text:
    Henry W. Leman et al., Appellees, v. Lucius Teter, Appellant.
    Gen. No. 16,512.
    1. Res judicata—when status of stockholder fixed. If upon a proceeding to wind up an insolvent corporation an assessment is made and the party against whom such assessment is made is determined to have been a stockholder, such a question, after the exhaustion of the rights of review, is res judicata in a subsequent proceeding predicated upon a further assessment.
    '2. Appeals and errors—when findings of master not disturbed. Findings of fact by a master approved by the court will not be set aside on review unless clearly and manifestly against the weight of the facts.
    3. Corporations-—effect of stock subscriptions. The subscriptions to the capital stock of a corporation are a trust fund for the benefit of creditors and no valid arrangement can be made by which a subscriber can be released therefrom, and the stock liability continues until discharged by payment as against each subsequent assignee.
    4. Corporations-—what does not discharge stock liability. Merely returning a stock certificate does not discharge stock liability.
    5. Corporations—how insolvency of stockholders may be established. In an action to dissolve an insolvent corporation, the insolvency of those owing a stock liability may be established prima facie by a return nulla bona for the purpose of determining the propriety of additional assessments against solvent subscribers.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final.)
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    William E. O’Neill, for appellant.
    David K. Tone, Morse Ives and J. L. Bennett, for appellees.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

On July 25, 1905, the Circuit Court of Cook County entered a decree upon a bill filed, winding up the affairs of the Continental Commercial Agency, a corporation of Illinois, and fixing its valid liabilities at the sum of $6,938.27, and costs of the proceeding. The bill was filed under section 25 of the Corporations Act, and the decree found that various persons had subscribed, but had not paid for stock in the corporation, which it found to be insolvent, and the decree found that it was necessary to pay its liabilities by levying an assessment against the stockholders on the unpaid portion of their stock. An assessment of 8%% was levied against the persons found to be stockholders. This assessment was sufficiently large that if collected from all the stockholders, it would have paid all the debts. Among the persons thus held liable as stockholders were appellant, Lucius Teter, Edward Van Beeth, Warren E. Colburn, and William A. Jones, each upon 20 shares of the par value of $2,000. The decree fixed the n1tiTna.t.ft liability of each of the first three at $2,000 and that of Jones at a like amount less $711.25 paid by him on account of judgments, and found that nothing had been paid upon the stock held by any of them, except the credit allowed to Jones. The decree expressly found that no inquiry had been made as to the solvency of any of the stockholders, or whether any or all had property enough to satisfy their respective portions of the liabilities of the company, and further expressly provided that, in the event any of the defendants should not have sufficient property to satisfy their- respective portions of such liabilities, then supplemental assessments should be made, etc., and retained jurisdiction of the parties and subject-matter for the purpose of carrying the decree into effect. The assessment of 8y2% against the stockholders thus amounted to $170 against appellant, Teter, and Van Eeeth and Colburn respectively, and $103.48 against Jones.

From this decree appellant, Teter, and Van Eeeth, Colburn and Jones and Anderson and a Mrs. Ivins severally appealed to this court. The several appeals were consolidated for hearing, and an opinion was filed in the first case, No. 12826, on the 28th day of December, 1906, affirming the decree of the court below. Thereafter appellant, Teter, and Jones, Van Eeeth and Colburn, respectively, severally appealed to the Supreme Court, where the cases were again consolidated for hearing. After a hearing the Supreme Court held that the amount involved in each appeal was $170 and it, therefore, dismissed the an-peals for want of jurisdiction. Teter v. Larson, 229 Ill. 585.

After their appeal had thus been dismissed, Teter, Jones, Colburn and Van Eeeth paid the amounts of the several assessments of 8y2% against them, whereupon complainants filed a petition, alleging the insolvency of all the other individuals who, with appellant, had been found liable as stockholders, and praying an additional assessment of 91%% against Teter, Jones, Colburn and Van Eeeth. Upon this petition issue was joined, and the cause referred to a master, who heard the testimony and reported, finding these four liable and recommending that the assessment be made. Exceptions to the master’s report were considered and overruled, and on the 14th of December, 1909, a decree was entered as recommended, making an assessment against Teter,' Van Eeeth, and Col-burn of $1,830 each, and against Jones for $1,185.27.

By subsequent order of the court, the decree against Van Eeeth, Colburn and Jones was compromised upon payment of $4,480.27, and Teter appealed from the decree. Upon this appeal Teter brings up the record upon which the first assessment of 8%% was made, and the record of the subsequent proceedings resulting in the present assessment of 91%% against him and asks that this court will review its former decision of December 28, 1906, as well as • consider the proceedings had subsequent thereto. He strenuously urges that he never was in fact a stockholder in the company, and also that the claims of Hess and Gray (which are the basis of both assessments), should be set aside and, further, that it was not sufficiently shown in the proceedings, which resulted in the 91%% assessment, that the stockholders, other than the four, were insolvent.

Appellees insist that the former judgment of this court (in which the opinion was filed December 28, 1906), on the former appeal of Teter, is res judicata with reference to whether Teter was liable for unpaid stock of the Continental Commercial Agency, in the sum of $2,000, and that Teter is conclusively bound by the decree of the Circuit Court of July 25, 1905, finding him Hable in that amount, said decree having been affirmed by this court.

They also insist that, even if those questions were not conclusively settled against appellant by the previous decision of this court, yet the record shows a clear case against him upon the merits, both as to his liability as a stockholder upon stock purporting to be, but in fact not paid, and as to the insolvency of such of the stockholders as were in the supplemental proceedings found to be insolvent.

It is difficult to see upon what grounds we could sustain the contention of the appellant that the previous decision of this court is not conclusive upon us on this appeal as to all matters which were then necessarily determined in its judgment. The parties are the same; the issues (except the questions of .insolvency of other stockholders) are the same, and under the law, the former decision was a final adjudication between the parties upon the questions there involved. It is the policy of the law to seek to end litigation and to prevent parties from being compelled to re-litigate matters which, in suits between them, have passed into final judgment. It is clear that at the very foundation of the first judgment against appellant, July 25, 1905, in the Circuit Court, and affirmed in this court, December 28, 1906, there was the question as to whether or not appellant was a stockholder in the insolvent company, and he was liable on his stock because it had not been paid. The issues were raised by the pleadings; proofs thereon were taken before a master who found that the company had no assets except the unpaid subscriptions to its capital stock; that appellant was in fact a stockholder to the extent of 20 shares of the pár value of $2,000 upon which no part had been paid; and that an assessment of 8%% upon the capital stock was necessary, and that this assessment upon appellant’s contingent liability of $2,000 amounted to $170. These findings were approved by the Circuit Court after a hearing thereon, and a decree embodying them, and the conclusions clearly resulting therefrom, was entered by it; and this decree was in turn aErmed by this court. After this had been done and the appeal to the Supreme Court dismissed by it, appellant, having exhausted his remedy by appeal, acquiesced, and paid the assessment of 8%% upon his alleged holding of $2,000 par value of the stock of the insolvent company. All these proceedings,—the first assessment of $170, made by the decree of the court below, aErmed by this court, and subsequently by appellant’s payment and satisfaction on April 10, 1908, of the judgment against him, were fundamentally based upon the proposition that appellant was a stockholder, which proposition we are now asked to consider as if it were still an open question. This previous judgment of this court is res judicata. Newberry v. Blatchford, 106 Ill. 584; West v. Douglas, 145 Ill. 164.

While we feel bound by the record thus made, and are of the opinion that the doctrine of res judicata applies, yet, at the earnest insistence of appellant, we have carefully considered the evidence heard before the master, upon which he made his finding and report, and upon which the lower court entered its decree of July 17, 1905, and giving to such findings and report of the master, after they have been approved and confirmed by the decree of the court, the weight to which the law says they are entitled, we cannot say that they are against the fair weight and preponderance of the testimony.

It appears that the Continental Commercial Agency was incorporated under the laws of Illinois for the purpose of conducting a mercantile reporting and collecting business, with a capital stock of $100,000, consisting of 1000 shares of $100 each. The certificate of complete organization was issued to it by the Secretary of State on September 8, 1900, though it was not filed with the Eecorder of Cook County until June 3, 1901; that from September 8, 1900, to November 1, 1901, it carried on its business in Chicago, when it became hopelessly insolvent,—its office furniture seized and sold by creditors,—and it ceased to do business ; that complainants were creditors of the company which had no property or assets other than its unpaid stock subscriptions; thait about 'September 6, 1900, the capital stock was subscribed for by W. S. Ivins and George W. Chamberlain, 1 share each, and for which they paid nothing, and one W. C. Anderson 998 shares; that on the 6th of September, 1900, Anderson submitted to the board of directors of the company, which included himself, Chamberlain and Ivins, and eight others, who may, with propriety, be referred to as “dummy” directors, a proposition in writing, stating that he had subscribed for 998 shares of the stock of the company; that he understood the most approved system then in use of conducting the business to be done by the company,—and offering to impart such knowledge to the officers and agents of the company in consideration of receiving his 998 shares of stock without other payment therefor. He further agreed to advance by way of loan to the company such sums of money as might be necessary to properly finance it. This board of directors, of which there was shown to be present, Chamberlain, who was that day elected president of the company, Anderson, who was elected second vice-president, and Ivins, who was elected secretary, and three of the other eight “dummy” directors, then and there not only voted to accept this offer of Anderson’s and release him from, all assessments on account of said stock, but, likewise, voted to relieve Chamberlain and Ivins from all assessments on account of their respective subscriptions for one share each of the stock. At the same meeting, salaries of $l,300oper year were voted to the president, Chamberlain, the second vice-president, Anderson, and secretary, Ivins, the record of the meeting showing that upon the question of salaries each of the three officers mentioned, declined to vote upon his respective salary, though no such becoming modesty was shown when they assumed to relieve each other from all stock liability.

