text:
    Aetna Life Insurance Company, Defendant in Error, v. Wadeford Electric Company, Plaintiff in Error.
    Gen. No. 20,698.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Maktin, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Action by Aetna Life Insurance Company, plaintiff, against Wadeford Electric Company, a corporation, defendant, to recover premiums alleged to be due under certain policies of liability insurance issued at the special instance and request of defendant.

      Abstract of the Decision.
    1. Municipal Coubt of Chicago, § 27

      —when motions and orders not reviewable. Motions and ordprs striking affidavits of defense from the files cannot he reviewed on a writ of error unless they are preserved by a bill of exceptions.
    2. Municipal Coubt of Chicago, § 26*—when matters not preserved in record not reviewable. On a writ of error to reverse a judgment in an action to recover premiums alleged to be due under insurance policies, where the policies are not preserved in the record, the court cannot consider their provisions.
    Defendant’s affidavit of defense was struck from the files, as was also its amended affidavit of defense. No propositions of law were submitted.
    To reverse judgment for plaintiff for $82.22 entered on his affidavit of claim, defendant prosecutes this writ of error.
    Daniel M. Mickey, for plaintiff in error.
    Frederick K. Warne, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    The Lord & Bushnell Company, Defendant in Error, v. W. J. Campbell, trading as W. J. Campbell Lumber Company, Plaintiff in Error.
    Gen. No. 20,726.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and judgment here.
    Opinion filed March 8, 1915.

      Abstract of the Decision.
    1. Set-off and bbcottpment, § 40

      —when evidence insufficient to establish. Evidence examined and held insufficient to establish contract whereon claim of set-off based.
    2. Contbacts, § 372*—when existence not affected by destruction of writing evidencing it. The fact that the original writing evidencing the terms of an agreement entered into between the parties, which was signed and delivered, is destroyed does not destroy the agreement, but the terms of the agreement may be „ shown by introducing a copy.
    Statement of the Case.
    Action by The Lord & Bushnell Company, a corporation, plaintiff, against W. J. Campbell, trading as W. J. Campbell Lumber Company, defendant, to recover an unpaid balance claimed to be due for the purchase of certain lumber sold to defendant. The sale and delivery of the lumber at the price alleged was admitted by defendant, but he claimed to have had a contract with plaintiff for further lumber at the same price and that this contract was violated by plaintiff’s refusal to deliver the balance of the lumber, to the damage of defendant.
    The agreement between the parties was created through letters between them which were introduced in evidence.
    Plaintiff’s statement of claim also included an item for an allowance on lumber bought of defendant but rejected by plaintiff and an agreement by defendant to make such allowance was established.
    To reverse a judgment for plaintiff for $359.19, defendant prosecutes this writ of error.
    Morse Ives, for plaintiff in error.
    Louis J. Behan, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Fitch

text:
    Augustus D. Juilliard et al., Defendants in Error, v. Jacob Friedman, Plaintiff in Error.
    Gen. No. 20,147.
    (Not to be reported in full.)
    . Abstract of the Decision.
    1. Sales, § 344

      —what is measure of damages where purchaser refuses to accept goods. Where the purchaser of goods refuses to accept the same and the goods are permanently retained hy the seller or resold hy him, in an action against the purchaser the measure of damages is not the full contract price, hut the excess, if any, of the contract price over the market price of the goods at the time and place of the delivery to the defendant.
    2. Evidence, § 58*—when evidence of private custom inadmissible. In an action by the sellers of goods against the purchaser who refused to accept same, claiming that he had never ordered the goods, evidence of a private custom of plaintiffs unknown to defendant, as to their method of sending out bills for goods sold, held erroneously admitted.
    Error to the Municipal Court of Chicago; the Hon. John J. Gtjllivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed March 11, 1915.
    Statement of the Case.
    Action by Augustus D. Juilliard and others against Jacob Friedman to recover for the contract price of silk alleged to have been sold and delivered to defendant, and which defendant denied having ordered. Judgment in a prior trial was reversed in 174 111. App. 259. Upon the second trial plaintiff again recovered judgment, from which defendant brings error.
    Julius Heldman and Simon La Grou, for plaintiff in error.
    Edward J. Queeny and William J. Lacey, for defendants in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    George de Tarnowsky, Defendant in Error, v. Charles H. Walker, Plaintiff in Error.
    Gen. No. 20,164.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmux, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed March 11, 1915.
    Statement of the Case.
    Action by George de Tarnowsky against Charles H. Walker to recover for medical services rendered defendant’s minor son who was injured by a freight car, his leg having been crushed from the ankle nearly to the linee. Plaintiff had apparently been called by a witness to the accident. On the second day after the accident defendant, with plaintiff’s consent, called his family physician, Dr. McClintock, to see the boy. Plaintiff testified that his condition on that day was very bad, that “it looked as though he might pass away that day,” and in order to tide him over the crisis he injected a saline solution. His condition immediately improved and on the following day the boy was removed to another hospital and plaintiff’s connection with the case terminated.
    Defendant endeavored to show by Dr. McClintock that plaintiff admitted that he had exhausted his medical knowledge and that the saline solution had been injected at the suggestion of the witness; but the proffered evidence was excluded. In the course of the examination of Dr. McClintock the following occurred in the presence of the jury:
    “Mr. Bishop. Who, if anyone at that time suggested to you—
    A. I did.
    Q. —the application- or use of this saline solution?
    Mr. Holton: I object.

      The Court (to the witness): Leave the witness stand. Ton knew that question was to be objected to and you deliberately answered it, as you have several times before,—aching here all this time to get in that answer to that question.”

    Thereupon, the witness left the witness stand, and the Court said to defendant’s counsel: “Proceed with some other witness and get a witness who is willing to be fair.” Counsel replied that he had no other witness, but would make an offer of proof out of the hearing of the jury. An argument ensued between the court and counsel in the presence of the jury, in the course of which the Court used the following language: “This witness, after deliberately warning him two or three times,—he deliberately tried to inject his answer in before counsel got in his objection—he did it designedly, with a purpose, and when this is done—done repeatedly—the witness is no longer entitled to sit on a witness stand and be heard. * * * This witness seems overly anxious. It is not proper that one member of the profession should be overly anxious to punish another member of a profession even though parties may differ. But when a witness of that kind takes deliberate opportunity to deliberately defeat some other member of the profession, it seems to me going entirely outside the bounds. * * * He is one of those very smart young doctors that want to show he knows it all and no other physician knows what he is acting on. He thought that he would show us, in spite of court and in spite of counsel and everybody and anybody else, he was going to show how smart he was. He will find out that courts of justice are not constituted for such purposes as that.”
    The defendant offering no further testimony the court directed a verdict for plaintiff, from a judgment on which defendant brings error.
    P. H. Bishop, for plaintiff in error.
    Helmer, Moulton, Whitman & Whitman, for defendant in error; Charles R. Holton, of counsel.

      Abstract of the Decision.
    1. Physicians and surgeons, § 28

      —what evidence competent in action for services. Where in an action by a physician against a father for medical services rendered to his minor child, injured in an accident, the plaintiff testified that the condition of the child indicated a rapidly approaching fatal termination when he injected a saline solution into the veins, causing, an immediate improvement, refusal to permit defendant’s family physician, called into consultation with plaintiff at defendant’s request, to testify that the saline injection was made at his suggestion, plaintiff having admitted to him that he had reached the end of his medical resources, was erroneous, since it would have a tendency to prove failure on plaintiff’s part to use due care in his treatment.
    2. Tbial, § 71*—when court without power to direct witness to leave stand. While the trial court has full power to punish a witness for wilful disobedience of its warning not to answer questions in advance of objection, it was without power to exclude his competent evidence or deprive a party of the benefit of his testimony by compelling him to leave the witness stand, on account of an alleged violation of such a warning.
    3. Trial, § 45*—when remarks of trial court prejudicial. Remarks of a trial judge on peremptorily ordering a witness to leave the stand because of giving answers to questions in advance of objection, which were of such a character as to discredit the witness and his testimony, held prejudicial.
    4. Physicians and surgeons, § 28*—what constitutes question of fact as to value of services. In an action by a physician to recover for medical services to defendant’s minor child, who was injured in an accident, testimony of defendant’s family physician, who was called into consultation with plaintiff at defendant’s request, that the child’s condition indicated that death was imminent, that plaintiff admitted having reached the end of his medical resources whereupon he suggested to plaintiff the injection of a saline solution, after which the child’s condition immediately improved, that if such injection had been made earlier it would not have been necessary to remove as much of the child’s leg as was afterwards amputated, has a tendency to raise an issue of fact as to whether plaintiff’s services were of any value.
    5. Physicians and surgeons, § 24*—what constitutes a defense in action for services. In an action by a physician to recover for medical services rendered defendant’s minor child, proof that plaintiff’s services were of no value constitutes a defense.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Central Trust Company of Illinois, Defendant in Error, v. Smurr & Kamen Machine Company, Plaintiff in Error.
    Gen. No. 20,178.
    1. Corporations, § 457

      —when liable on accommodation note. A manufacturing corporation executing and delivering a promissory note to another corporation solely for the accommodation of the latter, who indorsed and sold it to an innocent purchaser for value before maturity and without notice that it was accommodation paper, is liable thereon at the suit of the bona fide holder.
    2. Bills and notes, § 240*—when purchase of accommodation paper bona fide purchaser. One purchasing accommodation paper of a business corporation in good faith, before maturity, without notice of its character as accommodation paper and paying therefor the full face value of the paper, less six per cent, discount, is a bona fide purchaser for value.
    Pam, J., took no part in the decision of this case.
    Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 11, 1915.
    Albert O. Olson, for plaintiff in error; James J. Leahy, of counsel.
    Pam & Hurd, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

The question presented in this case is whether the promissory note of an Illinois manufacturing corporation, which is executed and delivered to another corporation solely for the accommodation of the latter, and which is indorsed and sold to a third party, who buys in good faith before maturity and without notice that it was accommodation paper, can be enforced as against the maker.

