the accident, and the only evidence in contradiction thereof was that of a physician as to the usual consequences of such a dislocation, a verdict for $2,200 is not excessive.

4. Appeal and error, § 1637*—when error in instruction is cured by other instructions. Even though an instruction is subject to the objection that it is abstract in form, it is not ground for reversal, where other specific instructions are given in connection therewith which correct any tendency to mislead.

5. Appeal and error, § 1523 —when giving of instruction not in conformity with issues is harmless error. Even though an instruction injects into the case an issue which, if the jury took the defendant’s view, was not involved, the giving of such instruction is not ground for reversal where it could not have harmed defendant.

6. Carriers, § 479*—when instruction in action by street car passenger for personal injuries is not reversibly erroneous because directing a verdict. In an action for personal injuries alleged to have been caused by defendant’s negligence in starting its car while plaintiff was alighting, an instruction to the jury that “if from a preponderance of all the evidence, and under the instructions of the court you find the defendant guilty as charged in the declaration, then you should assess the damages herein,” is not reversible error on the ground that it directs a verdict for plaintiff regardless of whether she exercised ordinary care for her own safety, where, by other instructions, the jury were told under what conditions of fact defendant could not be found guilty and that the exercise of ordinary care on plaintiff’s part was essential to her recovery, even though defendant was negligent.

7. Damages, § 244*—when instruction not in conformity toith pleadings not reversibly erroneous. In an action for personal injuries, the giving of an instruction that the jury might, in computing damages, take into consideration any permanent disability of plaintiff and her inability to work, is not reversible error, even though the declaration did not allege permanent injury or inability to work beyond a period of six weeks, where evidence was introduced of permanent disability and inability to do the same kind of work after the accident, as before it, without the question of variance being raised by defendant, as the defect in this respect in the declaration was cured by the verdict.


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    Marmon Chicago Company, Plaintiff in Error, v. C. E. Heath et al., Defendants in Error.
    Gen. No. 22,652.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance—when use of automobile by mortgagor avoids policy. "Where a policy of fire insurance on an automobile, issued to plaintiff and one who bought the automobile from plaintiff and gave back a mortgage for part of the purchase price, provides that the automobile shall not be used for renting purposes or for hire, and the evidence shows that such car was used mainly, if not entirely, for livery purposes and uses by such mortgagor, there can be no recovery under the policy.
    2. Insurance, § 120

      —what are limits of rule of as to liberal construction of policy in favor of insured. The rule that an insurance policy is to be liberally construed in favor of the insured is not carried to the extent of construing the policy contrary to its manifest intent and express condition.
    Error to the Municipal Court of Chicago; the Hon. Edward T. "Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Action by the Marmon Chicago Company, a corporation, plaintiff, against C. E. Heath, J. g. Follett, Gr. Heath, A. D. "Whatman, A. Bums and M. Evans, defendants, to recover on a fire insurance policy on an automobile issued to plaintiff and another. To reverse a judgment for defendants, plaintiff prosecutes this writ of error.
    William A. Jennings, for plaintiff in error.
    John A. Bloomingston, for defendants in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Insurance—when provision in policy restricting use of automobile applies to both mortgagor amé mortgagee. The condition in a policy of fire insurance issued on an automobile to the mortgagee and mortgagor of the car, as their respective interests might appear, that the car shall not be used for renting purposes or for hire, applies to both the mortgagor and the mortgagee.


author: Mr. Justice McDonald

text:
    Felix Lilikis, Administrator, Appellee, v. William F. Bossi, trading as William F. Bossi Contracting Company, and Chicago Consolidated Brewing & Malting Company. Chicago Consolidated Brewing & Malting Company, Appellant.
    Gen. No. 22,003.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthiix, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 29, 1917.
    Rehearing denied June 7, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Felix Lilikis, administrator of the estate of Kazuny Lilikis, plaintiff, against William F. Bossi, trading as William F. Bossi Contracting Company, a corporation, and Chicago Consolidated Brewing & Malting Company, a corporation, defendants, to recover for the death of plaintiff’s intestate. From a judgment for plaintiff for $6,000 and costs against both defendants jointly, defendant Chicago Consolidated Brewing & Malting Company appeals.
    Mechem, Bangs & Harper, for appellant.
    Benjamin B. Morris, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 682*—when evidence sufficient to show relationship between owner and person repairing building. In an action for wrongful death through being struck by a piece of wood dropped from a building which was being altered and repaired, evidence held to show that the person doing the altering and repairing was a servant of the owner of the building and not an independent contractor.

Barnes, P. J., dissenting.

2. Principal and agent—when question as to who person making contract for repair of building is acting for is for jury. Where the evidence as to whether one making a contract to have a building altered and repaired was acting on behalf of the owner of the building, or of the occupant, or of both, is conflicting, the question is for the jury.

3. Corporations, § 516 —when evidence is sufficient to show identity of. Where there is evidence that the officers and stockholders of the company owning a building are identical with those of the company occupying it, that the two companies had a similarity of purpose and that the superintendent of the malt house, for which the building was used by the occupant, was paid by the owner and there is no evidence of any lease or other arrangement between the two companies for the occupancy of the building nor of any rent having been paid, a finding of the jury that the two companies were so jointly associated as to constitute but one organization so as to render one liable for the negligence of the other will not be disturbed, even though there was evidence that the occupant had been in possession for upwards of twenty years and the owner had never occupied the premises.

4. Death, § 67*—when verdict for death is not excessive. A verdict of $6,000 for the death of an eleven-year-old girl killed by a piece of wood falling into the street, held not excessive, even though she was of foreign parentage and lived in a poor neighborhood.


text:
    Michigan Avenue Trust Company, Defendant in Error, v. Albert T. Graham et al. Albert T. Graham and William E. Fuller, Plaintiffs in Error.
    Gen. No. 22,166.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Trial, § 204

      —when direction of verdict for plaintiff is error. In an action on a written contract of guaranty, where defendants introduce evidence tending to establish their claim that they had been released from liability thereon, it is error to direct the jury to find for the plaintiff.
    Error to the Municipal Court of Chicago; the Hon. Harrt M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Action by Michigan Avenue Trust Company, a corporation, plaintiff, against Albert T. Graham, Harry M. Wells, William E. Fuller and James C. Hopkins, defendants, on a contract of guaranty. By direction of the court, the jury found the issues against the defendants and assessed plaintiff’s damages at $10,000. To reverse a. judgment for this amount and costs, defendants Graham and Fuller prosecute this writ of error.
    Jordan & Liessmann, for plaintiffs in error; Elmer M. Liessmann, of counsel.
    Benjamin Levering and Elmer H. Heitmann, for defendant in error.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

2. Guaranty, § 34 —When nonpayment of notes need not "be proved by plaintiff. In an action on a written contract of guaranty, where plaintiff’s statement of claim alleges the execution and delivery of certain notes to it by the debtor, and that such notes had not been paid, except for certain enumerated payments, and defendants’ affidavit of merits makes no defense of payment, plaintiff is not required to prove nonpayment of the notes.


text:
    D. B. Dowsma, Defendant in Error, v. Louis C. Krueger, trading as Krueger Brothers, and Carmine Rizzuto. Carmine Rizzuto, Plaintiff in Error.
    Gen. No. 22,277.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. New-come®, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Action by D. B. Dowsma, plaintiff, against Louis C. Krueger, trading as Krueger Brothers, and Carmine Bizzuto, defendants, under Hurd’s Bev. St. ch. 82, sec. 28 (J. & A. ji 7166), to recover for labor and materials alleged to have been furnished by him as a subcontractor on a building owned by defendant Bizzuto. From a verdict and judgment of $238 and costs for plaintiff, defendant Bizzuto prosecutes this writ of error.
    De Stefano & Mirabella, for plaintiff in error.
    Beauregard F. Moseley, for defendant in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.

Abstract of the Decision.

