text:
    William Grace Company v. Patrick Gallagher.
    Gen. No. 13,800.
    Master and servant—when safe place to work rule does not apply. The safe place to work rule does not apply where the servant is engaged by the master in connection with the construction of a building in process of erection. Hansell v. Clark, 115 Ill. App. 209, affirmed in 214 Ill. 399, explained. Pressed Steel Car Co. v. Herath, 207 Ill. 576, distinguished.
    Action in case of personal injuries. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 20, 1908.
    Patrick H. O’Donnell and George Pfirshing, for plaintiff in error; R. J. Folonie,' of counsel.
    B. J. Wellman, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This writ of error is sued out to reverse a judgment of the Municipal Court for $999, rendered in a cause of the “fourth class,” for personal injuries sustained by the plaintiff, on the claim that negligence is attributable to defendant in the happening of the accident inflicting the injuries upon plaintiff, who at the time was a laborer in the employ of defendant.

The negligence charged consists in the alleged failure of defendant to furnish plaintiff with a reasonably safe place in which to work. As defendant offered no evidence in contradiction of the case made by plaintiff’s proof, the question presented for our decision is, does the case made by such proofs, with all legitimate inferences to be gathered from it, entitle plaintiff to prevail in his cause and maintain the verdict returned by the jury in his favor. Incident to such determination, and preceding it, we must consider what the duty of the master to this particular servant was, in the environment in which he is found at the time the accident occurred, to furnish him with a safe place in which to work. We said in Falkeneau v. Ginley, 131 Ill. App. 399, “it is plain that in the construction of a building there are many dangers to be encountered until final completion, and the safe place rule as to a contractor of construction does not apply during the process of building.” Counsel for plaintiff, however, insists that the doctrine of cases like the one supra and Richardson v. Packing Co., 72 ibid. 77, and Merchant v. Mickelson, 101 ibid. 401, have been so distinguished in Hansell v. Clark, 115 ibid. 209, affirmed in 214 Ill. 405, as not to be controlling here. So that there may be no misapprehension as to the ruling in the Hansell-Clark case, supra, we quote instruction 9:

“9. The court instructs the jury that the declaration in this case charges the defendant with negligence while the plaintiff was working in a building in the process of construction. In this connection the court charges you that the obligation of a master to provide a reasonably safe place for his servants to work in, does not impose upon him the duty of keeping a building in which such a servant is employed in a safe condition at every moment of his work, so far as its safety depends upon the due performance of the work by him and his fellow servants, if any.

“So, in the case at bar, if the evidence shows that the column in question was properly and safely erected, in the exercise of due and ordinary care, then the fact that it was not anchor-bolted or braced, does not entitle the plaintiff to a verdict, although the anchor-bolting or bracing might have made the column still more secure. If the proof shows that the column was thrown down as the result of other causes f.b nn the failure to exercise due care on the part of the defendant in the erection and placing of the column, then the defendant is not liable, and the verdict of the jury should be not guilty.”

Judge Windes, in commenting on this instruction, said: “It is true, the ninth instruction limits the duty of appellant to have and keep the building in a safe condition by the qualification that he is not bound to do so ‘at every moment of his (the servant’s) work, so far. as its safety depends upon a due performance of the work by him and his fellow servants, if any’.”

We cannot observe any deviation from the rule announced in the cases cited by anything said in instruction 9 supra, or in the court’s comments upon it. The right to recover was chargeable to specific negligence of the master.

In discussing Richardson v. Packing Co., and Merchant v. Mickelson, supra, the court say in Hansell v. Clark, supra, “We think both these cases clearly distinguishable from the one at bar; the Richardson case because the conditions there were temporary and undergoing constant changes in the performance of the work, and in the Merchant case the work was necessarily dangerous, whereas the conditions here, as the evidence shows, were not temporary in their nature, nor was the work necessarily dangerous.” The right of recovery rested on the negligence charged and proven against the master in the erection of the columns which fell and killed the servant.” It is true that the court did further say in its opinion that “It is a serious question also, if the doctrine of these cases is not overruled by the Supreme Court in the case of Herath infra.” But on examining the Herath case, which is Pressed Steel Car Co. v. Herath, 207 Ill. 576, we are unable to find any conflicting doctrine. That case was squarely and unequivocally, we think, predicated on an explicit order of the master to the servant to go into a place which they both knew was fraught with danger. It was “an order case” in contradistinction to a “safe place case;” and the court there say: “But we think it equally clear that both the employer and the employe believed the section of the roof would remain in place until the truss should be moved so the roof would no longer be supported by it. Under these circumstances, and with the knowledge on the part of both employer and employe, the foreman ordered the employe and his fellow servant to go beneath the second section of the roof, and in obedience to the command of the master the deceased went onto a place which he knew, in a degree, to be dangerous, and was killed. It is the primary duty of an employe to obey the commands of his employer. If ordered to perform an act which he knows is attended with danger, he is called upon to decide whether he will be justified in refusing to obey on the ground that the perils of obedience are too great. In this dilemma the law requires of him to act with that degree of prudeuce that would have controlled an ordinarily careful and discreet man. An inconsiderate and improper order given by the master may constitute actionable negligence, and the master may not always be allowed to escape liability on the ground that the servant should have disobeyed his order and not exposed himself to danger which attended compliance therewith.” The court characterized the order of the foreman in the Herath case as “clearly inconsiderate and negligent. ’ ’

Some confusion has at times occurred consequent upon a failure at all times to distinguish between one and the other of the two legal principles and the doctrine announced in their support; but the cases will be found to be uniform that wherever in construction and destruction cases the question of furnishing a safe place by the master for the servant to do his work in, the liability when upheld has been under the charge, accompanied by proof in its support, that the master was guilty of some specific act of negligence to which the accident is primarily traceable.

It is contended that defendant was the general contractor for the erection of the county building, in the course of the construction of which the accident to plaintiff happened; but no evidence is found in the record supporting such contention.

It is also insisted that the brick which unfortunately struck plaintiff came through a hole in the temporary floor above the place where plaintiff was working at the time, but no witness examined so testified, nor was any one produced on the trial who knew, except by conjecture and surmise, as to where the brick in fact came from. For aught that appears to the contrary, it may have been thrown by some miscreant in a spirit of mischief, deviltry or revenge. The proof furnishes no more justification for the conclusion that the brick fell through the hole above plaintiff than that it was projected in any of the ways suggested, or in some other way. The fact only remains that plaintiff was hit with a brick, but whether projected by design or accident or as the result of negligent conduct imputable to defendant, we are unable to say from the proofs.

Again, plaintiff’s counsel say that the judgment is right and should not be disturbed because defendant “failed in its duty to comply with the ordinance to make substantial temporary floors over its workmen. It entirely failed to have a floor just above appelleeplaintiff.”

But is is plain that the ordinance referred to, being section 728, article 75, Rev. Mun. Code of Chicago, has no application in whatever view may be taken of it or the extent of its operation, in the light of the fact that the evidence fails to prove that the offending brick came through a hole in the temporary overhead floor. There is no evidence that riveters or other persons were working on the floor above plaintiff, or that any bricks were on that floor. The witness Mulcahy testified he did mot see anybody working up “there” when he looked up; he never saw the brick until he saw it bound off plaintiff’s back. Neither did he know that the brick came through the hole. On cross-examination this same witness testified that there were no men working between plaintiff and where the hole was at the time the brick hit plaintiff. Godfrey says he never saw any hole until the brick struck plaintiff; he did not see the brick fall through the hole, neither did he know where it came from, nor that any workmen were at work on the floor above at the time the brick struck plaintiff. Plaintiff himself testified that he had no knowledge as to where the brick which struck him came from, or that men were working on the floor above him.

The evidence fails to establish any actionable negligence imputable to defendant justifying an award of damages against it for the injuries suffered by plaintiff while in its employ. The trial judge should have given the peremptory instruction asked by defendant, directing the jury to find a verdict in its favor. The verdict and judgment being manifestly contrary to the weight of the evidence, the other points made and argued are not important to our decision.

The judgment of the Municipal Court, being contrary to the law and the evidence, is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    The Hamilton National Bank et al. v. Joseph Franklin et al.
    Gen. No. 13,806.
    Banks and banking—what does not estop hanTc from denying sufficiency of funds on deposit to pay check upon which payment has been stopped. The fact that a check when presented for payment is returned marked “payment stopped” does not remove the necessity, essential to a recovery by the party suing upon such check, to prove that at the time of presentation the bank had on hand sufficient funds to pay the same.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 20, 1908.

