text:
    Thomas S. Crowe, Administrator, Appellee, v. Northwestern Malt & Grain Company, Appellant.
    Gen. No. 16,957.
    1. Master and servant—averment of due care. In an action by an employe for injuries sustained through negligence of the employer, it is necessary to aver in the declaration that the employe at the time of the accident was in the exercise of due care and caution for his own safety.
    2. Master and servant—proof of due care by habits. Where there are no eyewitnesses to an accident to a servant resulting in death, due care and caution may be proved by evidence that the habits of the deceased, as to carefulness and caution, were those of a careful man.
    3. Master and servant—when evidence of due care is not sufficient. In the absence of eyewitnesses in attempting to prove that a servant killed in an accident was a careful man, a witness testified that as far as he observed the deceased appeared to be careful, but it did not appear that the witness had had opportunities of acauiring knowledge. Two witnesses gave positive testimony that the habits of the deceased were careless. Held, there was no justification for a finding the deceased was habitually prudent, cautious and temperate.
    4. Master and servant—choosing a dangerous instead of a safe route. A malting company habitually moved empty grain cars by bumping loaded cars against them. A servant permissively going on errands for fellow-servants was familiar with the situation and was ordered not to use the route he did. In using this route he was crushed between an empty car, that he must have known was empty, and a loaded car. There was no eyewitness, no evidence that he was known to be in danger and evidence as to his habits of care was conflicting. Held, he was guilty of contributory negligence as a matter of law.
    5. Master and servant—absence of negligence by master where servant voluntarily chose a dangerous route. A malting company habitually moved empty grain cars by bumping loaded cars against them. A servant permissively going on errands for fellow-servants was familiar with the situation and was ordered not to use the route he did. In using this route he was crushed between an empty car, that he must have known was empty, and a loaded car. There was no eyewitness, no evidence that he was known to be in danger, and evidence as to his habits of care was conflicting. Held, the master, as a matter of law, was not negligent.
    6. Master and servant—contributory negligence as the proximate cause as a defense. Where a servant permissively going on errands for fellow-servants is crushed between railroad cars used by his master, the servant acting at the time in disregard of an order not to use such dangerous route; that the order was habitually disregarded will not preclude his contributory negligence from being the proximate cause of his death, and such negligence may be availed of as a defense.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed with a finding of facts.
    Opinion filed June 4, 1912.
    H. B. Bale and Robert J. Folonie, for appellant.
    Edmund S. Cummings, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

.This is an action brought in the Circuit Court of Cook county to recover for the death of plaintiff’s intestate, as a result of injuries received through the alleged negligence of appellant, on its premises February 2, 1909. A jury trial resulted in a verdict, and judgment against appellant for $1,768.

The plant of the appellant consisted of a malt house on the east side of which there were two switch tracks extending north and south just outside of the building. There was a door on the east side of the malt house and a person walking in an easterly direction on leaving this east door would first come to the unloading track or barley track, as it was called, on which there was a track scale. The south end of the track scale was about eighty feet to the north from this east door. Next beyond this barley track was 'another track variously designated. Just east of this last track, and nearly opposite the north end of the premises, was a scale shanty where the weighman had his station, and was accustomed to weigh loaded cars which came upon the scale. After the car was unloaded, the boards which held the grain in the car continued to be left on the scale until the weighman had finished weighing the empty ear with the boards, when they were then removed from the scale and a new car loaded with grain pulled up on the scale to be weighed and unloaded. To move the empty car off the scale the loaded car was bumped against it. The power to move the loaded car (which came from the north) was furnished by a rope with a hook upon the end fastened to the trucks of the loaded car, the other end of the rope being attached to a spool on a car-pulling machine operated by a stationary engine contained just inside the walls of the malt house. At the time of the accident five cars had already been emptied and pushed south on the track scale, the nearest end of the last one of which was only about a foot or so away from the south end of the car standing upon the scale. Immediately east of these two tracks was the Chicago & Northwestern Railway Company’s right-of-way, which, at this point, is elevated. It appears that when the men, who lived east of the North Western Railway tracks, came to work in the morning, and when they left for home in the evening,- and also when they went to and from lunch .at. the noon hour, they placed a stepladder against the wall retaining the embankment and crossed the right-of-way. As the car-pulling was done only during working hours, the car-puller was not, as a rule, in operation when the employes were thus crossing the tracks.

The deceased had been employed in the malt house for seven or eight years, and his eyesight and hearing were said to be good. For a considerable time before the accident, deceased had been accustomed to go each day, at about the hour of ten o’clock in the forenoon, to procure pails of beer for his fellow-employes in the plant, he having been designated for that service by his foreman because his absence upon that errand interfered less with the work than to have the beer procured otherwise. The saloon, from which the beer was procured, is located in a northwesterly direction from appellant’s plant. In going for beer on the day in question, the deceased went through the east door of the malt house, crossed the two switch tracks, then walked north beyond the scale and turned west where he again crossed the tracks on his way to the saloon. In coming back, he followed the same general course, and, going eastward, crossed the tracks just north of the scale, then went south, and after passing the scale, he was not again seen until after the accident—which must have occurred about half a minute later. He had a string of beer cans attached to a stick in each hand; these were found immediately after the accident on the barley track, just south of the scale, and he was seen leaning against the malt house nearby, having-been apparently crushed between the car, which stood upon the scale, and which had just been emptied, and another empty car situated only about a foot or so' south of it, as he attempted to pass between them with his cans of beer.

In appellant’s plant, beside the “east” door through which deceased passed, there was also a door on the west side of the plant, toward the southerly end of the malt house, which was open at all times, during working’ hours, and it appears from the evidence that the deceased sometimes used this “west” door. The distance which deceased had to travel to reach the saloon, if he went out at the “west” door, was practically 1,500 feet; while, if he went out at the “east” door, the distance to the saloon was about fifty feet less. However, if he went by way of the “west” door, the way was entirely unobstructed by building or car tracks, while-by going out the “east” door, he was compelled to cross the two tracks lying next the building in going east, then crossing them again as he went west to the saloon, and, in returning, he was compelled to recross the same tracks twice to get back into the building.

It further appears in evidence that about a week before the accident occurred, the foreman for appellant told deceased not to use the “east” door in getting beer; that there was danger in using it and crossing the tracks, and he peremptorily ordered deceased to use the “west” door, which he promised to do. After this instruction was given, the foreman had no knowledge as to whether or not he was obeyed. But the evidence fairly shows that during the several years prior to the accident, the route by way of the “east” door was much more frequently used.

The negligence alleged was that appellant carelessly moved and operated the car in question, and caused it to strike the deceased without giving any notice or warning of its intention to do so, and without any control over the brakes or speed of the car.

More than a year after the declaration was filed, by leave of court, an additional count was filed setting up much more of detail concerning plaintiff’s alleged cause of action. Appellant filed a plea of the statute of limitations to this additional count, to which plea the court sustained a demurrer, and appellant elected to stand by its plea.

We are asked to reverse the judgment, upon the contentions that none of the original counts of the declaration state a cause of action; that the court below erred in sustaining’ the demurrer to the plea of the statute of limitations to the additional count; that the court erred in not directing a verdict for the defendant, and in denying its motion for a new trial; and that the court also erred in its rulings upon evidence, and in giving and refusing instructions.

After a careful examination of the briefs and arguments, together with all the evidence shown in the record, we have reached the conclusion that the judgment of the court below must be reversed.

It is very doubtful whether upon the evidence in the case negligence of the defendant is established. The record nowhere shows that the employes of appellant knew at the time the empty car was moved from the scale that McLaughlin was in a position of danger. Appellant would be under no obligation to give warning or make signals when it was about to move the car off the scale, if there was no one on or near the tracks, and it does not anywhere appear that the presence of McLaughlin between the end of the recently emptied car upon the scale and the car south, was known to, or even suspected by, any of the employes of the defendant company. The most that can be said is that he had been seen shortly before that, and was then, east of the emptied car going south, but whether he had, at any point, stopped, or whether he had reached a point where he wished to cross the tracks between the cars, or whether he was engaged in the slightly longer trip of going far enough south to go around south of the four or five cars standing upon the track, does not appear.

The specific charge in the declaration was that plaintiff’s intestate was carrying beer on the occasion in question “for certain servants of the defendant, employed by it at its plant aforesaid. ” It is not even averred that this was being done for the defendant, nor that while so engaged he was furthering or promoting the defendant’s business; nor yet, that the discharge of his duties to his employer required him to be upon the track where he was injured. In Gibson v. Sziepienski, 37 Ill. App. 601, it appeared that the deceased was taking dinner to his son, who was working in the factory of defendant. It is alleged that the deceased was there with permission of the defendant, and it might have been claimed in that case (as it is suggested in this) that thereby he was promoting or furthering the business of defendant by bringing lunch (as well as in this case, by bringing the beer to the workmen). But the court said: “There was no duty of defendant to safeguard its plant for plaintiff’s intestate, * * * As to persons in the building, (in this case, on the tracks) by permission of the proprietors, the law does not impose upon them the duty of guarding such dangerous objects, so that visitors shall receive no harm.”