1. Mechanics’ liens, § 162 —what subcontractor suing owner and contractor at law must show. In an action under the Lien Act (Hurd’s Rev. St. ch. 82, sec. 28, J. & A. U 7166), to recover against the owner and contractor jointly for labor and materials furnished as subcontractor, plaintiff must show that he is entitled to a lien on the premises.

2. Mechanics’ liens, § 162*—what judgment in action at law by subcontractor against contractor and owner must recite. In an action under the Lien Act (Hurd’s Rev. St. ch. 82, sec. 28, J. & A. If 7166), to recover against the owner and contractor jointly for labor and materials furnished as subcontractor, the judgment must recite the date when the lien attached.


text:
    D. I. Felsenthal Company for use of Charles R. Carpenter, Appellant, v. Northern Assurance Company, Limited, of London, Appellee.
    Gen. No. 22,323.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed April 10, 1917.
    Rehearing denied April 24, 1917. Judgment vacated April 25, 1917, and new opinion filed May 29, 1917.
    Statement of the Case.
    Action by D. I. Felsenthal Company, a corporation, for the use of Charles E. Carpenter, plaintiff, against the Northern Assurance Company, Limited, of London, defendant, to recover under a fire insurance policy. From a judgment for defendant, plaintiff appeals.

      Abstract of the Decision.
    1. Insurance, § 668*—when evidence is sufficient to show fire to he of incendiary origin. In an action to recover on a fire insurance policy, evidence held to support a finding that the fire causing the loss was of incendiary origin.
    2. Corporations—when person holding stock is merely nominal owner. Where the evidence shows that one received from the principal stockholders of a corporation seventy-five shares of stock therein because of financial aid rendered them and that he took fifty shares in his own name and twenty-five shares in the name of his brother-in-law, and there is no evidence that the brother-in-law ever paid any value for his shares, it is sufficient to show that the latter was merely a nominal owner and that the grantee of the fifty shares was also the real owner of the twenty-five shares.
    3. Corporations, § 155

      —what is effect of failure to transfer shares of stock indorsed in blank on “hooks. Even though shares which are indorsed in blank and delivered are not transferred on the books of the corporation to the holder, he is the real owner.
    4. Corporations—when recovery not allowed on contract because of wrongful act of owner of all of stock. A corporation cannot recover under a fire insurance policy for goods lost through a fire caused by the incendiarism of the real owner of all of the corporate stock.
    Brundage, Landon & Holt and John J. Beilman, for appellant; Robert N. Holt, of counsel.
    Paden & Kropf, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Edward L. Madden, Administrator of the Estate of Robert J. Madden, Deceased, Appellee, v. City of Chicago and Byrne Brothers Dredging & Engineering Company, Appellants.
    Gen. No. 22,357.
    1. Judgment, § 272

      —what is nature of motion for correction of error in fact. A motion made under Hurd’s Rev. St. ch. 110, sec. 89 (J. & A. f 8626), for the correction of an error of fact, is in the nature of a new suit, having for its object the determination of an error of fact aliunde the record.
    2. Appeal and error, § 270*—when order is interlocutory precluding appeal. An order allowing a motion to reinstate a case on the trial calendar is interlocutory merely, and no appeal will lie therefrom.
    3. Appeal and error—what is a final order. An order denying a motion to reinstate a case on the trial calendar is final.
    4. Appeal and error, § 952*-—when hill of exceptions will not he stricken. A bill of exceptions consisting of a transcript of record of proceedings had on a preliminary hearing on a motion to reinstate the cause, which was granted, will not be stricken on the ground that no appeal was taken from the order allowing, the motion.
    5. Judgment, § 272*—what is function of writ of error coram nohis. The purpose and function of a writ of error coram nohis is to provide a .remedy by means of which the trial court, after the judgment term, may review and correct errors of fact that do not appear on the face of the record and could not be otherwise corrected.
    6. Judgment, § 273*—what is an error in fact. Error of the minute clerk, on the preliminary call of the calendar, in improperly noting a case in which plaintiff answered “ready” as stricken from the calendar, is an error of fact and not of law and comes within the provision of Hurd’s Rev. St. ch. 110, sec. 89 (J. & A. jf 8626), as it does not appear on the face of the record.
    7. Appeal and ebrob—when error of clerk in noting case on preliminary call of calendar as stricken is not cured. Error of the minute clerk in improperly noting a case, on the preliminary call of the calendar, as stricken from the calendar, when, in fact, plaintiff had answered “ready,” is not cured by a subsequent general order reinstating all causes stricken from the docket, where plaintiff had no knowledge of the clerk’s error.
    8. Tbial, § 21

      —when reinstatement of case stricken from calendar is proper. Where the minute clerk erroneously notes a case as stricken from the calendar, on the preliminary call of the calendar, though plaintiff answered “ready,” a motion to reinstate the case is properly allowed.
    9. Appeal and ebbob, <j 833*—-when bill of exceptions stricken because of insufficiency of nunc pro tune order for settling and signing by another judge. Where a nunc pro tunc order settling and signing a bill of exceptions which had been presented to another judge than the trial judge is entered after the expiration of the time of filing by such judge, and does not recite statutory facts warranting the presentation of the bill to him nor the grounds for the entry of the nunc pro tunc order by him, and there is no showing in the record on which to base the order and the appellee excepted to the nune pro tune order, though waiving objection to the signature to the bill by such judge instead of the trial judge, the bill will be stricken from the record.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1917.
    Rehearing denied June 8, 1917.
    Samuel A. Ettelson and Charles R. Francis, for appellants, City of Chicago; Henry T. Chace, Jr., of counsel.
    Henry J. & Charles Aaron, for appellant Byrne Bros. Dredging & Engineering Company; Douglas C. Gregg, of counsel.
    Quin O’Brien and William B. O’Brien, for appellee.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

Appellee (plaintiff helow) recovered a judgment for $10,000 against the defendants jointly, for wrongfully causing the death of plaintiff’s intestate, to reverse which this appeal is prosecuted.

The record filed herein contains two bills of exceptions, one being a transcript of record of the proceedings had on a preliminary hearing on a motion to reinstate the cause, and the other a transcript of subsequent proceedings had at the trial; the former being signed by the trial judge, and the latter by a judge who did not hear the case.

Appellee has entered a motion herein to strike both bills of exceptions from the record and to affirm the judgment, consideration of which was reserved to the hearing.

On July 18, 1914, the said-cause was by order of court stricken from the docket. Subsequently, on June 17, 1915, the court entered a general order reinstating all causes stricken from the docket, which included the one at bar. On the following day said cause was placed on the trial call and an order was entered dismissing it for want of prosecution. Appellee, on September 24, 1915, made a motion, supported by affidavit, to vacate the foregoing orders, which were entered, the affidavit recited, because of a mistake or misprision of the minute clerk of the court, who erroneously noted the said case stricken from the docket on July 18, 1914, whereas it should have been marked for trial. Upon a hearing the court entered an order vacating the orders hereinabove referred to and reinstated the cause on the trial calendar.

It is contended by appellee that the first bill of exceptions showing the foregoing proceedings should be stricken from the record for the reason that the filing of said motion was tantamount to the beginning of a new suit in the nature of a writ of error coram nobis, and that the said order of reinstatement entered therein was a final order; that no appeal having been taken therefrom, the propriety of the entry of said order cannot be questioned on this appeal.

By section 89, ch. 110, Rev. St. ( J. & A. j[ 8626), the writ of error coram nobis is abolished and all errors of fact committed in the proceedings of any court of record and which by common law could have been corrected by said writ may be corrected by' the court in which the error was committed, upon motion in writing made at any time within five years after the rendition of the judgment in the case upon reasonable notice. This motion is in the nature of a new suit, having for its object the determination of an error of fact aliunde the record; but the order allowing appellee’s motion to reinstate the case on the trial calendar was merely interlocutory, and hence appellants were obliged to wait for a final order from which an appeal or writ of error would lie. Had the motion been denied, however, such an order would of course have been final. (City of Park Ridge v. Murphy, 258 Ill. 365; Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516.) Appellee’s motion to strike the first bill of exceptions will therefore be denied.