It appears that several certificates, each for 20 shares of the stock, were issued to Anderson, and were by him endorsed over to appellant, Teter, Van Reeth, Colburn and Jones respectively, under date of October 11, 1900, on which date a new certificate was issued to each of them for a like number of shares. It further appears by the records of the company that at an adjourned meeting of the stockholders of the company held October 10, 1900, the eight “dummy” directors resigned and Teter, Van Reeth, Colburn and Jones, with four others, were elected directors in their stead.

The record further shows a letter from Teter to the Agency, dated October 11, 1900, acknowledging receipt of its letter notifying him of his election to the board of directors of the company, and accepting the position. On the 17th of November, the records of the company show Teter present at a meeting of the stockholders, and, also, at a meeting of the directors at which last Teter was elected treasurer for the remainder of their fiscal year, and Teter testifies that he does not know how or when he received notice that he was elected treasurer, but thinks it was in January, 1901. On the 11th of February, 1901, Teter wrote to the directors of the company, tendering his resignation as treasurer and director of the company, and asking its prompt acceptance. To this the secre-' tary of the company, Ivins, replied on the 9th of March, 1901, stating that a meeting of the directors would be held on the 11th, and that if he would return his certificate of stock, duly endorsed, the resignation would be acted upon at that meeting. Accordingly, Teter, under date of March 11th, returned the certificate of stock, properly endorsed, and his resignation as treasurer was accepted March 12th, and as director on the 15th of June, 1901. It fairly appears from the evidence that Teter was induced to have to do with this enterprise because of his desire to aid Chamberlain, who represented the prospective company, and was trying to induce men of honor and commercial standing to serve as directors, and if successful it would insure a position for- himself. There is no direct testimony that Teter was promised stock in the company for his services, and, on the contrary, he testifies that nothing was said to him about it at any time previous to the time the stock was sent him. But it does appear that there was a definite arrangement to that effect with Jones, Colburn and Van Reeth,—and his own acts and omissions were such as to justify the master’s conclusion that he was in fact a stockholder, but not one who became such for a bona fide consideration. Teter himself testifies that he thinks he received notices of some directors’ meetings,—and, speaking of the certificate of stock, he says, “I had forgotten all about having a certificate of stock in my possession when I received the letter from the secretary.” He could not have “forgotten” that which he never knew. Nor did he refuse to assign the certificate of stock, and repudiate such a relationship as he should have done if not a stockholder. As a director, and especially one who had promised to assume that relationship before the corporation had been organized, and as a treasurer, he owed it to himself and to creditors to know the condition of affairs and to participate in their management, and though his kindly disposition to help his friend secure a livelihood reflects credit, upon him, we are clear that his business indiscretion created the liability which has heretofore been adjudged against him.

The subscriptions to the capital stock of a corporation are a trust fund for the benefit of creditors and no valid arrangement can be made by which a subscriber can be released therefrom. Melvin v. Lamar Insurance Co., 80 Ill. 446; Bouton v. Dement, 123 Ill. 142; McNulta v. Corn Belt Bank, 164 Ill. 427.

The attempt to release Anderson’s stock subscription could not avail against the statutes of this state, which provide, “No assignor shall be released from such indebtedness by reason of any assignment of his stock, but he shall remain liable therefor jointly with the assignee until the stock is fully paid. * * * Every assignee or transferee of stock shall be liable to the company for the amount unpaid thereon to the extent and in the same manner as if he had been the original subscriber.” In construing this statute the Supreme Court has said: “The obligation created is that the stock is paid for, and it rests upon the original subscriber and every subsequent assignee until payment is made.” First National Bank of Peoria v. Peoria Watch Co., 191 Ill. 128.

Under these statements of law it must be clear that by merely returning his stock certificate Teter did not relieve himself from debts subsequently incurred. Chrisman-Sawyer Banking Co. v. Independence Wool Mfg. Co., 68 S. W. 1026.

Coming now to the second branch of the case, in which appellant contends that the evidence as to the alleged insolvency of the other stockholders was insufficient to justify the master and the court below in their holdings. In his printed argument, he contends that no evidence upon this question was heard on either "side, other than executions issued to the sheriff against each alleged insolvent stockholder,—each bearing the return of the sheriff “nulla bona” and to each execution there was an alleged schedule of the personal property of such execution debtors.

Appellant concedes that such executions, returns and schedules would furnish adequate basis for a creditor’s bill, where they would be received as admissions against interest by the debtor against whom relief is sought, but he insists that a different rule must be applied where, as in the case at bar, insolvency is to be established as a basis for a decree against third parties. Appellant contends that the insolvent parties should themselves be called and by their own testimony disclose their financial standing; or, that proof as to reputation in this regard would be admissible, and 2 Wigmore on Evidence, Sec. 1623, is cited in support of the proposition.

This contention of appellant is not without force. Upon examination the Illinois cases which hold that a return nulla bona was prima facie evidence that the defendant did not have sufficient property to satisfy the judgment, appear to be all cases of a creditors’ bill, as suggested by appellant. At common law, no creditors’ bill would lie if the principal defendant had property out of which a judgment could be collected.

At common law a return of nulla bona by a sheriff upon an execution established a prima facie case upon this question against the defendants. It was also true that at common law, the prima facie case made by the sheriff’s return of nulla bona might be overcome by proof that the principal debtor had property out of which the judgment could be collected, in which event the sheriff must levy, and the bill be dismissed. ' And these considerations were available to and binding upon not only the principal defendant, but also upon others made parties defendant.

While we realize how imperfect the measure or rule by which to fix, even prima facie, the rights of litigants in large cities, yet we think the return “nulla bona” by a sheriff, made under the sanctity of his official oath, and in the performance of his regular duties is of quite as high probative value as the very loose, indefinite and unsatisfactory testimony as to the reputation of a party as to his insolvency. Moreover it appears that there was direct testimony as to such reputation, so far as affected Anderson and others. While the testimony is lacking in clear and positive statement, we think it sustains the master and the court below in holding that it was sufficient to make a prima facie case.

Finding no reversible error in the decree of the court below it will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baldwin

license: Public Domain

text:
    Lina Voss, Administratrix, Appellee, v. Morris & Company, Appellant.
    Gen. No. 16,525.

      Negligence—when servant injured tvhile attempting act of rescue cannot recover. If a servant be in a position of peril another servant of the same master acting upon no order of his master, cannot recover if injured, nor can his personal representatives if he lose his life, in the absence of any showing of negligence upon the part of the master after he entered upon the work of rescue.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed.
    Opinion filed April 19, 1912.
    Rehearing denied May 7, 1912.

      Winston, Payne, Strawn &■ Shaw, for appellant; Ralph M. Shaw and Edward W. Everett, of counsel.
    Francis J. Wooley, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This is an appeal from a judgment for $7,500 in the Superior Court of Cook County against appellant, Morris & Company, for fatal injuries received by deceased while in its employ. Upon a previous trial, a verdict for a like amount was rendered, and was set aside by the court, which granted a new trial.

At about six o’clock P. M. of May 2, 1906, one Joseph Hickish, an engineer in charge of the engine room at appellant’s plant, apparently out of the line of his employment, and without being ordered or directed to do so, left, his engine room and went to the fume condensing tank, about thirty feet away, for the purpose of making a repair upon it to prevent foul odors entering the engine room during the night. The duty of making this repair was that of the steamfitters who worked on the day shift. Hickish went down into the tank where he was overcome by the foul gases. One Searing attempted to go down into the tank at the bottom of . which Hickish was lying, but finding that he was being overcome by the gases, he climbed up the .ladder and got out of the. tank. Thereupon word having gotten about that Joe Hicldsh was down in the tank, men from various departments gathered at the tank and attempted to rescue. him. For that purpose, Wiliam Voss went down into the tank where he, too, was overcome, and when both he and Hickish lost their lives.

