text:
    Philip E. Schaefer et al., Defendants in Error, v. Emil Eiger et al., Plaintiffs in Error.
    Gen. No. 15,261.
    Municipal coTjai^—when presumption prevails that judgment was sustained hy evidence not preserved in the record. Notwithstanding the certificate of the judge that all the evidence heard is certified up, yet if the fact otherwise appears the appellate court will presume that the findings of fact made by the court were sustained by evidence heard but not preserved.
    • Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Cotibell, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 6, 1910.
    Rehearing denied October 20, 1910.
    Adler, Lederer & Sohoenbrun, for plaintiffs in error.

      Cratty Bros. & Jarvis, for defendants in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment obtained by defendants in error in a suit to recover the value of “leather sweats” shipped by them to plaintiffs in error upon a written order, which though not shown in the record is said to have been for “40 gross shipped by freight, 10 gross shipped by express, leather sweats like sample, to be reeded: 10 gross black, 40 gross white and to be shipped to Gr. S. Bracher, 24 West 3rd Street, ¡New York City.” Defendants in error filled the order by shipping “the very highest grade of pebble skins” that they had in stock at the time, costing it is said three times as much as the sample which accompanied the order, and which as appears from the abstract was admitted in evidence in the trial court. This sample as well as other samples introduced in evidence do not accompany the record and are not before us. The leather shipped is still in possession of plaintiffs in error. The court found in favor of the defendants in error, plaintiffs in the suit, and entered judgment against the defendants for $325.

The record contains the following statement by the trial court:

“There was a trial by the court without a jury and the following questions of law arose upon the trial of said cause, to-wit: Plaintiffs claimed that by directing plaintiffs to send the goods to Bracher to be reeded the defendants constituted said Bracher their agent to receive and reed the goods as far as plaintiffs were concerned, and that plaintiffs were bound to send said goods to Bracher and to none other; that an agent to receive goods has the right and power either to accept or reject them, and that the act of Bracher in receiving, reeding and stitching the leather sweats was an act of acceptance of the goods which became binding upon the defendants; that acceptance of goods after examination or reasonable opportunity for examination constitutes a waiver of the defendants’ right to rescind the sale thereof, though not of their right to recoup damages. Defendants claimed that Bracher could not accept the goods for them; that Bracher was a reeder and not an agent to accept or reject the goods; that defendants never had an opportunity to examine the goods and objected to said goods as soon as they became aware that said goods were not in accordance with sample. The court held that Bracher was the agent for the defendants to accept or reject said'goods; that in proceeding to reed said goods he accepted them for defendants whether they conformed to sample or not.”

The decision of the court is clearly based upon the written order of plaintiffs in error in accordance with which the goods in question were shipped to Bracher. This order was introduced in evidence and marked “Exhibit A.” It is not however contained in the record. Evidence therefore upon which the court based its finding is not before us.

It is urged by the attorneys for defendants in error that the judgment should be affirmed because it affirmatively appears from the statement of facts by the attorneys for plaintiffs in error and from the certificate of the trial judge that evidence essential to the determination of the cause is omitted from the transcript of the record. It is we think apparent the certificate of the trial judge that the evidence therein set forth “was all the evidence offered and received” cannot overcome what otherwise affirmatively appears therein, namely, that evidence which probably bore on the question at issue was introduced at the hearing, but is not contained in the certificate, which purports to contain a “correct statement of the facts appearing upon the trial.” It has been repeatedly held as in Seaverns v. Lischinski, 82 Ill. App. 298, 305, and cases there cited, that under these circumstances “we are bound by intendment of law to conclude that the evidence omitted from the record would sufficiently supply whatever is necessary if anything to sustain” the finding. In this case as in that case it is true that “no question of law is argued that does not depend upon questions of fact,.that as seen, may not be considered by us under the incomplete” certificate. To the same effect are Henning v. Williams, 70 Ill App. 199; Peacock v. Carnes, 110 Ill. 99-101, and others. In the case last referred to it is said that “although the certificate does purport to contain all the evidence, it appears upon its whole showing that it does not; that from some cause these documents were not preserved; and without them we cannot say that the findings in the decree were not sustained by the proofs.”

Although in this state of the record we are not at liberty to base our decision in the case on' the question of law raised by attorneys for plaintiffs in error, it is nevertheless not improper for us to say that assuming the evidence and defendants’ order for the goods to have been as hereinbefore stated and as set forth in the abstract and brief of plaintiffs in error, we find no error in the ruling of the trial court to which objection is made, nor in the judgment entered accordingly.

The judgment of the Municipal Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Freeman

license: Public Domain

text:
    Hanchett Paper Company, Plaintiff in Error, v. George F. Moore, Defendant in Error.
    Gen. No. 15,269.

      Sales—when contraet not established. Held, under the evidence in this case,- that a contract of bargain and sale v/as not entered into between the parties.
    Assumpsit. Error to Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 6, 1910.
    Statement by the Court. This is an appeal by the plaintiff from a judgment against him in a suit brought by him against the defendant in error, to recover the alleged value of a carload of so-called “Elm Backing” shipped from Holland, Mich., to defendant in New York City. There had been previous shipments by plaintiff, but on November 16, 1907, defendant wrote plaintiff that a carload just received was not all elm, had holes in it and was unsatisfactory. The controversy in this case grows out of a subsequent order from defendant to plaintiff, dated Hew York, March 6, 1908, as follows: “Please deliver at once 1 carload Mm Backing at 2.00 per M., F. O. B. New York. We want Mm Backing; 6 feet 3 inch, and in 500 feet bundles. Ho holes. Ship at once and charge to account of George F. Moore, Incorporated. Per M.” The plaintiff acknowledged receipt of this order in a letter as follows:
    “Chicago, March 9th, 1908.
    Geo. F. Moore,
    34 Cooper Square, New York, N. Y.
    Dear Sir: We have your order No. 3985 for a carload of Elm Veneer $2.00 per thousand, F. O. B. New York, 6 ft. 3 inch long, 500 ft. in bundle. You say ‘no holes.’ As the writer told your Mr. Moore when in Chicago a few weeks ago, also your Mr. Schroeder, Manager of your Chicago plant, we cannot cut up these logs and have them perfectly clear.
    We instructed the mill to be particular in cutting up logs, and not use any with too large knot holes if possible.
    They will not, and we cannot furnish Veneer any different in quality of stock than what we have heretofore been furnishing you. i
    i We will instruct them to go ahead and get this car out immediately with the above understanding. Awaiting your further instructions in the matter before going ahead and getting out this car, we are,
    Yours truly,
    Hanchett Paper Company., per A. E. Pierce.”
    To this letter defendant replied of date March 11, 1908, as follows:
    “New York, Mar. 11th, 1908.
    Hanchett Paper Co., Chicago, Ill.
    Gentlemen: In reply to your favor of the 9th inst. in which you say, ‘We cannot furnish veneer any different in quality of stock than what we have heretofore been furnishing you,’ if such is the case, then you may cancel our order. At least one-third of the stock you shipped in last carload to New York was worthless. Lot of it had holes in it three feet long. Your Mr. Pierce saw some of the stock in our Chicago house.
    We don’t expect clear stock; but we cannot wrap moulding with veneer that has three feet holes in it; any more than you could make pie plates or butter dishes out of holes.
    Yours very truly,
    Geo. F. Moore, inc., Geo. F. Moore Pres.”
    It is contended in behalf of defendant and the trial court held that the above letter constituted a cancellation of defendant’s order of March 6th previous.
    Subsequently plaintiff wrote as follows:
    “Chicago, March 13th, ’08.
    Geo. F. Moore, New York, N. Y.
    Dear Sir:—
    We have yours of the 11th relative to the car of Veneer. Your letter was received just as the Supt. of the Mill came into our office this morning. We called his attention to the matter of getting out a car of veneer for you, and he said he has just gotten out several cars, and the run of logs was better than it had been for some time, and that he would get out this car for you, and endeavor to have the run so that there would be no occasion to find any fault with there being too many or too large knotholes. He informs us he will ship this car next week.
    Yours truly,
    Hanchett Paper Company, per A. E. Pierce.”
    Apparently the plaintiff shipped the car without waiting for a reply to this last letter. According to defendant’s testimony the letter last above quoted was not received at its office until Monday, March 16, 1908. Upon March 17, 1908, the defendant replied to it as follows:
    “Hanchett Paper Company.
    Gentlemen: Your favor of the 13th inst., in which you say your Superintendent of the Mill will ‘endeavor’ to run the Veneer to our satisfaction, is received. After our experience with your concern, and the last carload you made for us, such a vague understanding in regard to quality will not be accepted.
    We do not take any stock in the ‘endeavor’ of a superintendent who picks out logs that make more than half a shipment rubbish.
    If you want to do any more business with us, you must furnish us at your expense, either here or in Chicago, sample rolls showing the quality of the Veneer you propose to supply. If they are satisfactory, we will then send you an order.
    Yours very truly,
    George P. Moore, Inc.”
    This letter was received by the plaintiff in Chicago on the 19th of March. Meanwhile on the 18th of March the plaintiff had caused the car of veneer referred to in plaintiff’s letter of March 13th to be shipped from their factory at Holland, Michigan, to the defendant at Hew York, and a bill for $810, .the price of the shipment, was forwarded the same day. March 23, 1908, the defendant wrote expressing surprise at receipt of “an invoice for a carload of Elm Backing” and saying: “The question as to quality is still unsettled, and we shall refuse to accept delivery of this car until it is.” Later., on March 27th, the defendant company wrote that not having received a reply to their letter of March 23rd, they returned invoice and bill of lading.
    There was some subsequent correspondence. On March 24th the defendant wrote that it noticed plaintiff had “shipped over 400 M. feet;” that the previous cars “contained only 250 M. and 300 M. feet each and we did not expect and cannot use more than that amount. Therefore even if we came to an understanding in regard to quality, there would be 100 M. feet which you must dispose of elsewhere.” To this plaintiff telegraphed “Take car. We will extend time on surplus shipped.” The remaining correspondence is not material. Defendant refused to accept the shipment.
    Alden, Latham & Young, for plaintiff in error.
    George W. Woodbury, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