Plaintiff in error (hereinafter called the defendant), an Illinois corporation engaged in the manufacture and sale of vehicles, machinery and tools, on July 28, 1913, executed and delivered its promissory note of that date for $675, due one hundred days after date with interest at six per cent., payable to the order of the Illinois Spring and Wire Company. Shortly after receiving it, the payee indorsed the note in blank, and sold it to defendant in error, a banking corporation (hereinafter called the plaintiff), who paid to the payee the face value of the same, less six per cent, discount. The bank had no information about the paper except what appeared on its face, and made no inquiry concerning the same, further than to look up the rating of the maker in the commercial agency reports. The payee was a depositor in the plaintiff’s bank and had discounted other promissory notes in a similar manner prior to this occurrence. The note not being paid at maturity, the bank brought suit upon the same against the maker in the Municipal Court. Upon the trial, the defendant attempted and offered to prove that it had received no consideration or benefit of any kind for the note, and that it was given to the payee purely as an accommodation for the purpose of enabling the latter to raise money with which to meet and pay its (the payee’s) obligations. The court sustained objections to the offered proof and, no other defense being interposed, entered a finding in favor of- the bank for the full amount of the note and interest. This writ of error was sued out to reverse the judgment entered upon that finding.

The argument of counsel for the defendant proceeds upon the theory that the execution and delivery of the note in question was an ultra vires act on the part of the defendant corporation, and it is insisted that for this reason the note was and is absolutely void, even in the hands of a bona fide purchaser for value before maturity, without notice of the fact that it was accommodation paper.

In support of this contention, a number of Illinois cases are cited upon the general doctrine of ultra vires. All of these cases, however, are essentially different from this case, on the facts, and none of them presents exactly the same questions.of law that are involved in this case. Most of the cases cited follow the principles first announced in the well-known case of National Home Building & Loan Ass’n v. Home Sav. Bank, 181 Ill. 35, to which they nearly all refer. The contract sought to be enforced in that case consisted of a clause in a deed of certain real estate to a building and loan association, whereby it was agreed that the association should assume and pay an existing incumbrance upon the same, and the court held not only that the assumption of such an indebtedness was beyond the statutory powers of the corporation, but that every person dealing with such a corporation is charged with notice of its powers and limitations and cannot plead ignorance in avoidance of the defense of ultra vires. The invalidity of the contract there in question was established when it appeared, by a mere examination of the statute, that the corporation had no power to make such a contract under any circumstances. In the opinion filed in that case, however, the following language is quoted with approval, from the case of Davis v. Old Colony R. Co., 131 Mass. 258: “There is a clear distinction, as was pointed out by Mr. Justice Campbell in Zabriskie v. Cleveland, Columbus & Cimcinnati Railroad Co., 23 How. 381, 398, by Mr. Justice Hoar in Monument Bank v. Globe Works, 101 Mass. 57, 58 and by Lord Chancellor Cairns and Lord Hatherly in Ashbury Railway Carriage & Iron Co. v. Riche, L. R. 7 H. L. 668, 684, between the exercise by a corporation of a power not conferred upon it, varying from the objects of its creation as declared in the law of its organization, of which all persons dealing with it are bound to take notice; and the abuse of a general power, or the failure to comply with prescribed formalities or regulations, in a particular instance, when such abuse or failure is not known to the other contracting party.” (Italics ours.)

The opinion of Mr. Justice Hoar, thus referred to (Monument Nat. Bank v. Globe Works, 101 Mass. 57), unequivocally holds that the note of a manufacturing corporation in the hands of a holder in good faith for value, who took it before maturity and without knowledge that the maker had not received full consideration, can be enforced against the corporation, although it was made as an accommodation note. Starting with the proposition, as a settled rule of the law, that a manufacturing corporation has the general power to make a negotiable promissory note, the court holds that if the only defense to such a note is that this general power has been abused in the particular instance, “the abuse not being Imown to the other contracting party,” then “the doctrine of ultra vires does not apply.” In support of this conclusion, Mr. Justice Hoar quotes the following from Bissell v. Michigan Southern & N. I. R. Co., 22 N. Y. 289: “There are, no doubt, cases in which a corporation would be estopped from setting up this defense, although its contract might have been really unauthorized. It would not be available in a suit brought by a bona fide indorsee of a negotiable promissory note, provided the corporation was authorized to give notes for any purpose; and the reason is, that the corporation, by giving the note, has virtually represented that it was given for some legitimate purpose, and the indorsee could not be presumed to know the contrary. * * * Where the want of power is apparent, upon comparing the act done with the terms of the charter, the party dealing with the corporation is presumed to have knowledge of the defect, and the defense of ultra vires is available against him. But such a defense would not be permitted to prevail against a party who cannot be presumed to have had any knowledge of the want of authority to make the contract. Hence, if the question of power depends not merely upon the law u/nder which the corporation acts, but upon the existence of certain extrinsic facts, resting peculiarly within the knowledge of the corporate officers, then the corporation would * * * be estopped from denying that which, by assuming to make the contract, it had virtually affirmed.” (Italics ours.)

In National Bank of Republic v. Young, 41 N. J. Eq. 531, the same distinction is expressed as follows: . ‘ ‘ The general doctrine of the law is that where a corporation has power under any circumstances to issue negotiable paper, a bona fide holder has a right to presume that it was issued under the circumstances which give the requisite authority, and such paper is no more liable to be impeached for any infirmity in the hands of such a holder than any other commercial paper.” (Citing authorities.) ‘‘ This doctrine is applied to commercial paper made by a corporation for the accommodation of a third person when in the hands of a bona fide holder, who has discounted it before maturity on the faith of its being business paper.” The same principle is recognized in the following cases: Jacobs Pharmacy Co. v. Southern Banking & Trust Co., 97 Ga. 573; Madison & I. R. Co. v. Norwich Sav. Society, 24 Ind. 457; Lehigh Valley Coal Co. v. West Depere Agricultural Works, 63 Wis. 45; Auerbach v. Lesueur Mill Co., 28 Minn. 291.

These cases, we think, fairly reflect the general current of authority upon this question; and in view of the language quoted above from the opinion in National Home Building & Loan Ass’n v. Home Sav. Bank, supra, it cannot be held that the Supreme Court of this State intended to announce a different rule as applicable to cases of this character. If the contention of defendant’s counsel were to prevail, it would charge every bona fide purchaser of the commercial paper of business corporations with the duty of ascertaining, at his peril, before purchasing the same, all the facts with reference to the consideration for which such paper was issued. No case has been cited, and we know of none, in which such a'rule has been announced with reference to ordinary business corporations, having the general power to issue negotiable paper. Doubtless all purchasers of commercial ■ paper are chargeable with notice of such facts as appear upon the face of the paper offered for sale by a business corporation and of all limitations imposed by statute upon the powers of such corporations. But to carry this principle to the length contended for in this case would make it extremely hazardous for any bank to use the paper of such corporations in any business transaction.

It is also contended that the plaintiff was not a bona fide holder for value. This contention is based upon a statement in the brief of counsel that the bank credited the account of the payee at the bank with the proceeds of the note -by way of deposit, and that there is no evidence that such deposit had been withdrawn. As we read the record, there is no evidence that the bank credited the account of the payee in the manner stated. On the contrary, the undisputed testimony is that the bank paid full face value for the note, less six per cent, discount. There is no merit in the contention.

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

Affirmed.

Mr. Justice Pam took no part in the decision of this case.


text:
    Marshall Field & Company, Plaintiff in Error, v. Isidor B. Freed, Defendant in Error.
    Gen. No. 20,190.
    1. Words and phrases,—word “or” defined. The word “or” imports a choice between two alternatives, and, as ordinarily used, •means one or the other of two, but not both.
    2. Execution, § 282

      —issuance against body and property at common law. At common law an execution against the property of a defendant and against his body could lawfully be issued simultaneously.
    3. Execution, § 282*—right to simultaneous executions against body and property under statute. Under R. S. ch. 77, sec. 4 (J. & A. U 6750) providing that the person in whose favor any judgment may be obtained “may have execution thereon in the usual form, directed to the proper officer of any county, in this state, against the lands and tenements, goods and chattels of the person against whom the same is obtained, or against his body, when the same is authorized by law,” a judgment creditor is entitled to have either writ, at his option, but not both at the same time, since to give the disjunctive “or” in the statute the effect of the conjunction “and” would, in effect, merely render the section declaratory of the common law.
    4. Execution, § 36*—choice of remedies. There is no inconsistency between the remedy by capias ad satisfaciendum and that by execution against the property.
    5. Execution,—when capias ad satisfaciendum not barred by resort to fieri facias. A judgment creditor electing in the first instance to sue out a fieri facias is not thereby precluded from subsequently securing a writ of capias ad satisfaciendum, upon the return of the fieri facias nulla bona, such election not being final in the absence of satisfaction.
    6. Execution, § 308*—when imprisonment on ca. sa. regarded as satisfaction af judgment. Where a judgment creditor in a tort action sues out a capias ad satisfaciendum in the first instance, and the defendant is arrested and imprisoned upon such writ, his arrest and imprisonment are regarded prima facie as a satisfaction of the judgment.
    7. Execution,—effect of imprisonment on ca. sa. as suspending remedies. While imprisonment continues upon a writ of capias ad satisfaciendum, it operates as a suspension of all other remedies on the judgment.