The case was tried upon the first and the third and fourth additional counts as amended. The first count alleges that Hickish was inside, the condensing tank for the purpose of making repairs, and had been overcome by the noxious gases, and that Voss was employed as a water tender; that the superintendent negligently ordered him to go into the tank for the purpose of assisting Hickish, and that by the use of due care, appellant should have known that it endangered the life of Voss to order him into the tank; that Voss obeyed the order, and, while using due care for his own safety and in ignorance of the risk and extent of the danger, he went into the tank and was overcome.

The third count, as amended, alleges that in the course of appellant’s business it was necessary for various of its servants from time to time to enter the condensing tank to make repairs, to do which it was necessary to draw off the water ordinarily in the tank; that when the water was drawn off, gases from the rendering tank accumulated, filling the tank and making it dangerous to life; that Voss entered the tank with appellant’s knowledge and authority for the purpose of assisting another pf appellant’s servants who had been making repairs to said tank, and who had been overcome by the gases; that it was the duty of appellant to provide a safe place in the tank for Voss to do the work; that appellant failed to furnish such a safe place to work; that appellant had knowledge of the dangers and that Voss was ignorant of the risk and extent of the danger, and went into the tank in connection with said repairs to assist the other servant within the tank, and through appellant’s negligence was overcome by the fumes.

The fourth count, as amended, alleges that in the course of appellant’s business it became necessary for divers of its servants from time to time to enter the tank for the purpose of making repairs upon it, etc. That to make repairs it was necessary to draw off the water, and this permitted the fumes to accumulate and so fill the tank so that persons could not enter it without great danger of suffocation; that Voss was in appellant’s employ as a water tender in the boiler room; and that it became his duty in connection with said repairs to go down into the tank for the purpose of assisting another servant of appellant, who was in the tank; the tank was full of gases, which appellant knew, or should have known, in time to have prevented the injury; that Voss was ignorant of the danger and of the method of clearing the tank of gases; that he was about to descend into the tank for the purpose of assisting and saving another workman, who had been overcome in the tank; that the foreman by due care would have been' aware of the risks and dangers of entering the tank; and it became appellant’s duty to warn Voss of the risks and danger and inform him that the tank contained poisonous fumes,- which could not be breathed; that appellant negligently failed to warn Voss of these risks and dangers, and that without knowledge on his part he entered the tank for the purpose of assisting and saving the other employe and was overcome by gas.

A plea of Statute of Limitations was filed to these amended counts because it is claimed that they embodied new theories of negligence; viz., that Voss entered the tank with the knowledge and authority of appellant to assist the engineer, who had been overcome by gas, whereas the original theory was that Voss was ordered to go into the tank in the line of his work,—but the court sustained a demurrer to this plea.

In the record are photographic views and plans and specifications of the tank. From these it appears to have been constructed entirely of metal; it was an upright cylindrical body six feet in diameter. In the upper end, which was convex, or crowning, was the manhole, 16 in. x 22 in. in size, through which to gain access to the inside of the tank. The straight perpendicular part, or outside, of the tank extended from the top downward a distance of eight feet, from which point it was sloped inward and downward in an inverted cone shape so that at a distance of 2% feet down from the plane of the bottom of the full size of the cylinder, it was reduced to twelve inches in diameter. This tank was so set that it was thirteen feet up from the floor of the room to the manhole in the convex or crowning upper end of the tank. It was constructed entirely of new materials and new pipes, and had never before been out of order. Its purpose was to condense fumes from the rendering tanks and thus prevent the escape of foul odors. It stood in a sort of an alley way about fourteen feet from the engine room, and adjoining the tank room, in which last were the tanks where the lard and offal were cooked. The fumes passed in steam vapor through pipes from the tank room building, and then through a three inch pipe leading from the tank room into the condensing tank. This pipe entered the condensing tank at the top and extended downward till near its bottom end. Cold water was continuously running into this tank. A part of the air containing the foul odors was condensed and passed out from the bottom of the tank into the sewer; while some of the odors passed up through the water to its surface and then through another pipe into the combustion chamber in the boiler room where they were passed through the fire up the chimney and thus consumed.

On the day of the accident, one Searing, called a watchman, by appellant, but by appellee deemed a foreman, came to his work with the night shift about 5 -.30 P. M. He attempted to close the valve at the bottom of the tank, but was unable to do so. He walked to the engine room and asked one Zimmer, an oiler there, if he knew what was the matter. Zimmer tried but could not close the valve and told him to see Hickish, the engineer. Hickish tried the valve and concluded that something had fallen into it from the inside, and it was found that a piece of the three inch pipe carrying the fumes into the tank had fallen into the valve, and this prevented it from being closed. The sole use of the valve was to open the pipe at the bottom of the tank and thus permit the water to run off into the sewer. Searing told Hickish to let it go until morning; that there were steamfitters whose duty it was to make this repair, but Hickish said “No, the place will be full of fumes; ” so he took a ladder and with the help of Searing got the manhole open,—put a ladder down the inside of the tank and went down to remove the piece of pipe which had fallen into the valve. He told Searing to get a wire. Searing, after going part way down the ladder on the outside, went back up to find out what kind of a wire Hickish wanted. While looking down into the tank Searing saw Hickish, who had got down near the bottom of the ladder slip off to one side and fall over in the tank.

Searing, who then thought Hickish was stunned, got down part way into the tank and called to Hickish who did not answer. He had a queer feeling come over him as though in a close place; he got out on top of the tank and called to one Frank Peal, who was in charge of the rendering tanks in the adjoining building; Peal came but went back to the boiler room and called, “Come on boys.” Returning with a hook and rope, Peal with Searing, the two being then together on top of the tank, tried to slip a knot over Hickish’s leg and started to raise him. At this point Voss appeared; he came up on the tank and soon went down on the inside and slipped the rope under Hickish’s shoulders, and then he fell over. Hickish’s body was drawn up and then Voss’, but both were dead.

Appellant seeks a reversal of the judgment against it, and contends, among other things, that it was not guilty of the negligence which was the proximate cause of the injury to Voss; that Voss was injured while attempting to rescue Hickish from a perilous position, and that his estate cannot recover unless appellant was guilty of negligence in causing Hickish’s peril or was guilty of negligence toward Voss after he began the attempt to relieve; that Voss voluntarily assisted in the work of rescue without any legal obligation to do so and, therefore, it was at his risk; that Voss assumed the risk of entering the tank, and was injured solely because of his own contributory negligence; that no order was given Voss to undertake the effort which cost his life by any one authorized to give any such order; that there is no duty imposed by law on the master to warn the servant as to dangers which are open to the knowledge or observation of a person of ordinary intelligence; that where it is sought to recover because the injured was ordered into a dangerous place, he must show: (1) That he was acting in obedience to an order; (2) that the one giving the order was his superior, whose authority he was required to obey; (3) that the danger was known to such superior, or by exercise of reasonable care should have been known by him; (4) that the injured party did not know, and by the exercise of reasonable care should not have known, of the danger; (5) that the injured person was free from negligence; that the court erred in admitting and rejecting evidence and in giving, refusing and modifying instructions. These various contentions are severally met and denied, or else their applicability to the case at bar is controverted by appellee.

We have, with great care, gone through the testimony as abstracted, and have considered the instructions as well as the various rulings of the court below, of which complaint is made, and have reached the conclusion that the judgment of the court cannot stand. In the extended consideration of the ease which we have given it, we have been aided by the elaborate and able printed briefs and arguments of counsel for both sides, and their helpful oral arguments.

. In view of the conclusions we have reached, it will not be necessary to discuss all the questions raised by appellant. Counsel for appellee, in his argument, narrows the controversy by stating his contention to be that it is immaterial whether Hickish acted with or without authority when he went into the tank, or whether defendant was or was not negligent toward Hickish. He does contend, however, that Voss was not a volunteer, and did not assume the risk of injury; nor was he guilty of contributory negligence,—because Searing had ample notice of the danger, was a foreman and had authority to and did order or request Voss .to go down into the tank where he received his fatal injury.

The abstract and briefs disclose a long and persistent controversy as to whether Searing was, as contended by the appellant, a mere watchman, or was, in fact, in general charge of the men and with such duties toward them, and in the conduct of the business, as constituted him a foreman in fact. Appellee did not attempt to establish Searing’s authority by direct evidence, but examined ten witnesses at length as to acts of Searing while they were employed by appellant, and having more or less bearing upon the question of Searing’s authority,—real or apparent. A careful reading of this testimony, including all that was said by the witnesses which modified their statements relied on to show his authority, and of the testimony on behalf of appellant bearing upon the question, leaves us in great doubt whether the jury were justified in thinking it proved that Searing was in any real sense a foreman, whose orders Voss was bound to obey.

We think, too, the testimony warrants the conclusion . which counsel for appellee apparently accepts, that appellant was not guilty of any negligence toward Ilickisk, and that the decisive question in the case is,—was appellant guilty of negligence toward Voss, proximately causing the fatal injury?

Of course, appellee contends not only that Searing was a foreman over Voss, whose orders Voss must obey, but that Searing, as such vice principal, with knowledge of the danger which Voss lacked and could not have had in the exercise of his powers of observation and reason, gave Voss an order to go down into the tank, as a result of obeying which order Voss lost his life.