Plaintiff’s contention is that the only question in the case is whether there was a contract of -sale between the parties. The trial court found there was not and gave judgment accordingly. In behalf of plaintiff it is urged that the order of defendant was absolute and that the plaintiff’s letter of March 9, 1908, constituted an acceptance of the order and that the contract was consummated by the shipment of March 18th. The original order of date March 6, 1908, was a positive order for the kind of material therein described, but for no other kind. It called for “Elm Backing” with the word Elm underscored, and “with no holes.” The plaintiff’s reply of March 9th was not an acceptance of the order as given. On the contrary the so-called acceptance was at the most conditional, the plaintiff probably having in mind the complaint previously made in the letter of ¡November 16, 1907, as to the quality of a car of so-called elm backing which plaintiff had shipped to defendant about two months before that time. In that letter of ¡November 16th the defendant had complained that the greater part of that preceding shipment was “very unsatisfactory. Many of the bundles have big holes in the center and most of it is very knotty. It is hard for us to make use of one-half of a bundle and the other half is generally waste. * * Wish you would advise us what you are prepared to do to relieve us of these losses. * * * * We are compelled to look to you for reimbursement of the amount of damage caused on this account.”

The defendant’s order of March 6th specifies with particularity that it is “Elm Backing” with “no holes” which defendant wants; and the plaintiff replies, “We cannot cut up these logs and have them perfectly clear. * * * We cannot furnish any veneer any different in quality of stock than what we have heretofore been furnishing you.” The reply concludes with the statement that plaintiff would await “your further instructions in the matter before going ahead and getting- out this car.” This letter was clearly a refusal to accept defendant’s order of March 6th according to its terms, and without modification in respect to its requirement of “no knot holes.” In no sense can it be considered an acceptance of the original order. We cannot concur in plaintiff’s contention that the defendant’s next letter of March 11, 1908., was not a revocation of the original order of March 6th. In that letter of March 6th defendant refers to plaintiff’s 'statement that it could “not furnish veneer any different in quality of stock than what we have heretofore been furnishing you,” and - says explicitly, “If such is the case then you may cancel our order. At least one-third of the stock you shipped in last car load to New York was worthless. Lot of it had holes in it three feet long.” As the matter then stood plaintiff had declared its inability to furnish material such as defendant had ordered and defendant had replied in effect, “that being the case you may cancel our order.”

Plaintiff’s counsel urge that the use of the words “if such is the case” made the cancellation conditional, since it is argued that such was not the case, because the car subsequently shipped to defendant on March 18th it is claimed fully complied with the order, as the defendant itself is said to have construed the order in its letter of March 11th. In that letter, after having directed the cancellation of its previous order, defendant had written: “We don’t expect clear stock, but we can not wrap moulding with veneer that has three feet holes in it.” In view of the fact that plaintiff had written it could not furnish veneer any different in quality than it had “heretofore been furnishing” and defendant had accepted plaintiff’s statement to that effect and replied, “then you may cancel our order,” we are of opinion the trial court did not err in holding the cancellation to have been absolute and unconditional. The distinction sought to be made by plaintiffs counsel to the effect that if instead of saying “if such is the case you may cancel our order,” defendant had used the phrase “inasmuch as you are unable to do so, cancel our order,” the cancellation would have been effective, is in view of the facts shown in evidence a distinction without material difference. Whatever be the construction given the phraseology in controversy, it certainly suspended the original order until some agreement should be reached. ¡Not waiting for further instructions however plaintiff shipped the carload in controversy. ¡No agreement had been reached at that time and none has been since.

The order of March 6th as we have said called for “Elm, ¡Backing” with the word Elm'underscored.. The testimony in behalf of the plaintiff tends to show that the carload in question was not wholly of elm, but “of beech and elm and birch and maple.” The order by its terms called for elm and there is testimony in defendant’s behalf tending to show that elm backing is of a superior grade, more pliable and less liable to break than a backing made of other woods. Even though this carload was “better than the ordinary run,” it was not the quality ordered and there were at least knot holes in it; whereas the order called for “no holes.” Defendant’s counsel insists that on two distinct grounds no recovery can be'had; first that the letter of March 11th constituted a cancellation of the original order, and second, that the carload in controversy, the value of which plaintiff sues to recover, was not Elm Backing and so did not comply with the order. In this contention we concur.

The judgment of the Municipal Court must be affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    Standard Distilling Company, Plaintiff in Error, v. Consolidated Adjustment Company, Defendant in Error.
    Gen. No. 15,278.

      Contracts—right to elect as to alternative promises. Where a promise in a contract is in the alternative, as in a certain contingency to do one thing or another, the right of election is in the promisor.

      Action of contract. Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 20, 1910.
    Gardner, Stern & Anderson, for plaintiff in error.
    Delavan B. Cole, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

January 14, 1905, defendant delivered to plaintiff and plaintiff accepted a certain written instrument signed by defendant, the material portions of which are as follows:

“This certifies that The Standard Distilling Co. of Cincinnati., Ohio, paid the Consolidated Adjustment Co. $350.00 for a three year service from this date, with all benefits and privileges of its business system in its various departments, and The Consolidated Adjustment Co. agrees to promptly and faithfully prosecute any arid all claims listed with it for adjustment under terms of this contract.

Guarantee.

This Company agrees to recover in cash or secure net settlement from the claims of the above client at least $1,000.00 within and under the terms of the above contract; or to refund the full initial fee paid, reserving the right to cancel the contract, refund the initial fee and surrender the claims of the above client at any time after six months from this date, or to continue such service beyond the term first in this instrument mentioned, and until said last mentioned sum shall have been so recovered, without additional cost to the above client, except commissions on adjustments effected, on said claims or any additional claims in favor of said client, which may be forwarded.

Cost of contract,............$ 350.00

Claims forwarded,..................$

Amt. Contract for........ $35,000.00

Service credit on..................$

Deceived of the Standard Distilling Co. ($350.00) Three Hundred and Fifty Dollars as payment in full on a three year ($35,000.00) contract and guarantee from Jan. 14th, 1905, to Jan. 14th, 1908.

Consolidated Adjustment Co.

Dated Jan. 14, 1905.

By T. Hopper, Treas. & Mgr.”

Plaintiff delivered to defendant claims amounting to about $44,000 and received from the debtors direct about $450, but received nothing on such claims from the defendant. May 27,1908, plaintiff brought an action of contract in the Municipal Court to recover the initial fee of $350 paid by it to defendant under the contract. At the close of plaintiff’s evidence the court directed a verdict for the defendant and this writ of error brings before us for review the judgment for the defendant entered on such directed verdict. The agreement of the defendant was not an absolute agreement to refund the initial fee of $350, in case it failed to collect $1,000 within three years, but was an alternative agreement in that case to either return the initial fee: “or to continue such service beyond the term first in this instrument mentioned, and until said last mentioned sum shall have been so recovered, without additional cost to the above client, except commissions on adjustments effected, on said claims or any additional claims in favor of said client, which may be forwarded.” Where the promise is in the alternative, as in a certain contingency to do one thing or another, the right of election is in the promisor. Meyer v. Gwinnell, 29 Vt. 298; Dessert v. Scott, 58 Wis. 390; 2 Chitty on Contracts, 1060; 2 Parsons on Contracts, 656.

There is no evidence tending to show that the defendant did not elect to continue the service under the contract, or that it did not, from the expiration of three years from the date of the contract, until the bringing of this action, continue such service.

We thinTr that the evidence fails to show a right in the plaintiff to recover the initial fee paid by it to the defendant, and that the court did not err in directing a verdict for the defendant.

The judgment of the Municipal Court will be affirmed.