We are clear, however, that the record does show the deceased to have been guilty of contributory negligence proximately contributing to the injury, and that he assumed the risk of the dangers which resulted in such injury.

It was incumbent upon appellee to establish his case before the jury by competent testimony, and a necessary averment of the declaration was that the deceased was, at the time, in the exercise of due care and caution for his own safety. There was no direct testimony upon this point. Plaintiff sought to sustain this averment, however, by proof that the habits of the deceased, as to carefulness and caution, were those of a careful man. Such testimony is admissible where, as in this case, there were no eyewitnesses to the accident. The only testimony submitted to the jury by the appellee upon this question was that of a single witness, whose testimony upon this point only went to the extent of saying, “So far as I observed, Henry McLaughlin appeared to be careful as much as I know.” It does not appear that the witness had noticed any instances of McLaughlin’s carefulness, nor was it shown what opportunities witness had for observing him about his work, nor that witness ever observed the general conduct of deceased ■ with reference to his own safety. Opposed to this very meager testimony upon this point, was the testi- e mony of two witnesses for appellant, one of whom ' says that “McLaughlin’s habits before the time of his death, respecting his own safety, were careless.” And upon cross-examination, he explained that McLaughlin had previously had his hand hurt by getting it in running machinery; the witness further said, “I say that he was careless as to his own safety around machinery.” Another witness testifying on behalf of the defendant upon this point, says: “I observed McLaughlin’s habits in respect to his own safety. His habits in this respect were careless. Whenever I fixed a machine he was always around there, and I had to take care of him more than myself to keep him away from the machinery. ”

The material question here was as to the habits of the deceased, and, under the law, it was necessary that there be some evidence on the part of appellee to raise a presumption that the deceased “was habitually prudent, cautious and temperate.” C. R. I. & P. Ry. Co. v. Clark, 108 Ill. 117. We think it is evident, from the proofs in this case, that there is no justification for finding that the deceased “was habitually prudent, cautious and temperate.”

Upon the- facts shown in this record, it is indisputable that, upon his trips to procure the pails of beer, deceased was at liberty to use the west door of the malt house, and that, had he chosen that route, he would have been entirely free from any risk involved in crossing the tracks, whether between the cars or not; but he chose to use the east door, crossing these two tracks twice on his way to go to the saloon, and twice when returning therefrom, carrying on sticks in his hands sixteen small cans or pails of beer, and attempting to pass through between cars so close together as to leave a passageway for him between them of only a foot or two. The physical conditions creating the hazard, which he thus voluntarily incurred, were perfectly apparent. His eyesight and hearing were good. He was thoroughly familiar with the situation. Within approximately half a minute to a minute before he was injured, he passed along the east side of the car standing upon the scale, between which and the empty car just south there was only this space of a foot or two, and attempted to pass through between them, burdened as he was. To one giving the slightest attention, it was perfectly apparent that the car was likely to be moved at any moment. When deceased was going eastward to cross the tracks north of the scale with his cans of beer, the rope with the hook for pulling up the loaded car had already been drawn out north to be attached to the loaded ear, and, immediately after he passed, the hook was actually attached and the car started. It was apparent from even a casual inspection of the surroundings, including the car upon the scale, that it had been emptied and swept, and that the boards on the scale were nearly all picked up, showing that the car was likely to be moved at any instant. Taking this, east route, with its crossing and recrossing of the tracks in question under the circumstances shown in this record, we consider evidence of lack of due care. The distance to 'the saloon, by using the east door and crossing the tracks, is about 1,500 feet, and, by the west door, the distance to be traveled is about 1,550 feet over prairie land, with a passageway wholly unobstructed by car tracks or buildings. The small saving of about 50 feet in distance (being about one-thirtieth of the total distance to be traveled), by choosing the east route with the danger and delay incident to crossing the tracks, was certainly an inadequate reason for any prudent man. Having thus, by his own choice, selected a dangerous route, when he was at liberty to follow a safe one, he was guilty of negligence. Kath v. Ry. Co., 232 Ill. 126; Elgin, Joliet & Eastern Ry. Co. v. Docherty, 66 Ill. App. 17. In the former case the court said on page 134:

“Suffice it to say that where there are two ways of performing an act, one of which is safe and the other negligent, and the servant without coercion, pursues the negligent one, there can be no recovery, if in performing the act he is injured. It has often been held that a master is not bound to take more care of the servant than the servant may reasonably be expected to take of himself. ’ ’

In the latter case plaintiff’s intestate was a switch-man in the employ of defendant. In attempting to board a car he stepped upon a swing brake beam, and seized an upright brake staff, intending to draw himself up; its fastenings were defective—it gave away, and he fell under the train. There were steps on the side of the car, which he could have used. The court said:

“From the evidence in this case there can be no question that the deceased chose a dangerous instead of a safe means of attempting to board the car, and that his death was the result of such voluntary choice. Under such state of facts, the authorities are full and complete that there can be no recovery.”

Év a rule of the company employes were forbidden to stand on the track while boarding engines or cars, and the plaintiff introduced evidence that it was “customary for men to board cars in this manner,” and “it is claimed the custom was so well established that deceased had a right to assume that the rule had been abrogated, because it had not been observed or enforced.”

The court, in passing upon this contention, on page 23, says:

“Under the view we take of this case, we do not deem it. necessary to discuss the propriety of the court’s action in admitting this evidence. The deceased appeared to be a man of ordinary intelligence, and was the master of his own actions. Aside from any rules, the highest duty he owed to himself, and one of the duties which was due from him to his employers was to avoid rish and danger. It was incumbent upon him, whether there was any rule upon the subject or not, to have selected the safe method of trying to mount the car, and thereby avoid the unnecessary risk and hazard to which he exposed himself by the course he pursued.”

The court then held that plaintiff’s intestate had been guilty of contributory negligence.

In Illinois Central R. R. Co. v. Curran, 94 Ill. App. 182, the plaintiff was a track foreman. He walked along the ties of the tracks when there was an open space on each side of it which he could have used; the court said:

“We think appellee was so clearly negligent in walking where he did that there should be no difference of opinion among reasonable and fair-minded persons, and in this connection we think it should be said that whether he looked or not is not of controlling importance for the reason that his negligence in walking on the tracks at all, under the circumstances shown precludes a recovery. ” “It follows that the learned judge was in erfor in not instructing the jury to find the defendant not guilty.”

Upon the trial of the case at bar, McLaughlin’s foreman, Thomas Brockwell, was a witness. He was called in the first instance by appellee, and afterwards on behalf of appellant, and he testified that he had instructed the deceased to use the west door. He says: “About a week or ten days before he was killed, I had a conversation with McLaughlin. I went to see what kept him from coming with the beer. He came late, and I said, ‘What kept you with the beer?’ He said, ‘I was detained by the cars.’ I said, ‘Where were yon?’ He said, ‘I was over at Peterson’s.’ I said, ‘Why don’t you go in the west door?’ He says, ‘The other way is shorter.’ I said, ‘Shorter nothing—there is not enough to make any difference.’ I says, ‘You go in the west door and there is nothing in your way—you have a clear road.’ ‘Well,’ he says, ‘I have always come that way,’ and I said, ‘From this on don’t go that way any more, because,’ I says, ‘You are liable to get hurt. We don’t want you to be detained all day for the beer and keep the men from working, ’ and, I says, ‘So, from this on, you go the other way,’ and he says, ‘All right, sir.’ From that time on I didn’t see what way he went. McLaughlin’s habits before the time of his death, respecting his own safety, were careless. The door at the west end of the malt kilns was always opened, and unlocked during working hours. ’ ’

This testimony was unimpeached, and we do not see that it can be discredited upon the ground that it was unreasonable or improbable. Under the circumstances shown in this record we do not think that the jury were at liberty to disregard the testimony of Brockwell. See Kauffmann v. Johns-Manville Co., 156 Ill. App. 426. If it is true, it established a defense.

Some contention is made here that the defense of contributory negligence is not available, because it is said that the crossing of the tracks by McLaughlin was not the proximate cause of his injury, and that, in any event, if such an order was given, it was habitually disregarded by McLaughlin. We do not think the contention sound. In Abend v. Railroad Co., 111 Ill. 209, the court said:

“It cannot be maintained as a general proposition that in actions for personal injuries caused by the defendant’s negligence, the contributory negligence of the injured party will constitute no defense except where the latter’s negligence is an element or factor in producing the force, causing the injury complained of. It is sufficient, if the plaintiff’s negligence materially contributes to the injury, whether it contributes to the force causing the injury or not. * *• * Mere inconvenience in performing a duty or a few minutes more time in performing it, by reason of the operation of the rule, is not sufficient to relieve an employe from the legal consequence of violating the rule.”