      8. Execution, § 306

      —what is effect of termination of imprisonment on ca. sa. Where imprisonment under a writ of capias ad satisfaciendum is terminated without the consent of the creditor, the judgment remains unsatisfied, except in so far as the imprisonment is a credit upon it, under the statute, at the rate of $1.50 per day.
    9. Execution, § 306*—what is effect of discharge from imprisonment under Insolvent Debtors’ Act. Where a judgment debtor imprisoned under a capias ad satisfaciendum is discharged under the provisions of the Insolvent Debtors’ Act (R. S. ch. 72, sec. 33, J. & A. j[ 6230), such discharge does not constitute a satisfaction of the judgment, and the same may be enforced by execution against the property. ■'
    10. Execution, § 306*-—what is effect of discharge from arrest for nonpayment of board. Where a judgment debtor imprisoned under a capias ad satisfaciendum is discharged because of failure of the arresting creditor to advance and pay the jail fees for board, etc., such discharge removes the presumption of satisfaction arising from the arrest and imprisonment of the debtor, and the creditor may thereafter proceed by execution against the property.
    11. Execution,—what is effect of election to proceed against property or body. The only practical consequence of an election to sue out a writ directed against the property of a judgment debt- or, or one directed against his body, is to suspend his right to sue out another writ until the first has been returned unsatisfied in whole or in part.
    12. Execution, § 286*—procedure to secure ca. sa. Even though R. S. ch. 77, secs. 4, 5 (J. & A. 6750, 6751) should be construed as permitting the issuance of a writ of capias ad satisfaciendum in tort actions, in the first instance, merely on motion of the judgment creditor and without any preliminary affidavit, it would not render that practice proper where the writ is sought as a second or alternative writ after an execution against the property has been returned unsatisfied the practice in the latter case being governed by section 62 (J. & A. H 6809).
    13. Execution,—how statute as to body executions construed. The statute permitting the issuance of executions against" the body is penal in character and must be strictly construed.
    14. Execution,—what essential to issuance of ca. sa. after execution against the property. Under R. S. ch. 77, sec. 62 (J. & A. V 6809), no execution against the body can be issued in any action, whether in tort or in contract, after the return of an execution against the property unsatisfied in whole or in part, except upon a compliance with the terms of that section.

      Error to the Superior Court of Cook county; the Hon. Clabence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 11, 1915.
    Rehearing denied March 24, 1915.
    Frank P. Leffingwell, for plaintiff in error.
    Bernard J. Brown, for defendant in error.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

The plaintiff, Marshall Field & Company, recovered a judgment in the Superior Court against the defendant, Isidor B. Freed, in an action on the case for fráud and deceit. Due service of process was had on the defendant and he entered his appear aneé, but filed no plea. A default was thereupon entered for want of a plea, and the damages were assessed by a jury. A writ of fieri facias was issued and placed in the hands of the sheriff. In due course, the sheriff returned this writ “no property found and no part satisfied,” certifying in his return that he had made a demand upon the defendant for the surrender of property to satisfy the writ, and had informed him that if he failed to comply with such demand he would be liable to arrest upon an execution against his body. Several months later, apparently as a matter of course and without any preliminary affidavit being filed, an order was entered directing the issuance of a capias ad satisfaciendum, and under this writ the sheriff arrested the defendant and committed him to jail on October 2, 1913. The next day, on motion of the defendant, an order was entered quashing the capias, and the defendant was released from custody. On October 4, 1913, the plaintiff made a motion to vacate the order quashing the writ, and on October 27, 1913, this motion was heard and overruled. Exceptions were duly preserved to each of these rulings, and this writ of error is prosecuted to review the same.

Section 4 of chapter 77, R. S. (J. & A. ¶ 6750), provides that the person in whose favor any judgment may be obtained “may have execution thereon in the usual form, directed to the proper officer of any county, in this state, against the lands and tenements, goods and chattels of the person against whom the same is obtained, or against his body, when the same is authorized by law.” Section 5 (J. & A. ¶ 6751) of the same chapter provides that “no execution shall issue against the body of the defendant,' except when the judgment shall have been obtained for a tort committed by such defendant, or unless the defendant shall have been held to bail- upon a writ of capias ad satisfaciendum (respondendum) as provided by law, or he shall refuse to deliver up his estate for the benefit of his creditors.” Section 62 (J. & A. ¶ 6809) of the same chapter provides, in substance, that if upon the return of an execution unsatisfied, in whole or in part, the judgment creditor, or his agent or attorney, shall make an affidavit to the effect that he believes the debtor has property which he unjustly refuses to surrender, or that since the debt was contracted the debtor has fraudulently disposed of some part of his property to defraud his creditors, and shall procure the order of some judge or master in chancery certifying that the .affidavit shows probable cause for the issuance of an execution against the body of the debtor, then such a writ may be issued.

Counsel seem to agree that all the questions here presented depend upon the proper construction to be given to the word “or,” as used in section 4, supra. Plaintiff’s counsel contends in substance, that the word “or,” as used in that section, does not require the ■ judgment creditor in a tort action to elect whether he will have an execution against the property of the debtor, or one against his body, but that he may have either or both, at any time until satisfaction is obtained. If this contention be sound, the word “and,” rather than the word “or,” should properly have been used in the section in question, and this, in effect, is the position of plaintiff’s counsel. Defendant’s counsel, on the other hand, insists that the word “or’’ was advisedly and not carelessly used, and requires the creditor to elect which of the two writs he will have, and that such election when made is final, precluding any subsequent resort to the other kind of execution.

In support of defendant’s contention, his counsel cites the case of Schwarzschild & Sulzberger v. Goldstem, 121 Ill. App. 1. The decision in that case turned upon the construction of section 3 of article 11 of the Act in relation to justices of the peace (R. S. ch. 79J. & A. ¶ 6981), which reads as follows: “Upon all judgments in actions in tort, or where the defendant is in custody or has been held to bail upon a capias, as provided in this act, the justice may issue an execution against the body or goods and chattels of the defendant, at the election of the plaintiff.” The court held—Mr. Justice Adams delivering the opinion of the court—that the words “at the election of the plaintiff,” in connection with the word “or,” as found in the section of the statute then under consideration, could only be given effect by requiring the plaintiff to a judgment in a justice’s court to choose whether he will have an execution against the body of the defendant, or an execution against his property, and that such choice, when made, is followed by the usual consequences attendant upon an election between inconsistent remedies. It appears that in that case an execution against the property of the debtor had been issued and returned before the capias was issued, and the court held upon the principle above stated, that the issuance of the first writ constituted an election within the meaning of the statute, and that the consequence of such election was that the capias subsequently issued was unauthorized.

It will be noted that the clause “at the election of the plaintiff,” which is contained in the section of the Justices’ Act that was under consideration in the case cited, is not found in section 4 of chapter 77, or elsewhere in that chapter, which relates to judgments and executions in courts of record. Nevertheless, the word “or,” even without that clause, imports a choice between two alternatives. As ordinarily used, it means “one or the other of two, but not both.” 29 Cyc. 1502; Kuehner v. City of Freeport, 143 Ill. 92, 100. At common law an execution against the property of a defendant and against his body could lawfully be issued simultaneously. The fact that either writ had been issued and was in the hands of the sheriff unexecuted did not, at common law, preclude the right to the issuance of the other. 17 Cyc. 1504. The judgment creditor had the right to both writs at the same time, though he could have but one satisfaction. If, therefore, the Legislature had used the word “and” in section 4 instead of the word “or,” that section would have been merely declaratory of the common law in this respect. This suggests at once that the word “or” in that section was advisedly and intentionally used, and • indicates an intention on the part of the Legislature to change the common-law rule by giving to the judgment creditor in a court of record the right to have either writ at his option, but not both at the same time. We are clearly of the opinion that this is the sense in which it is used in section 4.