Affirmed,


text:
    South Side Coal Company, Defendant in Error, v. Bernard Gross, Plaintiff in Error.
    Gen. No. 15,339.
    1. Damages—what essential to recoupment of. To enable recoupment of damages for the inferior quality of coal delivered, there must be proof either of an express warranty and of its breach or of fraud.
    2. Accoed and satisfaction—when dispute sufficient to sustain. A dispute sufficient to sustain an accord and satisfaction may be predicated as well where the matter in issue was one of law as where it was one of fact.
    3. Accord and satisfaction—what sufficient to establish. To constitute an accord and satisfaction of an unliquidated and disputed claim, it is necessary that the money should be offered in satisfaction of the claim and be accompanied with such acts and declarations as amount to a condition that if the money is accepted it is to be accepted in satisfaction and such that the party is bound to understand therefrom that if he takes it he takes it subject to such condition.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 20, 1910.
    Ernest Langtry, for plaintiff in error.
    H. 0. Lust, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

August 21, 1907, plaintiff submitted to defendant a written proposal which was áceepted by defendant. The portion of the proposal necessary to be considered is as follows:

“We propose to furnish you from this date until June 1, 1908, covering the requirements of your fifteen (15) flats at the N. W. corner of 45th & Calumet Ave. and your six (6) flats at 4639 Langley Avenue, our Genuine Pocahontas coal as follows:

From Date to September 1, ’07. . . .$4.15 per ton.

From .Sept. 1st up to June 1st ’Ó8 net $4.40

of 2,000 lb.”

It is not disputed that for the amount of coal delivered, at the price stated in the contract, there was a balance due plaintiff from defendant of $239.79, and for that amount plaintiff had judgment.

The contention of the defendant, plaintiff in error here, is first, that the coal delivered was not of the quality required by the contract, and, second, that the facts established by the evidence constitute an accord and satisfaction.

The coal in question was delivered to and accepted and used by the defendant. The contract between the parties being in writing, we must look to the writing alone for its terms. To enable the defendant to recoup damages for the inferior quality of the coal delivered, there must be proof either of an express warranty and of its breach, or of fraud. There is in this case no evidence of fraud, misrepresentation or concealment on the part of the plaintiff. In Peoria Grape Sugar Co. v. Turney, 175 Ill. 631, it was held, that a contract calling for the delivery of a certain kind of coal designated by its trade name, carries no implied warranty of its fitness for any purpose, or of its quality, other than it be of the kind specified. In Dounce v. Dow, 64 N. Y. 411, the buyer ordered, and the seller shipped to him, “XX pipe iron.” Held to be a warranty that the article was of that character, but not of any certain quality of pipe iron. See, also, Benjamin on Sales, 6th ed., p. 636; Beach on Contracts, sec. 275.

The plaintiff (in the absence of fraud) was only bound by its contract, which was to deliver: “Genuine Pocahontas coal.” From the evidence the court might properly find that the coal in question was “Genuine Pocahontas coal,” and therefore that the evidence failed to show any breach of plaintiff’s warranty.

There is no controversy as to the facts relied on as showing an accord and satisfaction. It appears from the evidence that the defendant disputed his liability for the amount claimed by the plaintiff. We think that a claim may be honestly disputed on a matter of law as well as on a matter of fact. To constitute an.accord and satisfaction of an unliquidated and disputed claim, it is necessary that the money should he offered in satisfaction of the claim, and he accompanied with such acts and declarations as amount to a condition that if the money is accepted it is to he accepted in satisfaction, and such that the party is hound to understand therefrom, that if he takes it he takes it subject to such condition. Beach on Contracts, sec. 425; Snow v. Griesheimer, 220 Ill. 106; Preston v. Grant, 34 Vt. 201; Fuller v. Kemp, 138 N. Y. 231; S. C. with note, 20 L.R.A. 785.

Defendant’s son testified that about February 11, 1908, he told the president of the plaintiff company that witness and his father had gone over the amounts and the money due plaintiff and arrived at a figure; that he had a check with him for the amount in full and that it was for $19.48; that he said the check was to be payment in full; that the president said he would think the matter over; that witness said he would call again, but the next day had to go away and gave the check to his father. Defendant gave plaintiff notice to produce a letter of defendant dated about February 20, 1908, and on failure to produce, testified that its contents were as follows: “Enclosed please find the check for $19.48. This is the check which my son offered you in payment, but you wanted a little more time to think it over. My son left for Madison today. I refer to the conversation my son had with me at the time and this is the check for $19.48.” The cheek is in the usual form, dated Feb. 11, 1908, for $19.48, and contains no words indicating that it was in full of plaintiff’s claim, or words of like import. It was collected by plaintiff in the usual course of business.

We are unable to find in this letter any language which amounts to a condition that if the money is accepted, it is accepted in satisfaction, or language such that the party to whom it offered was bound to understand therefrom that if he took it, he took it subject to such condition. The letter does not state that the writer offers the check in payment or satisfaction of any claim or demand of the plaintiff, but only that the check enclosed is the check which the witness’ son, “offered you in payment.”

We think that the facts do not constitute an accord and satisfaction, and the judgment will be affirmed.

Affirmed.


text:
    Story Finishing Company, Defendant in Error, v. Frank Kerting, Plaintiff, in Error.
    Gen. No. 15,349.

      Verdicts-—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 20, 1910.
    Leon S. Alschuler, for plaintiff in error.
    Ferguson & Goodnow, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff’s claim in this case was for goods sold and delivered by plaintiff to defendant amounting, at the price charged by plaintiff, to $1,628.33. Plaintiff admitted that defendant had made payments amounting to $1,503.23, leaving a balance due plaintiff, according to its contention, of $125, and for that sum plaintiff had judgment. The sale and delivery of the goods were not disputed, but the contention of the defendant was that for many of the goods plaintiff had overcharged defendant; that such overcharges amounted to $296.47, and that defendant had paid plaintiff $200 more than the sum of $1,503.23, for which plaintiff had given him credit. On cross-examination defendant was asked: “Except for these overcharges and these cash payments which you claim in your statement, this bill which ife rendered you is correct ?” and answered: “Yes sir, otherwise it is correct.”

The only question presented in the case are questions of fact. The testimony both on the question of overcharges, and of payments, not credited, was conflicting. The trial judge heard the witnesses and in effect found, that the plaintiff had not overcharged the defendant and had credited him with all the money he had paid plaintiff. We cannot, on the evidence in the record, say that such finding is against the evidence, and the judgment will therefore he affirmed.

Affirmed.


author: Mr. Justice Baker Mr. Justice Baker,

text:
    S. D. McGuire, Plaintiff in Error, v. B. M. Winston et al., Defendants in Error.
    Gen. No. 15,356.
    1. Contracts—what may he recovered upon unlawful rescission. In case of a breach of a contract for services, service cannot be continued after such breach and the damages thereby increased but the person injured is entitled to recover as damages the difference between the contract price, the amount which he would have earned and been entitled to recover on performance, and the amount which it would, have cost him to perform.
    2. Contracts—what competent to aid construction. If the language of an agreement is equivocal, obscure and uncertain parol evidence tending to show a practical construction by the parties of such agreement and of other similar agreements made between the parties is admissible.
    3. Evidence—question calling for conclusion of law. A question which calls for a conclusion of law, namely, as to what a contract meant, is improper and the answer thereto incompetent.
    4. Evidence—when admission of incompetent mil not reverse. In a trial before the court without a jury it will be'presumed that incompetent evidence admitted was not considered.
    Baker, J., dissenting.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 20, 1910.
    Elanneby & McKinley, for plaintiff in error.
    Winston, Payne, Stbawn & Siiaw, for defendant in error; Edwabd W. Evebett, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings before us for review a judgment for the defendant rendered by the Municipal Court in a cause tried by the court.

Plaintiff has for sixteen years sprinkled and cleaned the street in front of premises of defendants. In the spring of 1904 plaintiff furnished to defendants several copies of a printed form of agreement as follows:

“Chicago,........190...

............do hereby agree to pay D. McGuire Sprinkling and Teaming Co. the sum of........per......for Sprinkling and............the street in front of........ premises, for the seasons of 1904-1905 commencing........ and ending.........

Sig...................

Mo................”

Defendants filled out eight of said printed forms and signed and delivered them to plaintiff. This is one of the agreements so signed and delivered:

“Chicago, March 21, 1904.

I do hereby agree to pay D. McGuire Sprinkling and Teaming Co. the sum of $2.00 per mo. for sprinkling and ........the street in front of 421 Superior premises, for seasons of 1904—1905 commencing March 26 and ending Mov.

Sig. Winston & Co., Mo. 421 Superior.”

We regard the .other seven agreements as in legal effect identical with the one above set forth, and will consider the case as though they were identical in terms except as to the premises mentioned.