On the other hand, it is contended by appellants that the court erred in reinstating said cause, for the following reasons, viz.: first, that the court had lost jurisdiction of the case; second, that, the error sought to be corrected by appellee’s said motion, if any, was one of law and not one of fact; and third, that any error committed by the court in striking said cause from the docket on July 18,1914, was cured by the general order of June 17, 1915, by which the case was reinstated on the trial calendar.

The purpose and function of the writ of error coram nobis is to provide a remedy by means of which the trial court, after the judgment term, may review and correct errors of fact that do not appear on the face of the record and which could not therefore be otherwise corrected. Thus, if proceedings have been had and a judgment rendered against an infant as an adult, or against a dead person as though living, or if error has occurred through the process or through the default of the clerk, the remedy is by writ of error coram nobis. (LeBourgeoise v. McNamara, 10 Mo. App. 120; Teller v. Wetherell, 6 Mich. 45); and under section 89, supra, by written motion to the trial court.

Appellee’s motion of September 24, 1915, recited that when the cause was reached on a preliminary call of the calendar on July 18, 1914, counsel for appellee was present in court and responded that he was ready for trial, but that the minute clerk erroneously noted the case as having been stricken from the docket. Such mistake or misprision on the part of the clerk, in our opinion, constituted an error of fact and not of law; and inasmuch as it does not appear on the face of the rec.ord, it comes within the provisions of section 89, supra. Teller v. Wetherell, supra.

Nor was this error cured by the general order of June 17, 1915, reinstating the said cause, for it is clear that had not the said error of fact been committed, the subsequent general order of reinstatement would not have included this ease, and counsel for appellee being-unaware of the foregoing error, was not chargeable with notice that the general order of reinstatement affected his case. We are of the opinion that, upon the showing made, the cause was properly reinstated by the trial court.

This brings us to a consideration of appellee’s motion to strike the second bill of exceptions from the record.

The judgment in question was entered December 18, 1915, by Judge Gibbons, before whom the case was tried. An appeal was pVayed and the defendants were allowed ninety days within which to file a bill of exceptions. The time for filing same expired March 17, 1916. The certificate attached to the bill of exceptions recites that it was presented to Judge Mangan on February 25, 1916, and bears his signature. Oh April 6, 1916, it was again submitted to Judge Mangan, who settled and signed same nunc pro tunc, as of February 25, 1916, to which counsel for appellee gave a qualified assent as follows: ‘‘Counsel for plaintiff, in open court, assents to the correctness of the bill of exceptions and waives any objection to the signature' of Judge Mangan instead of the trial judge. Plaintiff excepts to the nunc pro tunc order.”

Notwithstanding the foregoing assent on the part of appellee, he urges that there was no basis for the nunc pro tunc order to which he saved an exception, and cites the case of People v. Rosenwald, 266 Ill. 548, in support thereof. In that case, as in the case at bar, the nunc pro tunc order did not recite statutory facts such as the sickness, disability or death of the trial judge, which would warrant the presentation of the bill of exceptions to another than the trial judge. The order now before us does not show affirmatively why Judge Mangan made the entry of presentation of the bill of exceptions to him or why he entered the nunc pro tunc order. As there was no showing in the transcript of the record on which to base said order, and as appellee did not assent thereto but excepted to its entry, the nunc pro tunc order was, under the authority of the Rosenwald case, supra, erroneous, and hence the bill of exceptions will be stricken from the record.

Finding no error in the first bill of exceptions or in the common-law record which justified a reversal, the judgment will be affirmed.

Affirmed.


text:
    Ruby L. Winn, Appellee, v. Chauncey Keep et al., Appellants.
    Gen. No. 22,372.
    Negligence, § 187

      —when evidence insufficient to show that difference in floor levels was proximate cause of injury to person struck lry swinging door. In an action for personal injuries alleged to have been caused by the faulty construction of defendant’s building in that the floor level of a room opening on a corridor was seven and one-half inches above the corridor level, whereby plaintiff was injured while passing along the corridor through the violent opening of the room door, the violence of such opening being claimed to have been due to the difference in the floor levels, the evidence examined and held insufficient to show that the difference in the floor levels was the proximate cause of the accident.
    Appeal from the Circuit Court of Cook county; the Hon. Eichabd S. Tutiiill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 29, 1917.
    H. L. Howard, for appellants.
    Charles G. Spencer and Charles M. Haft, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment for $6,500, entered in favor of appellee (plaintiff below), for injuries sustained while in defendants’ building.

Plaintiff was employed as a bookkeeper by certain tenants who occupied offices in the Merchants Loan & Trust building in the City of Chicagc. At the time of the accident she was going from the office in which she was employed to drop a letter into the mail chute, and, while doing so, she was struck by a door leading to a men’s toilet, which was suddenly and violently opened by one Gfreinler, causing the injuries compained of.

The floor of the said men’s toilet room was about seven and one-half inches above the level of the corridor through which plaintiff was passing at the time she was struck, and it came up flush with the door, so that when the door was closed the elevation or step could not be seen from either side of the door.

At the close of plaintiff’s case, defendants moved the court to direct a verdict in their favor. The court denied said motion, and defendants having elected to stand by it, the cause was submitted to the jury on plaintiff’s case alone.

¡ There were six counts in the declaration, but the only negligence charged and relied upon at the hearing was the alleged faulty construction of the building in that the floor level of the men’s toilet room was seven and one-half inches higher than the floor level of the corridor. And it is argued that the step in question would cause any one who opened the said door from the inside to lurch forward as he advanced into the corridor, throwing his entire weight against the door and opening it with great force and violence.

Numerous grounds are urged by defendants for a reversal of the judgment, only one of which we deem it necessary to consider, as that is vital to plaintiff’s right to a recovery, viz.: Is there any evidence in the record which fairly tends to show that the alleged faulty construction of the building in question was the proximate cause of the injuries to the plaintiff?

The only testimony in the record bearing on this question is that of the plaintiff herself, who testified in part as follows:

“I went down the hall to mail a letter. * * * As I was going to the mail chute, this door violently flew open, striking me on the side and throwing me across the hall, to the other side of the marble hall. * * * This door that flew open is a large, plain, mahogany door. * * * Up to the time of the accident I did not know what the-room was that this door led to. The man that came through the door stood there and looked at me a while after I fell, * * * and then the elevator man took this man that knocked me down, and they both went down. * * * The door struck me right through here (indicating). * * * When a person was on the inside, he can see no step. On the outside you cannot see any step. * * * The door came flush up to the rise. * * * Up to this time I did not know that this man was in the water-closet. ’ ’

In our opinion, the foregoing testimony fails to prove, either directly or inferentially, that the toilet room step had anything whatever to do with the accident in question. There is no evidence in the record even tending to show that the violent manner in which the said door was opened was in any way attributable to the difference in the floor levels of the corridor and the men’s toilet room.

While plaintiff strenuously insists that the violent opening of said door was due to the step from the higher to the lower level, yet such argument is based entirely upon conjecture, for there is no evidence in the record from which such a conclusion might be reasonably drawn. For aught that the record shows, the opening of the door in the manner described may have been due entirely to the negligence of the said G-reinler, in which event clearly defendants would not be liable for such misconduct.

Viewing the evidence in a light most favorable to the plaintiff and giving due consideration to all inferences that reasonably flow therefrom, it cannot be said that there is any causal connection shown to have existed between the accident in question and the construction of defendants’ building.

The judgment will therefore be reversed; and in order to afford plaintiff an opportunity to make additional proof, if any she has, the cause will be remanded for a new trial.