Upon the important question as to what, if any, order was given Voss by Searing, the record contains the testimony of four witnesses, of which three,—Matthew Zimmer, George Segar, and Frank Peal,—were called by appellee, and Searing only by appellant.

Matthew Zimmer testified concerning this phase of the affair: “Searing got on top of tank. I followed him with rope. When I got to the top the manhole in tank was open. Only Searing and I were on top. It was dark in tank so I took lantern and dipped it in manhole to see if I could see him. The light flickered. I took it out and said, ‘Al, I cannot go down; I am a cripple. ’ Before that nothing had been said about going down. I went back to my work in the engine room. Searing was only one left on top of tank. While I was out there Segar came down the ladder. Voss came in from boiler room. Searing was on top and he called, ‘Come up Billy.’ At that time didn’t hear Searing say anything further than those words.”

Segar testified that on the night of the accident, while he was on top of the boiler, he heard some one, but does not know who, “holler” that Joe fell in tank. When he got through with his boiler, he went out and saw Searing on top of tank and all he said was, “Joe fell in.” “There was no one on the tank there but Searing and myself. He asked me if I would go down. I studied a minute and said, ‘Yes, wait till I get my jumpers.’ ” He started down the ladder and about when he got down he met Billy Voss. He then “hollered” up, “Here, AL, comes Billy, he is slimmer than myself, he can get in easier.” “So Al. said ‘Come up, Billy, ’ and he went up to top of tank where Searing and Frank Peal then were.” On cross-examination he said: “Looked at them, but did not stay long enough to know what they intended to do. * * * There was a good deal of excitement on there about that time. Someone called, ‘Joe fell in tank.’ * * * Everybody was making suggestions. Some of others told others to do something; they all made suggestions there. * * * Peal made some suggestions. ”

Peal testified, after describing details as to Hickish: “Searing ‘hollered’ and I came out. Asked me to come out and help him get him out. * * * We tried to get him out. * * * Had a hook on rope; think we got it around him,—not sure. * * * I went down to boiler room and asked to get him out. Didn’t speak to any one in particular. Don’t remember whether Searing was up there on tank when Voss got there or not. He was. on the ground or on tank. After Voss went up there, I went up; I wanted to put rope around Voss to get him down in tank. I took rope and tied it around Voss. * * * The rope was a long one and I tied middle of it around him so as to get a chance to put end of it around Hickish. * * * Voss tied rope around Hickish and fell over.” On cross-examination, he said that he did not hear Searing give any orders on the night of the accident. “On top of tank when Voss was there about to go in, Searing did not tell Voss to go into tank. Voss ran up there himself. Started to go down tank. I told Voss, ‘Wait a minute until I put. this rope around you.’ He didn’t wait nor give me time and rope was put around him very loosely. Didn’t have time to tie it.”

Searing, a witness for appellant, testified as to this . phase of the case: “I got out on top of tank and called for Frank Peal to come down and help me, that Joe had fallen into tank, and Peal came down. We couldn’t do anything without some rope, and he went to boiler room. Heard him ‘holler,’ ‘Come on, boys,’ or something like that. Peal brought a hook and somebody had thrown a rope. Peal and I were on top of tank. Voss then came up on tank, pushed me to one side, started to go down in tank, and Peal told him not to go down in tank. Peal said, ‘Don’t go down, wait. ’ He was going down without anything on him, without a rope or anything. Someone tied a rope around him and he went down tank. Didn’t tell or ask Segar to go down in tank and he didn’t say to me at any time, ‘Here comes Billy. He is slimmer than I am, and he can go into the tank.’ I didn’t say at any time, ‘Come up Billy.’ Didn’t tell Voss at any time to go into tank. First I knew that Voss was there, was when he came up on tank alongside of me. Hadn’t seen him before that evening. After Voss got up there, he started right down in tank without saying a word to anybody.” On cross-examination said he might have testified at Coroner’s inquest: “I had ropes and hooks brought and tried to get deceased out unsuccessfully, ’ ’ but does not remember using such words. “Peal and I were on tank on opposite sides of manhole, stooping to pull up. Voss came up and pushed me away and started to go down tank. Peal told him to put rope around him. I didn’t say anything to him about it. I told him not to go down tank at all. Don’t remember saying, ‘Don’t go down without putting rope on yourself. ’ ”

This testimony is practically all there was given on the subject of the alleged order of Searing. We do not think the evidence in the ease, considered in its entirety, and with all reasonable inferences drawn therefrom, supports the contention-of appellee that Voss was acting under orders. Much as we may admire his sympathy for a friend in distress and his personal courage in going to his relief, we cannot create a legal liability against appellant upon a conjecture. We think the witness, Segar, was probably correct when he testified: “There was a good deal of excitement on there about that time. Heard three or four people talking loud, but not the boys around the boiler room. Everybody was making suggestions. Some of others told others to do something; they all made suggestions there, * * * Peal made some suggestions.”

In our opinion, the testimony fails to establish any order by Searing, as foreman or vice principal, as a result of obeying which Yoss lost his life,—and fails to show that appellant was "guilty of any actionable negligence toward Yoss. It follows, therefore, that the judgment of the court below must be reversed.

Judgment reversed.


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    John H. Lee et al., Appellants, v. Chicago League Ball Club, Appellee.
    Gen. No. 16,557.
    1. Injunctions—what not enforceable negative covenant. A negative covenant which adds nothing to a previous affirmative covenant will not be enforced in equity. To entitle one to an injunction upon the ground that it is to enforce merely a negative covenant; the covenant must be one standing out by itself, a special stipulation separated from the rest of the contract, and the enforcement of which would not involve the specific performance of the entire contract.
    2. Specific performance—what essential to enforcement of contract. Whatever may be the law elsewhere, it is the law in Illinois that before a contract will be specifically enforced, there must be mutuality in the contract so that it may be enforced by either.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    George A. Chritton, for appellants; Thomas E. D. Bradley, of counsel.
    Wilkerson & Cassels, for appellee; Edwin H. Cassels, of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This appeal brings before us for review a final decree of the Circuit Court of Cook county, dismissing appellants’ bill for want of equitable jurisdiction.

The bill alleges that on the 12th of March, 1906, appellee, being then in possession of certain baseball premises in Chicago, under a long term lease, entered into a written contract with one Barrett, granting to him and his assigns the right to place in certain seating-space in said premises, certain cushion seats to be equipped with coin or slug operated control boxes,— the income from which was to be divided in a fixed proportion between the parties. Barrett was to install 3600 the first year, and thereafter as fast as conditions warranted,—was to fix the price of the use of the 'cushions and was to have free access at all times for the purpose of installing, maintaining and selling said seats and collecting from the coin boxes, etc. Appellee agreed to co-operate in promoting the use of the seats by the public. The agreement was in terms to continue in force for a period of ten'years and contained a clause stating “that said seats shall be kept in use and not replaced, removed or in any wise obstructed” by appellee during the period of the agreement. Barrett’s interest in the contract' subsequently became vested in appellants.

The bill then avers the installation by appellants of about 3000 seats during the first year of the contract at an expense of about $10,000; that the seats were used during the seasons of 1906 and 1907 without any complaint as to being satisfactory, and, in fact, were during that period highly commended by the president of appellee; that on Saturday and Sunday, January 4th and 5th, 1908, without consent of appellants and without giving them any notice, appellee removed a large part of the seats and threatened the removal of the others, making then for the first time the claim that the seats were not ■ satisfactory, and that under the contract it had the right to remove them and terminate the contract.

The bill alleges that the receipts from the sale of the seats varied greatly, and that it is impossible to accurately ascertain the damages appellants would suffer from the removal of the seats, and that they have no adequate remedy at law. The bill prayed for an accounting and an injunction against the removal of any more seats.

Upon the issues being made up, the cause was referred to a master, who took proofs, and who found and reported that appellee’s conduct was unjustifiable, and that the real reason for its action was to make more money for itself by a new arrangement of the seating system, in which appellants were not to share, and that in removing the seats, appellee committed an unjustifiable breach of the contract. The master, however, reported as conclusions of law:

“ (A) Under the decisions of the Supreme Court of Illinois the complainants should be remitted to their remedy at law. •

(B) Complainants’ damages, while difficult of ascertainment, are not sufficiently so to warrant the interposition of a court of equity.

(C) A court of'equity cannot grant the complainants the injunctive relief, or any part of it, prayed for, for the following reasons: Said contract relates only to personal property, and requires the continuous rendition by complainants of personal services for a period of years, and there is, under the terms of said contract, no mutuality of remedy.

I, therefore, recommend that the temporary injunction heretofore issued herein be dissolved, and that the bill of complaint herein be dismissed at complainant’s cost.”

After hearing the parties upon these conclusions of law only, the court sustained the conclusions and entered a decree in conformity therewith.