The controverted question in the case is as to the interpretation of said agreement, plaintiff claiming that his term of service continued to Movember, 1905, and defendants that it did not extend beyond March 26, 1905. Early in March, 1905, defendants informed plaintiff that they had employed another company to clean and sprinkle the streets in front of their premises in 1905, and notified plaintiff that they claimed that his term of service under their contracts with him had expired. If the term of plaintiff’s service under the contracts continued to November, 1905, defendants’ renuniciation of liability under them in March was a breach of the contracts. Plaintiff could not continue performance of the contracts after such breach to increase his damages, but was entitled to recover as damages the difference between the contract price, the amount which he would have earned and been entitled to recover on performance, and the amount which it would have cost him to perform the contracts. Devlin v. Mayor et al., 63 N. Y. 8, 25.

Plaintiff had contracts to sprinkle and clean the streets during the season of 1905 in front of other premises in the same blocks in which were the premises of defendants, and in order to perform such contracts was compelled to sprinkle and sweep the streets throughout each block, and did so from March to the end of November, 1905. If plaintiff’s term of service under the'contracts continued to November, 1905, he would have earned, if he had been permitted to perform the contracts up to that time, $215.01, at no increased cost to himself, because he was compelled, in order to perform his contracts with other persons, to do all that was required to fully perform his contracts with defendants. If, therefore, plaintiff’s term of service, under the contracts with defendants, continued to November, 1905, he was, on the evidence, entitled to recover $215.01; and if his term of service did not extend beyond March 26,1905, he was not entitled to recover.

In the opinion of the majority of the court, the language of the agreements is so equivocal, obscure and uncertain, that evidence tending to show a practical construction, by the parties, of said agreements, and of other similar agreements previously made between the parties, was admissible. By the agreement in question dated March 21, 1904, defendants agreed to pay plaintiff a specified sum per month for sprinkling the street in front of certain premises: “for seasons of 1904-1905, commencing March 26 and ending Nov.” It is said that the language of the agreement is equivocal, obscure and uncertain because it is doubtful whether the words: “commencing March 26 and ending Mov./’ in the clause above quoted, refer to and include the year 1905 or only the year 1904. The evidence which it is said shows a practical construction by the parties of the agreement under consideration, is evidence that in March of each year for sixteen years before 1904 similar agreements had been made by the parties; that such agreements were identical with the one in question, except as to the premises and the year; that in the agreements made in 1903 the years mentioned were 1903—1904; in those made in 1903 the years mentioned were 1902—1903, and so on back for sixteen years; that at the end of each year from the making of a set of agreements during that time, the plaintiff called on defendants and obtained a new set of agreements in which the years mentioned were the year the agreements were made and the next; that early in March, 1905, plaintiff met defendant Winston and asked him about, “the contract for the coming season,” and Winston told him that he had closed a contract with another company; that plaintiff, through his representatives, afterwards asked defendants to reconsider and sign and renew the contracts, which they refused to do.

In the opinion of the majority of the court the evidence shows such acts, prior and subsequent to the making of the agreements sued on, as amount to a practical construction by the parties of such agreements; that in view of such practical construction of the agreements by the parties, the agreements sued on must be held to be agreements for only one year from March 26,1904, and not to cover or include sprinkling or sweeping after that date, and that therefore,' on the evidence, the judgment was proper and should be affirmed.

Defendant Winston was asked by his counsel: “What is your understanding of the contracts here, dated March 21, 1904, as to whether they were for one or two years ?” the objection of the plaintiff was overruled and the witness answered : “My understanding was the same as it was for every year prior to the year 1904, 1905, that each one of these contracts were only one year.” The question and answer were both improper, Packer v, Roberts, 140 Ill. 9, 14.

Plaintiff was asked by his counsel this question: “These contracts were for the seasons of 1904 and 1905, commencing March and ending in November?” and answered, “Yes.”

We will assume that the trial judge disregarded the testimony of both parties as to their construction or understanding of a written agreement, and hold that the judgment should not be reversed for the error in admitting the testimony of defendant Winston.

Affirmed.

Mr. Justice Baker,

dissenting. The written agreement before us for construction was signed by defendants, delivered to and accepted by plaintiff, and acted on by both parties. This was sufficient to make the writing a binding obligation. I am unable to agree with the conclusion reached by the majority of the court, that the language of the writing is equivocal, obscure, or uncertain. By the writing defendants agreed to pay plaintiff a certain sum per month f-or sprinkling the streets in front of certain premises: “for seasons of 1904-1905, commencing March 26 and ending Nov.” The words: “for seasons of 1904-1905,” taken in connection with the preceding words of the writing, clearly constitute an employment of the plaintiff for two seasons; the season of 1904 and the season of 1905. The words: “commencing March 26 and ending Nov.” refer to the preceding words in the same sentence: “for the seasons of 1904-1905,” and fix and prescribe the limits and duration of the “season,” of the term of plaintiff’s employment, in each year. This construction gives effect to every word of the writing and requires no word or phrase to be supplied or understood. If the words: “in each year” be added at the end of the writing, its meaning would not thereby be varied or affected, because the meaning expressed in the words used, is that the “season” in each year during which plaintiff was to sprinkle the streets was a “season,” “beginning March 26 and ending Nov.”

I think that the judgment should be reversed and judgment entered here for the plaintiff for $215.01 damages and costs.


text:
    Arthur W. Bryant et al., Appellees, v. William E. Taylor, Appellant.
    Gen. No. 15,377.

      Costs—when decree reversed for failure to award. Upon the dismissal of a bill in chancery the matter of costs should be adjudicated; failure so to do requires a reversal.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoke, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed October 20, 1910.
    Wyeth, Clabic & Zollaes, for appellant; Newton Wyeth, of counsel.
    No appearance by appellees.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal of the defendant from a decree dismissing a bill in equity on motion of complainants. The appeal presents for review here, we think, only the question whether the decree is erroneous in making no order respecting costs. In Langlois v. Matthiessen, 155 Ill. 230, it was said: “Costs must follow dismissal by complainant as a matter of course. Technically the decree is erroneous in making no order respecting the costs. They should have been adjudged against the complainant.”

The decree will be reversed and the cause remanded to the Circuit Court with directions to enter an order dismissing the bill, on complainants’ motion, at the costs of complainants, and for execution, etc.

Reversed and remanded with directions.


author: Mr. Justice Holdom

text:
    Thomas E. Grubb, Defendant in Error, v. William H. Milan, Plaintiff in Error.
    Gen. No. 15,327.
    1. Municipal Court—jurisdiction to allow hill of exceptions. While the Municipal Court is powerless to allow a bill of exceptions as to occurrences ■ antecedent to the judgment rendered by it, yet where a motion to vacate such judgment is interposed it is proper for such court to allow a bill of exceptions embodying the proceedings upon such motion not contained in the common law record.
    2. Municipal Court—when loses jurisdiction to sign hill of exceptions. The Municipal Court has no power after the expiration of sixty days from the date of the final order or judgment to sign a bill of exceptions and a motion to vacate a judgment of the Municipal Court does not suspend or arrest the operation of the judgment.
    3. Judgment—what reached hy motion to vacate. A motion to vacate a judgment bears no analogy to a motion for new trial but relates to matters occurring subsequent to the trial and is in its effect confined to the mode or method of entering the judgment and the means by which that final order was brought about.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 20, 1910.
    O. S. Beattie, for plaintiff in error; Edmund W. Burke, of counsel.
    William A. Doyle and Joseph J. Thompson, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

In the trial of this case in the Municipal Court before a jury a verdict was rendered in favor of the plaintiff and against the defendant for $7,600, and after overruling a motion for a new trial the court, on June 15, 1908, entered a judgment for the amount of the verdict. Defendant thereafter filed a motion to vacate the judgment. This motion was continued numerous times and finally disposed of on October the eighth following by the court’s denying the motion. On that day an order was entered allowing defendant sixty days in which to file a bill of exceptions. What is claimed to be the bill of exceptions the record discloses was signed by the trial judge December 5, 1908.

The record recites that the court overruled defendant’s motion for a new trial after hearing the argument of counsel. The motion for a new trial was not in writing, and an examination of - the affidavit of defendant filed by him in support of his motion to vacate the judgment relates solely to matters which might have been urged upon the court as reasons for granting a new trial. Fío reason is assigned and no contention urged against the regularity of the court’s action in entering the judgment. Counsel for plaintiff objected to the signing of the bill of exceptions by the court on the ground that the court had lost jurisdiction to sign any bill of exceptions in the cause. This contention, however, is not in its entirety well taken. While the court was powerless to allow a bill of exceptions as to occurrences antecedent to the judgment, yet the whole proceeding involved in the motion to vacate the judgment, not embodied in the common law record, was proper to preserve for review by a bill of exceptions to be signed by the trial judge within sixty days from the entry of the order denying that motion. There is no order in this record which in any manner operated to arrest the judgment from the day of its entry. Since then it has been and still is in full force. While in the motion to vacate the judgment it is stated as a reason for its vacation that the judgment was entered in the absence of defendant and his counsel, still there is no fact stated in the affidavit which attempts to excuse or even explain such absence, and as the hearing of the motion was by order of the court set for a fixed time, it was the duty of counsel then to attend. All the facts set forth in defendant’s affidavit relate entirely to matters and things which might have constituted sufficient reasons to impel the trial judge to have granted a new trial had they been urged on the hearing of that motion. FTo error is pointed out either in the affidavit of defendant or in the brief of his counsel as intervening in the overruling of the motion for a new trial or in the entry of the judgment. A motion to vacate a judgment hears no analogy to a motion for a new trial, but relates to matters occurring subsequent to the trial, and is in its effect confined to the mode or method of entering the judgment and the means by which that final order was brought about.