Reversed and remanded.


text:
    William D. Selvage, by Catherine Selvage, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,393.
    (Not to be reported in full.)
    Abstract of the Decision.
    Street railroads, § 144

      —when instruction on exercise of care hy person crossing street car track is erroneous. In an action to recover for personal injuries received through being struck by a street car while crossing a street where there is evidence from which the jury might reasonably have found that plaintiff was negligent in getting into the position in 'which he was injured, it is error to instruct at plaintiff’s request that “plaintiff was only required to use ordinary care. You are further instructed that ordinary care, as defined in these instructions, is that degree of care and caution which a person of the like age, experience and degree of intelligence of the plaintiff, as shown by the evidence, would have exercised under like circumstances and in the situation in which plaintiff was placed, as shown by the evidence.”
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 29, 1917.
    Statement of the Case.
    A'ction by William D. Selvage, by bis next friend, Catherine Selvage, plaintiff, against the Chicago City Railway Company, defendant, to recover for personal injuries caused by being struck by defendant’s street car. From a judgment for plaintiff for $5,000, defendant appeals.
    Busby, Weber & Miller, Franklin B. Hussey and Arthur J. Donovan, for appellant; John R. Guilliams, of counsel.
    A. H. Ranes, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Michael Kramp, Appellee, v. Louis Thexton, Appellant.
    Gen. No. 22,403.
    (Not to be reported in full.)
    Abstract of the'Decision.
    1. Mortgages, § 738

      —when owner of equity of redemption entitled to rents, issues and profits during redemption period. The provision in a trust deed as to the rents, issues and profits collected during the redemption period, which directs the receiver to pay “any rents that may be collected after such sale and before the time of redemption expires, to the purchaser or purchasers of said premises' at such sale or sales,” does not pledge the rents, issues and profits collected during the period of redemption, but they belong to the owner of the equity of redemption unless he has assumed the indebtedness and there is a deficiency decree against him personally.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Bill by Michael Kramp, complainant, against Louis Thexton, defendant, for the payment of a deficiency decree entered in his favor in a foreclosure proceeding. From an order directing defendant to pay $4,798.29, defendant appeals. The facts are stated in Kramp v. Kramp, 185 Ill. App. 464, and Kramp v. Thexton, 201 Ill. App. 508.
    Willard C. McNitt and Joseph A. Bates, for appellant.
    Hamlin & Topliff, for appellee.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

2. Mortgages, § 635 —when order directing receiver to recover amount of deficiency decree is vacated by order of vacation. A decree in foreclosure found that defendant and his codefendant were personally liable for the indebtedness and a deficiency decree was entered against them and the receiver was ordered to remain in possession of the premises during the period of redemption “for the purpose of collecting such deficiency or such part thereof as he may be able to collect.” Subsequently the decree was modified by an order vacating the provision finding defendant personally liable. Held, that such order of vacation necessarily affected every part of the decree inconsistent therewith respecting the payment of the rents, issues and profits collected during the period of redemption and therefore vacated the order directing the receiver to collect the amount of the deficiency decree.


text:
    J. J. Badenoch Company, Appellee, v. Alfred J. Bartnick and Gustav P. Bartnick, Appellants.
    Gen. No. 22,406.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Assumpsit was brought by J. J. Badenoch Company, a corporation, plaintiff, against Bartnick & Son Company, a corporation, defendant. Thereafter the declaration was amended by adding Alfred J. Bartnick and Gustav P. Bartnick, copartners, as additional defendants, and the original defendant was dismissed from the case. Defendants’ pleas were stricken on plaintiff’s motion and a default entered against defendants, from a judgment entered on which they appeal.

      Abstract of the Decision.
    1. Pleading, § 141*—when affidavit of claim, in support of amended declaration is necessary. Where plaintiff amends his dec- ’ laration by adding two other defendants and dismisses the original defendant from the cape, an affidavit of claim in support of the amended declaration against the added defendants is indispensable to the right of the court to enter judgment without other proof.
    2. Pleading, § 141

      —when contention that plaintiff’s claim is not supported by proper affidavit of merits is not waived. The contention that plaintiff’s claim is not supported by a proper affidavit of merits or other competent evidence is not waived by defendants where their affidavits of merits were stricken from the files and judgment was taken against them as by default.
    Booz & Stoll, for appellants.
    Feed H. Atwood, Charles O. Loucks and Vernon R. Loucks, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Lanward Publishing Company, Appellee, v. National Association of Stationary Engineers of the United States of America, Appellant.
    Gen. No. 22,424.
    1. Contbacts, § 224

      —how term, “due and unpaid” in provision in publishing contract for division of proceeds from sale of space construed. Where a publishing contract under which the parties are to divide the proceeds from the sale of advertising space provides that on its termination a committee chosen by the parties to adjust the claims and profits arising from and out of any business transactions by the parties, for and in behalf of the publication, which may remain “due and unpaid” at the expiration of the agreement, the term “due and unpaid” includes claims arising out of outstanding unexpired advertising, contracts which, at the time of tire termination of the publishing contract, were due and unpaid, but not then payable, and cannot be limited to such parts of those contracts as are due and payable at that time, where the latter construction would render ineffective a preceding clause of the publishing contract providing that the outstanding assets shall be distributed equitably between the parties on its termination.
    2. Contbacts, § 224*—what constitute “outstanding assets” within publishing contract for distribution of proceeds on its termination. In an action to recover on a contract providing for the distribution between the parties of the proceeds of the sale of advertising space in a publication, certain contracts for advertising space outstanding and unexpired at the termination of the publishing contracts, held to be jointly owned by the parties to the publishing contract and to constitute “outstanding assets” within the meaning of a provision in the latter contract for the distribution of “outstanding assets” on its termination.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Mastín, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Dunne & Murphy, for appellant; Francis O’Shaughnessy, of counsel.
    Moses, Rosenthal & Kennedy, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.

The Lanward Publishing Company (plaintiff below), recovered a judgment against defendant for $6,039.89 in an action for the reasonable value of certain advertising contracts, to reverse which this appeal is prosecuted.

On January 27,1904, the parties hereto entered into a written contract by the terms of which plaintiff agreed to publish and distribute monthly to defendant’s members a periodical known as the National Engineer, this being the official organ of the defendant association. Plaintiff was to be compensated therefor out of funds derived from the sale of advertising space m said publication, twenty-five per cent, of the gross proceeds of which was to be turned over to the defend ant as its share thereof; each party having the right to terminate said contract on December 31, 1909, pm vided it gave the other one year’s notice of its election to do so, in which event the contract provided, “whatever outstanding assets there may be under the control of the parties hereto shall be distributed in an equitable and just manner to the party or parties entitled thereto.”

On December 15, 1908, defendant notified plaintiff of its election to abrogate said contract effective December 31, 1909, and subsequently placed the publication of the National Engineer in other hands. When the publishing agreement came to a close, it was found that a great number of the advertising contracts procured by plaintiff were still in force.

The question presented for determination on this appeal is, Do the advertising contracts just referred to constitute part of the “outstanding assets” within the meaning of the aforementioned provision of the publishing contract?

Defendant contends that the term “outstanding assets” does not include the advertising contracts in question, and in support thereof directs our attention to the following clause in the publishing contract, which it contends' limits and defines the term “outstanding assets:’ ’

“It is further agreed by the said parties of the said first and second part that a committee of two be chosen by each of the parties herein, to adjust all claims and profits arising from and out of any business transactions by the parties herein, for and in behalf of said publication, which may remain due and unpaid at the expiration of this agreement.”

It is argued that the terms “outstanding assets * * * .to be distributed,” and “claims and profits * * * due and unpaid” refer to and include precisely the same subject-matter, and that the latter expressly limits the adjustment to be made by the committee thereinabove provided for, to “claims and profits * * * which may remain due and unpaid at the expiration of this (the publishing) agreement.” Underlying this contention is the theory of defendant, that the unexpired portions of these advertising contracts were neither claims or profits due, nor claims or profits unpaid. Obviously defendant construes the term “due and unpaid” to mean due and payable.