      Newman, Northrup, Levinson & Becker and Chester E. Cleveland, for plaintiff in error.
    Bulkley, G-ray & More, for defendants in error; C. Paul Tallmadge, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

In this action it is sought to charge the Hamilton National Bank with liability for the amount of a check drawn upon it by one T. H. Beckwith for the sum of $250. The liability is predicated upon the fact that when the check was received by the bank for payment, it returned it marked “Payment stopped.”

The cause was submitted to the Municipal Court for trial, without a jury, and the trial judge, finding the issues against the bank, judgment was entered in favor of defendants in error for the amount of the check with costs. This writ of error is sued out in an effort to reverse that judgment.

It is assumed by defendants in error, from the fact that the check was by the bank marked “Payment stopped” when returned, that the drawer had funds in the bank sufficient to meet the check when he countermanded payment, and that in consequence thereof the bank is estopped to deny that it had not in fact sufficient funds of the drawer to meet it. They also assume that it is not incumbent upon them to prove that the bank had funds of the drawer sufficient to pay the check when received by the bank for payment.

We think all these assumptions are erroneous. Suppose the bank, but for the countermanding by the drawer of his order to pay, would have paid the check because it might have been willing to permit an overdraft by the drawer; still that does not relieve defendants in error from the burden imposed upon them by law, to prove that the bank actually had on deposit with it funds of the drawer sufficient to pay the amount of the check. It is only on condition that the bank has such funds at the time of presentation of a check for payment, that the law charges the bank with liability to pay, notwithstanding the drawer may, in the meantime, between delivery of the check and its presentation to the bank for payment, have countermanded the order and stopped payment. In legal theory, the drawing and delivery of a check is an appropriation of the amount of it from the drawer’s funds on deposit with the bank for its payment, and on such theory, and it alone, is the bank held to respond to the payee and his assigns for payment.

The drawing of a check raises no presumption that the drawer has funds as against the bank on which the check is drawn. No decisions to the contrary have been called to our attention, nor are we able after research to find any. Neither do we know of any authority for holding that from the fact that a check when presented for payment to the bank upon which it is drawn, and payment is refused and the bank marks the check “Payment stopped,” the bank is thereby estopped from denying that the drawer had sufficient funds on deposit with the bank to pay the check.

To charge the bank with liability, it is incumbent upon the legal holder of the check to prove, in the first instance, that at the time of presentation, the bank had funds of the drawer on deposit sufficient in amount to pay the check. This proof cannot, for any of the reasons assigned and argued, be dispensed with. The burden of so proving rested on defendants in error. All of the decisions on this subject find for their support the proven fact that the bank at the time of presentation had funds of the drawer sufficient to pay the check presented. There is no deviation to disturb the uniformity of this doctrine. Munn v. Burch, 25 Ill. 35; The Chicago & Marine Fire Ins. Co. v. Stanford, 28 ibid. 168; Bickford v. First National Bank, 42 ibid. 238; Brown v. Leckie, 43 ibid. 497.

In Union Nat. Bank v. Oceana Co. Bk., 80 Ill. 212, the court say: “The evidence shows notwithstanding the bank had funds in its possession on deposit subject to check at the time belonging to the drawer, in excess of the amount of the check, payment was refused for the reason the drawer had previously ordered the bank not to pay it.” Here was proof, first that the bank had money on deposit in excess of the amount of the check and a countermanding of the order to pay. Judgment of the nisi prius court was .sustained against the bank for the amount of the check, not from any presumption arising from the drawing of the check that the bank had money subject to check, but from proof undenied of that fact.

The bank did not sustain any contractual relations either to the payees in the check in suit or their assigns, the defendants in error. The only condition which would subject the bank to liability to pay the check in suit was the possession of funds of the drawer sufficient to pay the check when presented. As there is no evidence in the record that the bank had funds of the drawer subject to check at the time of presentation sufficient to pay the one in suit, the judgment is erroneous, and all the other questions argued become of no importance to our decision.

For the reasons stated the judgment of the Municipal Court is reversed and the cause remanded for other proceedings as are conformable to the views here expressed;

Reversed and remanded.


author: Mr. Justice Adams

text:
    Paul Zito et al. v. The People of the State of Illinois.
    Gen. No. 13,775.
    1. Pbactice—when dill of particulars sufficient. In a prosecution to recover a penalty for the violation of a statute, it is sufficient for the bill of particulars to set forth the offense alleged to have been committed with sufficient clearness to enable the defendants to know with what they are charged.

      2. Pbactice—what bill of particulars need not contain. In a prosecution to recover a penalty for selling cocaine contrary to the statute, it is not essential that the name of the alleged purchaser be set forth.
    3. Penalties and fobzeitubes—when enforcement will follow notwithstanding illegal act was performed by agent. A penalty for the unlawful sale of cocaine may be recovered notwithstanding the sale made the basis of the prosecution was by a clerk not expressly (though impliedly) authorized to make such sale.
    4. Statutoby law—when repeal by implication effected. Where there is an inconsistency between two acts so that they cannot stand together, the later act, being the last expression of the legislative will, must prevail.
    5. Evidence—when prior unlawful sale of cocaine competent. As bearing upon the question of intent and also upon the question of the agency of the employe making the particular sale in question in the prosecution, prior unlawful sales of cocaine may be shown.
    6. Appeals and ebrobs—when assignment of error deemed abandoned. Assignments of error not argued are deemed abandoned.
    7. Cocaine—character of prosecution for unlawful sale of. A prosecution for the unlawful sale of cocaine although civil in form is qwasi-criminal.
    8. Judgment—when form of, appropriate in prosecution for unlawful sale of cocaine. In a prosecution for the unlawful sale of cocaine, a judgment providing for a fine may likewise impose imprisonment until the fine, etc., is paid.
    Action to recover penalty for sale of cocaine. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 20, 1908.
    Rehearing denied May 4, 1908.
    William Schreider, for plaintiffs in error.
    E. I. Frankhauser, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

The following is the bill of particulars:

“Plaintiff’s action is to recover a penalty for the sale of cocaine, to wit: hydro-chlorate, to wit: a preparation containing cocaine, made on, to wit: the seventeenth day of November, A. D. 1906, at the city of Chicago, without then and there having the written prescription of a licensed physician or a licensed dentist licensed under the laws of the state of Illinois, in violation of the provisions of paragraphs 32A and 32B, chapter 91, of the Revised Statutes of the State of Illinois, being section 14A and 14B of an Act entitled, ‘An Act to regulate the practice of pharmacy in the state of Illinois.'"

The defendants, Paul Zito and Frank Zito, who are plaintiffs in error here, were, at the time in question, the owners of the drug store known as No. 2003 State street, in the city of Chicago, and had in their employ as clerk and salesman in said store J. S. Peterson. On the evening of November 17, 1906, J. S. Peterson sold to George E. Mohr a package of “Crown Catarrh Powder." The package was a closed box, unlabeled, and inside the box was a bottle containing the powder, the stopper of which was sealed. The powder is a preparation containing cocaine. The package was sold without any written prescription of any licensed physician or dentist, or any prescription whatever, but 'merely on the request of said Mohr. The defendants, October 15, 1908, were convicted before a justice of the peace of Cook county of unlawfully selling cocaine. The jury found the defendants guilty and assessed the plaintiff’s damages at the sum of $500, and the court, after overruling a motion of the defendants for a new trial, rendered judgment on the verdict. The defendants, by their counsel, urge the following reasons why the judgment should be reversed, which will be considered in the order stated:

1. The bill of particulars is insufficient, and the court erred in refusing to rule the plaintiff to file a more specific bill of particulars.

2. The sale was not made by either of the defendants, and there is.no evidence that they authorized Peterson to make the sale.

3. The court erred in allowing plaintiff to introduce evidence of a similar sale October 15, 1905, and to first introduce and then withdraw evidence of a sale October 7, 1905.

4. The court erred in excluding evidence offered by the defendants that the Crown Catarrh Powder, which was sold in an unbroken package, was a patent or proprietary preparation.

5. The court erred in admitting evidence of sales by Peterson subsequent to November 17, 1906.

6. Errors in rulings on instructions.

7. Error in the judgment.

In defendants’ motion for a more specific bill of particulars, they object that the bill of particulars filed is insufficient, in that it does not set forth clearly the offense committed, nor by them committed, nor does it allege by whom the alleged sale of cocaine was made, nor to whom made.

The bill of particulars set forth the offense committed sufficiently clearly to inform the defendants with what they are charged. It was not necessary to state the name of the purchaser. Cannady v. The People, 17 Ill. 168; Green v. The People, 21 ib. 125; Rice v. The People, 38 ib. 435.