The judgment in this case was a final order and valid from the time of its entry, so that no bill of exceptions presented after sixty days from its entry could properly be entertained by the trial judge. That part of the bill of exceptions touching the motion to vacate the judgment discloses no reason why that motion should have been allowed, and it therefore follows that there is no error in' the action of the court in denying it.

While there are no “terms” in the Municipal Court, the sixty day limitation in which a party may present and have signed his bill of exceptions has by analogy the same force and effect as to the finality of a judgment as the lapse of a term in the Circuit Court has upon the finality of judgments rendered in that Court. A motion for a new trial made after judgment but during the term in which it was entered, by force of the statute, arrests such judgment, and this is so even though the motion be not acted upon until a subsequent term of court. The judgment is the judgment of the term at which the motion for a new trial is overruled, and not of the term in which it was entered where within that term a motion for a new trial is interposed. Such is in effect decided in Hearson v. Graudine, 87 Ill. 115, also Finch v. Zenith Furnace Co., 245 Ill. 586, affirming this Court 46 Ill App. 257. But here the motion for a new trial was disposed of prior to the entry of the judgment, and the motion to vacate the judgment did not, like a motion for a new trial, suspend or arrest the operation of the judgment. People ex rel. v. Gary, 105 ib. 264.

In Evans v. Fisher, 5 Gilm. 454, the court say: “A bill of exceptions should be reduced to form and signed during the term in which the cause is tried, except in cases where counsel consent or the judge by an entry on the record directs that it may be prepared in vacation and signed nunc pro tunc/’ and in commenting upon this language the court say in People ex rel. v. Gary, supra, “Of course what is meant by the expression 'the term in which the cause is tried,’ is the term at which the final judgment is rendered in the cause.” It is therefore clear that that part of the bill of exceptions, in this record, which contains the proceedings had at the trial of the cause, was improperly embodied in it and consequently is not reviewable by this court.

There being no errors well assigned on the common law record or the proceedings had subsequent to the judgment as disclosed by the bill of exceptions, the judgment of the Municipal Court must be and is affirmed.

Affirmed.


text:
    E. D. Lewis, Defendant in Error, v. Richheimer & Company, Plaintiff in Error.
    Gen. No. 15,338.
    1. Judgments—effect of entry in absence of counsel. The court has power to enter judgment in the absence of counsel for one of the parties; if his absence was not shown to have been justified a refusal to vacate the judgment entered is not an abuse of discretion.
    2. Municipal Court—when bill of exceptions not stricken. Held, that the bill of exceptions in this case while informal was a sufficient compliance with the statute authorizing the filing of a stenographic report inasmuch as such bill of exceptions contained the certificate of the judge that it contained “all the evidence presented at the hearing of the cause.”
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed and judgment here.
    Opinion filed October 20, 1910.
    Alfred Living ston, for plaintiff in error.
    Winston, Lowy & McGinn, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

This writ of error seeks to reverse a judgment of the Municipal Court in favor of plaintiff and against defendant for $344.03. The cause was by agreement of the parties tried before the court without the intervention of a jury. Plaintiff was in the employ of defendant at a salary of $300 per month, and the suit is for money claimed to be due as salary and a few odd items, together with an additional $25 per month which plaintiff claims was due him for seven months and fourteen days. This latter sum plaintiff contends is payable in virtue of a conversation which he had with defendant January 1, 1908, his version of which we find in his testimony to be that he had “a conversation with defendant in which it was said that I should have in addition to the $300 per month the sum of $25 per month for the purpose of giving the same to or buying the trade, and an agreement for compensation was entered into. I was given credit for only $300 per month and I was never given credit for the $25 per month or any part thereof.” Plaintiff was discharged by letter from defendant August 8th, and secured other employment six days thereafter. On the other hand, defendant denied that he promised plaintiff the additional $25 per month as claimed by him, but that he was allowed to give “to the trade” a sum not exceeding $25 per month. The evidence of the contestants is all that is found in the record concerning this part of plaintiff’s claim. It follows that plaintiff fails to sustain his claim by that quantum of proof which the law demands as essential to a recovery.

The trial of this case was fragmentary and not continuous, as becomes the orderly trial of the ordinary case, and the judgment was finally entered in the absence of defendant and his counsel. But that was the fault of the counsel and not of the presiding judge. The further hearing had been regularly continued to the time at which final action was taken and counsel should have been present; but he saw fit to absent himself and engage in a bankruptcy hearing before ¡Referee Eastman. This he did at his peril. Defendant claims that having presented the dilemma of his counsel to the judge’s minute clerk, the latter told him he might he excused, and thereupon defendant left the court. The clerk was not called to substantiate such statement. However, that officer had no power to control the action of the judge. To continue the hearing necessitated an order of the court. The presiding judge was the only person who had the power or authority to make such an order. We do not find any abuse of judicial discretion in .the refusal of the trial judge to allow the motion of defendant to set aside the judgment and to permit defendant to continue, at another time, with his defense. Defendant had his day in court and frittered away his opportunity to make his defense, and it is useless now to complain of the result of his own negligence.

The transcript from defendant’s book account found in the record was not evidence and had no rightful place in the statement of the case made by the judge. While it was agreed defendant might prepare such a transcript, still plaintiff, so far from agreeing that it might be introduced in evidence, clearly reserved his right to cross examine defendant’s bookkeeper in relation to the account, and to test it by the book itself, and to examine the book and all its items for that purpose when the trial again proceeded.

The motion to strike the statement or bill of exceptions reserved to the hearing is denied. While the statement is informal, the judge certifies that it contains “all of the evidence presented at the hearing of said cause,” and we think this equivalent to and fulfills the essential and material functions of the stenographic report provided for in item 6 of section 23 of the Municipal Court Act. We think this case plainly distinguishable from Seehausen Wehrs & Co. v. Interstate Steel & Iron Co., 150 Ill. App. 179, in which the court say that the alleged bill of exceptions was “not verified or attested or even asserted to be either such statement or report as the sixth item of section 23 requires, and that, for that reason, it complies with the statute in neither substance nor form.”

The judgment of the Municipal Court including, as it does, the unproven claim of plaintiff for the extra $25 per month for seven months and fourteen days, is $186.69 in excess of the amount plaintiff has proven himself entitled to recover. The judgment of the Municipal Court is therefore reversed and a judgment entered here for $157.34 in favor of plaintiff and against defendant; plaintiff to pay the costs of this court and the defendant the costs of the Municipal Court.

Beversed and judgment here.


text:
    Manhattan Brewing Company, Plaintiff in Error, v. Margaret Riordon, Defendant in Error.
    Gen. No. 15,373.

      Verdicts—when set aside as against the evidence. A verdict will he set aside on review where the same is clearly and manifestly against the weight of the evidence.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed October 20, 1910.
    Mayer, Meyer & Austrian, for plaintiff in error.
    Mo Cabe & Cloyes, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

The plaintiff in this action is a brewer and the defendant a saloon keeper. Plaintiff’s claim is for beer sold and delivered to defendant, upon which a balance of $406.82 was claimed to he unpaid and also the sum of $93.35 unpaid on two promissory notes of defendant owned by plaintiff. As to the amount due on the notes there is no dispute. A jury trial resulted in a verdict in favor of plaintiff and against defendant for $94.56, for which amount the trial judge gave judgment after overruling a motion for a new trial. Plaintiff sues out this writ of error and contends that the verdict and judgment should have been for the full amount of the claim, which would have included the $406.82 balance due on beer account.

It is evident that the beer account was totally disregarded by the jury and the trial judge. Why, we are, in the condition of the record, unable to perceive. While there are other items of claim about which evidence was given pro and con, it was afterwards stricken from the record and the jury instructed to disregard it in arriving at their verdict. The propriety of the court’s action in this regard is not challenged.