The legal meaning of the term “due,” as defined by the Century Dictionary, is: “Owing, irrespective of whether the time of payment has arrived; presently payable; already matured.” It will therefore be seen that the expression “due and unpaid” does not necessarily mean due and payable. To so restrict its meaning would be to render nugatory the preceding clause of the publishing contract so far as it relates to outstanding assets not payable at the time of the termination of the publishing contract. Such a construction would militate against the well-settled rule that a contract should be construed as a whole and effect given to every part thereof if possible. Applying this rule to the contract now under consideration, we are impelled to the conclusion that the term “due and unpaid,” as hereinabove used, refers to the claims arising out of the outstanding unexpired advertising-contracts in question which at the time of the termination of the publishing contract were due and unpaid, but not then payable.

There can be no question that during the life of the said publishing contract plaintiff had an interest in the moneys realized from the publication of advertisements thereunder. Clearly, therefore, the advertising-contracts were assets; and if they were assets during-the life of the publishing agreement, they were not transmuted by its cancellation. Nor does defendant suggest any other classification for them.

Both defendant and plaintiff lay claim of exclusive ownership to these contracts, and our attention is directed to various circumstances which each considers as tending to bear out its assertion.

In our opinion, neither party had the sole ownership of these contracts to the exclusion of the other, but both jointly owned and had control of them. They therefore constituted “outstanding assets * * * under the control of the parties hereto.”

The court therefore properly entered the judgment complained of.

Finding no reversible error in the record, the judgment will be affirmed.

Affirmed.


text:
    Charles Busack, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,465.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Carriers, § 278

      —what care required towards passenger. In an action against a carrier for personal injuries, an averment in the declaration that at the time of the accident plaintiff was a passenger on defendant’s car implies a duty on defendant’s part to exercise towards plaintiff the highest degree of care reasonably consistent with the means of conveyance employed and the practical operation of its line, which duty continues until the passenger has had a reasonable opportunity to alight safely.
    2. Carriers, § 476*—when custom as to keeping of exit door

      latched while car is moving need not be alleged or proved. In an action by a passenger against a street railway company to recover for injuries alleged to have been received in alighting from a moving ear through the negligence of the motorman in unlatching while the car was moving, an exit door which was customarily kept latched until the car stopped, in order to show actionable negligence on defendant’s part it was not necessary that plaintiff should aver the custom as to the operation of the exit doors on defendant’s cars, nor that, having averred it, he should prove it, but it is sufficient if from the evidence it can be reasonably said that plaintiff was warranted in assuming that the unlatching of the door amounted to an invitation to plaintiff to alight, irrespective of the existence of any custom as to unlatching the door.

      Appeal from the .Circuit Court of Cook county; the Hon. Oscar M. Torbisok, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Action by Charles Busack, plaintiff, against the Chicago City Railway Company, defendant, to recover for personal injuries received while a passenger on one of its cars. There was a verdict and judgment for plaintiff for $4,750 and costs, from which defendant appeals.
    Busby, Weber & Miller, Benjamin F. Richolson and Arthur J. Donovan, for appellant; John R. Guilliams, of counsel.
    James C. McShane, for appellee.

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

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

3. Carriers, § 4*—when evidence as to custom of keeping exit door latched until stopping of car is admissible. In an action by a passenger against a street railway company to recover for injuries alleged to have been received in alighting from a moving car through the negligence of the motorman in unlatching, while the car was moving, an exit door which was customarily kept latched until the car stopped, competent evidence as to the existence or nonexistence of the custom is admissible and material as bearing on the question as to whether plaintiff was in the exercise of due care at and just before the time of the accident.

4. Carriers, § 480*—when negligence of motorman in unlatching exit door while car is still moving is question for jury. In an action by a passenger against a street railway company to recover for injuries alleged to have been received in alighting from a moving car through the motorman’s negligence in unlatching at night and while the car was moving, an exit door which was customarily kept latched until the car stopped, where there is a conflict in the evidence as to whether or not the motorman’s act was negligence, the question is for the jury.

5. Carriers, § 480 —when contributory negligence of passenger in opening unlatched exit door while car is moving and alighting is .question for jury. In an action by a passenger to recover for injuries alleged to have been received in alighting from a moving car through the motorman’s negligence in unlatching at night and while the car was moving, an exit door which was customarily kept latched until the car stopped, where the evidence as to whether or not the plaintiff was guilty of contributory negligence in opening the door and alighting is conflicting, the question of his negligence is for the jury.

6. Carriers, § 464*—what evidence material upon proximate cause of injury to passenger alighting from moving car at night. In an action by a passenger to recover for injuries alleged to have been received in alighting from a moving car at night, through the motorman’s negligence in unlatching, while the car was moving, an exit door which was customarily kept latched until the car stopped, evidence that the motorman turned around and looked at plaintiff when he unlatched the door; that, although he saw plaintiff open the door to alight, he did not warn him; that the immediate environment was dark and plaintiff could not, therefore, see the street pavement; that plaintiff had observed that the defendant’s motormen did not unlatch the exit doors until the cars had stopped is material upon the question of the proximate cause of the injury.

7. Damages, § 191*-—when question as to what caused resulting injury to hand is for jury. In an action to recover for personal injuries received by alighting from a moving street car, where, though there is no positive testimony that the use of plaintiff’s left hand was impaired as a result of the fracture of his collar bone caused by the fall, an expert testifies that, in his opinion, the crippled condition of the hand is permanent and probably resulted from an abscess which he found in the left arm pit, and the evidence shows that plaintiff had to undergo an operation on his collar bone immediately after the accident, following which the abscess formed, and that shortly thereafter plaintiff discovered that the fingers of his left hand resisted a firm closure, and he testifies that before the injury he had never had any trouble with his shoulder or arm and had always had full use of his left hand, the question as to what caused the disability of his hand is properly submitted to the jury as one of fact.

8. Damages, § 120 -—when verdict for personal injuries is not excessive. In an action for personal injuries, a verdict for $4,750 is not excessive where it appears that plaintiff fractured his collar bone and was totally incapacitated for about seven months, that he was subsequently unable to follow his trade as a carpenter, owing to his inability to close his hand as a result of the injury, and was obliged to accept other employment at a reduced salary, though it appeared that for a time before the injury he had temporarily done other than carpenter work, owing to a scarcity of work, at a lower figure than that paid carpenters, where it appears that when he received the injury he was again working as a carpenter.

9. Caeriebs, § 482*—when instruction is not erroneous as limiting passenger's exercise of care to time of accident. In an action by a passenger to recover for personal injuries received in alighting from a moving street car, an instruction that if the jury believed from the evidence that plaintiff was injured while in the exercise of ordinary care for his own safety, provided they believed he was blameless of any contributory negligence, and that he was injured as a result of negligence on the part of defendant as charged in the declaration, they should find for the plaintiff, is not misleading as limiting plaintiff’s exercise of care to the time of the happening of the accident, as the words “while in the exercise of ordinary care” are sufficiently comprehensive to include the time just preceding the accident.


text:
    The People of the State of Illinois, Defendant in Error, v. Harry Hill, Plaintiff in Error.
    Gen. No. 22,562.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Vagrancy, § 1—to Tien judgment of guilty reversed. On a prosecution for vagrancy, where there is a total lack of evidence to prove that defendant was without lawful means of support at and before the time of his conviction, and defendant testifies, and his evidence is corroborated by testimony of his employer, that for several weeks prior to his arrest he was lawfully employed and receiving a salary of twenty dollars a week, a judgment of guilty will be reversed.