It is objected here, for the first time, that no prior offense is mentioned in the particulars. No objection was made when evidence of a prior offense was offered. On the contrary, it was practically conceded by defendants’ counsel, that evidence of one prior offense was admissible. Moreover, we cannot perceive how any disadvantage can accrue to the defendants from the omission of such mention. The justice of the peace had jurisdiction on the subject-matter; the evidence shows that he had jurisdiction of the persons of the defendants, and the fine which he imposed was not in excess of his jurisdiction. Therefore, his judgment is conclusive in the case and cannot be collaterally attacked.

The evidence is that the defendants were the proprietors of the store No. 2003 State street, and that Peterson was in their employ as salesman in said store. In the cross-examination of Paul Zito this occurred:

“Q. You say though he has authority to sell this?

A. I presume he has, the same as any other patent medicine.

Q. Do you know whether he has any authority to sell Grown Catarrh Powder? A. I presume he has.

Q. Did you know that Crown Catarrh Powder is kept for sale at No. 2003 State street? A. Tes, sir, it is.

Q. It is, is it? A. Yes, sir.

Q. And Peterson is a clerk there to sell what is kept in the store? A. Yes, sir.

Q. Now, was Peterson a clerk at that store on seventeenth of November? A. Yes, sir.

Q. And is yet, is he? A. He is.”

The following question was asked Prank Zito, in respect to Peterson’s authority, and answer given:

“Q. Did he have any—has he any authority to sell any Crown Catarrh Powder? A. Yes, he has authority to sell that, because he sells other patent medicines.”

Counsel urg’e the extraordinary proposition that either the defendants themselves must have personally sold the powder, or they must have authorized Peterson, in express words, to sell it—a view which would effectually preclude any conviction of druggists for sales by clerks employed to sell things kept in their stores for sale. Peterson, who was employed by defendants to sell whatever they had in the store for sale, was clearly authorized by them to make the sale in question.

Plaintiff first offered and read in evidence the record of a justice of the peace showing a conviction of the defendants October 7, 1905, for selling cocaine unlawfully. On the plaintiff offering to prove other convictions prior to November 17,1906, the court ruled in substance that he would allow proof of only one conviction prior to that date, but that plaintiff might select the conviction, whereupon plaintiff withdrew the record of the conviction of October 7, 1905, and introduced, in lieu thereof, a record of a justice of the peace showing the conviction of the defendants Octoher 15, 1905, of “selling cocaine unlawfully.” It is contended that the allowance of the withdrawal of the one record of conviction and the substitution of the other, was prejudicial to defendants, as tending to arouse passion and prejudice in the minds of the jury. That such was not the effect, we think sufficiently evidenced by the verdict of the jury, fixing the penalty at $500, when by the statute it might have been $1,000. Section 1 of chapter 91 of the statutes prohibits any person not a registered pharmacist from conducting a drug store, and concludes in this language: “Provided, that nothing contained in this Act shall apply to the sale of patent or proprietary preparations, when sold in original and unbroken packages.” Defendants claim that the foregoing provision exempts them from the operation of paragraph A of section 32A of chapter 91, which provides, “That it shall not be lawful for any druggist or other person to retain or sell or give away any cocaine, hydro-chlorate, or any salts of or any compound of cocaine, or any preparation containing cocaine, or any salts of or any compound thereof, excepting upon the written prescription of a licensed physician or licensed dentist, licensed under the laws of this state, which prescription shall only be filled once, and must have written plainly upon it the name and address of the patient.” The defendants, relying on the foregoing provision in section 1, offered evidence that Grown Catarrh Powder is a proprietary preparation, which evidence the court excluded.

Section 1 of chapter 91 was approved May 1, 1901, and was in force July 1, 1901, and section 32A, containing paragraph 14A, was approved May 13, 1903, and was in force July 1, 1903. Where there is an inconsistency between two acts, so that they cannot stand together, the later act, being the last expression of the legislative will, must prevail. Goodall v. The People, 123 Ill. 369-393; Pavey v. Utter, 132 ib. 489. The evidence was properly excluded. The authority of Peterson. to sell was disputed, and it was not error, as we think, to admit evidence of sales by him of Crown Catarrh Powder on other occasions, as bearing on his authority to sell and the intent of the defendants. 23 Ency. of Law and Procedure and cases cited in note 83. There was no error in the refusal of the court to instruct the jury to find for the defendants. The refusal of other instructions is complained of by defendants’ counsel, but it is not pointed out in what respect, if any, they are erroneous, and no argument is made in regard to them, counsel merely referring to them by numbers. Questions not argued must be deemed waived.

The judgment in the cause concludes thus: “And it is further ordered and adjudged and decreed by the court, that, as a part of this judgment, said defendants, Paul Zito and Frank Zito, stand committed to the county jail of Cook county until said fine and costs shall have been paid, or until said defendants shall-have been otherwise discharged according to law, and that a warrant issue herein against said defendants for that purpose.” Counsel for defendants contend that the part of the judgment quoted is erroneous, that it is in violation of section 12, article 2 of the constitution, prohibiting imprisonment for debt; also, that the suit is a civil one, and the judgment cannot be enforced by imprisonment. In Kennedy v. The People, 122 Ill. 649, the court say of section 12 of article 2 of the constitution : “The prohibition does not extend to actions for torts, nor to fines or penalties arising from a violation of the penal laws of the state. It has reference to debts arising ex contractu. (People v. Cotton, 14 Ill. 414; McKindley v. Rising, 28 ib. 337; Rich v. The People, 66 id. 513).”

The suit, although civil in form, is quasi-criminal, and is, in substance, a quasi-criminal prosecution. Wiggins v. City of Chicago, 68 Ill. 372; Berkowitz v. Lester, 121 ib. 99, 107.

In Kettles v. The People, 221 Ill. 221, 234, the court say: “Section 14 of division 14 of the Criminal Code is as follows: ‘When a fine is inflicted, the court may order, as a part of the judgment, that the offender be committed to jail, there to remain until the fine and costs are fully paid, or he is discharg*ed according to law.’ This is a general statutory provision, and applies to the convictions under the statute here under consideration. ’ ’

In the ease cited the plaintiff in error, Kettles, was prosecuted under the act of May 18, 1905, Hurd’s Kev. Stat. 1905, p. 1366, for practicing dentistry without having been previously registered or licensed. The penalty for the offense is not less than $50 nor more than $100. There is no provision in the statute for commitment to jail until payment of the fine and costs. In the present case a fine was inflicted in accordance with the statute, and section 14 of division 14 of the Criminal Code, which is, as the court in the Kettles ease say, a general statutory provision, applies to cases “where a fine is inflicted.”

We are of opinion that there is no error in the judgment. The evidence shows, beyond reasonable doubt, that the defendants are guilty, and we find no reversible error in the record. Therefore the judgment will be affirmed.

Affirmed.


text:
    James W. Hedenberg, Defendant in Error, v. Louis A. Seeberger et al., Plaintiffs in Error.
    Gen. No. 13,790.
    1. Contbaots—effect of custom upon. A custom cannot have the effect of making a contract between parties where otherwise there would, be none.
    2. Contracts—from what will not he implied. A custom existing among real estate brokers, according to which a commission is divided where one broker has a buyer and the other a seller, is not. sufficient to entitle the broker representing the seller, but not effecting the sale, to recover of a broker who was the procuring cause of the sale, one-half of the commissions earned.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 20, 1908.
    Peiistglb & Fearihg, for plaintiffs in error.
    Johh T. Murray, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

James W. Hedenberg was plaintiff and Louis A. Seeberger and Charles D. Bichards were defendants in the trial court. The claim of the plaintiff, as shown by his amended bill of particulars, is for the sum of $281.25, being half the commissions received by the defendants on the sale for $22,500 of lots 9 and 10 in block 1, in Duncan’s subdivision of the east % of the northwest % of section 17-39-14, otherwise known as the northeast corner of Green and Monroe streets, in the city of Chicago, Illinois; the grantors in the deed thereof being the heirs of George W. Parmly, and the grantees being Nathan Friend and Alexander Friend. The plaintiff claims that he negotiated the sale of the property about January 20, 1907. There was a jury trial. The court gave no instructions. The jury found for the plaintiff and assessed his damages at the sum of $281.25, and the court overruled a motion of the defendants for a new trial, and rendered judgment on the verdict. The plaintiff is a licensed real estate broker in the city of Chicago, and so also are the defendants, and the defendants had for sale, as such brokers, the property above described, and sold it to Nathan Friend and Alexander Friend, closing the deal by delivery of a deed of the property January 15, 1907, and they received two and one-half per cent, commission on $22,500, or $562.50. The evidence of the plaintiff is, in substance, that plaintiff, prior to the sale of the property by defendants, had a conversation with Nathan Friend, who told him that he had just sold a piece of property on Green street south of Monroe street, and asked him if he knew of any corners, and said he wanted a corner, and he, plaintiff, told Friend about the corner in question, and called up Mr. Seeberger and asked him whether he still had the property for sale, and Mr. Seeberger said he had, and plaintiff told him he, plaintiff, thought he had a buyer, and asked him if the property could be purchased for $21,000, and Mr. Seeberger said that the price was $25,000, that he had refused an offer of $22,500 two weeks before, and said to plaintiff, “See if you can get $23,500,” and that Mr. Friend told him, plaintiff, he would not make an offer of $23,500; that in a few days he was going to see Mr. Seeberger on other matters, and would talk with him about the property. The evidence tends to prove that the Friends did not know the property was for sale till informed by plaintiff.