In this case, the writs were not both issued at the same time. The capias was not issued until after the fieri facias had been returned nulla bona. The first question to be determined, therefore, is whether the plaintiff, by electing in the first instance to sue out a fieri facias upon his judgment, was precluded from afterwards having a capias ad satisfaciendum upon the return of the first writ unsatisfied. There is no inconsistency in these remedies. The purpose of each is to obtain satisfaction of the judgment. If the plaintiff in a judgment in tort sues out a capias ad satisfaciendum in the first instance, and the defendant is arrested and imprisoned upon such, a writ, his arrest and imprisonment are regarded prima facie as a satisfaction of the judgment. 17 Cyc. 1504. While such imprisonment continues, it operates as a suspension of all other remedies on the judgment. But if the imprisonment is terminated without the consent of the creditor, the judgment still remains unsatisfied, except so far as the imprisonment is a credit upon it, under the statute, at the rate of $1.50 per day. Wiltshire v. Lambert, 44 Ill. App. 473. Or if, in such case, the debt- or be discharged under the provisions of the Insolvent Debtors’ Act, then, by the express terms of that Act (sec. 33, ch. 72, J. & A. ¶ 6230), such discharge does not constitute a satisfaction of the judgment, and the same may be enforced by an execution against the property of the debtor, notwithstanding the prior issuance of the capias ad satisfaciendum. Or if, in such case, the debtor be discharged from arrest because of the failure of the arresting creditor to advance and pay the jail fees for board, etc., such discharge removes the presumption of satisfaction arising from the arrest and imprisonment of the debtor, and the creditor may thereafter proceed by execution against the property of the debtor, notwithstanding the fact that an execution against the body was previously issued. Lambert v. Wiltshire, 144 Ill. 517. It therefore appears that if the creditor elects, at the first time he is called upon to make such an election, to sue out an execution against the body of the debtor, such election is not final unless satisfaction is obtained. On the other hand, if a judgment creditor, instead of suing out a capias ad satisfaciendum in the first instance, elects to sue out an execution against the property of the debtor, and such writ proves unavailing and is returned “no property found and no part satisfied, ’ ’ after proper demand, then the creditor may unquestionably have successive writs of the same kind until full satisfaction has been obtained, or, if the facts warrant it, he may have a capias ad satisfaciendum, notwithstanding the issuance of the first writ, by complying with the provisions of section 62 of chapter 77, above quoted.

In all of the cases above mentioned, the practical consequences of an election on the part of a judgment creditor to sue out either form of writ in the first instance have been thus fully and clearly provided for by statute. In none of such cases, therefore, is there any occasion or any room for the application of the doctrine of election between inconsistent remedies. In all of such cases, while it is clear that the Legislature did not intend that a judgment creditor may have both writs at the same time, it is quite as clear that the only practical consequence of an election on his part to take out either form of writ is to suspend his right to sue out another writ until the first has been returned unsatisfied, in whole or in part.

The question then naturally arises, has a .judgment creditor in a tort ease the right, after the return of a first execution unsatisfied, in whole or in part, to sue out a capias ad satisfaciendum without taking the preliminary steps prescribed by section 62 of chapter 77. Section 4 of that chapter states that the plaintiff may have an execution against the body only “when the same is authorized by law. ’ ’ Section 5 forbids the issuance of such an execution except in three enumerated cases, one of which is “when the judgment shall have been obtained for a tort committed by such defendant.” The only authority for the issuance of a capias ad satisfaciendum in the first instance is found in these two sections, and neither of those sections states how or in what manner such a writ may be obtained. It is commonly understood that an execution against the body may be issued, in any tort action, on mere motion.of the• judgment creditor, without any preliminary affidavit, and there is judicial authority for this view of the matter. Nelson v. Swanson, 186 Ill. App. 632. Conceding that sections 4 and 5 may properly be construed as authority for that practice in cases where the judgment creditor elects to sue out a capias ad satisfaciendum in the first instance, it does not follow, however, that a judgment creditor may have such a writ as a second or alternative writ after an execution against property has been issued and returned unsatisfied in whole or in part. Section 62 explicitly prescribes the procedure that shall be followed whenever a judgment creditor desires to have a capias ad satisfaciendum issued “upon the return of an execution unsatisfied, in whole or in part.” That section makes no distinction between executions issued upon judgments in tort and those issued upon judgments in actions ex contractu. By its express terms, it applies to all cases in which an execution has been issued and returned “unsatisfied in whole or in part,” after a proper demand has been made upon the debtor for the surrender of property to satisfy the execution. The statute permitting the issuance of executions against the body is penal in its nature, and must be strictly construed. When thus construed, we think it must be held that the Legislature intended to provide by section 62 that no execution against the body should be issued in any ease after the return of a property execution unsatisfied in whole or in part, except upon a compliance with the provisions of that section. It follows that although the issuance of the first writ in this case did not constitute a technical “.election,” in the sense in which that word is used when applied to an election between inconsistent remedies, still the capias issued in this case was not “authorized by law” because it was issued after the return of an execution unsatisfied, without following the procedure prescribed by section 62.

We conclude, therefore, that the Superior Court did not err in quashing the capias on motion of the defendant, nor in denying the motion to vacate the order quashing the writ, for the reasons above stated, and the action of the Superior Court will consequently be affirmed.

Affirmed.


text:
    Eugene F. McDonald, Jr., Defendant in Error, v. Lehigh Valley Railroad Company, Plaintiff in Error.
    Gen. No. 20,241.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed March 11, 1915.
    Rehearing denied March 24, 1915.
    Statement of the Case.
    Action by Eugene F. McDonald, Jr., plaintiff, against Lehigh Valley Eailroad Company defendant, for damages alleged to have been sustained by the failure of defendant to safely carry the plaintiff’s automobile from Truxton, New York to Chicago, Illinois.
    For the plaintiff were introduced in evidence a freight bill of the Michigan Central Eailroad Co., issued at Chicago, and a bill of lading, alleged to have been issued by defendant, which recited the receipt of the automobile at- Truxton, N. Y., in apparent good order. The bill of lading was received in evidence over defendant’s objection. Plaintiff and other witnesses testified to the condition of the car and its value when it was received in Chicago.
    No evidence was introduced for defendant.
    To reverse a judgment for plaintiff for five hundred dollars, defendant prosecutes this writ of error.
    Hoag & Ullmann, for plaintiff in error.
    Sabath, Stafford & Sabath, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Cabbiebs, § 45 —when admission of "oill of lading without proof of execution error. In an action against an initial carrier to recover for damages alleged to have been caused goods in shipment, it is error to admit in evidence, over defendant’s objection, a printed form of a hill of lading purporting to be signed by defendant’s agent where there is no proof that the signature is that of the alleged agent nor that he was, in fact defendant’s agent.

■ 2. Cabbiebs, § 128*—when evidence insufficient to show condition of freight when received. In an action against an initial carrier to recover for damages alleged to have been caused an automobile in transporting it, where the defendant denies negligence, the damage is not shown by the introduction of an alleged hill of lading of defendant, the execution of which is not proven and the admission of which is objected to, reciting the receipt of the automobile “in apparent good order,” where it appears that it had been in use for some time and there is nothing to show that it was not in the same condition when shipped as when delivered at its destination.

3. Cabbiebs, § 128*—what not admission as to condition of freight when received. In an action against a carrier for injury to freight, the admission by defendant’s counsel of the receipt of the freight by defendant is not an admission that the freight was in good order when received.

4. Evidence, § 4*—when judicial notice not taloen of Municipal Court rule. The Appellate Court cannot take judicial notice of a rule of the Municipal Court of Chicago which is not in the record.


text:
    Women’s Catholic Order of Foresters, Appellee, v. Mary Hill and Jennie Oetzman, Mary Hill, Appellant.
    Gen. No. 20,258.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed March 11, 1915.
    Additional opinion filed April 22, 1915.

      Statement of the Case.
    Bill of interpleader filed by the Women’s Catholic Order of Foresters against Mary Hill and Jennie Oetzman, defendants, to determine the ownership of a fund of $1,000 admitted by plaintiff to be due under an endowment certificate issued by it to Mrs. Agnes C. Van Wazer, mother of the defendants.
    In 1896, Mrs. Van Wazer became a member of one of the subordinate lodges of the plaintiff, and an “endowment certificate” for $1,000 was issued to her, payable to her husband. Her husband dying, a new certificate was issued, at her request, payable to her daughter, Mary Van Wazer, now Mrs. Hill. At the time this was done Mrs. Van Wazer told the secretary of defendant that her daughter Mary “had always done what was right, ’ ’ while the others had not; that “Mary was the only one of the family that was deserving of the insurance,” and was the only one that she (Mrs. Van Wazer) “could trust;” that she (Mrs. Van Wazer) “wanted $100 for masses out of the money,” and “a headstone laid at her grave,” and that she wanted Mary to attend to these things after her death. Mary agreed to do so. Mrs. Van Wazer then said: “Now Mary, if I cannot pay the dues, you will have to pay them, for the money is gping to be yours:” and to this Mary also assented. After this arrangement was made, Mary paid, out of her own money, most of the dues as they accrued during her mother’s lifetime.
    In September, 1911, the certificate was placed by Mrs. Van Wazer in a safety deposit box, rented for that purpose by Mrs. Hill at her mother’s request and it remained there until the death of Mrs. Van Wazer, on February 12, 1913.
    Mrs. Van Wazer suffered from chronic asthma for some years before her death, and about a week before her death she had an attack of bronchial pneumonia. During this last illness, her son, Peter Van Wazer, and her daughter Jennie, now Mrs. Oetzman, were living at the home of the insured. Three days before Mrs. Van Wazer died she told the secretary that she would like to change her policy “to Jennie without Mary knowing it,” and asked how this could be done. The by-laws of the society provided that any member in good standing may surrender her certificate at any time and have a new one issued, payable to such beneficiaries as she may direct by indorsing such surrender and request on the back of the certificate. The bylaws also provide that if the certificate be lost, a new certificate “payable to the same or a new beneficiary” will be issued “upon making an affidavit of the facts in the case satisfactory to the high secretary.” The recording secretary suggested that the latter course be followed, and told Mrs. Oetzman, who was present, to go to the high court and get a blank form of affidavit to the effect that the certificate was lost. Both the insured and Mrs. Oetzman knew that the certificate was not lost, but was in the possession of Mrs. Hill, and was payable to her. Mrs. Oetzman went to the main office of the association and obtained from the high secretary a printed blank form of affidavit as to the loss of the certificate. In the- forenoon of February 10, 1913, a notary who had been summoned to the home of the insured filled in the blanks in the affidavit, which stated that the insurance certificate was lost; that the insured had made diligent search to find it but could not; that she desired a new certificate to be issued, payable to her daughter, Jennie Oetzman. Mrs Oetzman and Peter Van Wazer testified that this affidavit was then signed by the insured and by them as witnesses. The notary did not testify.
    This affidavit was offered in evidence, and the original is a part of the record on appeal. It is dated February 10,1913, but purports to have been sworn to on February 11, 1913. The signature of the insured is a series of scrawling, irregular marks, bearing not the slightest resemblance to her signature as she wrote it in April, 1910 (which is also in the record).