      Error to- the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois., against Harry Hill, for vagrancy. To reverse a judgment of guilty, under which he was sentenced to serve six months in the house of correction, defendant prosecutes this writ of error.
    John M. Lonergan, for plaintiff in error.
    Maclay Hoyne, for defendant in error.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

2. Vagrancy, § 2 —what is essential to establish, offense of. To establish the offense of vagrancy affirmative proof that defendant was without lawful means of support is indispensable.


author: Mr. Justice McGoorty

text:
    John C. Gifford, Appellant, v. Smith H. Bracey, Appellee.
    Gen. No. 22,328.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. Andrew D. Webb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1917.
    Rehearing denied June 11, 1917.
    Statement of the Case.
    Action by John C. Gifford, plaintiff, against Smith H. Bracey, defendant, to recover on a contract for the purchase of a bond. From a judgment for defendant, plaintiff appeals.
    Miller, Starr, Brown, Packard & Peckham, for appellant.
    F. L. Salisbury and M. Marso, for appellee.

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

   Mr. Justice McGoorty

delivered the opinion of "the court.

Abstract of the 'Decision.

1. Sales, § 323 —what constitutes variance where performance pleaded. In an action to recover on a contract by defendant to purchase a bond, where plaintiff pleads performance, he must prove performance as alleged and cannot recover on a waiver of performance.

2. Sales, § 323*—when waiver of performance must be pleaded. Waiver of performance of a contract must be pleaded, when relied upon in an action to recover on a contract of sale.

3. Sales, § 329*—when evidence is insufficient to show performance of contract for sale of bond. In an action to recover on a contract for the purchase of a bond in which the plaintiff pleads performance, where the evidence shows neither an actual offer by plaintiff to make delivery of the bond to defendant nor to leave it in defendant’s possession, but shows that plaintiff retained it and did not make a formal tender of it. until after he had commenced suit, performance is not shown.

4. Sales, § 325*—when burden of proof is on plaintiff. In an action on a contract for the purchase of a bond, the burden is on the plaintiff alleging performance to prove performance on his part.


author: Mr. Presiding Justice O’Connor

text:
    Andrew Larsen, Plaintiff in Error, v. Adolph Basikowski (also known as A. Smith), Elizabeth Basikowski (also known as Mrs. A. Smith) and S. Singdahlsen, Defendants in Error.
    Gen. No. 21,755.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Patrick B. Flanagan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed May 31, 1917.
    Statement of the Case.
    Action by Andrew Larsen, plaintiff, against Adolph and Elizabeth Basikowski (also known as Mr. and Mrs. A. Smith) and S. Singdahlsen, defendants, to recover $296.22 for materials furnished and labor performed in constructing improvements on real estate. To reverse a judgment in his favor for $100, plaintiff prosecutes this writ of error.
    Earl C. Hales, for plaintiff in error.
    No appearance for defendants in error,

      Abstract of the Decision.
    1. Mechanics’ liens, § 89

      —when owners failing to secure verified statement from original contractor are liable to subcontractor. The owners of premises who make payments to the original contractor without securing from him the verified statement of the parties furnishing labor and materials provided for in section 5 of the Mechanics’ Liens Act (J. & A. If 7143) are not relieved from liability to a subcontractor, even though the payments were made before the latter served them with the notice provided for in section 24 of the Act (J. & A. If 7162).
    2. Mechanics’ hens, § 70

      —what is effect of giving of notice to owner by subcontractor. A subcontractor who has complied with the requirements of section 24 of the Mechanics’ Liens Act (J. & A. U 7162), as to notice to the owner, is entitled to recover for the materials furnished and labor performed with interest at five per cent, per annum from the day his work was completed.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    George S. Eldred, Appellee, v. William H. Colvin, Appellant.
    Gen. No. 21,828.
    1. Assumpsit, Action of, § 89

      —when evidence sufficient to sustain finding for plaintiff. In an action to recover for money lent, evidence examined and held sufficient to support a finding for plaintiff.
    2. Pledges, § 44

      —when evidence sufficient to sustain finding for plaintiff in action to recover value of pledge. In an action to recover the value of certain bonds alleged to have been deposited with defendant as collateral, evidence held sufficient to support a finding for plaintiff.
    3. Pledges, § 12

      —when implied contract exists that pledgee will return collateral. There is an implied contract that one with whom collateral security has been deposited will return the collateral when the indebtedness for which the collateral is held is paid.
    4. Pledges, § 44

      —what is liability of pledgee refusing to return collateral upon payment of indebtedness. The refusal of the holder of collateral security to return the collateral upon the payment of the indebtedness due him is a conversion and a breach of his implied contract to return the collateral, for which the owner of the collateral may maintain an action of assumpsit to recover his damages.
    5. Assumpsit, Action of, § 7*—when lies to recover for breach of contract. Assumpsit will lie to recover damages for the breach of a contract, whether the contract is express or implied.
    6. Action, § 43*—what claims may be joined. A claim for money lent and a claim for the value of bonds deposited as collateral to secure an indebtedness from plaintiff to defendant, which has been paid by plaintiff, may be joined in one action.
    7. Appeal and error, § 367*—when objection that action is premature is too late. The objection that an action for money lent is prematurely brought cannot first be made on appeal.
    8. Action, § 68*—when is not prematurely brought. In an action to recover for money lent, held that the action was not prematurely brought.
    9. Interest, § 5*—when properly allowed. In an action to recover for money lent and for the value of certain bonds deposited with defendant as collateral security, where plaintiff’s contention was that defendant expressly agreed to pay interest on the loan, and defendant collected interest on the bonds, it was not error to allow interest for each item in a judgment for plaintiff.
    10. Judgment, § 172*—when not erroneous because in excess of amount claimed. Where plaintiff claims a certain sum and interest thereon, it is not error to enter judgment for amount in excess of the principal where the excess is made up of interest.
    Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 31, 1917.
    Scott, Bancroft & Stephens, for appellant; John E. MacLeish, of counsel.
    Gann & Peaks and Miller, Gorham & Wales, for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

George S. Eldred brought suit against William H. Colvin to recover for money lent, and for the value of certain bonds. There was a verdict and judgment in favor of plaintiff for $10,795.83, to reverse which defendant prosecutes this appeal.

Plaintiff in his statement of claim seeks to recover two items: (1) $4,500 for money lent to the defendant June 20, 1908, and interest thereon; and (2) the par value of five Chicago Railway collateral trust bonds belonging to plaintiff of the par value of $5,000, with interest from April 24, 1913. The evidence disclosed that the defendant is a broker engaged in the business of buying and selling securities in Chicago under the name of William H. Colvin & Company; that plaintiff was a customer for several years prior to the commencement of this suit; that shortly before June 20, 1908, defendant was interested in a gold mine in Nevada, having invested in the mine about $45,000; that one Charles Gates of New York was also interested in the mine; that the defendant offered to the plaintiff one-tenth of his interest in the mine for $4,500.

Plaintiff’s contention is that he agreed to pay $4,500 to the defendant for one-tenth of his interest in the mine, provided $75,000, which it was stated Gates had advanced, would be first used in developing the mine; that until this was done he would make a personal loan to the defendant of $4,500, which was to bear interest; that this was agreed to by the defendant, and the latter was authorized to charge plaintiff’s account with the sum of $4,500, defendant having at that time more than this amount of money belonging to the plaintiff; that the following month plaintiff received from the defendant a monthly statement which showed a $4,500 loan to the defendant; that subsequently Gates withdrew his $75,000, or had failed to put it up, and thereupon the defendant stated that he would put up the money himself to develop the mine and afterwards, on several occasions, explained to the plaintiff why the deal was not closed and the stock issued, all of which was satisfactory to plaintiff; that no stock was ever offered by the defendant until plaintiff, shortly before the beginning of this suit, demanded the return of the $4,500 with interest, when defendant then stated plaintiff could have the stock in the mine.

The defendant’s version of the matter is that there was nothing said between the parties that the $4,500 advanced was to be a loan, but on the contrary it was an investment in the mine, and that the defendant was unable to deliver the stock on account of delays which he satisfactorily explained to plaintiff.

