text:
    Walstein Harlow, Appellant, v. Taylor A. Snow et al., Appellees.
    Gen. No. 14,307.
    1. Contracts—effect of provision of forfeiture. A contract of investment which provides in certain contingencies for a forfeiture of money paid in is not tor that reason void.
    2. Contracts—what not gambling. Held, that the particular contracts in question in this case involving the purchase of real estate pursuant to a certain co-operative certificate plan which made the chances of those investing unequal, did not constitute gambling contracts and were not therefore void.
    3. Lotteries—what not. Held, that a particular plan having in view the acquisition of real estate by certificate holders, did not constitute a lottery within the meaning of the statute of this state.

      Trespass on the case. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    John E. Erickson, for appellant.
    Mather & Hutson, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of nil capiat rendered against the plaintiff and in favor of the defendants by the Municipal Court of Chicago in a suit in which a jury was waived and the cause submitted to the court on the following.

Agreed Statement oe Facts. '

“ Waist ein Harlow, plaintiff,, on March 2nd, A. D. 1905, made with the defendants ten agreements or contracts in the Co-Operative Home Purchasing Society, number 45, 46, 47, 48, 49, 50, 51, 52, 53 and 54.

It is agreed that the plaintiff paid the sum of five dollars ($5) per month upon each of said contracts, - monthly, for a period of twenty-five (25) months, and nnt.il the payment, due April 2, 1907, and that said payment of April 2, 1907, was the last payment made by the plaintiff.

It is agreed that prior to the execution of said contracts, the plaintiff and defendants had several conversations in reference to the meaning and operation of the said contracts, and that the plaintiff understood from the statements of the defendants that the plaintiff would be put in possession of property under said contracts within a period of about eighteen (18) months from the date of the contracts, but that the defendants in no way misrepresented the said contracts or deceived the plaintiff in respect thereto. That the defendants submitted exact copies of said contracts to the plaintiff for his examination, and that the plaintiff examined same and kept them for a period of one week before signing same and returning them to the defendants. That upon the execution of said contracts by the plaintiff, the defendants executed duplicates thereof, which the defendants delivered to the plaintiff, and copies of which are hereto attached.

That at the time of making such payment of April 2, 1907, the plaintiff stated to the defendants that unless the defendants matured all of his said contracts on or before his next payment, due between May 1st and May 10, 1907, he, the plaintiff, would refuse to make any and all further payments under said contracts ; that the plaintiff would abandon the same, and would demand back from the defendants all of the moneys paid to them by the plaintiff.

That on the 13th day of May, 1907, the defendants mailed to the plaintiff a notice or demand for payment of the moneys then due, and again on June 12, 1907, the defendants mailed to the plaintiff a notice or demand, and on the 12th day of July, 1907, the defendants mailed to the plaintiff a notice or demand for moneys then due, and upon the 12th day of August, 1907, the defendants mailed to the plaintiff a cancellation notice; all of which said notices or demands were duly received on or about their date by the plaintiff through the mails.

It is further agreed that the plaintiff, upon the mailing of the said cancellation notice, was more than four months in arrears in payments, according to the said contracts. That the plaintiff had duly paid his membership of $5 per share, making $50 upon the ten contracts. That all payments were promptly made by the plaintiff to the defendants, and that no fines were imposed dr collected by the defendants from the plaintiff, and that the plaintiff paid to the defendants, in all, the sum of $1,300.

It is agreed that the said contracts and all of them have not yet matured, according to the terms of said contracts, and that the plaintiff had not been put in possession of any real estate, as described in said contract, and the plaintiff has in all respects fulfilled and performed the obligations by him to be performed, according to the said contracts, except that the plaintiff has made default in payment due May 2, 1907, as aforesaid.

It is. further agreed that on the 15th day of June, 1907, the plaintiff went to the office of the defendants and demanded from them a refund of all of the moneys paid by the plaintiff to the defendants, and that such demand was refused by the defendants, and that the defendants stated to the plaintiff at said time and place that they, the defendants, were ready, able and willing to refund at such time as the said contracts should mature, eighty per cent (80%) of all the moneys paid by the plaintiff to the defendants after the first twelve (12) payments paid by the plaintiff to the defendants, and that the defendants stated to the plaintiff at said time and place that the defendants were at all times ready, able and willing to fulfill any. and all provisions of the said contracts, so far as the said contracts obligated the defendants to make payments, or to do any other acts or things.