There is no substantial controversy between the parties as to the facts. It is not contested that the contract was made between the club and Barrett, and that his rights and obligations thereunder, were duly assigned to and assumed by appellants; that pursuant to the terms of the contract, about 3000 of the seats were duly installed and were operated by appellants for two years without complaint on the part of appellee ; and that, at the expiration of two years of the life of the contract, which in terms provided that it should be in force for ten years, appellee removed a large part of the seats and threatened the removal of the remainder in apparent disregard of the rights of appellants under the contract; but appellee insists that no relief can be granted in equity, and that appellants must seek their remedy in a court of law. And this is practically the only question before us.

A proper decision of this question necessitates a careful examination of the rights and duties of the respective parties under the contract. It provides that Barrett shall install 3600 seats, using every endeavor to do so as soon as possible, and thereafter to continue to install such seats as fast as conditions may warrant, equipped with coin-operated or slug-operated control boxes,—he to have a percentage of the proceeds from the use of the cushion seats, which vary with the conditions named,—Barrett to have the right to enter upon the premises at all times to install, maintain and inspect the seats, and for the purpose of selling said seats and making collections from the coin boxes, or doing any other work or duty in connection with said seats,— Barrett to fix the price for the use of the cushions and to make reports to the club of the sums collected. Both parties agreed to co-operate to promote the use of the seats by the public. The contract further provides that “it is further understood that said seats shall be kept in use and not replaced, removed, or in any wise obstructed by the second party, or its agents, during the period of this arrangement, * * * which shall remain in force for a period of ten years.” In the event of the bankruptcy of the club during the period, Barrett shall have and be entitled to the full ownership and control of the seats, with privilege of removal from premises; —both parties are to share equally in net proceeds from any advertisements on the backs of cushions or seats furnished by Barrett in the future.

Appellants do not claim that equity would have jurisdiction to enforce this part of the agreement, except that it constitutes a “negative covenant,” which, it is said, courts of equity often enforce by injunction. But does the clause constitute a “negative covenant” in the sense in which that expression is used as a basis of equitable relief? It reads as follows: “It is further understood that said seats shall be kept in use and not replaced, removed or in any wise obstructed by the second party or its agents during the period of this agreement. ’ ’

We think the words “and not replaced, removed,” etc., are but a negative form of expressing the preceding positive averment in the same sentence, “that said seats shall be kept in use, ’ ’ and that, in legal contemplation, they add nothing to the affirmative covenant,— “that said seats shall be kept in use.” To entitle one to an injunction upon the ground that it is to enforce merely a “negative covenant,” the covenant must be one standing out by itself,—a special stipulation, separated from the rest of the contract, and the enforcement of which would not involve the specific performance of the entire contract.

In this case to enforce the so-called “negative covenant,” is to enforce the affirmative statement of it, and, as that is all the relief which would be given by a decree for specific performance of the contract, it cannot be done. The court clearly could not decree specific performance of the covenants of appellant “to continue to install seats as fast as possible, and as fast as conditions may warrant;” to “sell the seats;” to “fix the price;” to make “collections from the coin boxes;” continuously operate and maintain the seats for the remainder of the ten year period of the contract.

Contracts which relate to personal property only, and those requiring continuing personal services extending through a series of years, will not be specifically enforced. Harley v. Sanitary District of Chicago, 54 Ill. App. 337; Grape Creek Coal Co. v. Spellman, 39 Ill. App. 630.

Whatever may be the law elsewhere, it is the law in Illinois that before a contract will be specifically enforced, there must be mutuality in the contract so that it may be enforced by either, and as this contract could not have been specifically enforced by appellee, the Chicago League Ball Club, it cannot be so enforced by appellants. Ulrey v. Keith, 237 Ill. 284; Welty v. Jacobs, 171 Ill. 624, 630.

Moreover, if an injunction were to be issued in this case, it would necessarily be upon condition that appellants continue to perform their contract, and it would be enforcing a contract concerning only personal property and personal property rights. This is not the proper function of a court of equity.

The decree of the lower court must be affirmed.

Decree affirmed.


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    Laura Mitchell et al., Defendants in Error, v. C. C. Heisen, Plaintiff in Error.
    Gen. No. 16,583.

      Damages—who may recover for wrongful conversion. Only the owner of personal property unlawfully converted can recover the resulting damages. Several owners cannot recover jointly in the same action.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 19, 1912.
    Hammond, Macon, Davidson & O’Donnell, for plaintiff in error.
    Ela, Grover, March & Eckert, for defendants in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Defendants in error occupied a flat in Chicago under a written lease to one of them (Henry), from plaintiff in error, Heisen, the owner. Heisen desired to secure possession of the flat so he might erect a new building on the premises. The Mitchells became delinquent in their rent, and Heisen, through his agent, took possession of and stored their household furniture, wearing apparel, etc., under a distress warrant for rent, but this warrant was never filed with any justice of the peace, or clerk of a court of record, as required by law. A few days after the seizure and storage of the goods, Heisen offered to return them, and he contends that Mitchell refused to accept them, claiming that he had no place to put them; while the Mitchells contends they refused to accept them because they saw the property in defendant’s storeroom, and ascertained it was wet and in bad condition, and besides Heisen required them to release him, upon receiving the goods.

The Mitchells brought suit in the Municipal Court of Chicago to recover the value of the goods in question. A jury trial was had, resulting in a verdict “for the plaintiff,” and assessing “the plaintiff’s damages” at the sum of $395.90, upon which judgment was entered.

At the trial it was admitted that the Mitchells owed for the February rent at the time the goods were seized, and that they made no demand on Heisen for the return of the goods. It appeared that Mitchell filed a schedule claiming most of the property in question as his own, and claiming it to be exempt; whereupon Heisen tendered the property back.

The record is in hopeless confusion as to whether one or both the Mitchells were tenants,—whether one or both owned or had the joint use of the property,— and whether the verdict was intended to be in favor of one or the other or both. It does appear, however, in the testimony of Henry Mitchell himself that quite a number of the items in the list belonged to his wife, and an inspection of the list corroborates the witness, for the articles in question (silk skirts, underskirts, waists, chemises, etc.), were clearly for the use of a female. Mitchell testifies that the value of the articles belonging to his wife aggregated about $68. Mrs. Mitchell confirmed his testimony as to her ownership by describing some of the property taken as “my property”—“my clothes, ’ ’ etc.

It is clear that this verdict and judgment cannot stand. Neither could recover for damages sustained by the unlawful seizure of property belonging to the other, unless there were some arrangement between them by which the property was jointly used, and even then, the measure of damages would be the injury they sustained by being deprived of its use.

If the testimony upon a subsequent trial or trials shall show the taking to have been unlawful and to amount to a conversion, then each of defendants in error may be entitled to recover the value of so much of the property thus taken as he or she owned, but not in a joint action. If, however, the evidence shall show that, by some arrangement between them, they were entitled to the joint use of the property (though not to its ownership), then the measure of damages would be.the injury they sustained by being deprived of its use.

The judgment of the court below will be reversed and the cause remanded for a new trial.

Reversed and remanded.


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    Frank C. Pratt, Defendant in Error, v. John Worthington, Plaintiff in Error.
    Gen. No. 16,610.
    1. Deceit—what not essential to recover where loan made through fraudulent representations of agent. If a party make a loan relying upon representations made by his agent, he may recover of such agent, if such representations were false and fraudulent, without first enforcing the security given upon the making of the loan.
    2. Statute op Limitations—effect of concealment. If the cause of action be fraudulently concealed from the plaintiff the statute does not begin to run until the existence of the cause of action is discovered by the plaintiff.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Adams, Bobb & Adams, for plaintiff in error.
    William E. O’Neill, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Defendant in error, Pratt, brought an action of the fourth class in the Municipal Court of Chicago to recover damages from plaintiff in error, Worthington, for alleged fraudulent representations in the. matter of a loan, of $500. The trial resulted in a verdict and judgment against Worthington for $500.

It appears that in August, 1903, Worthington, who had theretofore made loans for Pratt, applied to him for $500, which he said he would loan to one Robert L. Lañé, who was perfectly responsible, and the money would be well secured upon real estate owned by Lane worth three' or four times the amount of the loan. Pratt furnished the money and subsequently received from Worthington a principal note for the amount, dated August 20,1903, due one year after date, and signed by Robert L. Lane, together with a trust deed executed by him, purporting to convey as security a lot in Morgan Park. Upon the maturity of the nóte, August 20, 1904, Worthington informed Pratt that Lane desired an extension for a year; that Lane could pay; that “the loan was well secured, ’ ’ etc.; whereupon Pratt extended it for one year, as he did, also, on August 20,1905, upon like representations from Worthington. Interest was paid upon the loan up to the installment falling due February 20, 1906, for the preceding six months. Pratt, who lived in Chicago when the loan was made, had moved to Los Angeles, California, and the record shows seven letters from Worthington to him, between October 29, 1906, and August 24, 1908, giving reasons why Lane was. slow in paying, and assuring Pratt that the money would surely be paid. In one of these Worthington-says he will make a new loan to Lane so he can pay up Pratt, and in one dated June 23, 1908, having received a notice from-Pratt’s lawyer, O’Neill, that he must take up the Lane paper, Worthington writes Pratt asking if it “is satisfactory to you to have me pay O’Neill this money.” In none of the correspondence does Worthington suggest the fact that the indebtedness was really his own instead of Lane’s.