There is literally no evidence in this record which contradicts, or tends to contradict, plaintiff’s proofs as to the amount of beer delivered, the price charged for it, or the accuracy of the credits given for payments made on account of heer delivered. The beer account was kept in a book, called the beer book, which was retained hy defendant. From this book the account-of plaintiff for the beer was checked up and adjusted at the end of each month, and the book thereafter delivered to defendant, who retained it until the succeeding period of adjustment arrived. Defendant, on notice to produce this book on the trial, failed to do so, and the ledger account was offered as secondary evidence to prove the contents of the beer book; and while the trial judge permitted the bookkeeper to testify as to the amount shown due upon the beer book and upon the ledger account, which amounts were in harmony, yet the court excluded the ledger account. This was error and we think resulted in misleading the jury to the extent of their ignoring the whole of the beer account. While defendant claims she ought to have been allowed a lump sum of $500 as a credit, yet she states no cogent reason for such claim. She contends that she was overcharged, but fails to designate any item of overcharge. She testified that she told plaintiff’s agent that she should be allowed $500 on her license, but gives no reason why such allowance should be made.

That the ledger account was admissible as secondary evideuce is settled in Dewes Brewing Co. v. Kerwin, 107 Ill. App. 620, a case in which the precise question here involved was there decided.

At the conclusion of all the evidence plaintiff’s counsel requested the court to instruct the jury to return a verdict in its favor for the amount of its claim. In the condition of the record there was in fact no evidence tending to question the amount claimed by plaintiff as due to it from the defendant. The amount unpaid on the two notes was admitted and there was no countervailing evidence on the part of defendant disputing the quantity of beer delivered, the price charged or the credits given for amounts paid by, or allowances made to, defendant. As the case then stood no evidence had been adduced contradictory of any item constituting plaintiff’s claim.

The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Fletcher Smith, Appellee, v. The Bankers Life Association, Appellant.
    Gen. No. 15,381.

      Instjkance—when false representations vitiate policy. An answer by an applicant for insurance to the effect that he was at the time in good health is vital and whether intentionally false or simply erroneous is of no importance; the answer if untrue will vitiate the policy.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Thomas Q. Windes, Judge, presiding. Heard in this, court at the March term, 1909.
    Reversed.
    Opinion filed October 20, 1910.
    Rehearing denied November 3, 1910.
    I. M. Bable and O. S. Baylies, for appellant.
    Phelps & Phelps, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This case is before this court, on appeal, for the second time. The decision of the former appeal is reported in the 123 Ill. App. 392. A sufficient statement of the case for the present review is embodied in that opinion, and the legal phases of the ease as here presented are also there stated in an opinion by Mr. Justice Freeman. We refer to and adopt the statement there made as meeting every requirement of this review, without here repeating it, and so far as the opinion there written is applicable, we treat it as the law of the case.

There are numerous assignments of error upon the record and many reasons are urged in somewhat elaborate arguments by counsel for the respective contestants, on the one hand why the judgment should he reversed, and on the other hand why it should be affirmed. We have diligently read and carefully considered all the arguments of counsel as well as the record in the cause, and have reached the conclusion therefrom that the questions of fact and law involved in instructions numbered 49 and 50, given at the instance of the defendant, are, exclusive of all other points in the case, decisive of the rights of the parties in the subject-matter of this litigation, and we shall therefore confine our opinion to the questions thus presented. These instructions are:

49. “If you find from the evidence that at the time said James Grant Black made application for membership in the defendant Association that he did not usually enjoy good health, then your verdict should be for the defendant.”

50. “You are instructed, that if from the evidence you find that the said James Grant Black at the time his application for membership in the defendant Association was made was not in good health, then your verdict should he for defendant.”

The correctness of the proposition embodied in these instructions is at least impliedly conceded by plaintiff from the fact that they were given without objection on his part.

Whether the answer of Black that he was in good health at the time of his application for membership in defendant Association was a representation or a warranty, is of no moment. Such answer was not only material but vital to the making of the contract of insurance, and therefore whether the answer was intentionally false or simply erroneous is of ■ no importance. If untrue in fact, it vitiates and voids the certificate issued in faith of its verity. National Union, v. Arnhorst, 74 Ill. App. 482, was a case in which a bill was filed to cancel an insurance policy because of the failure of the insured in his application to fairly answer questions in relation to his health. The bill was dismissed by the chancellor for want of equity, but this court reversed the chancellor’s action and directed a decree to be entered according to the prayer of the bill. While this court held in the Arnhorst case that the answers as to applicant’s condition of health amounted to warranties, yet it is said: “If the whole contract of insurance, including the application, medical examiner’s report and benefit certificate, when construed together, do not make the answers to these questions warranties, but simply representations, still they are certainly material to the risk, and must be substantially true in order to make the Association liable. 1 Bacon on Ben. Societies, Sec. 212, 230 a.; Morgan case supra (32 ib. 81); Cummins case supra (53 ib. 537); Continental Life Ins. Co. v. Rogers, 119 Ill. 474; Cobb v. Covenant M. B. Assn., 153 Mass. 176; Metropolitan Life Ins. Co. v. McTague, 49 N. J. Law, 587.” The principle is also well and concisely stated in U. S. Fidelity Co. v. First Nat’l Bk., 233 Ill. 475, in these words: “The law is well settled, in its application to insurance contracts, that a misrepresentation of a material fact, in reliance upon which a contract of insurance is issued, will avoid the contract. A material misrepresentation, 'whether made intentionally, knowingly, or through mistake and in good faith, will avoid the policy.”

The affirmative answers of Black to the questions, “Are you now in good health?” and “Do you usually enjoy good health?” were untrue. They were material to the contract of insurance; being untrue, the insurance contract is vitiated and the certificates sued upon cannot be enforced.

The evidence that the representations of Black, concerning his condition of health, were false is monumental, and in no way are the facts constituting such evidence in dispute. His own mother testified that periodically for twelve years Black had trouble with his stomach and bowels; that during that time he had a great many attacks, which increased in virulence and frequency as time progressed. He told his mother he was not well and she testified that he vomited and had constipation of the bowels; that he said he was never real well and added, “Mother, when I eat anything it seems to stop right in the middle of my bowels and I either have to vomit or take a physic to pass through my bowels.” This testimony was- supported by the testimony of about nine medical men who had attended Black professionally at varying times during that period. Dr. Kampen testified that he knew Black ten years before he died and after his death made an autopsy of his remains. He treated him in June, 1899, and found him suffering from reflex vomiting, that he had severe cramping pains in stomach and bowels and that these troubles continued for one week, and that there were recurrences of these troubles in August and September following. The severity of the difficulties may be somewhat judged from the character of the remedies given. They were castor oil, salts and morphine; the latter of course being given to alleviate the severe pains. These were so acute that Black was able to and did take one and a half grains of morphine daily. The post mortem disclosed that Black had a stricture of the ilium near the juncture of that organ and the coelum and about six inches in length, running parallel with the bowels. Four inches above that stricture was another, one and a half inches in length, running around the bowels. Eighteen inches above the latter was still another stricture, and a fourth one above that similar to the second stricture. These strictures were hard siccaturial bands which produced impaction of the bowels by interference with the passing of food matter. This condition, in the opinion of this witness, antedated the time when he first treated him. While this testimony touching the condition which the post mortem disclosed was excluded, it is our opinion that it should have been admitted. Other medical men who attended Black testified that he had severe attacks of cramps and suffered greatly, at times rolling out of bed onto the floor in agony; that they gave him morphine both internally and hyperdemically.

Black made his application for the insurance certificates in suit September 26, 1899. He died June 18., 1900. On September 18, 1898, on the advice of a physician, he went to the Post Graduate Hospital at Chicago to consult some of the medical faculty and have a diagnosis made in an effort to discover if possible the exact nature of his physical ailments. He continued at the hospital four- days, leaving September. 22, 1898. During his sojourn in the hospital his stomach was pumped out and he was otherwise examined by some of the doctors. He became dissatisfied with the delay of the medical men in arriving at a satisfactory conclusion as to his physical troubles and for that reason departed. The" following tabulated statement shows -the dates when Black was medically treated during the years 1898 and 1899, prior to signing his application, the names of the medical men attending him, the symptoms and diagnosis of his physical ills, and some of the medicines prescribed:

It is undeniable that the answers of Black in his application for membership in defendant Association that he was in good health and usually enjoyed good health were misrepresentations and untrue; that these answers being false vitiated the contracts of insurance, and that no recovery can be had on either of the certificates in suit. The verdict of the jury is contrary to the undisputed evidence and contrary to the two instructions recited in the introductory part of this ópinion. As Black was not in good health September 26, 1899, when he made his application for the certificates in suit, in which application he represented to the contrary, there can be no recovery in this action, regardless of every other question raised in the case.

The judgment of the Circuit Court is therefore reversed.