The plaintiff testified that there is a custom among real estate brokers to divide commissions, where one had a piece of property to sell and the other has a buyer. Nathan Friend, who is a real estate broker, testified to substantially the same.

Mr. Seeberger and Mr. Richards testified, in substance, that there is such a custom, but the commissions are not divided unless this is understood beforehand, and there is an agreement to that effect. Mr. Seeberger testified that there is a custom to enter into an agreement for division of commissions, but if nothing is agreed or said, there is no custom of dividing. The evidence shows that the plaintiff said nothing to the defendants about commissions till after the property was sold by the defendants. The plaintiff relies solely on the alleged custom. There is no evidence whatever tending in the least to prove that the defendants ever agreed to divide commissions with the plaintiff. In this state of the evidence there can be no recovery. Usage cannot create a contract, and proof of usage is only admitted either to interpret the meaning of the language used in a contract, or where the meaning is equivocal or obscure. Savings Bank v. Ward, 100 U. S. 195, 207. “Usage cannot make a contract where there is none, nor prevent the effect of the settled rules of law.” National Bank v. Burkhardt, 100 U. S. 686, 692. See also Chicago v. Tilley, 103 U. S. 155; Currie v. Syndicate, etc., 104 Ill. App. 164, 170, and 29 Am. & Eng. Ency., 2d ed., p. 420.

Counsel for plaintiff stated, at the commencement of the trial, “If there is not a contract, either expressed or implied, then of course we cannot recover.” It is not claimed that there was an express contract between the parties, and nothing was proved from which the law would imply a contract.

The judgment will be reversed.

Reversed.


text:
    Marlitt Deutscher Frauen Verein v. Hartmann Mueller.
    Gen. No. 13,797.
    1. Appeals and errors—when finding of court not disturbed as against the evidence. The finding of the court upon a question of fact will not be disturbed as against the evidence where such evidence is conflicting and the finding is not manifestly against the weight thereof.
    2. Practice—interest of plaintiff essential to recovery. It is elementary that a plaintiff must show such interest in the subject-matter of a suit as will entitle him to a recovery if the evidence in other respects is sufficient.
    3. Parties—who proper, plaintiff, to recover insurance benefits. The contract being with the deceased, the right of action to recover funeral benefits provided for in such contract, lies in the administrator of such deceased.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 20, 1908.

      Kruse & Peden, for plaintiff in error.
    Rubens, Fischer & Mosser, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

Hartmann Mueller was plaintiff and plaintiff in error was defendant in the trial court. The defendant is a corporation, incorporated under the laws of this state. Defendant’s purpose is stated in its charter to be “Social entertainments, care of the German language, and mutual help in case of sickness, accidents and death.” Sections 6 and 10 of article 11 of defendant’s by-laws are as follows:

“6. If it can be proved that a member had a chronic disease at the time she was admitted to the society, and if this sickness should occur again, then she will not be entitled to any aid, nor will she get any money in case of death.”

“10. At the decease of a member, who was not over 60 years at the time of admission, and who was entitled to the benefits, the sum of $150 shall be paid out towards the funeral expenses, within thirty days, as long as there are $1,000 on hand. If this amount is not there, then the members will be taxed.”

Emma Mueller, deceased, became a member of the defendant society April 1, 1904, being then less than 60 years of age, and continued such member till May 26, 1906, when she died as the result of a stroke of paralysis. At the time of her initiation into the society she was afflicted with a stroke of paralysis resulting from hemorrhage of the brain. The plaintiff is the surviving husband of Emma Mueller, deceased, and his claim, as shown by his bill of particulars, is for $150, to reimburse him for expenses incurred by him in the burial of his wife. The cause was tried by the court, without a jury, and the court found the issues for the plaintiff and assessed his damages at the sum of $150, overruled defendant’s motion for a new trial, and rendered judgment for $150 and costs.

Counsel for defendant rely on two propositions: First, that the plaintiff is not the proper party plaintiff, and second, that the deceased was afflicted with a chronic disease at the time of her initiation as a member of the society. The evidence in respect to the second proposition is conflicting, and we would not feel justified in reversing the judgment on the ground that the court’s finding that the deceased was not suffering from a chronic disease, at the time of her admission as a member, is manifestly against the weight of the evidence. It is elementary that a plaintiff must show such interest in the subject-matter of the suit as will entitle him to recover, if the evidence, in other respects, is sufficient. This is an action ex contractu, and the evidence fails to show any contractual relation between the plaintiff and the defendant. The money payable, by the terms of defendant’s by-law, is not made payable to him, or to any one. The by-law simply provides that “the sum of $150 shall be paid out towards the funeral expenses, within thirty days, as long as there are $1,000 on hand. If this amount is not there, the members will be taxed.” If the funeral expenses were paid from the estate of the decedent, then her executor, if she died intestate, or her administrator if she did not, would be the proper party plaintiff. This, on the ground that the contract was with her. In the case of a policy of insurance issued on A’s life, for the benefit of B and C, the suit must be by A’s personal representative, the executor or administrator, as the case may be, and cannot be by B and C, for whose benefit it was issued. Massachusetts Mut. Life Ins. Co. v. Robinson, 98 Ill. 324; U. S. Life Ins. Co. v. Ludwig, 103 ib. 305; Flynn v. N. A. Life Ins. Co., 115 Mass. 449; Wright v. Vermont Life Ins. Co., 164 Mass. 302.

In U. S. Life Ins. Co. v. Ludwig, supra, the insured had assigned a policy on his life to his three children. Held, that the assignees, the children of the assured, could not sue. There is no evidence that the plaintiff paid any part of the funeral expenses. Neither is there any evidence that the society had, at the time of suit brought, $1,000 on hand, which is made a condition of payment, or that $150, or any amount, was raised to pay the amount claimed to be due, by taxation of the members. One or the other of these things must have existed to warrant recovery at law. If neither existed, the remedy, if any, is in equity. Benefit Ass’n v. Sears et al., 114 Ill. 108; Railway Conductor’s Benefit Association v. Robinson, 147 Ill. 138.

The judgment will be reversed.

Reversed.


text:
    Samuel Cupples Woodenware Company v. Alexander Walins.
    Gen No. 13,805.
    1. Negligence—what not violation of ordinance providing for protection of elevators. Held, that actionable negligence was not established which consisted in the alleged violation of a certain municipal ordinance providing for the protection of elevators.
    2. Negligence—must be brought home to the person charged therewith. In order to hold a defendant responsible for any one taking hold of an elevator rope and moving the elevator- while the plaintiff was using it, is essential to prove that this was done by some one for whose conduct the defendant was responsible.
    3. Master and servant—when latter not justified in continuing in employment relying upon promise of former. A servant is not justified in continuing in his employment for a period of three weeks upon the faith of a promise which might have been performed in a single day.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 20, 1908.
    Statement by the Court. This is error to reverse a judgment recovered by Alexander Walins, plaintiff below, against the Samuel Guppies Woodenware Company, defendant below, for the sum of $425. The plaintiff claims to have been injured in an elevator in a building in the defendant’s possession, by reason of defendant’s negligence. The casé was tried by the court, without a jury, and the court found for the plaintiff, assessed his damages at $425, and rendered judgment on the finding.
    The following statement made by counsel for the defendant, plaintiff in error here, is admitted by counsel.for plaintiff to be substantially correct:
    “The Samuel Guppies Woodenware Company, at the time of the alleged accident to Walins, conducted a warehouse at Sixteenth and' ’Canal streets in the city of Chicago. The building consists of five stories and a basement, all occupied and used by the defendant below for its business, except the third and a part of the first floors. The third floor was occupied by the American Window Glass Company, and a part of the first floor was occupied by the Automatic Electric Company.
    There were three elevators in the building, two of which were used to carry freight which was being taken out of the building. The third elevator was used to convey the incoming freight, and was called the receiving elevator. This receiving elevator is the one on which Walins claims the accident happened. The receiving elevator was a freight elevator operated by ropes or cables. On two sides of the elevator were the plain brick walls and on the rear of the elevator was a heavy wire screening. There was a large iron door on either side of the well hole, and these doors when closed would wholly close the opening of the well hole. These doors were not automatic. In front of the opening of the well hole there was also a cross-bar. The testimony is that the building was made of entirely fire proof construction. The cross-beams and posts were made of wood, but were encased in cement. There were regular stairways in the building which were made of wood.