In Chicago & Alton R. R. Co. v. Myers, 95 Ill. App. 578, plaintiff, a brakeman, sought to recover for injuries received while attempting to uncouple a car. The case turned upon the question of contributory negligence. He had been instructed to not go between moving ears. The court said:

“An employe cannot recover for injuries received while acting in violation of his contract of employment and reasonable rules established for his' safety,”—and the court held that evidence of customary violation of the rule prior to the time it was imposed upon the plaintiff was not competent.

We therefore conclude that the appellant was not shown to be guilty of actionable negligence, and, also, that the deceased was not at the time in the exercise of ordinary care for his own safety, but was guilty of contributory negligence, and these conclusions render unnecessary a discussion of the other questions involved upon this appeal. The judgment of the court below must be reversed.

Judgment reversed with a finding of facts.


source: Caselaw Access Project

author: Mr. Presiding Justice Baldwin

license: Public Domain

text:
    Jacob Kuhn, Appellant, v. Peter Kuhn et al., Appellees.
    Gen. No. 16,995.
    1. Contbacts—agreement not to go into bankruptcy is a valid consideration. That an insolvent maker of a note agrees not to go into bankruptcy, and that a sum less than the amount of the note was provided by others, is sufficient to support an agreement by the payee to accept such sum in discharge of the debt.
    2. Limitation of actions—effect of payment not recognizing the indebtedness. A payment on a note made with the intention of not recognizing or affirming the indebtedness will not preclude the statute of limitations from being a bar to an action.
    3. Bills and notes—when evidence of payment is sufficient. On a bill to obtain the amount of a note there was evidence that the payee accepted a smaller sum from a third party in satisfaction on the maker waiving his purpose to go into bankruptcy, and surrendered the note. The payee, experienced in business, testified to the opposite and that the note was given to the third party for safe keeping, it being suggested in argument that the maker was afraid judgment would be entered upon it. Held, complainant’s case was not established by a preponderance of evidence.
    Appeal from the Superior Court of Co ok county; the Hon. Mabcijs Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.
    Rehearing denied June 25, 1912.
    Thompson & Clark, for appellant.
    Musgrave & Lee, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

On the second day of March, 1892, appellees, Peter Kuhn and Mary Kuhn, his wife, executed and delivered to appellant, Jacob Kuhn, their certain promissory note for .the sum of $467.50, dated on that day and due in six months. In July, 1897, a payment of $5 was made upon the note, and in September, 1900, one Henry Martin, a brother of said Mary Kuhn, paid to appellant, Jacob Kuhn, the sum of $50 in cash,, whereupon the note was delivered by appellant to said Martin, who immediately surrendered it to the makers, and they at once tore off their signatures, and retained the note in their possession.

On January 18, 1909, appellant, Jacob Kuhn, filed a bill in the Superior Court of Cook county against Peter Kuhn, Mary Kuhn and Henry Martin, alleging that the payment of $50 was made and accepted only as a payment on account of the note, and that the note itself was delivered to Martin by appellant to keep for a short time so as to assure Peter and Mary Kuhn that no suit would be immediately started to collect the balance thereof. The bill prayed for a decree against the defendants for the amount of the note with interest, less the payments of $5 and $50 above mentioned. The court below found in favor of the defendants and dismissed the bill for want of equity, whereupon Jacob Kuhn appealed to this court.

On the trial, Peter and Mary Kuhn testified that in September, 1900, they were without property or means to pay to appellant the amount due on the note, and they contemplated seeking a discharge in bankruptcy; that their children raised $30 in cash, to which was added $20, advanced by Henry Martin (a brother of Mary Kuhn), making up a total of $50, which amount Martin was directed to offer to Jacob Kuhn, appellant, .in full satisfaction of the note, and to inform appellant that unless this offer was accepted, Peter Kuhn and Mary Kuhn would go into bankruptcy.

There is a conflict between the testimony given by Martin and by appellant, respectively, as to what was said between them at the time the note was surrendered. Martin testified that he offered the $50 in full settlement of the note, and stated to appellant that he was himself advancing $20 of the money, and that the remaining $30 had been raised by Mr. Kuhn’s children, and that, unless appellant would accept the offer, Peter and Mary Kuhn would go through bankruptcy. Appellant testified that no such offer or statements were made by Martin, but that Martin paid the $50 without conditions, and that he thereupon delivered the note to Martin, who agreed to take and hold it for him.

If the testimony of Peter Kuhn, Mary Kuhn and Henry Martin is believed, the court below was fully justified in dismissing the bill for want of equity. If believed, it established the insolvency of Peter and Mary Kuhn, and their having waived their purpose of going through bankruptcy; and also, the fact that the $50 paid was provided by persons other than themselves. If these facts were established, they were sufficient to support an agreement by Jacob Kuhn to accept that amount in discharge of the debt. In addition, the statute of limitations would, upon the facts testified to, bar an action against Henry Martin in five years from September, 1900, and in ten years from July, 1897, against appellees, Peter and Mary Kuhn, if, as testified, the payment of $50 in September, 1900, was made with the intention of not recognizing or affirming the indebtedness. Winter v. Meier, 151 Ill. App. 572; Melroy v. Kemmerer, 218 Pa. 381; Hurd’s Rev. Statutes, 1909, Chap. 83, Secs. 15 and 16; Miller v. Cinnamon, 168 Ill. 447; Cashmar-King S. Co. v. Dowd & King, 146 N. C. 191.

We think the testimony of the defendants sufficient to justify a finding that Peter and Mary Kuhn were insolvent, and that bankruptcy proceedings were contemplated by them.

We have carefully considered the testimony offered by the respective parties, and cannot say that the court below erred in its decree. It is true that the testimony of Jacob Kuhn, appellant, was directly opposed to that of Henry Martin upon the question of what was said and done at the time the note was delivered to Martin, and, while we do not feel disposed to characterize the testimony of any of the witnesses as being intentionally false, we cannot regard that of Jacob Kuhn as at all satisfactory and convincing. Jacob Kuhn was shown to have been a constable of Cook county in 1892, and somewhat acquainted with business. His version of the transaction with Martin is that Martin came upstairs to see him and said, “I come to see you about my sister; I don’t care anything about your brother, but it is my sister. . She gave me $50, and if you will let me have the note, I will take the note for your safekeeping. I will keep it for you and I will give you $50. That is all I can pay you now.” * * * Jacob Kuhn further testified that, after talking with his wife, he “went out and I told him, I says, ‘Martin, you keep that note for me, do you?’ and he says, ‘Why, certainly I will,’ and I says, ‘Ton remember, now, I will trust you with that note,’ and he says, ‘I certainly will keep it until you get in better circumstances, and then I will let you have the note,’ and at that I took his $50.”

Upon the argument, it is suggested that Jacob Kuhn turned the note over to Martin upon some claim that Peter and Mary Kuhn were afraid he (Jacob Kuhn) would enter up judgment upon it; and that while it was held by Henry Martin, they were safe from that contingency; but we do not find any justification in the record for that claim; indeed, the testimony of Jacob Kuhn respecting this matter is that Martin took the note for safekeeping. Nothing had been paid upon this note from its date, March 2, 1892, until July, 1897, at which time $5 was paid, and there was nothing further paid until September, 1900, when $50 was paid, either upon the note, or for the purpose of securing its surrender and cancellation; and it was not until January 18, 1909, more than eight years after the note was delivered to Martin, before appellant took any steps to enforce his alleged claim upon the note in question.

The burden was upon appellant to establish his case in the court below by a preponderance of the evidence. Upon the record before us, we cannot say that he succeeded in doing so, and, accordingly, the decree must be affirmed.

Decree affirmed.


author: Mr. Justice F. A. Smith

text:
    Chicago & Erie Railroad Company, Appellee, v. Berwind-White Coal Mining Co., Appellant.
    Gen. No. 16,955.
    1. Practice—when question not before court. No question of the correctness or reasonableness of demurrage charges on cars of coal is before the court where no claim is made that the charges did not accrue or were unreasonable or that they were not the customary and usual charges.
    2. Common carriers—right to collect demurrage prior to Hepburn Act. It would seem that a carrier’s right to collect demur-rage on cars of coal delivered before the Hepburn Act went into force is not affected by failure to file tariffs, since at that time such failure merely rendered the carrier subject to a penalty.
    3. Interstate commerce commission—must determine form and style of tariffs filed. The style and form of documents filed with the Interstate Commerce Commission setting forth demurrage charges and tariffs are for the commission to determine and not for the trial court.
    4. Common carriers—demurrage and transportation charges distinct. Railway demurrage charges are no part of the transportation charge.
    5. Common carriers—when tariff schedules showing demurrage charges duly filed with Interstate Commerce Commission. Demur-rage rules and charges of a railroad company are duly filed with the Interstate Commerce Commission, where a book containing the rules of an association of railroad companies including the one in question is filed with the commission and a day or so later a notice of the exact charge is filed.
    6. Common carriers—when may charge for demurrage. A common carrier is not deprived of its right to make a charge for demurrage though the rules and tariffs are separately filed,
    7. Common carriers—when demurrage charge not invalid. A charge for demurrage on cars is not invalidated though the rules regarding such demurrage were not posted in two public places in the company’s depot as required by the rules of the Interstate Commerce Commission.
    8. Evidence—when showing agreement to pay demurrage charges. On action for demurrage on 148 cars of coal it appears that the consignee knew of the charge and agreed to pay it where, on delivery to the consignee of notice of the arrival of cars, re-consignment orders were made out by him on all hut one or two of which appear the typewritten words “We pay car service,” or “Collect car service at this office.”
    9. Common cabbiebs—effect of failure to file demurrage tariffs with commission. On action for demurrage, failure to file tariffs or the filing of defective ones with the Interstate Commerce Commission has no legal bearing on the right to recover the ordinary and usual charges.
    10. Common cabbiebs—right to malee car service charge. A carrier’s right to make car service charges is a common-law right.
    11. Common cabbiebs—when may malee demurrage charges. A railway company may make car service charges on cars consigned flat to Chicago which are never delivered in Chicago but are held at yards in Hammond, Indiana, for reconsignment orders, where such yards are the regular holding yards in such cases and have been for about twenty years, and where the company has no yards or tracks in Chicago.
    Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Fostbb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Pomeroy & Martin, for appellant.
    Calhour, Lyford & Sheean, for appellee; Edward W. Rawlins and C. D. Clark, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This action was brought by the Chicago & Erie Railroad Company, appellee, in the Municipal Court of Chicago against the Berwind-White Coal Mining Company, appellant, to recover demurrage or car service charges on 148 carloads of coal, the charges accruing while the cars were being held in appellee’s yards at Hammond, Indiana, awaiting consigning orders.