Reversed.


text:
    William Routt, Trustee, et al., Appellees, v. Charles S. Newman, Appellant.
    Gen. No. 15,387.
    1. Appeals and errors—what not final order. An order overruling a demurrer to a supplemental cross bill and taking the same as confessed upon the defendant electing to stand by his demurrer, is not a final and appealable order.
    2. Appeals and errors—when appeal dismissed of court’s own motion. Although the point be not raised by counsel, if it is apparent to the court that the order appealed from is not final and appealable a dismissal will be ordered upon the court’s own motion. .
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1909.
    Appeal dismissed.
    Opinion filed October 20, 1910.
    October 31, 1910, order of dismissal vacated and cause taken.
    Angus Roy Shannon, for appellant.
    Dyrénforth, Lee, Chritton & Wiles, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from the following order:

“This cause coming on to be heard upon the demurrer of Charles S. Newman, defendant, to the cross bill of Richard Wetherell Newman, cross-complainant, as modified by the supplemental cross-bill of Charlotte H. L. Newman, cross-complainant, as amended, and the court having heard the arguments of counsel, all parties being before the court, and being fully advised in the premises, doth hereby overrule the aforesaid demurrer; whereupon the said defendant elects to stand by his demurrer, and the court thereupon decrees said supplemental cross-bill as amended of said Charlotte H. L. ¡Newman, cross-complainant, shall be and the same is hereby taken as confessed by and against the said Charles S. ¡Newman, defendant, each party paying his own costs in the Circuit Court.”

While the point has not been raised by either counsel, it is patent that this order is not final and consequently is not appealable, and therefore the record presents no questions for review. The Chicago Portrait Company v. The Chicago Crayon Company, 217 Ill. 200, is as much like this case as one case can possibly be like another. The Appellate Court had taken jurisdiction of the appeal and decided the case upon the merits, and it was argued that the point that the order was not appealable not having been raised in this court the parties were estopped from urging it in the Supreme Court. With this contention, however, the Supreme Court plainly recorded its dissent when it said, “If a court on appeal has jurisdiction of the subject-matter and the parties, any objection to the manner in which it reaches the court will be waived by the parties appearing and pleading without objection. Lynn v. Lynn, 160 Ill. 307. But when the court has no jurisdiction of the subject-matter, the jurisdiction cannot be conferred by the agreement of the parties, and the want of jurisdiction cannot be waived by failing to object. 2 Cyc. 536. The fact that appellant took the appeal to the Appellate Court does not affect the question. Peak v. The People, 71 Ill. 278. It is not competent for parties to confer jurisdiction of the subject-matter upon an Appellate Court by their stipulation. Westcott v. Kinney, 120 Ill. 564. In this case the Appellate Court had no jurisdiction of the subject-matter, not being authorized by law to hear or consider an appeal from a judgment which is not final, and appellant is not legally estopped to set up a want of jurisdiction. A court finding it has no jurisdiction of a cause should dismiss of its own motion, and the Appellate Court should have dismissed the appeal at appellant’s cost.” The order appealed from is no more than an order of default of appellant to the supplemental cross-hill as amended of Charlotte M. L. Newman. No relief is awarded to any of the parties, and no rights in the controversy adjudged or settled. As said in Gage v. Eich, 56 Ill. 297: “In this case there has been no final decree; nothing, indeed, but overruling a demurrer to the hill and a reference to the Master to state an account and report the same to the court. The case is yet in fieri and no appeal can lie. 2 Dan. Chan. Pr. 1543, and the case cited in note 1.” To a like effect is Gage v. Rohrback, ib. 262, and Same v. Chapman, ib. 311.

Conforming to the authority of the Chicago Portrait Co. v. The Chicago Crayon Co., supra, this court, finding it has no jurisdiction to review the order appealed from, of its own motion orders the appeal to be dismissed at appellant’s cost.

Appeal dismissed.


author: Mr. Presiding Justice Freeman

text:
    William F. Forch et al., Appellees, v. Western Life Indemnity Company, Appellant.
    Gen. No. 15,283.

      Insurance—when policy lapses for failure to pay second annual premium. A policy of life insurance dated June 3, 1907, contained the following provisions, among others: That the contract is made in consideration of the payment of premiums therein provided for “being the premium for term insurance for the period terminating on the 3d day of June, 1908, and in further consideration of the payment on said last named date to this company at its home office in the city of Chicago as the premium for whole life insurance, of the sum of $122.50 and a like sum annually thereafter on or before the third day of June in every year during the continuance of this contract.” Said policy contained the additional provision: “This policy shall not take effect until the first payment shall have been actually paid during the lifetime and sound health of the insured.” It appeared that the policy was not delivered until the 6th day of June, 1907. Held, that failure to pay the second annual premium on the 3rd day of June, 1908, caused the lapse of said policy.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hums, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed and remanded with directions.
    Opinion filed October 20, 1910.
    Thomas J. Grand on, for appellant.
    Burke, Jacksor & Burke, for appellees.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an appeal from the judgment of the Municipal Court upon a policy of life insurance issued to Matilda Forch, the mother of appellees. The trial court sustained a general demurrer to a special plea filed by the defendant company. The latter elected to stand by its special plea and judgment was entered against it for $3,000, the amount claimed to be due under the terms of the policy.

The policy in' question was executed and dated June 3, 1907, upon an application by Matilda Forch dated May 23. The declaration alleges that the policy was not however delivered to the insured until June 6, 1907, three days later than the day of its execution and date. The policy by its terms insures the life of Matilda Forch for $3,000; and further provides that the contract is made in consideration of the application made a part of the contract, and of the payment of premiums therein provided for, “being the premium for term insurance for the period terminating on the third day of June, 1908, and in further consideration of the payment on said last named date to this company at its home office in the city of Chicago as the premium for whole life insurance, of the sum of one hundred twenty-two dollars and forty-six cents and a like sum annually thereafter on or before the third day of June in every year during the continuance of this contract.”

The declaration sets out inter alia the policy in full and alleges the first annual premium was paid by the insured on the 6th day of June, 1907, and that the policy “was then and there on the 6th day of June, 1907, delivered to Matilda Torch by said defendant” and thereby the policy became and was in full force and effect for the term of one year from the 6th day of June, 1907; that the insured died on the 6th day of June, 1908; The defendant’s special plea to which the demurrer in question was sustained and upon which defendant elected to stand, sets out among other things that, “it was expressly provided that said policy and contract for insurance was made in consideration of the payment to the defendant by said Matilda Torch of the sum of one hundred twenty two dollars and forty-six cents on the third day of June, 1908, as the premium on said policy for whole life insurance from that dateand that by the terms of the policy it was provided that if any premium or any indebtedness secured by said policy should not be paid when due, the policy should thereupon cease and determine; that said insured did not, nor did any one for her, pay the said premium nor any other amount on said June 3, 1908, or at any other time thereafter ; and it is averred that by reason of default in so doing, said policy by its express terms terminated and ceased to be in force and effect from and after June 3, 1908, and was not in force at the time of the death of the insured on the 6th day of June, 1908. It is contended that the trial court erred in sustaining plaintiffs’ demurrer to this plea.

The question to be determined is whether the premium paid by the insured to the defendant on the 6th of June, 1907, when the policy was delivered to her by the defendant, kept the policy alive in full force and effect until and including June 6, 1908, the date of her death. It is contended in behalf of defendant “that the policy is unambiguous, is capable of but one reasonable construction giving effect to all its parts, and specifically provides that the initial payment of $122.46 was a premium for the period terminating June 3, 1908; and that in order to continue the insurance after such, latter date a further payment of $122.46 was required unqualifi.ed.ly on June 3, 1908, in default of which latter payment the policy by its express terms thereupon ceased and determined.”

The application" of the insured which is by the terms of the policy made a part of the contract contains the following:

“This application made to the Western Life Indemnity Company of Chicago, is the basis and a part of a proposed contract for insurance, subject to the charter of the company and the laws of the State of Illinois. I hereby agree that all the foregoing statements and answers and all those that I make to the company’s medical examiner in part two of this application are by me warranted to be true, and are offered to the company as a consideration of the contract, which I hereby agree to accept, and which shall not take effect until the first premium shall have been paid, during my continuance in sound health, and the policy shall have been executed and issued by the company.”