      Neither the American Window Glass Company nor the Automatic Electric Company used any of the elevators in the building. The American Window Glass Company did not use them, because under an arrangement with the Samuel Guppies Woodenware Company the latter did all the handling of freight for the former. The Automatic Electric Company did not use them because the floor on which it was located was level with the ground and opened directly onto the street.
    From the spring of 1902 until about August, 1906, Athanias Bice was the superintendent of the warehouse. At the time of this'trial he was no longer in the employ of the defendant company. In July, 1906, he was succeeded by Edward License as superintendent. The plaintiff Walins was employed by Bice in the fall of 1902, and continued to work for the Samuel Guppies Woodenware Company until the happening of the accident. During the whole four years plaintiff worked for defendant he had charge of the receiving elevator as the operator thereof, and was engaged in the same occupation at the time of the accident. His duties as such operator were the following: All goods which came into the warehouse were loaded by the receiving clerk onto trucks similar to the one shown in the picture appearing on page 127 of the record in this case. It was the duty of plaintiff to wheel these trucks thus loaded onto the receiving elevator and carry the same to the various floors of the building, where the goods were unloaded and stored. Plaintiff was the only person who had any business with the elevator or any occasion to use the same. Bice told the plaintiff, when he put him in charge of the elevator, that he was to have sole charge of the same, and that no one else was to use it. It is conceded by plaintiff that during the whole four years Rice was there no one except the plaintiff ever used or attempted to use the receiving elevator.
    Both Bice and License, prior to the accident, had positively instructed every employe in the employ of the Samuel Guppies Woodenware Company not to use the receiving elevator under any circumstances, and both testify that no one except the plaintiff ever used the receiving elevator.
    Plaintiff testifies that immediately License became superintendent other new employes of the company began using the receiving elevator, but cannot give the name of a single employe who used it. He further testifies that three weeks before the accident he complained to License about other men using the elevator, and told License he would quit his job unless that condition of affairs ceased. He also testifies that License told him at that time to go ahead, that no one else would use the elevator. Plaintiff further testifies that during the whole three weeks which elapsed from the alleged complaint to License to the time of the accident, everybody in the whole building kept right on using the receiving elevator. He further testifies that on October 13, 1906, at about fifteen minutes after three o’clock in the afternoon, he was pulling a loaded truck onto the elevator, with his back towards the elevator ; that when the truck was about half way onto the elevator some one pulled the elevator rope, and the elevator dropped about three or four feet. He further testifies that the boxes on the truck were thereby thrown forward, and that his left hand was bumped by the boxes against the wire screening at the rear of the elevator. He further testified that his left wrist was badly sprained, and that he has been unable to work with the same since the accident. He testifies that as soon as the elevator started to go down he jumped and seized the rope.
    No one was present except Walins, the plaintiff, when the accident happened, and there is no evidence as to who, if any one, started the elevator.
    License denies that any one ever used the receiving elevator except plaintiff. He further positively denies ever having had the conversation in regard to others using the elevator which plaintiff testified to, and positively denies that plaintiff at any time complained that others besides himself were using the receiving elevator.
    He further testifies that the rule that no one but Walins was to use the receiving elevator for anything had been communicated by him to every employe, and had never been countermanded.
    Eice and License testify that they specifically instructed plaintiff to push the trucks before him when he was putting them onto the elevator, and to pull the trucks after him when he was taking them off the elevator. Plaintiff admits that at the time of the accident he was pulling a truck onto the elevator.
    Plaintiff in one place says that the accident happened on the fourth floor, and in another that it happened on the first floor. License testifies that plaintiff told him it happened on the second floor.
    Plaintiff worked for about a day and a half after the accident, and was paid his wages by the defendant company to December 1, 1906, more than six weeks after the accident, when he was offered a position by Mr. License, but refused to accept the same on the alleged ground that he could not work.
    Plaintiff was treated for the injury he received at the Eastern Emergency Hospital, at which he received his treatments free of charge, under a certain system of insurance. Dr. Curtis, who was called as a witness by the defendant, testified that he treated plaintiff for the injury, and that plaintiff came to consult him six or seven times, and that when he last examined him, about December 1, 1906, six weeks after the accident, he was, in his opinion, able to resume work, and that the injury left no permanent effects. Plaintiff testifies that he went to the hospital over twenty-eight times for treatment. There is no evidence that any one but Dr. Curtis treated him at the hospital.
    Counsel for plaintiff read in evidence sections Nos. 670, 671 and 672 of the Revised Municipal Code of the city of Chicago, which contain certain provisions with reference to elevators in non-fire proof buildings.
    Plaintiff was the only witness on his own behalf, except License, who was called by counsel for plaintiff merely to describe the construction of the building and the elevator. It was not contended by counsel for plaintiff that there were any defects in the equipment of the elevator or any unsoundness of appliances.
    Counsel for plaintiff suggest that there should be added to the foregoing, that the plaintiff testified that, about three weeks before the accident he told Mr. License that everybody was around the elevator, and that he, plaintiff, had better quit the job, and that Mr. License said to him, “Never mind, nobody is going to touch it; don’t know anything about it,” and that the reason he complained to Mr. License was, that a good many times, when he had the load half in, somebody touched the rope and pulled it.
    Lackner, Butz & Miller, for plaintiff in error.
    Henry P. Rathbone, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

It is not conceded by plaintiff’s counsel that the mere happening of the accident is prima facie evidence of negligence on the part of the defendant, and this cannot be successfully contended in the present case. Diamond Glue Co. v. Wietzychowski, 227 Ill. 338; Omaha Packing Co. v. Murray, 112 Ill. App. 233.

Plaintiff’s counsel urge, as ground of recovery, that the defendant failed to comply with the requirements of sections 670, 671 and 672 of the Revised Municipal Code of the city of Chicago of 1905. Section 670 provides:

“It shall be lawful for elevators used exclusively as freight elevators to be without inclosing walls, but in all such cases there shall be at every floor through which such freight elevators pass, automatic hatch closers, or automatic doors, made in such manner that they will fully close each well hole when the temperature in such well hole exceeds one hundred and forty degrees Fahrenheit,” etc.

Section 671 provides:

“In all non-fire proof buildings all passenger elevators and all freight elevators, except such as are expressly excepted by this chapter, shall be inclosed in a wall of brick, tile, or such other incombustible material as may, from time to time, be approved by the Commissioner of Buildings as proper and suitable for the purpose,” etc.

Section 672 applies only to elevator shafts “required herein to be enclosed with fire proof walls,” or, other words, to non-fire proof buildings. The intention and object of the sections is clearly, as we think, protection against fire. The shaft of the elevator in question had, at the time of the accident, walls on two sides, an iron grating at the rear and an iron door in front, reaching from the floor to the top of the opening, which door, when shut, closed the entire opening. The door was not automatic. There were two sets of wooden stairways on each floor.

Edward S. License, the defendant’s superintendent, testified that “The building is made of entirely fireproof construction.” This is uncontradicted. The want of an automatic door was not the proximate cause of the accident, nor did it contribute thereto in the least.

Section 670 provides for “automatic hatch closers, or automatic doors, made in such manner that they will fully close each' well hole, when the temperature in such well hole exceeds one hundred and forty degrees Fahrenheit,” which could only be during a fire, and there is no evidence of a fire. It is manifest that if there had been an automatic door at the opening, and if it had closed at the time of the accident, the plaintiff could not have done his work, which was the moving of a loaded truck from the floor of the room through the opening and onto the elevator floor.