      Mrs. Oetzman and Peter Van Wazer testified that their mother, who was then between sixty and seventy years of age, and was very sick, was sitting in a chair at the time this affidavit was signed; that the notary read the whole affidavit to her and asked her if she knew what she was doing, and if she was doing it willingly, to which she replied in the affirmative. The attending physician testified that the physical and mental condition of Mrs. Van Wazer at that time was such that he doubted if she could understand the purpose of such an affidavit.
    The affidavit thus executed was delivered by Mrs. Oetzman the same day to the recording secretary, who, after submitting it to a meeting of the court held the same afternoon, mailed it to the officers of the high court. The latter received it on the morning of February 11th, and on February 13th (after the death of the insured), a new certificate payable to Mrs. Oetzman was issued, and was delivered to her several days later. The only dues or assessments paid by Mrs. Oetzman were dues, amounting to $3.15, which accrued about a week before the death of the insured. Mrs. Hill was ill at her home at that time, and at no time during the last illness of the deceased did Mrs. Oetzman or Peter Van Wazer communicate the fact of their mother’s illness to Mrs. Hill, and Mrs. Hill, had no knowledge of that fact, or of the fact that any change had been made in the certificate, until after her mother’s death.
    From a decree awarding the fund to Mrs. Oetzman, Mrs. Hill, the other defendant appeals.
    O’Donnell & O’Donnell, for appellant, Mary Hill.
    Thomas G. McElligott, for appellee Jennie Oetzman.
    Adolph H. Easter, for appellee, Women’s Catholic Order of Foresters.

      Abstract of the Decision.
    1. Insurance, § 825

      —when substitution of new beneficiary invalid. Where the insured has once designated an eligible beneficiary and caused a certificate to be issued payable to such beneficiary and the latter has paid dues upon the faith of the certificate in pursuance of an agreement to that effect with the insured, the beneficiary so named acquires a beneficial interest in the certificate and the substitution of another beneficiary without the knowledge of the one first named is fraudulent and will not be permitted, in a court of equity, to defeat the rights of the beneficiary first named.
    2. Insurance, § 857*—when proceeding to determine ownership of proceeds of certificate equitable. A bill of interpleader by an insurer to determine the ownership of the proceeds of a life insurance certificate as between the beneficiary named in the certificate first issued and the one substituted in a later certificate is a suit in equity in which equitable as well as legal rights will be recognized and protected.
    3. Insurance, § 825*—when procuring issue of new certificate fraud. By means of a false affidavit that the original certificate had been lost, the issuance of a new certificate was secured by the insured from the insurer in which a person assisting in securing its issuance and knowing the facts was substituted for the original beneficiary, who had paid the dues according to agreement with the insured. It was held that the issuance of the certificate was a fraud upon both the insurer having no knowledge of the fraud and upon the original beneficiary and that the new beneficiary knowingly participating in the fraud would not be allowed to profit thereby in a court of equity.
    4. Witnesses, § 107*—when beneficiary under insurance certificate not incompetent to testify to conversation with deceased insured. On a bill of interpleader by an insurer to determine the right to the proceeds of a life insurance certificate as between two daughters of the insured, one of whom claimed as beneficiary under the original certificate and the other as substituted beneficiary under a certificate issued later, both of the claimants are competent witnesses to testify in their own behalf as to any conversation with the insured deceased which is otherwise competent, relevant or material.
    On Additional Opinion.
    5. Interpleader, § 19*—when attorney’s fees allowable. While a court of chancery in the exercise of its general equity powers cannot allow solicitor’s fees, to the party filing a bill of interpleader, where the by-laws of an interpleading beneficial society expressly provided that when more than one claimant demands the endowment benefit provided for, there shall be deducted from such benefit “all court costs, reasonable attorney’s or solicitor’s fees, and all actual expenses incurred by this order in determining who should be paid said benefits”, a reasonable solicitor’s .fee may be allowed, provided the complainant acts in good faith in filing the bill.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

6. Interpleader, § 19*—limitation on attorney’s fees allowable. Where the parties by their contract, stipulate that a reasonable solicitor’s fee may be deducted or allowed in case an interpleader becomes necessary, the fee so allowed should not include the value of any services beyond the mere preparation and filing of the bill, attending to the service of process, and the preparation and entry of an interlocutory order finding that the bill was properly filed and requiring the complainants to interplead.


text:
    Thomas M. Hunter, Bailiff for use of W. R. Holligan and J. W. Rodgers, Defendants in Error, v. The Empire State Surety Company and Margaret M. Gillette, Plaintiffs in Error.
    Gen. No. 20,393.
    1. Judgment, § 170

      —how rendition and entry distinguished. The rendition of a judgment is the judicial act of the court in pronouncing the sentence -of the law upon the facts in controversy as ascertained by the pleadings and verdict. The entry of the judgment is the ministerial act of enrolling or recording the judgment rendered.
    2. Judgment, § 238*—when nunc pro tunc judgment in replevin suit admissible in suit on replevin bond. The only record made of a judgment in a replevin suit in the Municipal Court of Chicago, at the time of its rendition, was an abbreviated minute of the proceedings entered on a docket. In the suit upon the replevin bond the judgment was alleged, in the affidavit of defense to be void because not entered in the English language. Thereafter an order was entered in the replevin suit by a judge other than the one, who rendered the judgment, directing that the judgment rendered in the replevin suit be recorded, in full form, nunc pro tunc as of the date it was rendered. Held, that the record of the judgment as entered nunc pro tunc was admissible in evidence in the suit on the replevin bond.

      3. Judgment, § 238

      —what judge may order judgment entered' nunc pro tune as rendered. Any judge of the Municipal Court of Chicago may direct the entry nunc pro tunc as of the date and in the form which it was entered of a judgment of that court which has not been properly entered but of which a proper minute has been preserved.
    4. Replevin, § 119*—when evidence of motion in Appellate Court in replevin suit admissible in suit on bond. In a suit on a replevin bond it is proper to admit in evidence a motion made in the Appellate Court by one of the appellants to set aside the judgment of affirmance by that court and the order denying such motion.
    5. Evidence, § 27*—when admission of evidence of attorney of party not reversible error. While the courts do not favor the practice of an attorney for a party to an action testifying in favor of his client, he is not disqualified as* a witness, and an objection to his testimony goes to its weight and not to its competency, and permitting him to testify is not reversible error, especially where he has first withdrawn his appearance and his evidence relates to matters which it would be difficult to prove in any other way.
    6. Replevin, § 204*—when evidence as to value of services of attorneys admissible in suit on bond. In a suit on a replevin bond it is not error to admit evidence as to the value of the services of two attorneys in the replevin suit, where there is evidence tending to prove that there was more work than could be properly done by one attorney and that defendant in the replevin suit authorized one of the attorneys to employ his partner to assist in the trial.
    7. Replevin, § 191*—when instruction as to employment of two attorneys proper. In a suit on a replevin bond it is not error to instruct the jury that they are to determine whether the services of two attorneys were reasonably necessary in defending the replevin suit, where there was evidence tending to prove that there was more work than one could do properly and that the defendant in the replevin suit authorized one of the attorneys to employ his partner to assist in the trial.
    8. Witnesses, § 21*—when not qualified to testify. In a suit on a replevin bond given in a replevin suit for an automobile, the fact that one called as a witness as to the value of the car was, at the time of the replevin suit, an “automobile repair man” in the garage in which the car was kept and that two years later he engaged in the business of buying and selling automobiles does not qualify him to testify as to the value of the car at the time of the replevin suit, where it appears that before engaging in the business he had never bought nor sold an automobile and that he did not know of any sale of a car like the car in question.