It is further agreed that the defendants made and executed the said contracts, and the contracts of all other co-operators, numbering them as prescribed in said contracts. That the defendants created and maintained maturity funds and expense funds, as set forth in said contracts. That the defendants secured many other co-operators, who have been and still are making payments according to said contracts, and that the defendants have run and conducted the said Co-Operative Home Purchasing Society in an efficient, conservative and successful manner, and that the defendants have in all respects fulfilled their said contracts with the plaintiff, and have carried out and performed all of the obligations and duties imposed upon the defendants by the said contracts.

It is further agreed that at the time the plaintiff demanded of the defendants that the defendants cause his said contracts to mature as aforesaid, the defendants stated to the plaintiff that the maturity of contracts with all co-operators depended upon the number of co-operators’ contracts, the amount of money received by the defendants, and the status of the society, but that in the past all of said contracts had matured within at least three (3) years after the date of the contract, provided all payments had been promptly made, and that the defendants then stated to the plaintiff that the contracts of the plaintiff would in all probability mature during the year of A. D. 1908, whereupon the plaintiff renewed his statement to the defendants that he would make no further payments unless his contract was matured at once and upon said date of June 15, 1907.”

It is further stipulated that the issues between the parties to the suit are:

I. Are the agreements or contract of the Co-Operative Home Purchasing Society enumerated in the Statement of Pacts valid and binding contracts in law?

II. Is the plaintiff entitled to recover the $1,300 paid by him to the defendants?

The contracts in question are all alike except in their number.

The face of each one is as follows:

“United States of America.
Number. 1000 ¡Dollars.
Co-Operative Home Purchasing Society.
A Copartnership.
Duplicate.

This agreement, made and entered into this 2nd day of March, A. D-. 1905, between the Co-Operative Home Purchasing Society of Chicago, Hlinois, party of the first part, and Walstein Harlow, of Chicago, party of the second part, witnesseth: that they and each of them will perform the covenants and agreements set forth on the hack hereof, which are the essence of this agreement.

In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written.

Co-Operative Home Purchasing Society, Applicant: By Charles H. Commons [Seal.]

Walstein Harlow [Seal.]”

On the reverse are the conditions which form “the essence of the agreement.” They are in great detail; but the principal and significant ones are these:

The party of the second part (Harlow) agrees to pay to the party of the first part, the Co-Operative Home Purchasing Society (which was the name under which the defendants were ‘doing business) five dollars as a membership fee on signing the contract, and five dollars on or before the tenth of each month thereafter during the continuance of the contract before the maturity of the same as therein defined, and five dollars and interest at the rate of three and three-quarters per cent per annum upon the deferred payments of his indebtedness after such maturity until the full sum of one thousand dollars is placed in the maturity fund, also therein defined; also to pay certain charges on any real estate in which he may acquire an interest under the provisions of the contract, and to pay a fine of five cents for each month of default until all overdue installments and fines have been paid.

It is provided that “if said installments and fines are not paid on or before the fourth consecutive month of default, then the contract shall be wholly null and void, and the party of the first part shall repay to the party of the second part at such time as this contract would have matured in case it had not been cancelled, eighty per. cent of the amount standing to the credit of the party of the second part in the maturity fund, time, manner and amount of payment being the essence of the contract.”