The testimony disclosed the fact that on August 20, 1903, the lot in question was owned by Worthington’s wife. With her he joined in a conveyance on that date to Lane, who executed the note and trust deed and then, on the same day, reconveyed the lot by quit claim to Mrs. Worthington; Worthington got the $500, and paid Lane $5.00 for his services in the matter. There is testimony tending to show that the lot was worth but little more than it would cost to foreclose the trust deed, pay tax liens, etc., encumbering same. The evidence shows that Lane was accustomed to participate in such transactions and received a fee of $5.00 for each; that on August 20, 1903, his liabilities .upon paper of this' sort would probably amount to- somewhere between $500,000 and $750,000, and he is not certain that on that date he owned any .real estate or was solvent.

It is contended that we should reverse the judgment against Worthington because Pratt was guilty of negligence in relying upon Worthington’s representations; also because Lane should have been sued upon the note or the trust deed should have been foreclosed to determine how much, if any, loss Pratt had sustained; and further because the action which was brought August 30, 1909, was barred by the statute of limitations. ' - -

It appears that before this transaction Worthington had made loans for Pratt, and, under all the circumstances shown, we think Pratt was justified in acting upon Worthington’s representations. Horne v. Walton, 117 Ill. 130; Endsley v. Johns, 120 Ill. 369.

To sustain this action, we do not think it was necessary that Lane should have been sued upon the note, nor that the trust deed should have been foreclosed. Such, a course might properly have been pursued,' and more delay and expense caused; but Worthington was himself the debtor, in a very real sense. He got the money,—his conduct throughout was most reprehensible ; he was guilty of palpable and deliberate fraud, and it is this fraud upon which this action is based. That being found against him, we think the evidence in this case warrants the verdict as to the amount of damages.

It is conceded in the briefs that the cause of action accrued August 20, 1903, and that the statute provides that actions of this sort must be brought within five years, but the statute in terms provides an exception: “If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards” (sec. 22, chap. 83 Hurd’s Revised Statutes of Illinois) and we think the testimony in this case brings it within the exception named.

By virtue of the Municipal Court Act, cases of this class are to be disposed of without formal pleadings, and both that court and this are directed to dispose of such actions according to the real merits of the controversy, and in such manner as will result in substantial justice being done between the parties. We think the judgment of the court below embodied that result, and it will, therefore, be affirmed.

The costs of the additional abstract should be taxed against plaintiff in error, and it is so ordered.

Judgment affirmed.


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    Robert Koehler, Defendant in Error, v. John C. Glaum, Plaintiff in Error.
    Gen. No. 16,632.
    1. Kbaud—when representations do not give cause of action. Alleged fraudulent representations which relate to a future act and not to an existing fact do not confer a cause of action and do not constitute a defense to a promissory note.
    2. Judgments—what essential to require setting aside, by confession. In order to require that a judgment entered by confession be opened up the defendant is bound to make a clear showing that he had a defense to the action; and affidavits setting up the alleged defense will be most strongly construed against the defendant.
    3. Judgments—when not set aside entered by confession. Such a judgment will not be set aside to enable the defendant to maintain a cross action.
    4. Judgments—when refusal to set aside, entered by confession not erroneous. A motion to vacate a judgment entered by confession is addressed to the sound legal discretion of the trial court whose 'action in denying it will not be reviewed unless it appears that such discretion has been abused.
    Judgment by confession. Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Charles F. Vogel, for plaintiff in error.
    Rubens, Fischer & Mosser, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This case is brought before us upon a writ of error, contending that the Municipal Court of Chicago erred in overruling Glaum’s motion, supported by affidavits, to vacate a judgment for $341 and costs entered in that court in favor of Koehler upon judgment notes given him by Glaum.

Five affidavits were filed in support of the motion, in which it is alleged that Koehler, who .then- owned a saloon, induced Glaum to buy it of him for $1,000, of which amount $700 was paid in cash, and the remaining $300 was represented by judgment notes; that Koehler falsely represented that his wife, with whom he had trouble, was coming from Germany, and that if he could sell, he would at once leave for California; that his daily sales in the saloon were from $35 to $40; that he would sell all interest in the saloon, including good will, and would not go into the saloon business for two years.'

From the affidavits it appeared that on the night after the day on which the sale was made and Glaum took possession of the saloon, Koehler surreptitiously removed certain cases of whiskey which he had secreted in the basement. It further appeared that immediately after selling the saloon, Koehler stated to others that he was not going to California, but would go into the saloon business again, and that within three weeks he did start in the saloon business within a block and a half of the saloon he had sold. The affidavits further charge that Glaum’s daily sales did not exceed $20, and that Koehler is making every effort to take away the customers of the saloon he sold. The only error relied upon for reversal is that the court erred in overruling Glaum’s motion, supported by these affidavits, to vacate the judgment entered by confession upon his notes.

Whatever our views may be as to the moral phase of Koehler’ conduct, we are clear that upon this record, we ought not to reverse the action of the court below. The affidavits do not make a case. For example,—with respect to the earnings of the saloon,— the affidavits charge that Koehler said its daily sales were from $35 to $40; but it is not denied that such was the fact. It is no contradiction of‘Koéhler’s statement to say that, under Glaum’s management (with Koehler competing only one and a half blocks away), the sales were only $20 per day. Koehler’s agreement not to engage in the saloon business for two years, being unlimited as to locality and only limited as to time, was void as against public policy. The alleged fraudulent representations by Koehler as to his going to California related to a future act not an existing fact. This is not sufficient. Gage v. Lewis, 68 Ill. 604.

In the lower court plaintiff in error was bound to make a clear showing that he had a defense to the action, with his affidavits construed most strongly against him. Brunswick v. Hurley, 131 Ill. App. 235; Chicago Fire Proofing Co. v. Bank, 145 Ill. 481.

Moreover, what plaintiff in error really sought by his motion was that he might be given an opportunity in that suit to interpose a cross action against Koehler on account of his alleged misconduct. But the judgment by confession will not be set aside merely to enable the defendant to maintain a cross action. Boas v. Heffron, 40 Ill. App. 652.

If he has a cause of action against Koehler plaintiff in error may assert it in a new suit.

A motion to. vacate a judgment entered by confession is addressed to the sound legal discretion of the trial court, whose action in denying it will not be reviewed unless it appears that it had been abused. Evans v. Schriver Laundry Co., 57 Ill. App. 150; Blake v. State Bank of Freeport, 178 Ill. 182.

Finding no such error, the judgment of the court below will be affirmed.

Judgment affirmed.


text:
    Louis Baim, Defendant in Error, v. Cadillac Automobile Company of Illinois, Plaintiff in Error.
    Gen. No. 16,672.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Poster, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Rehearing denied May 7, 1912.
    Bertrand Lichtenberger and Edward B. Witwer, for plaintiff in error.
    P. H. Bishop, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Defendant in error, Baim, brought suit against plaintiff in error, Cadillac Automobile Company of Illinois, a corporation, in the Municipal Court of Chicago, to recover for' damages he claimed were sustained to an automobile purchased by him from it. A jury trial was had, resulting in a verdict of $434.50. Baim remitted $20 from the verdict, whereupon judgment was entered for $414.50. Plaintiff in error insists that the verdict and judgment are erroneous.

It appears that Baim, having been solicited by a salesman of the company to purchase a new car, called at its place of business where he met the salesman,— and a Mr. Foster, president, and a Mr. Fisher, manager, respectively, of the company. A sample car was on the floor of the salesroom, and Baim claims that Foster and Fisher represented that their company was a manufacturer of the cars, and that the car he was ordering should be like the sample car shown him, and he further says that when the car was received at the salesroom and he went to get it, Foster and Fisher showed him the car and told him that “it is in perfect order.” He claims that he then paid for the car and took it away and kept it in a garage. He says that he used the car about twice a week for seven or eight weeks, for drives of approximately ten miles each; and then, one day when being driven, the car suddenly veered to the right (though he turned the steering wheel to the left), and ran into a ditch and was badly damaged, the repairs upon which cost the amount sued for.

Baim contends that the reason why the machine refused to obey the steering wheel was that there was no key in the slot provided in the hand steering wheel and the shaft (over which the wheel fits) which guides and controls the front wheels,—and that this condition existed when the machine was delivered to him, though he was not aware of it.

Plaintiff in error offered in evidence the original order for the machine, dated March 13, 1909, signed by Baim and approved by Foster, its president. Its witnesses denied the alleged representations testified to by Baim, and strenuously contended that the claim that the car had been operated for the time and in the manner described by Baim with the key lacking, as claimed, was a physical impossibility.