The policy under the head of “Benefits, stipulations and conditions,” which are also by the terms of the policy made a part of the contract, contains the further statement that “this policy shall not take effect until the first payment shall have been actually paid during the lifetime and sound health of the insured.” On the other hand the policy states that the first premium paid is “the premium for term insurance for the period terminating on the third day of June, 1908,” and provides for “a like sum annually thereafter on or before the third day of June in every year during the continuance of this contract.” The policy therefore did not take effect until payment of the first annual premium on June 6, 1907, and the premium then paid was the full annual premium. Defendant maintains that the policy was forfeited by its terms because of the failure to pay the next annual premium on June 3, 1908. This was before the expiration of the year from the date when the policy became effective by payment of the first annual premium June 6, 1907. In McMaster v. N. Y. Life Ins. Co., 183 U. S. 25, a similar question arose. The defendant company’s contention in that case was stated by the court as follows: “That the policies expressly required payment of the annual premiums, subsequent to the first (payable and paid on delivery) on December-12, 1894; that McMaster in accepting them without objection became bound by this requirement and could not plead ignorance thereof resulting from not reading them when tendered; and that therefore these policies were properly forfeited January 12, 1895, being twelve months from December 12, 1893, with a month of grace added.” The policies in that case were issued and began to run December 18, 1893. It will be seen that the defendant’s contentions in that case were in this respect similar to the contentions of defendant in the case at bar. The court said (p. 40) : “To hold the insurance forfeitable for nonpayment of another premium within the year for which payment had already been fully made would be to contradict the legal effect under the applications and policies of the first annual payment.” And further, that if the policies were “not in force until December 18th, the date of actual issue, how can it be said that liability to forfeiture accrued before the twelve months had elapsed ? The truth is the policies were not in force until December 18th and as the premiums were to be paid annually and were so paid in advance on delivery, the second payments were not demand-able on December 12, 1894, as a condition of the continuance of the policies from the twelfth to the eighteenth.” But there was another element in that case, which does not exist in the case at bar. There had been an unauthorized interpolation by the company’s agent in the application requesting the policy to be dated “same as the application.” This was done and the insured was led to suppose the insurance could not be forfeited until after thirteen months from the time it began. The case is reviewed in Rose v. Mutual Life Ins. Co., 240 Ill. 45-53, and the conclusion stated that it “was a case of fraud on the insured;” that “the decision does not tend to support the argument that the premium in this case was not due according to the terms of the policy, there being no claim of fraud, misrepresentation, mistake or accident. The policy provided that the annual premium should be paid on the 23rd day of May in every year during the continuance of the contract, and in the absence of fraud or mistake both parties were bound by its terms. Tibbitts v. Mutual Benefit Life Ins. Co., 65 N. E. Rep. (Ind.) 1033.” So in the case at bar, the policy provided that the annual premium should be paid on or before the 3rd of June in every year during the continuance of the contract and in the absence of fraud, misrepresentation, mistake or accident which are not alleged, both parties were bound by its terms. Plaintiff’s counsel cite the case Stinchcombe v. N. Y. Life Insurance Co., 80 Pacific (Oregon), 213. We have examined the case but it does not in our opinion conflict with the views above expressed in view of the facts therein stated, and if it did, the Rose case, stating the law applicable in this State, would still govern.

Other authorities are cited and points presented in the briefs, but in our view the considerations stated are controlling.

The judgment of the Municipal Court must be reversed and the cause will be remanded to that court with directions to overrule the demurrer to the defendant’s special plea.

Reversed and remanded with directions.


text:
    Charles Carrol, Plaintiff in Error, v. Joseph Joerms, Defendant in Error.
    Gen. No. 15,291.

      Instructions—when upon doctrine of fellow-servants not erroneous. Where the evidence tended to sustain the defense of fellow-servants, instructions upon the law of that subject are proper even though they do not specifically refer to the theory» of the plaintiff that the servant in question was a vice-principal.
    Action in case for personal injuries. Error to the Supérior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 20, 1910.

      B. J. Wellman, for plaintiff in error.
    O. E. Cettikshank, for defendant in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment in favor of the defendant in an action by plaintiff to recover for personal injury. Plaintiff was injured by falling from a scaffold which was set up by himself and a fellow employe. He'bases his claim to recover upon an assertion that the fellow employe was acting in the capacity of foreman and in that.capacity gave him the directions or orders in accordance with which the scaffold was set up. The only testimony or evidence upon which the claim rests that this fellow employe—one Ebert—■ was acting as foreman or vice principal is that of plaintiff himself. The evidence to the contrary preponderates in favor of the defendant, and sufficiently justified the verdict of the jury upon the question of fact finding defendant not guilty.

The alleged errors of the court relied upon as ground to reverse the judgment are in two of the instructions given in behalf of defendant. These instructions were in substance that when the duties of the plaintiff and other laborers with him are such as to bring them into habitual association so that they might exercise a mutual influence upon each other pro-motive of care and caution, they are fellow servants; and that if the jury believed from the evidence that the fellow employe Ebert was a fellow servant of the plaintiff and that the injuries alleged resulted from the negligence of a fellow servant directly co-operating with plaintiff in the particular business in hand at the time of the accident, and that their respective duties were such as brought them into such habitual association that they might exercise upon each other an influence promotive of proper caution, no recovery could be had. The objection to the instructions is not that they do not correctly state the law so far as they go, but that the court “overlooked the fact that the question of vice principal entered into the case; that a foreman and journeyman assoelate together and directly co-operate in the particular business in hand, but still they are not fellow servants, because one exercises control and authority over the other.” Whether or not in the case at bar plaintiff and Ebert were fellow servants was a question of fact which by these instructions was submitted to the jury upon the evidence. The defendant was entitled to have the cause so submitted with instructions based upon his own contention as to what the evidence tended to show. No instructions were requested upon the theory that Ebert was a vice principal. In the case of Yarber v. Chicago and Alton Ry. Co., 235 Ill. 589-596, there was no question but that Fielder, who gave the plaintiff directions to go into the place where he was injured, was plaintiff’s foreman and that he gave plaintiff such order in his capacity as vice principal. In the case at bar the issue was presented whether Ebert was in fact a vice principal, and the finding of the jury on the question of fact is adverse to plaintiff’s contention.

Finding no material error in the record the judgment of the Superior Court must be affirmed.

Affirmed.


text:
    Albert W. King, Defendant in Error, v. Leon I. Kahn et al., Plaintiffs in Error.
    Gen. No. 15,302.
    1. Evidence—what establishes account stated. If an account is presented to a debtor and lie examines it, makes inquiries with respect to items and upon their being explained states that the account is all right, an account stated is established.
    2. Evidence—what does not establish account stated. Mere silence by one when a bill is presented is not in itself a ground for presuming acquiescence in its correctness.
    Error to the Municipal Court of Chicago; the Hon. Hush E. Stewaet, Judge, presiding. Heard in this court at' the March term, 1909.
    Affirmed.
    Opinion filed October 20, 1910.

      Zeisler & Friedman, for plaintiffs in error.
    Winkler, Baker & Holder, for defendant in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

The only question presented for our consideration in this case hy plaintiffs in error “is whether the claim of the plaintiff was an account stated.”

There is evidence tending to show that plaintiff did certain work and advanced certain sums for the copartnership the members of which were made parties defendant in the suit. The plaintiff testified that he presented his hill for $149.53 to the defendant Kahn, and that the latter said he was not able to let him have any money then because money from certain advertisers had not come in. Later he testifies to a conversation at his own office with Mr. Means, alleged to be a partner in the defendant firm, and that Means said he would go back “and send you a check;” that plaintiff had proposed to take payment in installments of $20 per week, and that Kahn expressed appreciation of plaintiff’s willingness to make the payments easy; that while nothing was said as to the correctness of the account the bill was looked over by Kahn, who “inquired into one or two items where he thought I had put in a little too much time;” that plaintiff explained these, and that Kahn “accepted it as all right;” that subsequently Kahn said to him, “I think Mr. Means will be here in a few days and he will pay you up in a lump,” and that plaintiff had sent a statement of the account to Kahn and duplicates to the other partners, Means and Manaban.

It is argued in defendants’ behalf that under this evidence the claim is not an account stated, that if a party remains silent when presented with a bill this gives no ground to presume he admits its correctness. We do not concur in these contentions so far as they are based upon the evidence in this record. We have defined an account stated as “an agreement between parties that all the items of the account are true and the balance as struck correct, together with a promise expressly implied for payment of such balance.” King v. Macchesney, 88 Ill. App. 341-343, cited in defendants’ brief. An account stated has also been defined as “an agreed balance of accounts.” An “account which has been examined and accepted by the parties.” Bouvier’s Law Dictionary, cited in Peterson v. Wachowski, 86 Ill. App. 661—663. In the case at bar the evidence is to the effect that Kahn did examine the statement of account presented to him by plaintiff, that he made inquiries as to some of the items, that these were explained to him, and that he accepted the account as all right. It is doubtless true that mere silence by one to whom a bill is presented may not be of itself ground for presuming acquiescence in its correctness. Whether so or not may depend upon attendant circumstances. On the other hand proof of an express promise is not always necessary. The acquiescence of the defendant in the account as rendered and the promise to pay the balance shown by the statement of account to be due, may be inferred from circumstances in evidence. Neagle v. Herbert, 73 Ill. App. 17-27, and cases there cited. In the case at bar the plaintiff chose to rely on the evidence tending to show an account stated. This he was entitled to do. The defendant Kahn admits he looked over the statement presented to him by plaintiff, but denies that he promised to pay the amount claimed, also that he admitted the statement to be correct, and that the sum claimed is due plaintiff. The trial court had the witnesses before it and heard the testimony. We find nothing in the record to justify interference here with the finding and judgment. On the other hand we are of opinion the judgment is justified by the evidence.

The judgment of the Municipal Court is therefore affirmed.

Affirmed.