Plaintiff testifies that, October 13, 1906, about 3:15 o’clock in the afternoon, he was pulling a loaded truck onto the elevator, with his back to the elevator, and that when the truck was about half onto the elevator floor, some one, he does not know who, caught hold of the elevator rope and the elevator dropped three or four feet, and boxes on the truck were thereby thrown forward and bumped Ms left hand against the wire screening at the rear of the elevator, and injured him. It is urged by plaintiff’s counsel that the defendant was negligent in not preventing persons from touching the rope. Plaintiff further testified that wMle Mr. Bice was superintendent, for four years, during which lie, plaintiff, was in defendant’s employ, he, plaintiff, had sole charge of the elevator, and no one used it but himself, except sometimes, when he would lay off; but after Mr. License became superintendent, everyone in the building used it, and that, about three weeks before the accident, he said to Mr. License that everybody was around the elevator, and that he had better quit the job, and Mr. License said, “Never mind; nobody is going to touch it; do not know anytMng about it.” The evidence is, without contradiction, that the plaintiff had the sole charge of the elevator, and was the only person whose duty it was to use it, and wMle the plaintiff testified that everybody used it, he does not testify to the name of a single person who used it, or, if anyone used it except himself, for what purpose it was used.

Mr. License testified that the plaintiff’s duties were to run the loaded trucks onto the elevator and take them to the floors where they belonged; that he was the only one who did that work, and that, to witness’ knowledge, the plaintiff was the only person in defendant’s employ who used the elevator; also that he, witness, had instructed every one of defendant’s employes not to use the elevator, Mr. License also testitied that the plaintiff never complained to him of others using the elevator, and that he had not the conversation with the plaintiff testified to by the plaintiff to have occurred before the accident.

In order to hold the defendant responsible for any one taking hold of the elevator rope and moving the elevator, while plaintiff was using it, it is essential to prove that this was done by some one for whose conduct the defendant was responsible. Defendant would not be liable for the act of a stranger, over whom it had no control. C. & N. W. Ry. Co. v. Scates, 90 Ill. 586, 594. It certainly cannot be inferred from the fact, if a fact, that some one pulled the elevator rope, that that some one was in defendant’s employ or subject to its control. Plaintiff did not testify that he saw any one pull the rope, and his position was such—backing into the elevator and pulling the truck after him—that it was hardly possible for him to see any one pull it. He certainly could not see down the shaft below the elevator floor.

Assuming that plaintiff’s testimony, which is contradicted by Mr. License is true, that, about three weeks before the accident, he told Mr. License that others were using the elevator, and Mr. License said, “Never mind; nobody is going to touch it,” can this avail the plaintiff? Plaintiff testified: “As soon as Mr. License started to superintend, other men started to use the elevator, and they kept on using it right along until the time when I was injured.” Here plaintiff tells us, in effect, that he knew every day, for about three weeks from the time of his alleged conversation with Mr. License, that the elevator was being used by others; yet he kept on with his work, requiring the use by him of the elevator for three whole weeks, without complaint or remonstrance. If Mr. License’s alleged remark to plaintiff is to be construed as a promise to prevent the use of the elevator by others than the plaintiff, it is a promise which might have been fulfilled in a day, as to those over whom he had control. Plaintiff, by continuing to use the elevator three weeks, with full knowledge, as he says, that during all that time it was also being used by others, cannot avail of the alleged conversation with Mr. License. Gunning System v. LaPointe, 212 Ill. 274. By continuing so long in the use of the elevator, without any change as to its use by others, he assumed the risk of using it. lb. 280.

We are of opinion that the finding of the trial court is manifestly against the greater weight of the evidence, and the judgment will be reversed.

Reversed.


text:
    Ford Motor Company v. Morris R. Osburn.
    Gen. No. 13,812.
    1. Bailments—who bailee for hire. Upon receiving an automobile for repairs, to be made for the mutual benefit of the owner and the repairer, the repairer becomes a bailee for hire, responsible only for a failure to exercise ordinary care.
    2. Bailments—when bailee not responsible for loss resulting from fire. In the absence of a showing of a failure to exercise ordinary care, a bailee for hire is not liable for the destruction by fire of the thing bailed.
    3. Wabbanty—what not breach of. A particular warranty of an automobile set forth in the opinion is construed and held not breached.
    4. Wabbanty—when implied, does not arise. An implied warranty of an automobile does not result from a purchase made upon sight.
    5. Contbacts—how cannot be varied. A contract reduced to writing is conclusively presumed to express the entire contract of the parties and all prior and contemporaneous negotiations in respect to the subject-matter of the contract are deemed to have been merged therein and cannot be shown to affect the terms of such contract.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Osoab M. Tobbison, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 20, 1908.

      Statement by the Court. Morris E. Osburn, plaintiff below, filed the following amended bill of particulars :
    “Money had and received by defendant for use of plaintiff, money paid by plaintiff to defendant as the purchase price of a certain automobile agreed to be sold by defendant to plaintiff and warranted by defendant to be sound and suitable for the purpose for which it was sold; but said automobile not being sound or suitable for the purpose, etc., a breach of said warranty occurred and said automobile returned but purchase price withheld by defendant, $680. Also for a certain automobile and attachments left by plaintiff with defendant and destroyed or lost through his fault, $780; in all $780.”
    The cause was tried by the court, without a jury. The court found for the plaintiff and assessed his damages at $680, and overruled a motion by defendant for a new trial, and rendered judgment on the finding.
    The following contract was entered into between the parties:
    “Chicago, 10/26, 1906,
    Ford Motor Compahy;
    Sirs: Ton are authorized to enter my order for One Model N Ford Automobile, upon the following terms and conditions:
    1. The price to be six hundred and thirty dollars ($630). I agree to pay thirty dollars ($30) upon your acceptance in writing of this order, and the balance of Six Hundred Dollars ($600) within forty-eight hours after I have been notified by you that the above automobile is ready for delivery. The same to be delivered F. O. B. Chicago.
    2. I agree to accept automobile from you immediately upon notice that it is ready for delivery. Upon my failure to do so within the forty-eight hours, you may dispose of it to another customer or in any way you desire, and you are not to be held liable for failure to deliver to me. The above mentioned first payment to be forfeited by me at your option.

      3. It is agreed that this automobile will be finished and equipped as per regular catalogue specifications, and any and everything else furnished beyond said specifications shall be extras, to be paid for by me at schedule prices as shown on this agreement in paragraph marked 'Extras.'
    4. This order is given by me subject to your acceptance, and, when approved by the authorized head of the Branch of the Ford Motor Company from where ordered, it shall constitute a valid contract and shall be binding between us.
    5. It is further agreed that tins automobile is purchased by me exclusively subject to the terms and provisions of the warranty hereinafter set forth, which is hereby made a part of the contract between us, and that it is the only guarantee and warranty, either expressed or implied, made under this contract.
    We warrant all goods furnished by us for sixty days following the date of their shipment, based upon the date of invoice covering the goods, this warranty being limited to the replacement in our factory of all parts giving out under normal service in consequence of defect of material or of workmanship.
    If the circumstances do not permit that the work shall be executed in our factory, this warranty is limited to the shipment, without charge, of the parts intended to replace those acknowledged to be defective.
    It is, however, understood that we make no warranty whatever regarding pneumatic tires or the batteries.
    We cannot accept any responsibility in connection with any of our motor cars when they have been altered or repaired outside of our factory.
    We are not responsible to the purchaser of our goods for any undertakings and warranties made by our agents beyond those expressed above.
    It is expressly agreed and understood by the undersigned that the Ford Motor Company makes no warranty of its goods whatsoever, either expressed or implied, other than as stated herein, and that the said Ford Motor Company desires and expects that its customers shall make a thorough examination and inspection of its goods before purchasing same.
    6. Extras. included in above price. 1 Top Extra 3 inch tires 3 Oil Lamps & horn ^ Freight
    7. The above is a full agreement of every kind and nature pertaining to this sale, and no agreement will be recognized other than embodied herein, and no erasures or additions will be recognized unless approved of in writing hereon by an Officer of the Company.
    M. B. Osburít, Address Janesville.
    Approved for Ford Motor Co.
    Thos. J. Hay, Mgr.”
    Thomas J. Hay, who was, at the date of the contract, the manager of the Chicago branch of the Ford Motor Company, testified that, in his best judgment, he signed the approval of the contract the day the sale was made; also that the contract put in evidence by the defendant and exhibited to the witness was the copy which the defendant kept, and that, at the time of the sale, the plaintiff paid $30 and the remainder of the price within a few days. It does not appear from the evidence exactly when the automobile was shipped from Chicago to Janesville, Wisconsin, where the plaintiff lives; but it appears from a letter from plaintiff to defendant, of date October 31, 1906, that plaintiff had received the machine prior to that date. In that letter he wrote: “There are one or two points on which I wish you would assist me,” etc., and then mentions the pump rattling considerably, the car running too fast when he makes certain adjustments, too much vapor escaping, and one of the glass pumps, through which oil goes from the tank, filling up. A number of other letters passed between the parties, the plaintiff mentioned difficulties which he had with the machine, and the defendant making suggestions with regard to it; and in the early part of January, 1907, the defendant sent to Janesville a man named Rubble, one of its salesmen, to examine the machine, and ascertain, if possible, what the difficulty was. He examined the machine, worked on it, and undertook to overcome the difficulty of operating it, but failed. The evidence tends to prove that the machine when received by the plaintiff, and subsequently thereto, did not operate properly, and we do not understand this to be denied by the defendant; but the evidence also tends to prove that there was nothing radically wrong with it, or which could not easily and readily be remedied by a skilled mechanic in automobile machinery. Finally, January 12, 1906, Mr. Osburn agreed with Mr. Hay, manager of the Chicago branch of the Ford Motor Company, that he would send the car back to Chicago for examination, etc. The plaintiff testified: “It was understood between Mr. Hay and myself, at the conversation which I had with him on January 12th, already referred to, that I was to ship the car back to see if he could make it right.” It appears from a letter, of date January 15, 1907, from plaintiff to defendant, that plaintiff shipped the car to Chicago January 14, 1907, in which letter he wrote: “I had marked on the freight receipt ‘Returned for repairs’.” January 22, 1907, defendant wrote to plaintiff, “Tour car was duly received, and our boys have gone over it and pronounced it in first-class condition. We should like very much, however, to have you visit Chicago and allow us to take you out in the car and show you what it will do, while it is here. We feel confident that the car will be highly satisfactory to you in its present condition. Trusting that you can arrange to follow out our suggestions, we are,” etc. In answer to this letter defendant received a letter from one A. C. Jenkins, informing it that the plaintiff was and had been for a week confined to his home by illness, but that when he returned to his office defendant’s correspondence would be attended to. The plaintiff did not visit Chicago to see the car after it was repaired by the defendant, and the car was destroyed by fire in the defendant’s building February 4, 1907, between 12 and 1 o’clock A. M.
    John P. Wilson, Nathan G. Moore and William B. McIlvaine, for plaintiff in error; William B. Hale, of counsel.
    Warren B. Wilson, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