The cars in question were shipped by appellant from Berwind, West Virginia, consigned to itself flat at Chicago. The shipments cover a period from May 10, 1906, to December 7, 1906. Appellant had no tracks or storage yards in Chicago, but had an office in the Fisher Building in that city. Appellee’s holding yards for carload freight billed flat to Chicago are at Ham-round, Indiana, and all cars so billed are held at that point for re-consigmnent. It has never been the practice or custom to bring cars consigned flat to Chicago into the city, as Hammond is the regular hold-out yard for Chicago for appellee, and if brought into the city they would only have to be hauled out again through the Belt Line, or some other road, on re-consignment orders.

This method and practice of handling carload shipments had been in vogue for twenty years or more.

From time to time as the cars arrived at Hammond, appellee sent to appellant by messenger arrival notices. These notices were delivered at appellant’s office in Chicago, and appellant in turn mailed to appellee’s agent at Hammond consigning orders directing appellee where to send the coal. This was done in the case of each and every car involved in.this action. All of the original re-consigning orders áre attached to the record, and with but one or two exceptions there is typewritten at the bottom of each of those re-consigning orders the words, “We pay car service,” or the words “Collect car service at this office.”

During the time in question demurrage charges at the rate of one dollar per day, after deducting the free time and holidays, accrued to the amount of $1,785.

The appellant offered no evidence in the court below, and the "court directed the jury to find the issues for the plaintiff and to assess appellee’s damages at the sum of $1,785, there being no dispute as to the amount, and judgment was entered on the verdict.

The contention of appellant is that there was no legal tariff in force covering the demurrage, and therefore it could not legally be assessed, and that even if there had been a tariff the carrier could not assess demurrage until the shipments had reached their destination. It is also contended on behalf of the appellant that there were errors committed in the admission of evidence on behalf of appellee.

No claim whatever is made by appellant that the amount of demurrage charges in question, at the rate of one dollar per day, did not actually accrue while the cars were being held in the storage yards at Hammond awaiting re-consignment, or that the charges made were not reasonable or the customary and usual ones, so that no question as to the correctness or reasonableness of the charges is before the court. (Schumacher v. C. & N. W. Ry. Co., 207 Ill. 199.)

The claim of appellant is that appellee was not entitled to make any charge at all for demurrage, for the reasons, 1st, that appellee did not file with the Interstate Commerce Commission tariff schedules properly setting out the charges; and, 2d, because appellee did not make a proper delivery of the cars.

The record shows that sixty-eight of the cars in question were shipped and delivered prior to August 29, 1906,. the time the Hepburn Act went into force ; and appellee’s right to collect the $1,163 assessed on those cars is in no way affected by the tariffs, as under the act in force at that time the failure to file tariffs simply rendered the carrier subject to a penalty, and in no way affected its right to make charges.

Appellee’s contention on the other hand is that it had complied with the rules of the Interstate Commerce Commission, and it is therefore immaterial to discuss the tariffs in reference to their applicability to any particular part of the shipments. The evidence shows that the shipments were made and delivered in 1906, part of them just prior to and a part just after the Hepburn Act went into effect.

By the Interstate and Hepburn acts the Commission may determine and direct the form in which schedules shall be prepared and arranged, and may change the form from time to time as it shall find expedient.

Appellee contends, and wé think with reason, that the rules and regulations on file with the Commission at the time the shipments were made, were a sufficient compliance with the rules to authorize the collection of the charges in suit, even under the present requirements of the Commission.

For some time prior to the time in question there was in existence an association composed of the various railroads entering Chicago, known as the “Chicago Car Service Association,” and they had promulgated certain rules covering demurrage in the territory bounded by Lake Michigan on the east, Waukegan on the north, thence following and including the line of the Elgin, Joliet & Eastern Railway Company, to and including Griffith, Indiana, thence north to Edgemoor, Indiana, on the shore of Lake Michigan. This association published a book of rules entitled “Car Service and Storage Rules,” a copy of which is attached to the record. On page 3 of that book appears the names of the various railroads comprising the association, including that of appellee. In this book was set forth in detail the rules to be followed by the railroad in assessing demurrage on cars brought within the territory of the association, with reference to free time allowing for loading, unloading and re-consignment.

Under date of August 29,1904, appellee filed a copy of those rules with the Interstate Commerce Commission. It is true that in the book no specific mention is made of the amount of the charge, but a day or two later, it filed with the Interstate Commerce Commission a statement referring to the book, and in part as follows:

• “In connection therewith bes: to advise that our rates will be: Car service, one dollar ($1) per day or fraction thereof.”

Later, under date of October 18, 1905, it filed with the Commission an amendment to the rule, changing the free time from seven to five days, and later certain other amendments were filed which are not material to the present case. These documents, as the record shows, are all printed in plain, legible type, and the rules and regulations therein contained are clearly set forth and can be easily and readily understood, and are such that any one desiring- to find out from the documents that are on file with the Commission what the demurrage charges in the territory of the Chicago Car Service Association were, could readily have done so.

Counsel for appellant make numerous criticisms of the publications. Their first criticism is as to the style and form of the documents themselves. Those, however, are matters entirely for the Commerce Commission to determine. It was not for the trial court, and is not for this court to determine or fix the particular form or style of tariffs, or the size of the type in which the tariffs are to be printed. The provision of the act touching this point is:

“The Commission may determine and direct the form in which the schedules required by this section to be kept open to public inspection shall be prepared and arranged, and may change the form from time to time, as shall be found expedient.”

It is further urged by counsel for appellant that the demurrage rules and charges filed do not refer specifically to any tariffs which give the transportation rates. In our opinion demurrage charges have nothing to do with transportation rates. In Suffern, Hunt & Co. v. I. C. & W., 7 I. C. C. B. 272, the general rule is laid down as follows:

“Whether a rule or regulation concerning transportation can lawfully be established by the issuance of a schedule or document which neither prescribes rates, fares or charges, nor refers to any rate or fare schedule, depends upon the nature of the rule or regulation. If rules or regulations in any wise change, affect or determine any part of the aggregate of such rates, fares and charges, they must be stated on the schedule of such rates, fares and charges.”

We think it is clear that such a rule would have no application to demurrage charges, as they are no part of the transportation charge. Before a shipment is made it cannot possibly be known what the demurrage charges will amount to, or whether there will be any at all. If the cars are unloaded or re-consigned within free time, there will be none. In every case the question of whether or not there will be car service depends upon the consignee or owner, or upon conditions which cannot possibly be known in advance. Demurrage charges are no part of and are separate and distinct from transportation charges, and do not arise, if at all, until the transportation has ended. Furthermore, it has been specifically held that the fact that the demurrage rules and tariffs are filed separately, does not deprive the carrier of the right to make a charge. (Cudahy Packing Co. v. C. & N. W. Ry. Co., 12 I. C. C. R. 446.)

In this case the demurrage rules and charges were duly filed with the Commission.

It is further objected that the evidence does not show compliance with the rules of the Interstate Commerce Commission, in that it does not show that the rules in question were kept posted in two public places in its depot. In Texas & Pacific Ry. Co. v. Cisco Oil Mill, 204 U. S. 449, it was held that the publication of the rules was not a condition precedent to the establishment and putting in force of tariff rates, but that the rates were established when a schedule thereof was filed with the Interstate Commerce Commission, and that the other provisions in the act had for their objects merely the affording of special facilities to the public for ascertaining the rates actually in force. We think the contention that the appellee had failed to comply with the rules of the Interstate Commerce Commission with reference to posting the tariff in its depots is without merit. (Texas & P. R. R. Co. v. Abilene Oil Co., 204 U. S. 426; Erie R. R. Co. v. Wanaque Lumber Co., 75 N. J. Law, 878.)