      9. Replevin, § 171

      —when conditional tender of return of property insufficient. In a suit on a replevin bond, where the only tender to return the property made before the trial is the offer in the affidavit of merits to return it “if it should he found and held that said replevin judgment is valid,” in which affidavit it is also claimed that the judgment is invalid, it is not error to refuse to permit the defendants to make a formal offer, at the close' of' all the evidence, to return the property.
    10. Tbial, § 195*—when refusal of instruction to find for plaintiff proper. Evidence examined and held to warrant denial of motions at the close of plaintiff’s evidence and at the close of all the evidence to instruct the jury to find for the defendants.
    11. Replevin, § 190*—when interest recoverable in suit on bond. Where the plaintiff in a suit on a replevin bond recovers judgment, interest is properly allowed.
    12. New tbial, § 122*—when refusal of motion not reviewable. Where the bill of exceptions does not show that a motion for a new trial was made, the question whether the verdict was contrary to the preponderance of the evidence cannot he reviewed.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed March 11, 1915.
    Statement by the Court. In January, 1909, Harold Gillette, a minor, by his mother and next friend, Margaret M. Gillette, brought a replevin suit in the Municipal Court of Chicago against the Kramer Motor Car Company to recover the possession of an automobile. Mrs. Gillette and the Empire State Surety Company executed a replevin bond in the sum of $3,000 to the bailiff of that court and a replevin writ was issued, under which the bailiff took possession of the automobile and turned it over to Harold Gillette. The Motor Car Company pleaded property in W. B. Holligan and J. W. Bodgers, and upon a trial before the court without a jury a judgment was rendered on April 7, 1909, in favor of the defendant for costs and a return of the property. The only record of this judgment made at that time in the Municipal Court consisted of an abbreviated minute of the proceedings entered upon the docket of the court. From this judgment an appeal was taken to the Appellate Court, where the judgment was affirmed. Gillette v. Kramer Motor Car Co., 163 Ill. App. 93.
    In November, 1911, suit was brought upon the replevin bond above mentioned against Mrs. Gillette and the Surety Company. They filed an affidavit of merits, stating, in substance: First, that Harold Gillette was a minor at the time the replevin suit was tried, and that the trial of that suit by the court without a jury was a violation of his constitutional right to a trial by jury; second, that the judgment in the replevin suit was void because it was not “entered” in the English language, but in abbreviated characters; third, that if the replevin judgment was valid, the damages accruing on the bond.did not exceed the sum of $330. In March, 1912, an order was entered striking from the files the first paragraph of the affidavit of merits, relating to the alleged constitutional right of trial by jury.-
    On March 15, 1912, an order was entered in the replevin suit, which recites that after due notice and an examination of the records, files and papers in that suit,- the court finds that through error or inadvertence, the clerk of the court had failed to enter of record in full form, “the findings, proceedings and judgment had and rendered” therein on April 7, 1909, and thereupon it was ordered that such findings, proceedings and judgment (which are set forth in full in the order) be entered of record nunc pro tunc as of April 7, 1909.
    At the trial of the suit on the replevin bond the plaintiff offered in evidence the affidavit for replevin, the replevin writ and the replevin bond; also the record of the judgment in the replevin suit, as entered nunc pro tunc on March 15, 1912; also the order of the Appellate Court affirming the replevin judgment; also a motion entered in the Appellate Court by Harold Gillette after he became of age, to set aside the order of affirmance upon the ground that his constitutional right of trial by jury had been invaded, and the order of the Appellate Court denying said motion. Objections to each of these items of documentary proof ' were overruled and the' defendants excepted. Evidence was then offered by both sides as to the value of the automobile, attorneys’ fees, etc., and numerous objections were made, which will be referred to in the opinion. At the close of the plaintiff’s evidence, and also at the close of all the evidence, defendants requested peremptory instructions in their favor, which were refused and exceptions duly preserved. The jury returned a verdict in favor of the plaintiff, fixing the debt at $3,000 and the damages at $1,656.27, and judgment was entered on the verdict. The defendants sued out a writ of error from the Supreme Court. That court, in February, 1914 transferred the cause to this court.
    Harris F. Williams, for plaintiffs in error.
    Frederick Arnd, for defendants in error.

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

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

In the opinion filed by the Supreme Court (Hunter v. Empire State Surety Co., 261 Ill. 335), the court held that the constitutional questions raised by plaintiffs in error are not involved in this suit, for the reason that the proceedings and judgment in the replevin suit, even if erroneous, were not void and cannot be • collaterally attacked in this suit on the replevin bond.

It is urged that the trial court erred in admitting in evidence the order—called by counsel for plaintiffs in error an “expanded judgment”—entered in the replevin suit on March 15, 1912. The ground of the objection is that this order was entered, “long after the court had lost jurisdiction of the replevin suit,” by a judge who did not try the case, and was therefore (it is said) “a mere nullity.” Counsel for defendants in error objects to the use of the words “expanded judgment.” We see no harm in using those words to express in brief form what was in fact done at the time the order of March 15, 1912, was entered. When the judgment was pronounced, or “rendered,” on April 7, 1909, a memorandum or minute of that fact was written upon the docket, either by the judge who pronounced it, or by his minute clerk. This memorandum or minute, while in abbreviated form, is perfectly intelligible to every lawyer or clerk who is at all familiar with court records and minutes. With this minute as a guide, any clerk who is competent to write court records could readily “expand” it into the technical form of a judgment for the defendant in replevin; and a comparison of the minute with the order of March 15, 1912, shows that the judgment then ordered to be entered of record nunc pro tunc was in fact the judgment actually rendered on April 7, 1909, as shown by the minute.

There is a clear distinction recognized by the authorities between the rendition of a judgment and the entry of it. 1 ‘ The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and verdict. The entry of a judgment is a ministerial act which consists in spreading it upon the record or writing it at large in a docket or other official book.” (23 Gyc. 835.) In construing a statute using both these words, our Supreme Court said: “The words ‘rendered’ and ‘entered’ are plainly used antithetically, and each in its distinctive correct legal sense,—‘rendered’ being used to indicate the giving of judgment, and ‘entered’ to indicate the act of placing the judgment rendered on record,—in other words, enrolling or recording it.” Blatchford v. Newberry, 100 Ill. 484, 489. The same distinction was pointed out by Mr. Justice Moran, in Jasper v. Schlesinger, 22 Ill. App. 637, in the following language (p. 641): “It could not be said that there was no judgment because the judgment order had not been spread out at length upon the judgment record. The judgment is a fact from the moment it is pronounced by the court, and the clerk’s duty is to record such judgment before the final adjournment of the term ‘or as soon thereafter as practicable. ’ R. S., Chap. 25, Sec. 14.” In the same opinion it is also said (p. 640): “It is not the practice of the court in rendering judgment in any case at common law to write out the formal order at length, nor is it the practice for the minute clerk to write out such order in his minutes, but such memorandum is made as clearly indicates what the judgment of the court is.”

The entry that was made on the docket of the Municipal Court on April 7, 1909, was a memorandum of that character. It was not a judgment. The judgment was a fact, however, from the moment it was pronounced by the court, and the memorandum made at that time, while it was neither itself the judgment nor a formal record of the judgment, was a sufficient minute of the proceedings to enable the clerk to enter the judgment of record in proper form. It has been repeatedly held that where such a memorandum or minute is made by the clerk or the judge upon some official book, document or paper at the time a judgment is pronounced, the court may at any time thereafter, by an order entered nunc pro tunc, cause the record to show in proper, technical form the judgment that was, in fact, rendered by the court. Gebbie v. Mooney, 121 Ill. 255; Chicago, M. & St. P. Ry. Co. v. Walsh, 150 Ill. 607; Metzger v. Morley, 197 Ill. 208. In the case last cited, the court quotes with approval the following from Freeman on Judgments, sec. 61: “The entry of a judgment nunc pro tunc is always proper when a judgment has been ordered by the court but the clerk has failed or neglected to copy it into the record.” The only qualification of this rule is that the subsequent order must be based upon “some note or memorandum from the records or quasi records of the court, or by the judge’s minutes, or some entry in some book required to be kept by law, or in the papers on file in the cause.” Wesley Hospital v. Strong, 233 Ill. 153.

In Metzger v. Morley, supra, the trial judge made the following entry upon his minutes at the time of the trial: “Trial by jury and verdict for $1521.09, and motion by defendant for new trial; motion overruled and judg. on verdict for $1521.09; and appeal prayed and allowed; bond in $3,000 in 20 days, to be approved by clerk by agreement; b. of e. in 120 days.” At the same time, the clerk made the following entry: “And judgment on the verdict for $1,521.09.” Three years later, upon motion and due notice, and upon an inspection of these minutes, the court entered an order in which, after reciting that a judgment had been “pronounced and rendered” on a certain day three years before, in favor of the plaintiff and against the defendant, for the sum of $1,521.09, and costs, and that the clerk “had failed to enter of record said judgment in full and proper form,” it was ordered that the clerk enter said judgment of record “in full and proper form” as of the date said judgment was, in fact, “pronounced and rendered.” On appeal this order was sustained. The Supreme Court held that the minutes of the judge and the clerk were amply sufficient to authorize the entry of the order and judgment nunc pro tuno, saying: “To hold otherwise would be to deprive the court of the power to make its record speak the truth under any and every circumstance.”

The order in question in the present case is similar to the order entered in the case last cited, and upon the authority of that case and the others cited above, we think there was no error in admitting the so-called “expanded judgment” in evidence. The nunc pro timo order was the record evidence of the judgment as pronounced by the court on April 7, 1909. The mere fact that such order was entered by another judge than the one who actually tried the case is immaterial. We see no reason—and none has been suggested—why any judge of the Municipal Court may not direct the entry of an order of this character in any case in which such a minute has been preserved. The trial judge could only cause such a record to be made or amended in pursuance of some sufficient note or memorandum found upon the records or quasi records of the court. He could not do so from his personal recollection. Therefore, the judge who entered the order had before him the same means of information and had the same authority in the matter as the trial judge.

It is next urged that the trial court erred in admitting in evidence the motion of Harold Gillette in the Appellate Court to set aside the judgment of affirmance, and the order of that court denying said motion. It was proper to show that the proceeding in the Appellate Court had been finally disposed of, and, while the evidence in question was perhaps unnecessary, we fail to see how the defendants were, or could be, in any manner prejudiced thereby. Counsel for plaintiffs in error say that “the jury was bound to get the impression that the Appellate Court was against the position taken by the defendants.” It appears that the grounds of the motion urged in the Appellate Court were the same, in substance, as those which the Supreme Court held were not involved in this case. Hence, if it be assumed that the jury might have received the impression stated, that impression was evidently correct, and not a good cause of complaint.