The questions discussed by counsel for the parties, respectively, are whether the defendant, the Ford Motor Company, was a bailee for hire at the time of the fire; whether the retention of the automobile by defendant, from the time it received it till the time of the fire, was or not an unreasonable detention; whether defendant was liable for breach of warranty, and whether plaintiff had rescinded the contract.

The trial court, as is evident from remarks of the court, made just before finding for the plaintiff, was of the opinion that the defendant retained the automobile in its possession an unreasonable length of time, after putting it in what is considered good condition, and also that there was a breach of warranty by defendant.

Counsel for defendant contend that the defendant was, when it received the automobile, on its being shipped back to it, a bailee for hire and so continued till the time of' the fire, and that it exercised ordinary care of it, and was not guilty of any negligence in premises. The plaintiff testified that he agreed with Mr. Hay, the manager of defendant’s branch at Chicago, to ship the automobile back “to see if he could make it all right.” When he shipped it, he marked on the freight receipt, “Returned for repairs.” In plaintiff’s letter to defendant of February 11, 1907, written before he knew of the fire, and in response to defendant’s letter of January 22, 1907, he wrote: “I am not in a condition physically, just at present, to go to Chicago, but I will try and get there, if possible, within the next day or so.” Defendant’s letter of January 22, 1907, had informed plaintiff that the automobile had been put in first-class condition, and had expressed a wish that plaintiff would come to Chicago and see for himself. The automobile having been shipped by plaintiff, as the owner thereof, for repairs, and the repairs being for the mutual benefit of the parties, the defendant, when it received the automobile, became bailee of it for hire, and was responsible for only ordinary care. Russell v. Koehler, 66 Ill. 459; Keith v. Bliss, 10 Ill. App. 424; Union Stock Yards & Transit Co. v. Mallory, 157 Ill. 554; Standard Brewery v. Bemis & Curtis Malting Co., 171 Ill. 602; Lincoln v. Gay, 164 Mass. 537, 540.

The exact time when the defendant received the automobile, when plaintiff returned it for repairs, does not appear from the evidence, but it appears from the plaintiff’s letter of January 15, 1907, that he shipped it January 14th, and counsel for defendant admit, in their argument, that defendant received it January 16th. Mr. Hay testified that work on the automobile was completed within forty-eight hours after its receipt by the defendant, and Mr. Hedges, an automobile engineer, who had charge of the mechanical work of defendant’s Chicago branch, testified that “the repairs were accomplished within a day after they were started.” If the repairs were made on the seventeenth of January, which was the day next after defendant received the automobile, then the retention thereof was from January 17th till February 4th, the day of the fire, which would be over two weeks. Plaintiff’s counsel claims a detention of two weeks, which we think fair, in view of the evidence. Defendant’s counsel claim the detention was not unreasonable, and that the automobile was at plaintiff’s risk at the time of the fire. Plaintiff’s counsel contends the contrary.

Mr. Hay testified that in the conversation of January 12th, in which it was agreed that the automobile should be sent back to Chicago, he said to Mr. Osbnrn that he would like to have him come to Chicago and see the automobile while in Chicago, and that he, Mr. Hay, would take it out on the street and show it to him, and that the plaintiff agreed to this, and said that he was in Chicago frequently, and that would be an easy matter for him; that the conversation occurred at the Southern Hotel in Chicago. Mr. Osbnrn testified in respect to the conversation, that Mr. Hay suggested that he, Osbnrn, should try the automobile in Chicago, and he told Mr. Hay that the automobile might run on the Chicago boulevards and not up there; meaning, we suppose, at Janesville. Plaintiff was then asked and answered as follows:

“Q. Did you say you would come down here and try it before they sent it back? A. No, I did not.

Q. Did you say you would not? A. Why, I objected to that kind of an arrangement in all the transactions, in fact all the way back to the store.”

The presiding judge of the trial court remarked that he did not think plaintiff agreed to come to Chicago. While it may be true that plaintiff did not expressly promise to come to Chicago to witness a test of the automobile, when repaired or readjusted, we are of opinion that he induced the defendant to believe and expect that he would so do.

The defendant’s letter of January 22nd was evidently received by the plaintiff, and the answer to it of January 25th, written by his direction, and that answer does not request the shipping the automobile to plaintiff, but merely states a reason why plaintiff could not come to Chicago, viz: his confinement at home by illness, and states that the matter will be attended to when plaintiff would come to his office, thus deferring the matter till plaintiff’s recovery from his illness. February 11, 1907, the plaintiff, not then, knowing of the fire of February 4th, wrote: “Your letter of January 22nd was referred to me today, this being the first day that I have been at my office since my recent illness. I am not in a condition physically, just at present, to go to Chicago, but I will try and. get there, if possible, within the next day or so.” Can there be any doubt that, if plaintiff had not been ill when defendant’s letter of January 22nd was received, he would either have visited Chicago to inspect the automobile, or would have written that he would come, as he did in his letter of February 11th t He was only prevented from coming to Chicago to witness a test of the automobile, in accordance with his letter of February 11th, by a letter from defendant, dated February 12th, informing him of the fire and that the automobile was practically a total loss.

After defendant had put the automobile in order, it was reasonably necessary, in view of the numerous complaints made by the plaintiff, to test it, and this required some time.

Mr. Hedges testified that when the car was returned from Janesville, the defendant made some small adjustments, the expense of which, if charged, would not have exceeded $7 or $8, and that subsequently it was tested by operating it, first by the mechanic who made the adjustments, and afterward by himself; that he operated it for twenty-five or thirty miles, and found that it was in good condition and acted properly.

Plaintiff’s counsel relies on Standard Brewery v„ Malting Co., 171 Ill. 602. In that case the agreement between the appellant and the appellee was, that the former would deliver to the latter, during the malting season, 50,000 bushels of barley to be malted, and the Malting Company agreed to receive the barley from any railroad in Chicago, haul it to its plant, malt it in the best manner possible, and deliver it to the Standard Brewery at its brewery in Chicago. The Standard Brewery delivered to the Malting Company 9,000 bushels of barley in October, 14,000 bushels in November, and 4,000 bushels in December. The Malting Company’s warehouses, in which the barley was stored, were destroyed by fire January 12, 1894. The trial court instructed the jury that it was the Malting Company’s duty to malt and return the barley to the plaintiff within a reasonable time after its delivery to that company, etc. The jury found for the plaintiff, the Standard Brewery, judgment was rendered on the verdict, and the court affirmed the judgment.