The party of the first part agrees to pay the party of the second part interest at three per cent, per annum on the average monthly balances to his credit in the maturity fund, the interest to be added to the credit; to deliver to the party of the second part, on or before two hundred and twelve months from the date of this contract, a good title to any real property that may be selected by the party of the second part as thereafter provided in the contract; to number all the “co-operative” contracts in the order of their issuance, in a series beginning with one; to place the sum of five dollars of each monthly payment to be made by the party of the second part, except the first twelve payments, in a “maturity fund” to be composed of the said sum and the sums paid by other “co-operators” holding contracts; to place the rest of the money paid in and the interest, etc., in an expense fund from which the interest and the expenses of running the business are to be paid; and to use the first sum of one thousand dollars that accumulates in the maturity fund for the benefit of the uncancelled “co-operative contract” not yet matured .which bears the lowest number (thereby maturing the same), by putting by its means the holder of such thus matured contract in possession of such real estate as he may select with the approval of the party of the first part, or in paying of an incumbrance on real estate so approved. Said second party is then to execute all instruments pertaining to said real estate that the party of the first part may deem necessary to secure the payment of the sum unpaid by the holder of the contract. The title to such real estate shall be held, by a trustee to be named by the party of the first part until paid for by said party of the second part, when it shall be conveyed to said party of the second part. The party of the second part may, if he choose, pay all the balance remaining due on the contract in advance of the time agreed on, and shall then receive the title to said real estate on so doing. No person shall be allowed to hold more than ten co-operative contracts bearing consecutive numbers.

In case the party of the first part fails to make the monthly payments of five dollars for more than four consecutive months of the first twelve payments under the contract, the contract may be cancelled by the party of the first part and all moneys paid by the holders of the same prior to such failure shall belong to the party of the first part as compensation, etc. If the party of the second part fails to make the monthly payments of five dollars more than four consecutive months subsequent to the twelve monthly payments, the contract not having matured, the contract may be cancelled by the party, bnt eighty per cent, of the payments after the twelfth monthly payment shall be refunded to the party of the second part at the time the contract would have matured had it not been cancelled.

The propositions of the appellant are that the contracts involved are illegal and void, first, because they provide for forfeitures, in certain contingencies, of the money invested; and, second, because they are gambling contracts, forbidden by the Criminal Code of the State. It is in effect conceded by the plaintiff that unless this taint of illegality invalidates the contracts, the judgment should not be disturbed. On the other hand, however, the defendant claims not only that the contracts are legitimate and enforceable, but also that even if they be gambling contracts, no recovery could be had of the money plaintiff had paid in.

The proposition concerning “forfeitures” is not much emphasized by the appellant. We do not consider it forceful. It is true that these contracts do provide for forfeiture, in certain contingencies, of money already paid in, if the payments cease; but so do many contracts of other kinds, never adjudged illegal. People of sound mind, who freely make such contracts, presumably willingly take the risk which they incur. It has been decided in Illinois that installments of purchase money paid on contracts of purchase cannot be recovered back on a forfeiture of the contract by its terms through the fault of the vendee, even where the contract does not specifically provide that they may be retained; a fortiori they cannot when it does so provide. Wheeler v. Mather, 56 Ill. 241; Whitaker v. Robinson, 65 Ill. 411; Bryson v. Crawford, 68 Ill. 366.

This “co-operative contract,” so-called, is claimed to be a contract of real estate purchase. And that classification of it is perhaps as proper as any other would be which did not recognize it as “sui generis.” The provisions for forfeiture at all events do not differ in principle from those generally found in ordinary real estate contracts.

The argument that the contracts involved are gambling contracts under the statutes, and therefore illegal, is strenuously urged by the appellant. It is based on the proposition that it is uncertain when the contracts will mature, and that it depends on the “chances” of the business; that is, the number of contracts the first party may be able to issue—how soon the thousand dollars named in the contract will be ready for the use of the contract holder. This, it is claimed, makes the plan a lottery.

It is not necessary for us to pass upon or even remark on the wisdom or unwisdom of the persons who make these investments, further than to say that the early comers are too evidently the favored parties, and the advantages promised later ones are so manifestly at the risk of new investors coming in ever increasing numbers,'that criticism on the whole plan might be easy if we felt ourselves under obligation to make it. But that criticism could not justly, in our opinion, take the form of denunciation of it as a gambling device or a lottery.

It is true that the chances of the business of the “co-operating certificate holders,” or, perhaps more exactly, the business of the sellers of these certificates, do enter into the prospects of greater or less advantage to any one certificate holder. But so, as appellee points out, do similiar chances enter all contracts for future sales of crops to be grown or mines to be worked, or cattle to be bred, or of a thousand other things. And partnership contracts, of. the character of which these contracts partake, frequently make the special interest and advantage of each partner depend on the amount of “good luck” the partnership may have in business.

There is no such element of chance in the “maturing” of the certificates or the amount due on them as there was in those involved in Jacobs v. The People, 117 Ill. App. 195, where we held the scheme described a lottery.