It is not claimed or contended that the demurrage charges in question did not accrue, or that they were not the ordinary and customary charges, or that they were not reasonable. We think upon the evidence, that appellant not only knew that it was required to pay car service, but it agreed to do so. The right of the carrier to make car service charges is a common law right and not one which is given by statute. The right existed before the Interstate Commerce Commission was created. The mere fact that a carrier has failed to file tariffs or has filed defective tariffs, does not, in law, permit a consignee or owner to escape the payment of the ordinary and usual charges made. If the appellee has failed to file tariffs it will be dealt with by the Interstate Commerce Commission on proper, application, but that has no legal bearing upon the question presented in this record.

It is contended, on behalf of appellant, that the court erred in admitting in evidence certain records which were kept by appellee at its office at Hammond. The objection made is that they were secondary evidence, and not the best evidence. In our opinion the objection is not well taken. We think the evidence was properly admitted.

As to the contention that appellee was not entitled to make the car service charges in question because the cars were held at Hammond awaiting the re-consigning orders, and were not actually brought within the city limits of the city of Chicago, we think very little need be said. The undisputed evidence shows that the yards at Hammond are the regular Chicago yards of appellee for holding cars which are billed flat to Chicago. Hammond was the customary and convenient place for holding cars and had been upwards of twenty years. The record shows that appellant had no storage yards or tracks in the city of Chicago, and consequently could not take care of the cars had they been brought into the city. We think the contention of appellant upon this point cannot be sustained. (Woolner Distilling Co. v. Peoria & Eastern Ry. Co., 136 Ill. App. 479.)

We find no substantial error in the record and the judgment is accordingly affirmed.

Affirmed.


text:
    Charles Roberts Aldrich, Appellant, v. Frederick R. Jenkins, Appellee.
    Gen. No. 16,980.
    1. Verdicts—when without basis. A verdict awarding a lien of $90 for labor and services in repairing an automobile on replevin to recover it is without basis, where the evidence does not show the value of the repairs made but tends to show that the machine was injured by unskilful repairing without showing the extent thereof.
    2. Instructions—when improper. An instruction on a question not put in issue by the pleadings is improper.
    Action of replevin. Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed June 4, 1912.
    Aldrich & McRoberts, for appellant.
    Joseph M. Griffen, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This replevin action was brought in the Circuit Court to recover an automobile of the appellant, Aldrich, left at the shop of the appellee, Jenkins, for repairs. The defendant, appellee, asserted a lien upon the automobile for the repairs, and on the trial the jury found that appellee, defendant, had a lien on the automobile for labor and services, for $90, and judgment was entered accordingly on the verdict.

Plaintiff, appellant, contended below that the repairs were improperly done by appellee, and that as the result of his failure to properly make the repairs, the machine was greatly damaged and injured, and sought to reduce the amount of the claim for appellee for repairs by the damages accruing to the machine because of the negligence and lack of skill of appellee in making the repairs.

Upon a review of the evidence in the case, we do not find any basis therein for the verdict of the jury.

While it appears that appellee made repairs upon appellant’s machine, the value of such repairs does not appear in the evidence. The evidence also tends to show that appellant’s automobile was injured through the negligence and unskillful work of appellee in repairing the machine, but to what extent the machine was injured does not appear.

Errors are assigned upon the refusal of the court to give certain instructions tendered on behalf of appellant. The instructions are not free from criticism, but inasmuch as a new trial must be awarded in the case, we think it unnecessary to discuss the instructions, as it is not likely that they will again be tendered or given in the form in which they appear in this record.

Objection is made also to the giving of an instruction on the question of tender. We do not find that tender was made an issue in the case by the pleadings. While the instruction was improperly given it could do little harm in the case.

The judgment of the Circuit Court is reversed and the case remanded.

Reversed and remanded.


text:
    Jose Migneault, Appellant, v. Charles F. Gunther, Appellee.
    Gen. No. 16,994.
    1. Brokebs—commissions on lease. Where an owner expressly stipulated that he would pay no commissions to a broker until a deal, the making of a ninety-nine year lease, went through, the broker is not entitled to commissions until a lease or valid contract to execute a lease is entered into between the owner and the party procured.

      2. Bbokebs—terms that proposed lessee must meet. Where an owner informs an experienced broker of the amount of rent and value of improvements that will be demanded on a ninety-nine year lease of valuable property, such terms do not constitute the entire advance terms; and a broker securing a party able, ready and willing to meet such terms is not entitled to commissions unless the proposed lessee enters into a binding agreement as to other particulars that are as essential to a ninety-nine year lease as the rent and buying of improvements.
    Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.
    T. F. Monahan, for appellant.
    R. D. Stevenson, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This action was brought in the Municipal Court of Chicago by plaintiff, a real estate broker, to recover commissions claimed to have been earned by him in negotiating for a ninety-nine year lease of the premises known as 212 State street, in the city of Chicago. The defendant, appellee, is the owner of the premises. It is not contended that the lease was in fact executed as a result of the plaintiff’s exertions, but it is claimed that the plaintiff produced one P. M. Hanney, who was ready, willing and able to execute a ninety-nine year lease on terms claimed to have been stated by the defendant to the plaintiff. It is not suggested even by the plaintiff that anything further in the way of terms was mentioned than the amount of rental and the price to be paid for the improvements then on the premises. It appears that the value of the premises involved was about half a million dollars, and it is conceded that none of the many other provisions indispensable to a ninety-nine year lease were gone into when the plaintiff was employed. It also appears from the uncontroverted testimony that the agreement between the plaintiff and the defendant expressly stipulated that commissions were to be paid only if the proposed deal went through. It further appears that a sale of the business then carried on by the defendant on the premises in question was to constitute a part of the proposed deal, and it appears that none of the terms of that part of the transaction were discussed with the plaintiff. It seems to be the plaintiff’s, appellant’s, contention that the meager terms above mentioned constituted a full statement of the entire terms of the proposed lease, and that if he secured a party ready, willing and able to execute a ninety-nine year lease of the premises in question, and to pay the amount of rental mentioned, and the stated price for the improvements, he thereupon became entitled to his commissions, regardless of the fact that no lease was executed, and that the parties were unable to reach an agreement upon any of the remaining provisions indispensable to such a. lease.

The plaintiff bases his case upon the claim that he in fact produced a party who was willing to execute a ninety-nine year lease of the premises, and to pay the amount of rental and the price for the improvements mentioned by defendant. The proposed lease failed of execution because. the parties were unable to agree upon the other provisions of the lease.

The defendant, on the other hand, contends that nothing in the way of terms was stated which purported to be the complete terms of a proposed lease, or which the plaintiff was justified in believing to be such; that certain cardinal points only were mentioned without which negotiations could not have been opened with any possible lessee, but that those points constituted not even the skeleton of a lease, and that all the other terms were left to future negotiations between the parties, and, therefore, to entitle the plaintiff to commissions, it was necessary for him to show that the parties executed the lease or entered into a binding contract to do so.

The following facts are disclosed by the evidence: In the latter part of 1907, the plaintiff approached the defendant with reference to a ninety-nine year lease of the premises in question, and a sale of the defendant’s business. Negotiations followed with a party by the name of Kranz, which were abandoned in December, 1907. Subsequently, in January, 1908, plaintiff suggested the name of P. M. Hanney to the defendant, and a conversation was held between them relative to commission and price. The testimony of the plaintiff and the defendant as to the amount of rental asked by the latter disagrees, plaintiff claiming that it was to be eighteen thousand dollars a year for five years, twenty thousand dollars a year for four years, and twenty-four thousand dollars a year for the remainder of the term, with thirty thousand dollars for the improvements. The defendant claims the amount of rental stated by him was twenty thousand dollars for four years, twenty-two thousand dollars for five years, and twenty-four thousand dollars for the remainder of the term. Mr. Hanney and the defendant had several conferences, and negotiated together until about April 23, 1908. It appears also that Mr. Hanney agreed to purchase the stock and the business then carried on at the premises in question, at a discount from the regular price. None of the other provisions of the lease were even discussed between them. Nothing except the amount of the rental was talked. Even the details as to time and place of payment of rent were not mentioned. No mention was made of taxes, insurance, disposition of improvements, and the many provisions of a ninety-nine year lease. Both parties said they expected a formal lease to be drawn which would provide for many things. Both testified they were not familiar with such leases, and both left the remaining provisions to their attorneys. The parties then consulted their respective attorneys, and gave directions to prepare the lease. Mr. Hanney consulted with and was represented by Elbridge Hanecy, and the defendant was represented by Mr. John C. Richberg.