We do not think the case is applicable, the facts in that case and in this being* essentially different. The Standard Brewery was, as its name imports, engaged in the brewing business, and doubtless required prompt delivery of the barley when malted, and the Malting Company’s contract was to malt the barley and deliver it to the Standard Brewery when malted. Bach case must rest on its own circumstances.

We are of opinion that the automobile was not unreasonably detained by the defendant, and that the defendant was a bailee of it at the time of the fire, and that it was in its possession at,plaintiff’s risk. Proof of the destruction of the automobile by fire having been made, it was incumbent on the plaintiff to prove want of ordinary care, or negligence, on the part of the defendant. Standard Brewery v. Hales & Curtis Malting Co., 70 III. App. 363, 367, and authorities cited; Hunter v. Ricke Bros., 127 Ia. 108.

The plaintiff did not attempt to prove, nor does his counsel claim, that the fire occurred by reason of the defendant’s negligence. The cause or origin- of the fire could not be ascertained on investigation, and is not known, and evidence introduced by the defendant, which is undisputed, shows that the defendant used great precautions to guard against fire.

Plaintiff’s counsel claims that the automobile was warranted to be fit for the use intended, and that there was a breach of that warranty. The only clause in the contract-relating to warranty is this: “We warrant all goods furnished by us for sixty days following the date of shipment, based upon the date of invoice covering the goods; this warranty being limited to the replacement, in our factory, of all parts giving out under normal service, in consequence of defect of material or of workmanship.” Manifestly, this warranty is limited to the replacement of parts which give out under normal service, by reason of defect of material or workmanship. Plaintiff’s counsel does not claim that the foregoing warranty is a warranty that the automobile would answer the purpose for which it was intended, but contends that there was an oral agreement which implied such warranty. Counsel say: “In this case, if the sale is to be- considered verbal, there was also an express warranty that the car was all right.” Reference is here made to the following testimony of the plaintiff: The plaintiff, after testifying that he

had a conversation with a salesman of defendant, in regard to purchasing the automobile in question, further testified: “The salesman said, ‘I think I will let you have this car. ’ He went back and came back and said, ‘You can have this car.’ I asked him, ‘How much?’ and he said it would be $630. I said, ‘The car is all right, is it?’ He said, ‘Yes.’ I said, ‘I will take it,’ and I gave him $30 to bind the bargain.” This evidence went in over defendant’s objection. “It is fundamental that, when a contract is reduced to writing, it is conclusively presumed that the written instrument expresses the entire contract between the parties, and that all prior and contemporaneous negotiations, in respect to the subject-matter of the contract, are excluded. DeWitt v. Berry, 134 U. S. 307, 315; Seitz v. Brewers’ Refrigerating M. Co., 141 U. S. 510; Ramming v. Caldwell, 43 Ill. App. 175, and cases cited.

It may be added that the plaintiff purchased the automobile in question on sight, and as a “Model N Ford Automobile,” and after inspecting it, and that he received the very automobile which he purchased. In such ease there is no implied warranty. Seitz v. Brewers’ Refrigerating M. Co., supra; Peoria Grape Sugar Co. v. Turner, 175 Ill. 631.

The contention of plaintiff’s counsel that plaintiff rescinded the contract is not supported by the evidence.

The judgment will be reversed.

Reversed.


author: Mr. Justice Brown

text:
    M. E. Vigeant, Defendant in Error, v. Thomas E. Nelson, Plaintiff in Error.
    Gen. No. 13,751.
    1. Inn-keepers—who not guest. One who contracts, even with an inn-keeper, for a stay by the week, at a fixed price, is not a guest but a boarder.
    2. Inn-keepers—when not insurers against loss of baggage. An inn-keeper is not an insurer against loss of baggage by theft or otherwise unless the owner of such baggage be a guest, as distinguished from a mere boarder.
    3. Bailments—when printed notice enters into implied contract.

    A printed notice as follows: “Baggage or wearing apparel left for
    storage will receive careful attention, at owner's risk,” contained upon large cards posted in the halls and rooms of a hotel or boarding house, enters into an implied contract of bailment arising from the storing of baggage in such hotel or boárding house.
    4. Bailments—when bailee for hire not liable for theft of baggage. A hotel or boarding house keeper becoming a bailee for hire, is not liable for the theft of baggage by his servant where he had no knowledge, means of knowledge or grounds of suspicion of the bad character of such servant.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 20, 1908.
    Jambs R. Glass, for plaintiff in error.
    Louis Brandes, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The defendant in error in this cause sued the plaintiff in error in the Municipal Court in Chicago for an unpaid bill for the board and lodging of the plaintiff in error and wife for three weeks' at the rate of $22 per week. There-was no denial by the plaintiff in error that this bill was due and unpaid to the defendant in error, but he set up a counter-claim for the value of certain wearing apparel and books of the value, as he claimed, of $344, which during his stay at the house of the defendant in error disappeared from a steamer trunk of the plaintiff in error which he carried with him when he went there, and which had been placed in a storage room in the basement.

The court below found the issues for the defendant in error, giving judgment for $66, and refusing to allow the counter-claim or any part thereof. The plaintiff in error thereupon sued out the present writ of error.

The court made a statement of facts, in which were the findings: “That on the twenty-first day of January, A. D. 1907, thé plaintiff, M. E. Vigeant, was and ever since has continued conducting a family hotel at No. 16 Astor street in Chicago, known as the Maison du Nord; that while the defendant, Thomas E. Nelson, continued to live at said hotel aforesaid, a trunk belonging to Trim was delivered to the plaintiff, and with its contents was received by the plaintiff, who assumed the care and custody thereof; that while in the custody of the plaintiff the contents of said trunk were by some means not fully explained lost, stolen or destroyed, and that upon the trial the case was 'argued by counsel for both parties on the theory that the goods were stolen by. the plaintiff’s servant.”

The main question at issue between the parties was whether, when the goods in question were lost, the technical relation of innkeeper and guest so existed between them as to make the defendant in error an insurer of the goods of the plaintiff in error.

On this question the court below found for the defendant in error—and we think rightly.

Although the Maison du Nord was advertised as a “hotel,” it was plainly from the evidence of that variety of hoarding houses known as “family hotels,” and not an “inn, ’’ in the technical sense, for the accommodation of transient guests. Nor was the plaintiff in error such a guest. He had contracted for a stay by the week at a fixed price, and it has been frequently held that if a boarder enter into a contract, even with an innkeeper, for such a fixed period, at a stipulated price, he ceases to be a guest and becomes a boarder. Between a boarder and the keeper of the place, be it hotel or boarding house, where he boards, there is no such relation as makes the latter an insurer of his goods against loss by theft or otherwise. Cromwell v. Stephens, 2 Daly (N. Y.) 23; Hall v. Pike, 100 Mass. 497; Neal v. Wilcox, 4 Jones Law. (N. C.) 148; Steward v. McCready, 24 How. Pr. Rep. 62; Lawrence v. Howard, 1 Utah 142.

Plaintiff in error, however, claims that in this case the defendant in error is liable as a bailee for hire, irrespective of her character as innkeeper, because as a part of the contract between her and the plaintiff in error the trunk in question was taken in charge and stored by her. But it appears that large cards are posted in the hallways and rooms of the house that “Baggage or wearing apparel left for storage will receive careful attention at oioner’s risk.” It may be properly presumed that this notice entered into any implied contract on the reception of the trunk for storage.

The cases of Cumins et al. v. Wood, 44 Ill. 416, and Bennett v. O’Brien, 37 Ill. 250, cited by plaintiff in error, were very different in their facts, and are not applicable to a case like this. Holder v. Toulby, 98 English Common Law Rep. 254 (8 C. B. (J. Scott) N. S. 254.)

There was no evidence of negligence on the part of the defendant in error, either in the care of the trunk or in the employment of servants. There was evidence, not that a porter had been “a convicted thief,” as counsel for plaintiff in error suggests, but that he actually was a thief and stole the goods in question, together with some belonging to the defendant in error, and was properly punished therefor. But there is no reason to suppose that defendant in error had any knowledge, means of knowledge, or grounds of suspicion of his bad character when she employed him.' The judgment of the Municipal Court is affirmed.

Affirmed.