It is insisted that the court erred in permitting one of the plaintiff’s attorneys to testify for the plaintiff over objection. There is no merit in the contention. While the practice of allowing attorneys to testify in cases in which they appear as counsel has often been criticised and is not to be encouraged, yet they are not disqualified, and an objection to such testimony goes only to its weight and not its competency. Wetzel v. Firebaugh, 251 Ill. 190; Wilkinson v. People, 226 Ill. 135. Furthermore, the witness in question withdrew his appearance as an attorney in this case, and most of his testimony related to the amount of work done by the attorneys in the replevin suit, which it would probably have been difficult to prove by any witness not subject to the same objection.

It is next claimed that the court erred in admitting evidence as to the value of the services of two attorneys in the replevin suit, and in instructing the jury that they were to determine whether the services of two attorneys were reasonably necessary in defending the replevin suit. There was evidence tending to prove that there was more work to do than could be properly done by one attorney, and that the defendant in the replevin suit authorized one of the attorneys to employ his partner to assist in the trial. Under the circumstances, we think there was no error in the ruling of the court in this particular.

One Robert P. Tyk was called by the defendants as one of three witnesses as to the value of the automobile. He testified that in 1909 he was an “automobile repair man” at a garage in Chicago where the machine in question was kept; that two years later he engaged in the business of buying and selling automobiles, but prior to that time he had never bought or sold an automobile nor did he know of any sale that had been made of a car like the one in question. The court refused to permit him to testify as to the value of the machine in 1909, on the ground that no sufficient qualification had been shown. We think there was no error in the ruling; for the witness did not claim to know anything (except from hearsay) about the value of automobiles similar to the one in question at the time the same was taken on the replevin writ, and any estimate of value he might have given under such circumstances would have been a mere guess, tending rather to confuse than to enlighten the jury.

It is claimed that the court erred in refusing to permit the defendants to make a formal offer, at the close of all the evidence, to return the automobile. The defendants did not attempt to show that any such offer had been made prior to the trial, except as such an offer is contained in one sentence of the second affidavit of merits. The offer made in that affidavit was, “which automobile the defendants hereby tender and offer to return to the plaintiff if it should he found and held that said replevin judgment is valid.” As defendants claimed, by another sentence of the same affidavit, that the judgment was invalid, the offer so made was not an unconditional offer, and even this offer was omitted from the amended affidavit of merits that was filed later. In our opinion, the offer to return was properly excluded.

It is urged that the court erred in denying the motions made at the close of the plaintiffs’ evidence and at the close of all the evidence to instruct the jury to find for the defendants. This alleged error raises only the question whether there was any evidence in the record fairly tending to prove all the material averments of the plaintiffs’ declaration, or statement of claim. Libby, McNeill & Libby v. Cook, 222 Ill. 206. There can he no question, we think, that there was evidence tending to support all the material allegations of the statement of claim. It follows that the court did not err in refusing the motions.

An objection is made, but not argued, in the briefs as to the allowance of interest. No error in this respect is pointed out, and we see none. Interest was recoverable by the express terms of the statute. R. S., ch. 74, sec. 2 (J. & A. ¶ 6691).

It is finally suggested, rather than argued, that the court erred in overruling the defendants’ motion for a new trial. The bill of exceptions does not show that any such motion was made. The clerk’s transcript of the judgment purports to recite that such a motion was made and overruled, but .it has been so frequently and uniformly held that such a recital is not properly a part of the record that no citation of authority is necessary. Therefore, the question whether the verdict was contrary to the preponderance of the evidence was not properly preserved for review.

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

Affirmed.


author: Mr. Justice Pam

text:
    City of Chicago, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 20,137.
    Municipal corporations, § 867

      —when finding as to violation of ordinance not sustained. In a prosecution for violation of Chicago Code 1911, sec. 2210, requiring street cars to he so ventilated that the carbonic acid present in the air therein shall not exceed ten parts in each ten thousand parts of air, where the evidence showed that a ventilating system in use on cars operated by another company in Chicago met the requirements of the ordinance, a finding of not guilty was held erroneous, the trial court having held as a proposition of law that the ordinance was reasonable and having found that it had been violated, the finding of not guilty evidently having been based upon the theory that the violation was not intentional and that defendant had done its best to comply with the ordinance.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed March 11, 1915.

      William H. Sexton and James S. McInerney, for plaintiff in error; Ulysses S. Schwartz, of counsel.

      No appearance for defendant in error.

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

   Mr. Justice Pam

delivered the opinion of the court.

This is a writ of error sued out by the City of Chicago, hereinafter referred to as the plaintiff, upon a judgment of the Municipal Court discharging the Chicago City Railway Company, hereinafter referred to as the defendant, in a prosecution for violation of section 2210 of the Chicago Code for 1911, entitled “Comfort and Safety of Passengers.” Section 2210 provides as follows:

“Comfort and Safety of Passengers: It shall not be lawful for any person or corporation owning, leasing or operating any street railway cars or steam railroad cars, which run from point to point within the City of Chicago, either on elevated, surface or subway lines, to permit any car to be used or operated on any of the public streets or ways of said city unless the following conditions are complied with: * * *

“(c) The car shall be so ventilated that the amount of air entering the car for ventilation, through openings provided for such purpose, shall be at the rate of three hundred and fifty cubic feet for each passenger per hour, based on the maximum carrying capacity (seats and standing room included) of such car; provided, however, that the carbonic acid present in the air of the car shall not exceed ten parts in each ten thousand parts of air. * * *”

Section 2211 provides a penalty for violation of section 2210 as follows:

“Penalty: Any person, firm, company or corporation who shall be guilty of violating any of the provisions of the preceding section shall be fined not less than twenty-five dollars nor more than one hundred dollars for each car operated in violation of this law, and each day of the operation of such car shall be considered a separate offense.”

The case was tried without a jury. The bill of particulars on the part of the plaintiff charged that on February 13th the defendant operated four certain cars, wherein there was present in the air at a certain hour, when samples of the air were taken, carbonic acid in excess of ten parts to each ten thousand parts of air in the car. Upon the trial, testimony in support of the allegations in the bill of particulars was introduced.

In meeting the proof of plaintiff, defendant submitted the testimony of its mechanical superintendent, who testified to certain devices installed on cars for the purpose of complying with the city ordinance. The defense evidently was based upon the theory that the system employed by defendant was all that could be reasonably expected of it in its attempt to comply with the city ordinance. In rebuttal, however, plaintiff put on the stand Dr. E. V. Hill, ventilating inspector in charge of the city sanitation for the health department, who testified that more efficient ventilating systems were being used in other cars operated in Chicago, which kept the amount of carbonic acid down to the minimum provided in the city ordinance.

The court found that there was a violation of the ordinance as set forth in plaintiff’s bill of particulars, and held as a proposition of law that the ordinance, the violation of which was complained of in this case, was reasonable; notwithstanding this, however, the court found the defendant not guilty.

No brief was filed nor argument made on behalf of the defendant; and it is only from the brief of the plaintiff that we infer that the court must have acted upon the theory, that there was no intentional violation of the ordinance, and that the defendant had done its best to comply with the provisions thereof.

The evidence showed that there was another ventilating system in use in Chicago on cars other than those operated by the defendant, whereby the requirements of the ordinance were complied with. The record fails to disclose any good reason why defendant should not have similarly equipped the cars in question. While the testimony of the defendant might have been considered by the court in mitigation of the penalty, it was not of such a character as to have warranted a complete exoneration. We are therefore of the opinion that the court erred in finding the defendant not guilty.

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

Reversed and remanded.


text:
    Julia Grant, formerly Julia Dunleavy, Defendant in Error, v. Mutual Protective League, Plaintiff in Error.
    Gen. No. 20,161.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed March 11, 1915.
    Rehearing denied March 24, 1915.
    Statement of the Case.
    Action by Julia Grant, formerly Julia Dunleavy, against Mutual Protective League, a corporation, to recover the sum of $1,000 upon a benefit certificate issued upon the life of one Mary 0 ’Brien.
    The application for membership in the defendant organization contained, among others, the following statements:
    “I, Mary O’Brien, having become acquainted with the objects of your order, do petition for membership in Council 840 and for a benefit certificate of $1,000. * * * I was born on the first day of Nr., 1857, and was 54 years of age at my last birth-day, and am 54 years at my nearest birth-day. * * * I do hereby warrant the truthfulness of the statements in this petition and consent and agree that any untrue or fraudulent statement made herein or to the Medical Examiner, or any concealment of facts by me in this petition, shall forfeit the rights of myself or beneficiaries to all benefits and privileges herein.”
    The statement is then signed “Mary O’Brien.” After this signature follows a list of 45 questions propounded to her by the medical examiner, Dr. Cummings. At the end of these questions appears the following language:
    “I hereby adopt as my own the foregoing answers and statements from 1 to 45 inclusive, whether written by me or not, and declare and warrant that they are full, complete and true to the best of my knowledge and belief, and I agree that the truth of each answer and statement mentioned above shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers. * * *
    “I further agree that the foregoing answers and statements together with the preceding declaration, shall form the basis of the contract “between me and the Mutual Protective League, and shall constitute warranties of same, and are offered by me as a consideration of the contract applied for, and are hereby made a part of any benefit certificate that may be issued upon this application and shall be deemed and taken as part of such certificate; that this application may be referred to in said benefit certificate as the basis thereof, and that they shall be construed together as a part of my contract.” (Italics ours.)
    From a judgment for plaintiff, defendant brings error.
    P. B. Boylan and H. B. Lloyd, for plaintiff in error.
    James D. Power, for defendant in error.