On May 19 following, a tentative draft of the lease was presented by Mr. Richberg to Judge Hanecy for his consideration. Certain objections were made by the latter, and on June 13 following a conference was held to discuss various points of difference between the parties. At that time Mr. Hanecy, on behalf of Mr. Hanney, objected to the fourth clause of the draft, which had reference to the sale of the candy stock of the defendant, the twelfth clause providing that all improvements on the premises at the expiration of the lease should revert to the lessor, and the nineteenth clause, containing provisions with reference to the lease being binding upon the assignees of the lessee. This conference ended in a disagreement without either party having changed his position. Nothing further was done in the matter until the 24th of June, at which time no agreement having been reached upon the draft, certain amendments and additions were prepared which were submitted to Mr. Hanecy. On July 2 and 3, 1908, conferences were had between the parties to the proposed lease and their attorneys, but the parties were unable to adjust their differences as to the terms and provisions of the lease, and negotiations were then and there definitely abandoned.

There is some claim made on behalf of the plaintiff, in the testimony, that the proposed lessee agreed to all clauses except the so-called condemnation clause, and that clause was first submitted in the amendment. The defendant contends that this claim is disproved by the preponderance of the evidence. But whether the clause was first submitted by the amendments is immaterial, since the former draft had not been agreed to or accepted, and the parties were only in negotiation on either side, and were at liberty to withdraw, retract or change their positions.

It is conceded by the defendant that he agreed to pay the plaintiff $6,000 as commissions, provided the deal went through. Had a lease been executed or had a valid contract to execute a lease been entered into between the parties, the plaintiff would have been entitled to commissions.

In our opinion the appellant did not earn the commission sued for, for the reason that no binding contract was executed between his client and the defendant, appellee. It is an "undisputed fact in the case that appellee, the owner of the premises, at the time of the employment by him of appellant, expressly stipulated that he would pay no commission unless the deal went through. The defendant testified to this, and the witness Slyder, who was present, testified to the same thing. The plaintiff did not deny it, and his counsel in his brief, bases his argument upon that assumption of fact. So that it must be considered as clearly proven without contradiction on the record, that commissions were to be paid only in the event the deal went through.

The deal referred to was the mailing of a ninety-nine year lease. The language used, when applied to the subject-matter, clearly meant that the defendant would pay commissions when the lease was made. The same authorities and the law would therefore apply to this case as apply to a case where commissions are to be paid if a sale is made or effected.

Where it is an express condition to the payment of commissions that the sale be made, our Supreme Court holds that a binding contract of sale must be entered into between the owner and the proposed purchaser before any commissions are earned. In some states, it is held that the commission is not earned until an actual conveyance of the property is made, or where applied to a lease an actual execution of a lease.

The Supreme Court of this state has not gone to that extent, however, but lays down the rule clearly that a binding contract of sale must be entered into. (Wilson v. Mason, 158 Ill. 304; Fox v. Ryan, 240 Ill. 391.)

The above authorities show conclusively that where it is a condition of the employment that a sale be made or a deal be effected, that condition must be complied with before the broker earns his commission; and that to comply with that condition it is necessary that a binding and enforceable agreement be entered into between the parties. The evidence shows in this case that no such agreement was entered into, verbal or otherwise. The evidence shows that the parties failed to come to any agreement as to the terms of the lease, other than the rental to be paid, the length of the term, and that defendant’s stock was to be purchased at a discount from the regular price.

It is clear from the evidence that the plaintiff did not produce a party ready, able and willing to lease the premises in question.

The premises involved were valuable, as above stated. It cannot be supposed that appellant, who had been a real estate broker for twenty-five years, believed for one moment that the mere statement of amount of rental constituted a statement of the complete terms to be included in a ninety-nine year lease of such a valuable property. If the parties understood, as they did, that there were other terms such as a lease of that character necessarily contains, the statement of terms could not be considered as the final statement of what the lease was to contain.

In Rossiter v. Miller, 3d App. Cases, page 1151, Lord Blackburn said: “So long as they are only in negotiation, either party may retract; and though parties may have agreed upon all of the cardinal points of the intended contract, yet, if some particular essential of the agreement still remains to be settled afterward, there is no contract. The parties in such a case are still only in negotiation.” See also Hale v. Kumler, 29 C. C. A. 67.

Without doubt the statement of the rental was a cardinal point, but there were other particulars just as essential in the execution of a ninety-nine year lease which were not even mentioned, and which the plaintiff as well as the defendant well knew would have to be provided for, and accordingly the matter was referred to the respective attorneys of the parties for the preparation of the provisions of the proposed lease. This was clearly understood by both parties. Such terms could not be stated orally by the parties, and no attempt was made, as shown by the record, to state them. The provisions of the proposed lease were not therefore stated in advance, and it was impossible for the plaintiff to have produced a party ready, willing and able to lease upon the terms stated in advance, and such a doctrine has no application to this case. And yet appellant’s theory is, as stated in the brief of his. counsel, that appellant’s contract was performed when he brought Gunther and Hanney to the point where they agreed upon the rental and terms. These terms, however, did not constitute the entire terms of the lease, and appellant could not earn his commissions by producing a party ready, willing and able to pay the price for improvements and the rental named unless he was also ready, willing and able to enter into a binding agreement with reference to the remaining terms of the lease, which are as essential and necessary as the terms and rental.

There can be but one conclusion from the testimony in the record, and that is, that the parties to the proposed lease did not reach even an oral agreement as to its material and essential terms.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Ms. Justice F. A. Smith

text:
    Schillinger Bros. Company, Appellant, v. Thompson-Starrett Company, Appellee.
    Gen. No. 16,964.
    1. Building and construction contracts—improper performance. Where a subcontractor lays cement floors and it appears from the evidence that the floors were poorly laid; that the cement did not bond, and that the work and materials was full of voids and that it quickly cracked to pieces; that the architect ordered the floor torn up and replaced; and that the contractor expended in replacing the floor and in paying for the subcontractor’s material an amount equal to the contract price, a verdict for the contractor will not be disturbed.
    2. Building and construction contracts—supervision not a •waiver of improper performance. "Where a subcontractor defectively lays cement floors, that the contractor’s foreman or superintendent watched the progress of the work and made no complaint will not be a waiver nor constitute an estoppel.
    3. Building and construction contracts—waiver of defects not admissible under declaration alleging performance. Where it is Claimed that a subcontractor laid cement floors defectively, under a declaration in an action against the contractor alleging proper performance, waiver of defects cannot be proved.
    4. Appeal and error—necessity of proposition of law to save question for review. Where a subcontractor defectively lays cement floors and no propositions of law on a non jury trial are presented as to whether the defects were waived, the question of waiver cannot be urged on appeal.
    5. Building and construction contracts—proof necessary to recover on quantum meruit. "Where "a subcontractor performed his work in an improper manner, so that the greater part of certain cement floors had to be replaced, in an action against the contractor he cannot recover on a quantum meruit for the properly performed work if there is no proof as to the value of suc'h work.
    6. Appeal and error—necessity that objection to evidence be specific. Where a contractor is compelled to relay cement floors that have been defectively laid by a contractor and introduces evidence of the market value of the material used in relaying, objection that the witnesses were not qualified to testify to such market value will not be considered where the only objection made to such evidence was that the price of material was immaterial under the issues.
    7. Building and construction contracts—right to use night labor in replacing defective worts. "Where a subcontractor defectively lays cement floors so that they have to be replaced, the contractor may use night labor, costing more than day labor, in replacing the defective work where the subcontractor had had time and opportunity to lay the floors in acccordance with the terms of ■the contract.
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. TorrisoH, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    McCaskill & Son, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellee.
   Ms. Justice F. A. Smith

delivered the opinion of the court.

Prior to 1909, appellee, hereinafter called defendant, was engaged in the construction of a building in Chicago for the Spaulding & Merrick Co. The fourth and sixth floors of this building were constructed on a reinforced concrete base, over which a maple floor had been laid. As the maple flooring on parts of those floors where special machinery was to be installed did not meet the purposes of the owner, it contracted with the defendant to put in waterproof floors in their stead. Thereupon the defendant, through its manager, took up the matter with appellant, hereinafter called plaintiff, which was engaged in the business of laying concrete. On June 24, 1909, the plaintiff wrote the defendant that “We hereby propose and agree to furnish all labor and material to fully construct cement floors in the fourth and sixth story for the Spaulding & Merrick building, as per measurements marked on plans. We will take up the present wood sleepers and remove cinder concrete and lay cement floor over the reinforced concrete construction, commencing with one-inch wearing surface at sewer outlet and gradually increase the same to a height of three inches. Whenever this floor is more than one inch thick concrete will be composed of fine crushed stone, Torpedo gravel and standard brand of Portland cement. The one-inch finished coat is to be composed of one part Star Stettine cement, two parts sharp Torpedo sand, laid with a smooth and even finish. We also furnish six No. 3 Bell traps, as illustrated on the enclosed circular. All of the foregoing work for the sum of $1,340.”

On June 26, 1909, the plaintiff again wrote the defendant as follows:

“In reference to our bid of June 24th for construction of cement floor in the Spaulding & Merrick building will say if this concrete base mentioned in our proposition is to be constructed of Stettine cement, used one part Stettine cement, four parts crushed gravel and two parts Torpedo sand, our price for the work enumerated in our former proposition will be $1,560.”