At the request of plaintiff in error, the court struck from the record and withdrew from the jury the testimony of Baim with reference to any representations as to the quality or condition of the automobile, and as to whether it was according to sample, made verbally to him at the store of the company by any officer or agent of the company at the time of the sale, evidently upon the theory that all prior negotiations and representations were merged in the written order or memorandum of sale.

Upon this action Bairn, assigns cross-errors, and besides he insists that there was sufficient evidence before the jury to sustain its verdict upon the theory that the company represented itself as the manufacturer of the car, thus raising an implied warranty; and also that there was an express warranty that the car was in perfect order before he accepted and paid for it; and that the car was defective when delivered to him, and that such defect was the direct cause of the accident with its resulting injury and damages.

After a careful consideration of all the testimony, we have reached the conclusion that the controlling questions in the case are questions of fact for a jury. In the light of the expert testimony offered on behalf of plaintiff in error, and of snch knowledge of mechanics as may be called common knowledge, it is possible that we might have reached a different conclusion than was reached by the jury,—but that is not the real tést. Instead, it is our duty to not reverse a judgment and verdict upon questions of fact unless we find that such verdict is clearly against the preponderance of the evidence.

Upon theory and in the light of the expert testimony that such a thing would be impossible, it does seem hard to believe it possible, that the key or pin connecting and making rigid the • steering wheel and the shaft controlling the front wheels could have been lacking during this period of several weeks and the machine have been used as this was used. But either the rebuttal testimony of Bairn regarding the tests he made with the machine, without the key or pin being in, on the very day upon which he testified and on the day before, corroborated, as it was, by the testimony of Brown, must be ignored, or it must be conceded to be possible.

Witnesses for the company testified that it would be impossible to drive the car without the key,—but the jury had before it the testimony of Bairn that on the very day and the day before he had operated the car and had made many turns,—some very short and very difficult, without the key being in the machine, and this testimony, corroborated by an apparently disinterested witness, and, to some extent, by the exhibits offered in evidence, probably influenced the jury to give the verdict it did.

The jury and the judge below had the great advantage of seeing and hearing the witnesses,—of observing their intelligence, and their deportment upon the stand, —their apparent candor and frankness,—and we cannot say that the evidence so clearly predominates in favor of plaintiff in error that we are at liberty to set aside the judgment upon that ground.

Finding no reversible error the judgment will be affirmed.

Judgment affirmed.


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    People of the State of Illinois, Defendant in Error, v. Henry Pearman, Plaintiff in Error.
    Gen. No. 16,693.
    1. Criminal law—how record of conviction to he construed. In criminal as well as in civil eases all parts of the record are to be interpreted together so as to give effect to all, and an apparent deficiency in one place may be supplied by what appears in another.
    2. Assault—when judgment of conviction sufficient. Seld, under the record that the judgment of conviction in this ease was sufficient when the entire record was considered.
    Error to the Municipal Court of Chicago; the Hon. Hosea Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.

      W. G. Anderson, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This writ of error challenges the sufficiency of a judgment imposing a punishment of eight months in the House of Correction. A determination of the question involved necessitates an examination of the whole record.

It appears that on the 3rd day of January, 1910, a criminal information, consisting of one count, was filed against plaintiff in error, charging that on January 1, 1910, in the county of Cook and state of Illinois, he “did then and there, with a certain instrument, commonly called a revolver, said revolver being a dangerous and deadly weapon, without any considerable provocation whatever, and under circumstances showing an abandoned and malignant heart, unlawfully, wilfully and maliciously make an assault in and upon one John A. Rivers, with intent then and there to inflict upon the person of said John A. Rivers, a bodily injury,” etc.

On the same day Pearman signed and filed a written waiver of a jury trial. Subsequently and on April 14, 1910, he pleaded not guilty. A trial was then had before the court, without a jury, and the order of court recites that the court “finds the defendant guilty, in manner and form as charged in the information herein.”

In the judgment order it is recited “that said defendant, Henry Pearman, is guilty of the criminal offense of assault with a deadly weapon with an intent to inflict a bodily injury, on said finding of guilty.”

It is conceded that the information is sufficient, and other proceedings are regular, but we are asked to reverse the judgment and sentence because the recitals in the judgment order fail to include the words, “where no considerable provocation appears, or the circumstances of the assault show an abandoned and malignant heart.”

It has long been the law that in criminal, as well as in civil cases, all parts of the record are to be interpreted together so as to give effect to all, and an apparent deficiency in one place may be supplied by what appears in another. The People v. Murphy, 188 Ill. 144; Pointer v. United States, 151 U. S. 396.

Indeed, in cases cited by plaintiff in error, it is said: “A verdict must be responsive to the issue and must contain, either in itself or by reference to the indictent, every material fact constituting the crime.” Hix v. People, 157 Ill. 382.

In the case at bar the one count of the information concededly charged the offense in apt language. Upon Pearman’s plea of not guilty being entered, an issue was formed and upon this issue the court, having heard the evidence, “finds the defendant guilty, in manner and form as charged in the information herein.” * * * •By reference to the information, which consisted of only one count, “every material fact constituting the crime” as required in Hix v. People, supra, was made certain.

The other cases cited by counsel for plaintiff in error are clearly distinguishable from the case at bar.

It is not contended here that plaintiff in error is innocent of the crime charged, nor that the sentence of the court was excessive,—nor that he has been denied any substantial right. Even if it were technical error (which we do not concede), that the state failed to see to it that the judgment order recited all the particulars of the offense charged when they already are fully and accurately disclosed by the record, it is such error as has not resulted in any injury to the plaintiff in error.

The judgment of the court below will he affirmed.

Judgment affirmed.


text:
    John R. O’Neill, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,644.
    1. Appeals and errors—what does not estop right of review. By complying with an order entered in a mandamus proceeding a city is not estopped to assert its right to appeal or sue out a writ of error.
    2. Appeals" and errors—effect of plea of release of errors. A plea of release of errors admits that there are errors in the record and proceedings, but such a plea, if adjudged insufficient, does not deprive the pleader of the right to join in error.
    3. Appeals and errors—when plea to replication filed on appeal carried hack. If a plea of release of errors filed on appeal is defective a demurrer filed to a replication interposed to such a plea will be carried back to such plea.
    4. Municipal corporations—authority of officers exercising powers conferred hy ordinance. An officer exercising powers conferred by ordinance can have no other or greater powers than those prescribed in the ordinance creating the office and prescribing the duties of the incumbent.
    5. Municipal corporations—what not within powers of corporation counsel. Held, that the corporation counsel of the city of Chicago has only such powers as are conferred upon him by ordinance and that he has no power to waive and release errors in litigation which has previously passed into judgment.
    Mandamus. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Demurrer carried back and sustained.
    Opinion filed April 19, 1912.
    W. H. Sexton and Charles M. Haft, for appellant.
    A. B. Gash, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This case must be disposed of upon the pleadings filed in this court.

In April, 1911, O’Neill filed his petition in the Circuit Court of Cook County for a writ of mandamus to compel his reinstatement upon the police force of the City of Chicago, claiming to have been unlawfully dismissed therefrom on the 25th of October, 1893. Upon a hearing, the court below ordered the writ to issue on the 13th of April, 1911, directing the City of Chicago to place the name of O’Neill upon its pay roll as a police officer. From this order, the city appealed to this court and assigned errors upon the ruling of the court below.

Subsequently, appellee, O’Neill, filed a plea in this court alleging a release of errors by the city. To this plea, the appellant, the city, filed its replication, to which appellee demurred. Upon motion of appellant and due consideration, the demurrer was carried back to the plea, which was adjudged bad, and appellee took leave to file an amended plea of release of errors, which was duly filed on February 16, 1912. To this plea, appellant filed its replication and appellee filed his general and special demurrer to this replication.

The amended plea sets up the laws of Illinois and the ordinances of Chicago, which create the office of corporation counsel. By the terms of the ordinance, it is provided that he “shall be the head of the law department of the city,” and with certain assistants referred to he shall “conduct all the law business of the city.” The plea then sets up by proper averments the appointment and confirmation of the corporation counsel of Chicago. It is then averred that, subsequent to the judgment of the court below and before the prosecution of the appeal, the corporation counsel prepared a release of the city from any claim by appellee against the city growing out of his discharge as policeman in October, 1893, which release said corporation counsel caused to be executed by appellee, and which release was therein said to be in consideration of the city of Chicago waiving all right to appeal from said judgment, etc. It was further averred that the alleged release was under seal and was acknowledged by appellee before a notary public; that it was signed by appellee in triplicate while in the possession of the corporation counsel, one copy being by him deposited with the secretary of the Civil Service Commission of the city,—one with the secretary of the Police Department of the city, and one copy retained by said corporation counsel.