Moreover, to use the language of State Mutual Life Ins Co. v. Newton, 89 Ill. App. 353, “We are of opinion that even conceding that the contracts were issued or made in the conducting of a lottery business, the transaction is not within the letter or spirit of the section of the statute relied on to sustain a recovery.” Section 132 of the Criminal Code.

As we said of the contentions in that case, so we say of those in this—“It cannot be said that the money was lost by playing at cards, dice, or any other game, or by betting, or by any wager. That the section quoted was not intended to include money lost in a lottery is apparent. * * * Penal statutes and statutes in derogation of the common law are strictly construed. The money not being recoverable at common law, and the statute containing no provision for its recovery, we are of opinion that no action for its recovery can be maintained.”

We do not think the scheme involved in the case at bar a lottery, and we hold, besides, that if it were, the money sued for could not be recovered in this action.

It is also urged that the contract is against “public policy,” but that statement certainly involves nothing more than has been discussed. Not all contracts that are unwise and injudicious, nor even all that are demoralizing, are against public policy in such a sense that they are illegal. And in such as are, it does not follow that all money paid on them can be recovered back.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Peter Hob et al., Defendants in Error, v. A. O’Donnell, Plaintiff in Error.
    Gen. No. 14,328.

      Damages—when unsatisfactory evidence will reverse. If the evidence in the'cause which tends to support the verdict upon the question of damages is unsatisfactory, a reversal will be ordered.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    McArdle & McArdle, for plaintiff in error.
    Stedman & Soelke, for defendants in error.
   Mr. Justice Brown

delivered the opinion of the court.

It is not deemed necessary or advisable to review in an opinion the evidence in this case, which we have, however, very carefully considered in detail. We think the case should in the interest of justice, be tried again, but we wish to make no other comment on the conflict of evidence than to say that the contradictions, inconsistencies and obscurities apparent in it make the record very unsatisfactory to us and leave us in great doubt whether we ought to have allowed the verdict and judgment to stand, had the damages even been put by the evidence on any sufficient basis. But the absence of such sufficient basis in the testimony is apparent to us. We do not allude to the abstract alone-—which in this particular is insufficient and incomplete (Abst. pages 24 to 25), but to the transcript of the record itself. (Rec. pp. 204 to 213.) The only statement of the witness Hob is (Rec. pp. 205 and 207) that the entire labor on the job would be $150 in value. But in questions of counsel $350 and $360 are mentioned as his estimate, and in the brief of plaintiff in error it is said that Hob testified that the labor was valued at $375, and in the brief of defendant in error that he testified it was worth $350. We are unable to find' these statements in the record, and in the abstract there is absolutely nothing of either sum mentioned where Hob’s testimony in rebuttal purports to be abstracted. We are not satisfied, moreover, with the course adopted with reference to the order of testimony, although this in itself, perhaps, was not so in excess of the proper discretion of the court as to demand reversal.

But altogether we do not feel justified in allowing the judgment to stand, although we regret the apparent necessity of another trial.

The cost of the abstract will not be taxed against the defendant in error, for reasons that we have briefly alluded to.

The judgment of the Municipal Court is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: Mr. Justice Holdom

text:
    Albert E. Klaproth, for use of Robert H. Weyman et al., Defendants in Error, v. Louis Greenberg, Plaintiff in Error.
    Gen. No. 14,270.
    1. Replevin—what presumed in suit upon bond. In an action upon a replevin bond the jurisdiction of the court to make disposition of the replevin suit will be presumed in the absence of a showing to the contrary.
    2. Replevin—character of action upon bond. An action upon a replevin bond for failure to return pursuant to the writ retorno, is one sounding in tort.
    3. Replevin—what defense to action upon bond. In an action upon a replevin bond (the replevin action having been dismissed for want of prosecution), the merits of the replevin action may be shown to defeat the recovery of more than nominal damages.

      Tort. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    Louis Greenberg, for plaintiff in error.
    F. M. Lowes, for defendants in error; Thomas Marshall, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action on a replevin bond given by defendant, Greenberg, a constable, for failing to restore a certain baby grand piano, taken under a writ of replevin, in which the bond sued upon was given. Greenberg refused, upon demand made therefor under a writ of retorno habendo, to deliver the piano to plaintiffs. A trial resulted in a judgment in debt $400, the penalty of the bond, with damages assessed at $350.