After sending this letter, according to the testimony of Mr. Gumbinger, the secretary and treasurer of plaintiff, he called upon Mr. Fisher, who wanted to know if the plaintiff would do the work in accordance with the proposition contained in the letter of the 26th, to which Mr. Gumbinger answered that he would. Mr. Gumbinger, on his direct examination, stated that at this conversation he told Mr. Fisher that they would wet the old concrete “so as to get that bonded—better bonded, and he said, 1 Go ahead and do that and I will send you an order. ’ ’ ’

On July 19, 1909, the plaintiff wrote the defendant as follows:

“In accordance with conversation had with your Mr. Fisher last Thursday, we are now at work at the Spaulding & Merrick building, doing the work in accordance with our conversation and as per our proposition of June 26th last for the sum of $1,560, payment to be made upon the completion of the work. Kindly send us your acceptance as we have not received it.”

On the same day Mr. Fisher, on behalf of the defendant, appellee, sent the following letter to the plaintiff:

“We hereby accept yonr proposition to do the following- work at Spaulding & Merrick building, 43rd and Colorado avenues, Chicago, for which we agree to pay you on completion and acceptance of same by the architects the sum of $1,560.
“Take up and remove the sleepers and cinder concrete flooring over floor construction in the space on fourth and sixth floor. On this space, except the space indicated for roadster, construct a concrete floor pitch for drains, of which there will be six, to be furnished by you and set in locations directed by architects. This floor to be constructed on a base composed of one part Star Stettine cement, two parts sharp Torpedo sand and two parts fine crushed stone, a finish of 1 inch starting from the drain to the level of the finished wood flooring shall be of one part Star Stettine cement and two parts sharp Torpedo sand, laid with a smooth and even surface. On completion of the work remove all.rubbish and leave premises in clean condition.”

There is some dispute as to when the plaintiff began work on the floors, some witnesses stating it to have been started on July 19, 1909, and others July 20th or 21st. The plaintiff finished laying the floors about August 15, 1909.

Shortly thereafter the architect for the building, Mr. Fellows, examined the floors that had been put in by the plaintiff and discovered that the cement surface of the floors had not bonded from which they had become so badly cracked that they were unserviceable and unfit for any purpose. He thereupon rejected the floors and ordered them torn up and replaced. The defendant then notified the plaintiff in several letters that the work was defective and unsatisfactory and did not meet the approval of the architect and that they expected the plaintiff to put the floors in first class shape. This the plaintiff refused to do unless paid therefor. The plaintiff claims to have finally sent a few men around but the defendant’s men were obliged to replace the floors.

The present action was brought in the Municipal Court of Chicago to seek to recover $1,560, the original contract price plus $206.10, the value of the labor and material alleged to have been expended in assisting the defendant to correct the defects in the floors as first laid.

On the other hand, the defendant’s uncontradicted evidence shows that it expended $1,088.45 in replacing plaintiff’s unskilful work and that it paid to Meacham & Wright, material men, a bill for $527.25 for cement sold to the plaintiff and used on the floors in question. The trial was before the court without a jury, and the court found the issues in favor of the defendant.

Upon a careful review of the evidence in the record we are of the opinion that the plaintiff did not comply with its contract with the defendant. It is not seriously controverted in the evidence that the floors, as originally laid by the defendant, were poorly laid; that the cement did not bind, and that the work and material were full of voids and that it quickly cracked to pieces after it was laid. We do not think that the plaintiff was entitled to recover under its contract for the work done. The plaintiff did not secure an architect’s certificate showing that the work was done. On the contrary it clearly appears that the architect condemned the work and required the floors to be relaid. We find no reason in the evidence for disagreeing with the finding of the trial court on the questions of fact.

It is urged by the plaintiff that the defendant having its foreman on the work as the work progressed and making no protest as to the doing of the work, either as to the workmanship or material, waived the provisions of the contract. In our opinion the contention is not well founded. The fact, if it be a fact, that defendant’s foreman or superintendent watched the progress of the work and made no complaint would not be a waiver nor constitute an estoppel. (Monahan v. Fitzgerald, 164 Ill. 525.)

No' proposition of law for the court to hold covering this question was presented to the court. We think on the authority of McIntyre v. Sholty, 121 Ill. 660; Mutual Protective League v. McKee, 223 Ill. 364, the defendant is not in a position to urge waiver in this court. The declaration alleged performance of the contract. Under such allegations the plaintiff was not entitled to prove waiver. (Metal Fireproofing Co. v. Boyce, 233 Ill. 284.)

The court found the issues for the defendant. We think the finding of the court was justified by the evidence which tended to show that the plaintiff had not performed its contract. Upon .that theory of the case it is unnecessary for us to discuss the question presented by the payment, by the defendant, of the Meacham & Wright cement bill incurred by the plaintiff. Upon the evidence the plaintiff was not entitled to recover in the case independent of any items of recoupment, of which the Meacham & Wright bill was one. The evidence shows that the plaintiff did not comply with its contract and in consequence of its failure to perform its contract all but 500 yards out of the 8,000 yards of cement laid by it had to be replaced. No proof on the basis of quantum meruit for the value of the 500 yards was made. The plaintiff did not attempt to introduce any evidence of what the 500 yards were worth and was consequently not entitled to recover anything, irrespective of the proof of the alleged recoupment.

It is urged that the trial court erred in admitting the evidence of defendant’s witnesses Hartwell and Lynch to prove the market value of cement, stone and sand used in relaying the floor and asserted that there was nothing but incompetent evidence before the court as to the market value or cost of the floors as relaid. The only objection made to the evidence was that the price of material was immaterial under the issues of the ease as the plaintiff had complied with the terms of its contract. No objection was made at the time to the evidence on the ground that the witnesses were not qualified to testify concerning the market value of the materials in question. We do not think the court erred in admitting the evidence.

Complaint is also made of the action of the court in refusing to strike out evidence as to the money paid out for labor on the ground that much of the work was done at night, and that for night labor there was an extra charge of one half. There is no evidence in the record however that the defendant paid any of the laborers who worked on this job outside the regular hour’s time and a half. And there is evidence that the work done by the defendant in relaying the condemned floors was worth the amount expended by them, namely, $1,018.25. The only evidence in the case as to the price of labor, outside of regular hours, is that of the witness Gumbinger, who said generally the price of labor beyond regular hours is time and a half. Assuming however that there was evidence to show that defendant paid more for night labor than for day labor there is no perceptible reason why it was not entitled to use night labor in an endeavor to replace the plaintiff’s work as soon as possible, inasmuch as plaintiff had had time and opportunity to lay the floors in accordance with the contract. The question is however immaterial as the plaintiff failed to maintain its case as above stated.

We find no material error of the court in its holdings on the proposition of law submitted by the plaintiff.

Finding no material error in the record the judgment of the trial court is affirmed.

Affirmed.


text:
    William H. Yott v. John H. Austin, Appellant, and S. T. A. Loftis, Appellee.
    Gen. No. 17,003.
    This case is controlled by the decision in Austin v. Yott, post p. 327.
    Appeal from the Superior Court of Cook county; the Hon. Abthub H. Chetlajot, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.
    W. Knox Haynes, for appellant.
    No appearance for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This case rests and is considered by ns upon the same record as the case General Number 17,004. The issues and material facts are the same except that the parties are reversed. The decree in this case has been in substance stated in the opinion filed in General Number 17,004, and reference is made to that opinion as indicating our conclusions of fact in this case. Upon the conclusions of fact the decree was proper and necessary in order to protect the business purchased by the complainant appellee. We find no reason for reversing the decree or any part of it, and it is affirmed.

Affirmed.