The replication to this plea denied that it released tó appellee any of the errors in the record and proceedings,—did not waive its right to appeal; that it did not by its corporation counsel prepare said release, but avers that such alleged release was never seen by nor in the possession of its corporation counsel, nor had he any notice of its existence; avers that on May 1, 1911, the city council passed a resolution in the preamble of which it was recited that such a release of the city of Chicago from all claims for salary and compensation accruing to him since October, 1893, was executed by appellee and placed in the hands of the corporation counsel,—that said release recited that it was given in consideration of appellant’s consenting to waive its right of appeal from the judgment order of April 13, 1911, etc., and directing the corporation counsel to return to appellee the instrument in the preamble referred to; resolving that the city do not comply with the judgment order of the Circuit Court and directing its corporation counsel to procure the annulment of the said order by appeal, or otherwise, etc.

The special grounds of the demurrer are that the replication is contradictory, and that it does not answer the whole plea but only a part of it.

We think these supposed objections to the replication are more apparent than real, and that the replication is substantially good. Carrying the demurrer back to the amended plea of release of error, however, as we are asked to do, we have to consider the question as to the right of the corporation counsel to bind the city by his acts.

In substance, the amended plea of release of errors is based upon the contention that the acts of its corporation counsel, alleged in said amended plea, and which, for present purposes, must be taken as truly stated, are binding upon appellant,—for it cannot be contended that, by compliance with the judgment order complained of, the city is estopped to assert its right to appeal or sue out a writ of error. Kuttner v. Haines, 135 Ill. 382; Markley v. City of Chicago, 167 Ill. 626.

We, therefore, come to a consideration of the duties and powers of the corporation counsel.

The amended plea of release of errors, which we are now considering, avers that Section 74, Art. 6, Chap. 24, Statutes of Illinois, provides that the city council may provide for the appointment,. by the mayor, of a corporation counsel, etc., and that by Secs. 73, 74, 77, 78, 79, 80, 82 and 85 of the Municipal Code of Chicago, as compiled in 1905, it is provided that:

“There is hereby established an executive department of the Municipal Government of the City which shall be known as the Department of Law and shall embrace the corporation counsel. * * * There is hereby created the office of the Corporation Counsel. He shall be appointed by the Mayor by and with the consent and advice of the City Council and shall be the head of the Law Department of the city; * * * He shall superintend and with the assistance of the city attorney and prosecuting attorney conduct all the law business of the. city. He shall employ an attorney whose office shall be at the headquarters of the fire department and who shall be known as the fire department attorney. * * * The Corporation Counsel shall keep or cause to be kept in proper books to be provided for that purpose, a register of all actions in court, prosecuted or defended by his office and all proceedings had therein; such books shall at all times be open to the inspection of the Mayor, Comptroller, or any member or committee of the City Council. The corporation counsel shall draft such ordinances as may be required of him by the City Council or by any Committee thereof. * * * The corporation counsel shall when required so to do furnish written opinions upon subjects submitted to him by the Mayor or the City Council or by the head of any department. * * * Upon the expiration of his term of office without his resignation thereof or removal therefrom, the corporation counsel shall forthwith on demand,, deliver to his successor in office all deeds, leases, contracts, books and papers in his hands belonging to the city, * * * and all papers or information in actions prosecuted or defended by him then pending and undetermined, together with his register thereof and all proceedings therein.”

It then avers the proper appointment and confirmation of the corporation counsel of the City of Chicago.

It thus appears that the office is not a statutory one, but is one created by ordinance. It follows, therefore, that the officer thus provided for can have no other or greater powers than those provided in the ordinance creating the office and prescribing the duties of the incumbent. Nowhere do we find any provision in the ordinances of the city of Chicago, giving authority to the corporation counsel of said city to settle or adjust and compromise any claims against said city; and to hold that he could, after trial and rendition of judgment, release and waive errors in the litigation which constituted a right or asset in favor of the city, would be equivalent to authorizing him to settle and compromise claims against it or in its favor. As to matters of litigation, to which the city is a party or in which it has an interest, he has no larger powers to bind it than would any other attorney have in the case of an individual.

We think it clear that the ordinances of the city of Chicago thus referred to in the amended plea of release of errors do not confer authority upon the corporation counsel to waive and release errors in litigation which has previously passed into judgment. Upon the general proposition of the powers of a corporation counsel, or city attorney, it is said in Vol. 1, Dillon on Municipal Corporations, Sec. 389:

“The corporation counsel or city attorney of a municipality, in a limited sense at least, is an officer of the municipality. In the performance of the duties which are imposed upon him by law, and with respect to which he is not required to submit to the direction of the legislative body or executive officers of the municipality, he acts as a public officer performing a public duty, and his action cannot be controlled by the council or executive officers of the municipality. Thus, in all matters that merely concern the public, the maintenance of good order, the abatement of nuisances, the suppression of disorderly houses, etc., he is independent of the council, and is a public officer vested as to such matters with powers and burdened with duties over which the council has no jurisdiction. But in other matters he is simply the head of the legal department of the city authorized to represent it in all suits and matters in litigation; to appear for it, and he has no larger powers as such to bind his client than an attorney would have in the case of an individual. In other words, in these matters, the relations existing between the corporation counsel or city attorney and the municipality are, in the absence of a statute conferring other or greater powers upon him, in general those which exist in ordinary cases of attorney and client,” citing Flynn v. Springfield, 120 Ill. App. 266.

“Merely as city attorney, he has no larger power to bind his client before suit is commenced than he would have in the case of an individual in like circumstances. When a suit is commenced, he is the retained attorney of the city, and it is his duty to take charge of the litigation. When the suit is commenced, the statute operates in place of a retainer in the case of a personal client, and it is his duty to defend the city in actions against it, but in the absence of express statutory authority, he has no power to appear for the city as a defendant in a suit which has not been commenced, or to accept service or process and waive its service upon the proper officer without authority from that officer. In the defense of actions against the city, he may take all needful steps for the protection of the city’s interests and may incur on behalf of the city all necessary expenses in connection therewith. The city is bound by his action in taking or failing to take exceptions to rulings at the trial of an action to which it is a party. But the corporation counsel has not, by virtue of his office and in the absence of express authority, any potver to settle and audit, or to adjust and compromise, claims against the city, although the claims may be the subject of pending actions agaimt the city.” Bush v. O’Brien, 164 N. Y. 205, rev’g 47 App. Div. 581 (distinguishing O’Brien v. Mayor, etc., of New York, 160 N. Y. 691; aff'g 40 App. Div. 331); People v. Mayor, etc., of New York, 11 Abb. Pr. (N. Y.) 66.

In Vol. II Dillon, Sec. 821, it is further said as to settlement of disputed claims:

"Growing out of its authority to create debts and to incur liabilities, a municipal corporation has power to settle disputed claims against it, and an agreement to pay these is not void for want of consideration. If it has obtained a contract which, by mistake or change or circumstances, it deems to operate oppressively Upon the other party, an agreement to make an additional compensation, or to modify or annul it, is not in the absence of special restriction, invalid for want of consideration. A town may make a contract with a creditor whereby the latter agrees to discount or throw off a portion of his debt and such an agreement, if founded on a sufficient consideration, will be enforced.

“Where a city has a judgment, from which an appeal is about to be taken, the council may, if done in good faith, cancel the judgment on the payment of costs; and such an agreement when executed is binding upon the corporation. Citing Petersburg v. Mappin, 14 Ill. 193.”

From the foregoing, and also upon principle, we think it clear that the corporation counsel had no power to waive the right of the city to appeal and to release errors in the record and proceedings, as the plea alleges he attempted to do. And appellee was bound, as are all persons dealing with the city, to know the extent of his powers, and that any attempt by that officer to exercise powers not conferred upon him was ultra vires and void, • and not binding upon the city. May v. City of Chicago, 222 Ill. 595; Sheahan v. City of Chicago, 127 Ill. App. 626-9.

It follows, therefore, that we regard the amended plea of release of errors as insufficient, and the effect of the plea of release of errors is to admit that there are errors in the record and proceedings. It was formerly the law that, when a plea of release of errors was held insufficient in the Appellate Court, a judgment of reversal must be entered thereon. Beardsley v. Smith, 139 Ill. 290; Page v. People, 99 Ill. 418; Martin v. Commissioners of Highways of Scotland Township, 150 Ill. 158. But in 1907, the Legislature amended the Practice Act by inserting the following: “A plea of release of errors, though adjudged bad or not sustained, shall not deprive the defendant of the right to join in error.” Hurd’s Revised Statutes, 1909, Sec. 109, chap. 110, Practice Act. Therefore, in this case, the order will be that the demurrer of appellee to the replication is carried back to the amended plea of release of errors and said plea is adjudged insufficient; leave is given appellee to join in error on or before May 1, 1912, and in the event that he does so, to file brief and argument herein on or before May 15, 1912; and appellant is hereby given leave to file a reply brief on or before June 1, 1912, and the cause will be placed on call for June 4, 1912, and taken for decision.

Demurrer carried bach and sustained.