It is first insisted that the court was without jurisdiction to enter the judgment or proceed to a trial of the cause, because there was no proof in the record that any of the defendants, other than Greenberg, had been either summoned or appeared in the replevin suit, which was an appeal from a judgment rendered by a Cook county justice of the peace; that section 64, chapter 59, E. S., made the summoning of the other defendants imperative to the acquirement of jurisdiction by the court, so that it could proceed in the cause.

The effect of this statute upon the case at bar, if it were in force, would be immaterial in the conclusion to which we have come on this review. Lacking anything in the bill of exceptions to the contrary, it will be presumed that the co-defendants of Greenberg were before the court either by service of summons or by voluntary appearance. All intendments necessary to sustain the jurisdiction of a court of record are to be indulged. Such court will not be adjudged to be without jurisdiction from any negative fact in the record, but if such court is without jurisdiction of any of the parties, it must be made affirmatively to appear. Bradley v. Drone, 187 Ill. 175; Matthews v. Hoff, 113 ibid. 90; Ficklin v. Olmstead, 72 Ill. App. 334.

But were the rule otherwise, we could not hold that the court was without jurisdiction from another phase of the matter. This was an action of tort. Where each is liable for the tortious conduct of all, that one or all may be proceeded against, at the election of the injured party, and a cause commenced against all may, before or upon the trial, be discontinued as to all but one of the defendants. It has been held by the Supreme Court that the section in dispute has no application to tort actions. So that whether Greenberg’s co-defendants were summoned or appeared, is of nd moment. The rule is clearly stated in Long v. Frank, 117 Ill. App. 207, where the authorities supporting the rule are cited. This case is, on this point, “on all fours” with the case at bar.

It is disclosed by the record that the merits of the controversy in the replevin suit, in which the bond sued upon was given, were not tried or determined; that the replevin suit was dismissed for want of prosecution, as shown-by the record of the Superior Court. Under section 26, chapter 120, R. S., Greenberg had the right to try the merits of the replevin suit in the action upon the replevin bond. It was therefore prejudicial error for the court to refuse to admit evidence tendered by him to support the merits of the replevin action. As between Greenberg, the constable, and the Weymans, the receipt of the Weymans for the piano taken under the replevin writ was evidence tending to support the right of Greenberg to the possession of the piano, and on failure to receive the same upon demand to gain possession through the aid of a writ of replevin. The receipt showed that the Weymans received the piano from Greenberg to hold for him as his custodians; that the same had been surrendered to Greenberg as constable and taken by him under an execution issued upon a judgment obtained by the Illinois Milk Co. against B. H. Weyman before a Cook county justice of the peace. The receipt, uncontradicted, constituted evidence tending to support Greenberg’s right to the possession of the piano.

The evidence as to the value of the piano was admissible. B. H. Weyman, who bought and paid for it, being a householder, was sufficiently qualified himself to testify as to such value. In these modern times a piano is an article of domestic furniture necessary in most families, and bought by the householder in about the same way as he purchases his other household goods. Sinamaker v. Rose, 62 Ill. App. 118.

For the error in failing to admit as evidence the receipt of defendants for the piano in question, the judgment of the Municipal Court is reversed and the cause remanded for a new trial conformable to the views above expressed.

Reversed and remanded.


text:
    Henry G. Moon, Defendant in Error, v. Emmet D. Yarian et al., Plaintiffs in Error.
    Gen. No. 14,304.
    1. Inns and inn-keepers—when relation of guest established. Notwithstanding one who sues for lost baggage may have paid for his lodging by the week, yet if he has not established a permanent abode and has done nothing to divest himself of his status as a traveler, he is a guest within the meaning of the law and may hold the owner of his lodging-house to the liability of an inn-keeper.
    2. Municipal Court—when new bill of particulars need not be required. If the ad damnum is permitted to he increased beyond the amount called for in the bill of particulars, it is not error which will reverse for the court to refuse to order a new hill of particulars, the merits of the controversy not being affected.