There was evidence submitted tending to sustain each theory of the case. The jury found in favor of the plaintiff. No complaint is made of the admission or exclusion of evidence, nor of the instructions to the jury, but the defendant contends that the verdict in this regard is manifestly against the weight of the evidence. It would serve no useful purpose to set forth the evidence in detail. The jury saw and heard the witnesses on the stand; their finding in favor of the plaintiff has been approved by the trial court, and, after a careful examination of the record, we are unable to say that such finding is manifestly against the weight of the evidence..

With reference to the five bonds, the evidence shows that plaintiff had for many years been a customer of the defendant, and that as collateral security he had déposited with the defendant five railway bonds of the par value of $5,000; that in November, 1909, plaintiff and defendant and one Keller entered into a verbal agreement whereby the defendant was to “sell short” certain shares of stock for the three, which he did; that afterwards in February, 1910, the three had a conversation in reference to the matter, plaintiff’s version being that the defendant reported that he had made $3,000 profit for the three and suggested that they continue the matter and authorize him to “sell short” such shares of stock as he might deem proper; that plaintiff and Keller agreed to this, provided they would not be held liable for a loss exceeding the amount of the profits which each then had made; that defendant agreed to this, but afterwards about July, 1911, plaintiff and Keller received a statement from the defendant in which each of their accounts was charged with the sum of $3,000; that each of them separately took the matter up with the defendant and inquired the nature of this charge against them; that the defendant stated it was a loss incurred in the transactions which he had conducted for the three; that each of them protested against the charge on the ground that their loss was not to exceed the amount of gains they had made at the time of the conversation in February, 1910; that thereupon defendant stated he would return the $3,000, and plaintiff heard nothing more with reference to this transaction, but continued to deal with the defendant in other matters as he had theretofore done; that on April 18, 1913, plaintiff was closing out his business transactions with the defendant and paid the defendant $4,013.03, the amount due in other matters; that after this payment plaintiff demanded the return of his $4,500, with interest, and the five bonds. The demand was refused on the ground that the $4,500 was an investment, and that plaintiff was still indebted to defendant more than $3,000 on account of the transactions which the defendant conducted for plaintiff, Keller and himself and that the bonds were held by the defendant as security for this indebtedness.

On the other hand, defendant contends that he was authorized by the plaintiff and Keller to buy and sell stock jointly for the three, each sharing equally in the profits and losses; that he made several purchases and sales of stock and reported each to plaintiff, which transactions were approved by him; that the losses incurred by the three amounted to about $22,000; that he charged $3,000 against each of them, and that there was still a balance due him from the plaintiff of more than $3,000, and therefore he was justified in holding the bonds which had been pledged to him as collateral security. ¡

On this issue evidence was introduced tending to sustain both the plaintiff’s and defendant’s theories. The issue was therefore clearly a question for the jury. No complaint is made that the jury were not properly instructed. The jury found in favor of the plaintiff, and we see no reason for disturbing their verdict.

The defendant, however, contends that the judgment is erroneous, in that the right of action, if any, for the $4,500 is in assumpsit, and that the right of action concerning the bonds is in tort, and that there is no warrant for joining the two claims in one suit. It is conceded that this action, although brought in the Municipal Court, is in the nature of an action of assumpsit. The defendant argues that as the five bonds were pledged to him and as he still has them in his possession and claims to hold them only as security, assumpsit will not lie to recover the value of them; “that in a bailment case there can be no recovery of the value of the bailment, unless a sale or a conversion to the use of the defendant is shown”; that since there was no express agreement by the defendant to return the bonds, the value of them “upon any theory of the case could only be recovered in indebitatus and not in special assumpsit,” and that as there was no sale or conversion of the bonds, this action would not lie; but that if plaintiff has any right to recover by reason of the detention of the bonds, it is in an action of tort. In support of this contention, the cases of Morrison v. Rogers, 3 Ill. 317; Stahl v. Ansley, 7 Ill. 32; Ives v. Hartley, 51 Ill. 520; Parker v. Tiffany, 52 Ill. 286; Landis v. Wolfe, 106 Ill. App. 533, and others are cited.

In the Morrison case, supra, it was held that where timber and rails were tortiously taken and the same had not been converted into money or money’s worth, and there was no subsequent promise by the defendant to pay for them, plaintiff could not waive the tort and recover the value of the property in an action for money had and received.

The Stahl case, supra, was an action of indebitatus assumpsit, where the plaintiff left with the defendant certain boots and shoes to -sell on commission. All but two cases of them were sold and the proceeds thereof paid to the plaintiff. There was. no evidence of a sale of the two remaining cases, or a failure to deliver them to plaintiff on request. It was held that plaintiff could not recover. There was no breach of contract involved.

In the Ives case, supra, it was held that where a person puts grain in a warehouse for the purpose of storage and the warehouseman converts the same to his own use by manufacturing it into flour and selling the flour, the owner may waive the tort and recover in assumpsit in an action for money had and received, the value of the grain.

In the Parker case supra, appellee stored some furniture in appellant’s building. Appellant sold some of the furniture without authority from appellee. Afterwards appellant went out of business and acknowledged that he owed appellee for the furniture so sold and promised to pay him. Payment not having been made, suit was brought in assumpsit, and it was held the action would lie.

Tn the Landis case, supra, the court said, p. 537: “If appellee’s contention should be admitted to be that he was the owner of the goods, and appellant had wrongfully taken them and converted them so as to raise a trover liability, still, under the law of this State he is not entitled to recover in this action of assumpsit.”- The court there held that there was no contract relation between the parties, and therefore assumpsit would not lie.

In none of the. foregoing cases where it was-held assumpsit would not lie was there a contract relation between the parties, and they are therefore not applicable to the facts in the case at bar as there was an implied contract that the defendant would return the bonds when the indebtedness for which they were held by him was paid.

Furthermore, the jury having found that the defendant was paid the amount due him for which he held the bonds, and he having refused to deliver them to the plaintiff, this constitutes a conversion of the bonds. In Schouler on Bailments (2nd Ed.), the author says, sec. 253: “A tender of whatever is due on the appointed day, or any other rightful tender, will put an end to the pledge relation, and render the pledgee’s longer detention of the thing inexcusable, and his refusal or unreasonable delay to give it up on demand tantamount to a conversion.” Substantially the same is said in Jones on Collateral Securities and Pledges (3rd Ed.), sec. 566: “A conversion of the pledge occurs immediately upon the creditor’s refusal of a proper tender of the debt upon the day of its maturity or afterward.” In Story on Bailments (9th Ed.) it is said, sec. 122: “If the depositary (pledgee) improperly refuses to redeliver the deposit, when it is demanded, * * * the nondelivéry after such demand is a tortious conversion.” We are therefore clearly of the opinion that the refusal of the defondant to deliver up the bonds upon payment of the amount due him was a conversion and a breach of his implied contract to return them, for which plaintiff may maintain an action of assumpsit to recover his damages.

It is conceded, as of course it must be, that an action of assumpsit will lie to recover damages for the breach of a contract. And this form of action may be maintained whether the contract is express or implied. 1 Chitty’s Pleading (7th London Ed.) *99. The right to maintain such an action has been upheld in the cases of O’Reer v. Strong, 13 Ill. 688; Cushman v. Hayes, 46 Ill. 145; Leonard v. Dunton, 51 Ill. 482; Reebie v. Brackett, 109 Ill. App. 631.

The defendant next contends that as to the $4,500 item, the suit was prematurely brought; that if this item was a loan payable within a reasonable time, a reasonable time had not elapsed prior to the institution of the suit. No such defense was made in the trial court, and obviously it cannot be made here. Furthermore, we think that a reasonable time had elapsed before suit was brought.

Complaint is also made that interest was improperly allowed on each item. Plaintiff’s contention was that when the $4,500 was loaned to the defendant the latter expressly agreed to pay interest; and as the defendant collected interest on the bonds, manifestly it was not error to include interest on both items in the judgment.