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

   Mr. Justice Pam

delivered the opinion of the court.

Abstract of the Decision.

1. Insurance, § 208 —when statement constitutes a warranty. Where the application for membership in a beneficial society contained a statement of the age of the applicant and a distinct warranty of the truth thereof, it was held that such statement constituted a warranty separate and distinct from the answers to questions on the medical examination attached to the same instrument.

2. Trial, § 65*—when evidence may be considered for all purposes. In an action upon a beneficiary certificate, where defendant resisted recovery upon the ground of a false statement as to the age of the applicant, applications by the insured for insurance in other companies may be considered upon the question of the truth of the applicant’s statement as to her age, where admitted in evidence without limitation or objection, although the parties might have intended their admission merely to show that the insured carried other insurance at the time of her application.

3. Appeal and errob, § 456*—what is effect of failure to object to'evidence. Where the successful party below failed to object to the admission of evidence or to assign cross-errors, the competency of the evidence cannot be considered in the Appellate Court so as to prevent its consideration in connection with the issues presented.

4. Insurance, § 876*—who has burden of proving falsity of warranty. In an action upon a beneficiary certificate the burden is upon the defendant to prove that the insured’s warranty as to her age in her application for insurance was false.

5. Insurance, § 904*—when verdict against weight of evidence. In an action upon a“ beneficiary certificate, a finding that the insured’s statement as to her age, warranted to be true in her application for insurance, was in fact true, was held to have been against the manifest weight of the evidence.


text:
    Robert E. Devereaux and John D. Rubly, trading as Devereaux & Rubly, Defendants in Error, v. R. O. Jehu, Plaintiff in Error.
    Gen. No. 20,176.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed with finding of facts.
    Opinion filed March 11, 1915.
    Rehearing denied March 24, 1915.

      Statement of the Case.
    Action by Robert E. Devereaux and John Rubly, trading as Devereaux & Rubly, against R. O. Jehu to recover commissions for the sale of certain property owned by defendant to one Dr. Rosenthal, which sale, plaintiffs claimed, had been negotiated by their salesman, one Harvey. The property had been listed by defendant with another firm of brokers in whose employ Harvey then was. While in the employ of the latter he submitted Dr. Rosenthal’s offer of nine thousand dollars to defendant, but the latter rejected it because he would be required to pay a commission of two hundred and fifty dollars out of the amount offered. Dr. Rosenthal then abandoned the idea of purchasing the property, renewed his lease on the premises then occupied by him, and entered into negotiations with others for the purchase of other property. In the meantime Harvey entered the employ of plaintiffs and testified that he notified defendant of the fact and again took the matter up with Dr. Rosenthal, but this the latter denied. The property was subsequently sold to the doctor by defendant for the sum of nine thousand dollars, through another agent" who accepted fifty dollars as his commission.
    From a judgment for plaintiffs, defendant brings error.
    William B. Jabvis, for plaintiff in error.
    Winston, Payne, Stbawn & Shaw, for defendants in error; J. Sidney Condit, of counsel.

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

   Mr. Justice Pam

delivered the opinion of the court.

Abstract of the Decision.

Brokers, § 37 —when not procuring cause. Where a salesman in the employ of a broker submitted to the owner of property an offer of a prospective purchaser, which the owner declined on account of the amount of commission which he would be required to pay out of the sum offered, and his client then abandoned the idea of purchasing the property, but afterwards purchased the same property for the sum previously offered, through another agent, who accepted less commission than was demanded by the salesman who had in the meantime entered the employ of plaintiffs, also brokers, and who testified that he had notified the owner of his change of employment and had thereafter again taken the matter up with the purchaser, which was denied by the latter, it was helct, in view of all the evidence, that plaintiffs were not the procuring cause and hence were not entitled to commissions.


text:
    Lydia Moody, Appellee, v. Edith T. Norton, Appellant.
    Gen. No. 20,186.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed March 11, 1915.
    Statement of the Case.
    Action by Lydia Moody against Edith T. Norton to recover the sum of $735.25 for services rendered defendant and for money claimed to have Been advanced. The latter claim was disallowed by the jury, who rendered a verdict for plaintiff for $660, from a judgment on which defendant appeals.
    Charles J. Trainor, for appellant.

      Abstract of the Decision.
    1. Witnesses, § 316

      —credibility of attorneys. While the courts look with disfavor upon the practice of attorneys actually engaged in the trial of a case testifying in behalf of the cause they represent, yet such testimony is competent, and if helpful in arriving at a proper conclusion on review must be considered.
    2. Assumpsit, action of, § 66*—when evidence insufficient to sustain verdict. In an action to recover for services as nurse and domestic, claimed to have been rendered by plaintiff to defendant under an oral agreement for compensation at the rate of $15 per week, a verdict for plaintiff was held to have been against the weight of evidence, the evidence showing that such services as were rendered were voluntarily given while plaintiff occupied the position of guest rather than servant.
    Fitch, P. J., dissenting.
    Scanlan, J., specially concurring.
    John T. Byrnes, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    O. W. Rosenthal and J. B. Cornell, trading as O. W. Rosenthal & Company, Defendants in Error, v. August Turner, Plaintiff in Error.
    Gen. No. 20,239.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 11, 1915.
    Statement of the Case.
    Action by O. W. Rosenthal and J. B. Cornell, co-partners, trading as O. W. Rosenthal & Company, against August Turner to recover an amount claimed to be due for general work of alterations and repairs to a certain building, for which an architect’s certificate was issued in the sum of $452.68.
    The contract under which the work was performed contained, among others, the following provisions: “In consideration whereof, the said party of the first part agrees to pay to the said party of the second part the sum of seventeen hundred and forty-nine and 22/100 ($1749.22) dollars, upon the presentation of certificates signed by said architects. Said certificates, however, in no way lessening the total and final responsibility of the party of the second part. * * * “It is especially understood and agreed, that the amounts to be paid from time to time shall in no case exceed 85 per cent, of the value of the work done, and material furnished; the remaining 15 per cent, of said value to be retained by said first party, as part security for the faithful performance hereof, and not be paid until the expiration of 30 days, after the perfect completion of said work and the payment of all claims for labor and material furnished, and when all the drawings and specifications have been returned to Holabird & Boche, architects. * *
    “And should any dispute arise between the parties hereto respecting the true construction to be followed in said drawings and specifications, or meaning thereof, the same shall be decided by said architects, Holabird & Boche, and their decision shall be final.”
    Plaintiff’s Exhibit No. 1, the architect’s certificate, is:
    “William Holabird,
    Martin Boche,
    Edward A. Benwick.
    Holabird & Boche, Architects,
    1618 Monadnock Block,
    Mr. August Turner,
    Chicago, 111., July 19th, 1909.
    No. 3 $452.68
    This is to certify that O. W. Bosenthal & Company is entitled, under the terms of its contract, to the sum ' of four hundred and fifty-two and 68/100 dollars, as part payment for general work of alteration and repairs to G-reat Northern & Merle & Heaney buildings at 14th Place & Sangamon street and shed at 14th Place and Morgan street, Chicago.
    Abstract of the Decision.
    1. Building and construction contracts, § 15

      —how construed as to payment. Provision in contract for alterations on a building, that a certain percentage of the amount due was not to be paid “until the expiration of thirty days, after the perfect completion of said work,” etc., held to refer only to the final payment which was to be retained as security for the faithful performance of the contract, and therefor inapplicable to other payments due under the contract.
    2. Building - and construction contracts, § 103*—when architect’s certificate prima facie evidence. Where a contract provided for the issuance of an architect’s certificate and that payments were to he made to the extent of eighty-five per cent, of the value of the work as it progressed, in an action for the sum covered by a certificate stating on its face that it was issued under the terms of the contract and which was within the eighty-five per cent, limitation, it was held that the certificate was prima facie evidence that so much .of the work had been completed under the contract as to entitle plaintiff to payment of the amount for which it was issued, and together with evidence of nonpayment was sufficient to make out plaintiff’s case.

      Contract...............1,749.22
    Allowances............ 139.
    Total..................1,888.22
    Deductions ............
    Net amt. of contract... .1,888.22
    ENTERED Holabird & Roche per. .F....
    Former certificates..... 865.
    Present do .....• 452.68
    Balance................ 567.54
    1,888.22 1,888.22 Holabird & Roche, Architects.
    Received payment, in full of the above certificate.
    McEwen, Weissenbach, Shrimski & Meloan, for plaintiff in error; Wade W. Meloan, of counsel.
    Charles J. O ’Connor and R. Harold O’Connor, for defendants in error.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

3. Witnesses, § 212 —question not within direct examination. Questions on cross-examination which are not within the scope of the direct examination are properly excluded.

4. Appeal and ebbor, § 1235*—when acquiescence bars review. Although under Practice Act, sec. 81 (J. & A. 8618), where a cause is brought up for review upon a stenographic report, it is not necessary to preserve an exception, still the record must show that the ruling complained of was an adverse one, hence cross-errors based upon instructions not to allow interest will not be considered where the attitude of counsel for the complaining party indicated acquiescence therein.