      Tort. Error to the Municipal Court of Chicago; the Hon. William N. Gbmmill, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Hugh L. Burnham, for plaintiff in error.
    George E. Buther, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

On the trial of this cause in the Municipal Court plaintiff recovered a judgment against defendants for $300, which was the amount of the verdict of the jury less a remittitur of $100. Plaintiff lost his baggage while a guest of the “Hotel Dearborn”, kept by defendants, and the judgment is for compensation based upon the value of the baggage lost.

The dispute centers in the contention on the part of plaintiff that he was a guest at the hotel, while defendants insist that he was a boarder and that consequently the liability of an innkeeper does not attach.

“Hotel Dearborn” is a hotel for transient guests. Plaintiff lived at this hotel about two months in the fall of 1906. He paid for his accommodation by the week—at first $1.50 for room 214%, and afterwards $2.50 for room 73%. From the latter room the bag-gag’e was purloined.

The facts as to property lost and the value thereof have been determined by a jury, whose award has been modified at the suggestion of the court to meet the court’s view as to value, and as we cannot say that the verdict and judgment are manifestly contrary to the probative force of the evidence found in the record, we are not disposed to disturb it, unless the theory that defendants were not liable to plaintiff as innkeepers sufficiently appears from the proof to absolve them from liability.

On this phase of the case the evidence develops that plaintiff is a Korean and has lived in various places in this country and on the dependent island of Hawaii. He arrived at Hotel Dearborn in August, 1906, and in November following his baggage was taken from his room during his absence at his work. On leaving for his work in the morning he locked the door of his room and left the key with the hotel clerk.

It clearly, we think, appears that plaintiff was a transient guest at defendant’s hotel. He had traveled much in this country, going from place to place, as far West as California, reaching Chicago in August, 1906. There is no evidence that he was permanently resident here or had any intention of so becoming. He made no arrangement looking to a permanent stay in Chicago with his landlords or any one else. From aught that appears to the contrary his employment, whatever it may have been, was as transient as his stay at the hotel. He was essentially a traveler within both the British and American interpretation, and a guest of the Hotel Dearborn, the landlords of which owed him the duty of an innkeeper to protect from harm his person and baggage, and a failure'to do so and to extend such protection subjected the landlords to the liability which the law imposes upon innkeepers. They must compensate for the loss to their guest, occasioned by the non-fulfillment of the duty imposed upon them by law. A “wayfaring man” ceases to be a guest only when he takes up a permanent abode at an inn. He then becomes a boarder and loses his standing as a guest. Horner v. Harvey, 3 Gild. 307.

Plaintiff had no contract with his landlords indicative of permanency of residence. He was unhampered by any contract obligation from departing at his pleasure and resuming his travels at his will.

Hancock v. Rand, 94 N. Y. 1, is most frequently ■ cited in this class of cases. Gen. Hancock intended to continue at the hotel with his wife for a definite time unless military duty required his presence elsewhere. Notwithstanding this intention as to fixity of time, he was still a guest, for New York was not his permanent home, and the court on disposing of this point, say: “The length of time a man is at an inn makes no difference, whether he stays a week or a month or longer; so, although he is not strictly transient, he retains Ms character as traveler.”

Moon, the Korean, may go Ms way to Ms native isle or elsewhere in the world, whenever the spirit of travel shall again possess Mm, for so far he has given no evidence of making his stay in Chicago permanent.

Bullock v. Adair, 63 Ill. App. 30, is decisive on fact and law of this case; and the late Judge Gary, speaking for the court, said: “In all respects affecting the question of guest or lodger her case is more satisfactory that she retained the former character than that of Mrs. Gen. Hancock in Hancock v. Rand. * * * Gen. Hancock had engaged the lodgings in the Hotel St. Cloud for a fixed term, subject to contingencies. The appellee did not engage for any term.”

There is no conflict in what we have said in this case with what was said and decided by this court in Vigeant v. Nelson, 140 Ill. App. 644. In the first place in case supra we expressly held that the “Maison du Nord” was “not an ‘inn’ in the technical sense for the accommodation of transient guests. Nor was the plaintiff in error such guest”. Here we hold that “Hotel Dearborn” is an inn and that Moon was a transient guest at the time he lost his baggage.