The defendant next contends that the judgment is erroneous, in that the amount of damages mentioned in the prcecipe and summons was $9,500, while the judgment is for $10,795.83, and that as there was no amendment to the prcecipe and summons, no judgment could properly be entered in excess of $9,500. Plaintiff in his statement of. claim claims $9,500, and interest thereon, and as it appears that the excess of $9,500 is made up of interest, we think there was no error in entering the judgment.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


text:
    Werner Brothers Express & Storage Company and National Life Insurance Company of U. S. A., Appellants, v. James Donovan and Clara H. Woodward, Appellees.
    Gen. No. 22,032.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 31, 1917.
    Statement of the Case.
    Bill by Werner Brothers Express & Storage Company, complainant, against James Donovan and Clara H. Woodward, defendants, and cross-bills by National Life Insurance Company of U. S. A. and by Clara H. Woodward to establish prior liens on certain personalty. From a decree dismissing the Storage Company’s original bill and the Insurance Company’s cross-bill and granting the prayer of defendant Woodward’s cross-bill, the former two appeal.
    Lewis A. Stebbins and Elmer D. Brothers, for appellants.
    James Donovan, pro se and Cassius C. Clark, for appellees.

      Abstract of the Decision.
    1. Appeal and ebbob, § 1725

      —when decision on former appeal is controlling. On a bill to establish the priority of liens on the proceeds of a foreclosure sale, a landlord’s claim to priority held to be concluded by an adverse ruling on a former appeal.
    2: Mortgages—what are rights of purchaser at foreclosure sale as to removal and storage of furniture of tenant. Under the facts disclosed, the purchaser of realty sold under foreclosure held entitled to remove from the premises the furniture of a tenant of the mortgaged premises, as to which there were conflicting claims between several lienholders, and to cause it to be stored.
    3. Chattel mortgages, | 153*—when mortgagee entitled to prior lien over storage company. Holder of a chattel mortgage on furniture of a tenant of mortgaged premises, held to have a prior lien to a storage company with which the furniture had been stored by the purchaser of the real estate on a foreclosure.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Robinson & Company, Appellee, v. Andrew Marr. Appeal of Clay, Robinson & Company, Garnishees, Appellants.
    Gen. No. 22,039.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoortv, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 31, 1917.
    Rehearing denied June 13, 1917.
    Statement of the Case.
    Action of garnishment by Robinson & Company, a corporation, plaintiff, against Andrew Marr, defendant... From a judgment for plaintiff for $2,179.39, against Clay, Robinson & Company, garnishees^ the garnishees appeal. The case having been before the Appellate Court on three former occasions, the facts will be found in the opinions therein rendered, which are reported in 112 Ill. App. 332; 145 Ill. App. 178; 181 Ill. App. 605.
    Abstract of the Decision.
    1. Garnishment, § 100

      —when evidence sufficient to show that money was property of judgment debtor. On appeal by a garnishee, evidence held sufficient to support, a finding that money in his hands was the property of the judgment debtor.
    2. Appeal and error, § 1733*—when decision on former appeal as to admissibility of evidence controls. Evidence which,. on a former appeal, was held improperly excluded is properly admitted on a subsequent trial.
    3. Evidence, § 458*—when answer in garnishment action is admissible on subsequent trial. On the first trial of an action the first answer of the garnishees was verified by one of the garnishees and stated that the money in the garnishee’s hands belonged to the defendant. On the second trial, the answer of the garnishees was on information and belief, was verified by counsel for the garnishees and indicated that the money belonged to others than the defendant. Held, that on the second trial it was not error to admit the answer of the garnishees in the first trial in evidence.
    4. Garnishment, § 100*—when testimony in deposition is properly excluded. Where the issue involved, is whether money in the hands of a garnishee is the property of defendant or of others, testimony in a deposition of defendant to the effect that the money did not belong to him but belonged to such others, is properly excluded.
    5. Garnishment, § 153*—when persons interested in fund are concluded by default judgment. Where persons who garnishees claim are interested in money in their hands, which is alleged to be the property of defendant, are properly notified but enter no appearance and are defaulted the judgment concludes them.

      George V. McIntyre, for appellant.
    Alden, Latham & Young, for appellee.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

6. Gabnishment, § 118 —when garnishees may not complain of amount of judgment. Garnishees who, after the writ was served on them, paid the entire amount in their hands to defendant cannot complain that judgment was, entered against them for the amount due the garnisheeing creditor and not for the full amount originally due the judgment debtor.


text:
    Western Iron Company, v. John J. Brittain and Milton B. Bushnell, Plaintiffs in Error. In the Matter of the Petition of Joel C. Carlson to enforce Attorney’s Lien, Defendant in Error.
    Gen. No. 22,044.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 31, 1917.
    Statement of the Case.
    Petition by Joel C. Carlson, to enforce his attorney’s lien against John J. Brittain and Milton B. Bushnell, who were defendants in a suit against them by the Western Iron Company, a corporation. To reverse a judgment for petitioner for $175 against defendant Bushnell, this writ of error is prosecuted.
    Walter A. Lantz, for plaintiffs in error.
    Joel C. Carlson, pro se.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and ebbob, § 1193 —what is effect of stipulation on questions reviewable. Where, on a hearing before the court, the parties expressly stipulate the questions to be decided, on a writ of error to reverse the judgment other questions are not properly before the Appellate Court.

2. Coubts, § 69*—when plea to jurisdiction is waived. A plea to the jurisdiction is waived by defendant by filing his answer and contesting the ease on the merits.

3. Attorney and client—what services are subject of attorney's lien. On a petition by plaintiff’s attorney to enforce an attorney’s lien against defendants, the amount which may be claimed is not limited to the fee for services rendered in obtaining the judgment, but may also include services rendered during the ninety-day period in which the execution was stayed by the filing of a stay bond by defendants, which services looked to the payment of the judgment.

4. Attobney and client, § 127*—when judgment for attorney's fees is not excessive. On a petition by plaintiff’s attorney to enforce his attorney’s lien against defendants, a judgment for petitioner for $175, held not excessive in view of the services rendered.


text:
    Marian S. Lindem, Defendant in Error, v. Katharina Sauerland, Plaintiff in Error.
    Gen. No. 22,072.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 31, 1917.
    Statement of the Case.
    Action by Marian S. Lindem, plaintiff, against Katharina Sauerland, defendant, to recover money alleged to be due. To reverse a judgment for plaintiff for $425.18, defendant prosecutes this writ of error.

      Abstract of the Decision.
    1. Attorney and client, § 10

      —when evidence shows attorney to he acting in interests of third person. Evidence held to show that in giving to defendant a receipt in full of plaintiff’s claim the attorney hy whom such receipt was given was not acting in the interests of plaintiff hut of defendant, and that plaintiff was not bound thereby.
    2. Attorney and client, § 10*—right to represent adverse litigants. Attorneys at law cannot accept employment from adverse litigants at the same time and in the same controversy.
    Zach Hofheimer and Arthur Clements, for plaintiff in error.
    P. E. O’Neil, for defendant in error.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Charles B. Travis, Defendant in Error, v. George F. Leibrandt, Plaintiff in Error.
    Gen. No. 22,095.
    (Not to be reported in full.
    Error to'the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 31, 1917.
    Statement of the Case.
    Action by Charles B. Travis, plaintiff, against George F. Leibrandt and the Lincoln State Bank of Chicago, a corporation, defendants, to recover $111. The case was tried before the court without a jury and, after evidence was introduced, plaintiff dismissed as to the Lincoln State Bank and there was a finding and judgment against defendant Leibrandt for the amount of plaintiff’s claim, to reverse which he prosecutes this writ of error.
    Abstract of the Decision.
    Principal and agent, § 224

      —when "burden of proving agency is on defendant. In an action against one to recover commissions on the sale of stock, where defendant claims that in making the agreement for such sale he was acting as agent and not for himself, the burden of proving the agency is on him.
    Harry A. Biossat, for plaintiff in error.
    Ellis & Westbrooks, for defendant in error.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.