text:
    John H. Austin, Appellant, v. William H. Yott et al., Appellees.
    Gen. No. 17,004.
    Good will—when purchaser not enjoined from, incorporating company using name of bankrupt. Where a business of supplying remedies for the hair and scalp is made valuable by advertising and can be conducted by clerks filling orders by supplying labeled packages of uniform size and shape, it is a business of a commercial and nonprofessional character; and on a sale of the business and good will by a trustee in bankruptcy an incorporation of a company, using the name of the bankrupt with the addition of the word “company,” to take over the purchase cannot be enjoined by the bankrupt.
    Appeal from the Superior Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.
    Statement by the Court. On May 10, 1909, appellant, John H. Austin, hereinafter called complainant, filed his bill of complaint setting out that he had been for more than twenty years engaged in the study and examination of the human hair and scalp, and the preparation and sale of various secret compounds beneficial to the hair and scalp, and had continuously advertised to the public that he was a person of special knowledge and skill in relation to the hair and scalp, and the possession, preparation and selection of remedies adapted to the various conditions thereof, and that by reason of his skill and advertisements had the personal confidence of a large number of persons who had purchased the remedies and compounds prepared by him; that he was generally and commonly known as Prof. J. H. Austin; that on the 18th day of February, 1909, he was adjudged a bankrupt by the District Court of the United States, and that all of his estate went to his trustee in bankruptcy; that appellees, William H. Tott, Fred J. Eoepler and W. C. Hyde, hereinafter called defendants, conceived the plan or scheme of forming a corporation under the name of “Prof. J. H. Austin Company” to go into the business of manufacturing and selling various compounds for the hair and scalp and advertising the same, and that by reason of the adoption of the complainant’s name as the name and title of the proposed corporation, to induce people to believe that the com-v plainant was connected with the said corporation, and to cause the public to believe that such compounds and remedies as said proposed corporation might manufacture were prepared by the complainant, and that the complainant’s skill and knowledge were employed in the preparation thereof; that' the complainant has not consented to the use of his name, and the said defendants have no right to acquire it in the manner contemplated by them; that the defendants on March 30, 1909, in execution of the plan filed a statement with the Secretary of State and received a license to open books for subscription to the capital stock of the proposed corporation; that complainant protested to the defendants and was informed that no further proceedings would be taken without notice; that since that time notice has been given that defendants would proceed with the completion of the corporation; that such action would be a fraud upon the complainant and the public, and that the complainant is without remedy at law, and irremediable damag-es will be caused. The bill prays for an injunction and is verified by the affidavit of the complainant. On the same day an injunction was issued commanding the defendants to desist and refrain from in any manner proceeding to perfect the organization of a corporation under the name of “Prof. J. H. Austin Company” or any name in which J. H. Austin was a component part, or from making any use of the name of J. H. Austin, or John H. Austin, or Prof. J. H. Austin, in and about the carrying on of the business of manufacturing, selling, or advertising or offering for sale any compound or remedy for conditions of the hair or scalp in any manner which would tend to deceive the public or cause any portion thereof to believe that said remedies or compounds were manufactured or prepared personally by complainant, or would tend to cause the public to believe that complainant is personally connected with the manufacture, preparation or sale of such remedies or compounds.
    On August 24, 1909, the joint and several answers of the defendants were filed to the bill, denying the material allegations thereof except the allegation that the complainant was adjudicated a bankrupt. In December, 1909, the defendants took leave to withdraw their answer, and to file and filed a plea setting up that for several years previous to February 8, 1909, the plaintiff was in the conduct of a business under the name of “Prof. J. H. Austin/’ describing the business set forth in the complainant’s bill; that after the matters alleged in the bill and before the bill was filed, J. E. Winterbotham was appointed trustee in bankruptcy of complainant’s estate, and qualified as such, and was afterward directed by the court of bankruptcy to sell certain assets belonging to the said estate, and the trustee did, on May 11, 1909, sell to B. E. Berlet all the assets belonging to said estate, all right, title and interest of said trustee as such in the chattel property belonging to said estate, and in the business of said bankrupt complainant as conducted by him in the Mc-Vicker’s Theatre building, Chicago, Illinois, at and previous to the time of his adjudication in bankruptcy, and all right, title and interest of the trustee in the good will of the business and all rights and property which the trustee then had in and pertaining to said business of the bankrupt complainant; that the trustee gave Berlet a bill of sale, on May 21, 1909, and Berlet on June 1, 1909, by a bill of sale conveyed to the defendant William H. Yott all the assets which he had purchased from the trustee; that being advised by counsel that the assets offered by the trustee would include the good will of the business conducted by the plaintiff prior to his bankruptcy, Tott on March 30th filed a statement for the incorporation of “Prof. J. H. Austin Company,” and received a license; that this was done for the purpose of providing a corporation to take over the assets of the bankrupt complainant, and that Tott desires to complete the corporation for the purpose of assigning to it said assets.
    The plea further sets out that on March 18th the complainant filed a petition in the bankruptcy court representing that he had been engaged in treating diseases of the hair and scalp and furnishing treatment therefor to individual persons, and substantially what appears in the complainant’s bill of complaint, and the manner in detail of conducting his business; and the petition prayed for an order that the trustee desist from personating petitioner and that he turn over all mail to the petitoner.
    On March 10, 1909, the trustee filed in the District Court of the United States an answer to the petition, and the answer is set forth in the plea.
    On March 31st, the referee entered an order in bankruptcy on the petition and answer of the trustee as follows:
    “The matter of the petition of the bankrupt herein and the answer of the trustee thereto, in which the bankrupt asks for an order in regard to the mail, coming on to be heard the bankrupt offering no testimony in support of his petition and it appearing from the proofs offered by the trustee that the business of said bankrupt is not a professional business but a commercial business, and it appearing that the property of the bankrupt estate was used by the bankrupt in obtaining and filling orders received by him after filing his petition in bankruptcy, and it appearing that it is impossible to separate the mail belonging to said bankrupt and said trustee, for that and various other reasons it is therefore ordered that the prayer of said petition he denied.”
    The plea then sets out that the order of the referee above mentioned was confirmed in April, 1909, by the District Court and that it remains in full force and effect.
    The plea of the defendants was on January 25, 1910, overruled, but allowed to stand as the answer to the complainant’s amended bill.
    ¡Replications were made to the answer after certain portions of it had been expunged on exceptions taken thereto, and on June 4, 1910, upon the final hearing, the court entered a decree in which eighteen findings are made, adjudging and decreeing .that the preliminary injunction entered in the case be dissolved and the complainant’s bill of complaint as amended be dismissed with costs to the defendant. From that decree the present appeal is prosecuted.
    There was pending in the same court at the time of the pendency of this cause a bill filed by S-. T. A. Loftis, substituted for William H. Yott, against John H. Austin, in which substantially the same issues and questions were presented as in this cause. The two cases were consolidated for hearing, and on June 4, 1910, a decree was also entered in the case of Loftis v. Austin, by which the court ordered, adjudged and decreed that the said John H. Austin, his agents, and employes, be perpetually restrained and enjoined from in any manner receiving, using or appropriating to his own use any letters or mail matter relating to or connected with the business conducted by said Austin in Chicago previous to his bankruptcy, and restraining Austin and his agents from taking and receiving any letters or mail written or sent by parties seeking thereby to purchase or procure information about the said preparations so sold by Austin, in the conduct of his business in Chicago previous to his bankruptcy, and appointing a receiver to take and receive the mall from the United States postal authorities at' Chicago, addressed to Prof. Austin or Prof. J. H. Austin, Mc-Vicker.’s Theatre building, Chicago, or Prof. Austin, or Prof. J. H. Austin in Chicago, or Chicago, Illinois, unless such mail matter was addressed to the residence of said Austin, and directing the receiver upon receiving such mail to turn it over to the complainant, and providing a bond to be given by the receiver, and assessing costs against Austin. From this decree also Austin prosecutes an appeal to this court, and the causes have been consolidated for hearing upon the same record.
    W. Knox Haynes, for appellant.
    No appearance by appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

We have carefully reviewed the evidence contained in the record, and we are of the opinion from the evidence that the findings of the decree entered in the case are sustained by the evidence. In our opinion the business conducted by the appellant here was a purely commercial business to which good will had attached by means of the advertising conducted by the business. The evidence shows that the business was conducted by the assistance of clerks, and was reduced to a system by which the clerks themselves were able to put up and fill the orders of the various customers when received, and such orders were filled as in an ordinary commercial business, and that the packages in which the remedies were put up were of a uniform size and shape and were labeled in such manner that they could be selected by the clerks of the business, and that the names of Prof. Austin and Prof. J. H. Austin in connection with the business became and were mere trade names when used in connection with the preparations sold, and it was a mail order business of a purely commercial and non-professional character.

The evidence shows that in the conduct of that business the complainant John H. Austin became indebted to S. T. A. Loftis in the sum of $3,000 for advertising ordered by said Austin to advertise the said business, and the preparations sold, and that that debt was, among others, scheduled by Austin in his proceedings in bankruptcy; and that after the 8th of February, 1909, when Austin was adjudged a bankrupt, Joseph E. Winterbotham became the trustee in bankruptcy, and under the direction of the court continued the business of the bankrupt until it was sold out as alleged in the answer to the bill, under the direction of the District Court of the United States to E. E. Berlet, the sale including all the right, title and interest of the trustee as such in the business of said Austin as conducted by him in the MeVicker’s Theatre building, Chicago, Dlinois, at and previous to his adjudication in bankruptcy; and all right, title and interest of the trustee as such in the good will of the business, and all rights and property which the trustee had pertaining to the business; and that the trustee made conveyance to Berlet of all the assets so sold and Berlet conveyed the property to Yott one of the defendants in the cause; and that the right, title and interest to the assets which they received from Berlet were and are the property of Loftis, and by means of the conveyance Loftis acquired all the property rights in the good will of the business conducted by Austin, as applied to the preparations manufactured and sold by him at Chicago, Illinois.

In our opinion the defendants had a right to incorporate the business so obtained by them, under the name “Prof. J. H. Austin Company,” and that they were acting within their legal rights in creating a corporation under that name for the purpose of conducting the business which they had acquired.

In our opinion, the decree of the court dissolving the preliminary injunction and dismissing the complainant’s bill of complaint was properly entered. The decree is therefore affirmed.

Affirmed.