Whether the trial judge was in error or not in failing to order the plaintiff, at defendants’ request, to file a new bill of particulars, after permitting him to increase the ad damnum from $457 to $600, did not affect the merits of the claim or hamper in any way the defense. The verdict and judgment were for sums less than claimed either in the bill of particulars on file or the one claimed to have been given by the attorney of plaintiff to the attorney of defendants, and which was offered and received as part of defendants ’ proof. They are also for sums less than the ad damnum before it was increased.

There is no cause shown justifying our interference with the judgment of the Municipal Court, and it is therefore affirmed.

Affirmed.


text:
    Pittsburgh & Indiana Coal Company, Plaintiff in Error, v. Hostler Coal & Coke Company, Defendant in Error.
    Gen. No. 14,313.
    1. Vendos and vendee—remedies of former upon refection of merchandise. If merchandise ordered and sought to he delivered is without good cause rejected by the -vendee, the vendor has open to him four courses, namely, (1) to store the merchandise for the vendee and give notice of such action, in which case the measure of damages is the full contract price; (2) keep the merchandise and recover the excess of the contract price over and above the market price at the time and place of delivery; (3) upon notice to the vendee, to proceed to sell the merchandise to the best advantage and recover the loss if such merchandise fails to bring the contract price, or (4) to sue for the contract price of the merchandise upon the theory of delivery actually made with a return refused.
    2. Consignor and consignee—when title passes. Delivery of goods to a common carrier to be forwarded to a purchaser is a delivery to the purchaser and thereby passes title to such purchaser subject to the consignor’s right of stoppage in transitu.

    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Winkler, Baker & Holder, for plaintiff in error.
    Pomeroy & Martin, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

The artificial persons, the litigants in this cause, are dealers in coal at the city of Chicago. The controversy is entirely confined to the cross claim of defendant presented in the nature of a set-off to plaintiff’s undisputed claim, for the contract price of three cars of coal shipped, on order, by defendant to plaintiff. The three cars of coal sold and delivered by plaintiff to defendant were of the conceded value of $163.40, and the three cars of coal were sold by defendant to plaintiff at the undisputed price of $142.03. The parties having waived a trial by jury, the cause was tried before a judge of the Municipal Court, who allowed the set-off for the amount of the contract price of the three cars of coal in controversy, and entered judgment in favor of plaintiff, without costs, for $21.37, the difference between the two claims, defendant having tendered that sum to plaintiff before trial. This appeal is prosecuted in an effort to reverse the finding of the trial judge in favor of defendant’s set-off.

The three cars of coal in controversy were contracted to be “% inch West Virginia gas coal”, sold f. o. b. cars at mine. These three cars of coal were shipped at the mine of defendant consigned to Electric Roller Co. at Delaware, Ohio, and upon arrival were rejected as not being of the contract standard. Defendant declined to accept a return of the coal, and what subsequently became of .it is not disclosed by the record.

Plaintiff assigns for error and argues, first, that the counter-claim of defendant was not the subject of set-off in its suit for the price of the coal sold by it to defendant, and that if it was the subject of set-off that it failed to prove its right to have its counter claim allowed for the contract price of the coal. This latter contention rests in the claim that defendant, when the coal was rejected, had three courses open to it, neither of which it pursued. These courses are, first, to store the coal for plaintiff, give notice of such action, and then the measure of damages would have been the full contract price; or, second, defendant might have kept the coal and recovered the excess of the contract price over and above the market price at the time and place of delivery; or, third, defendant might have, upon notice to plaintiff, proceeded to sell the coal to the best advantage and recover the loss if the coal failed to bring the contract price.

While not controverting the right of defendant, at its election, to pursue either of these three courses, yet we are of the opinion that, while they were open to it, it was not bound to proceed in accordance with either of them.1 It had a fourth alternative—to sue for the contract price of the coal and recover it either in a direct action or by way of set-off to plaintiff’s claim, provided that the coal was up to the grade called for by the contract.

The trial judge, properly, we think, held the law on this subject to be that “if a party to whom goods have been ordered shall ship the amount and quality ordered in the manner directed, the property thereupon vests in the purchaser, and is thenceforth, after delivery to the common carrier, at the purchaser’s risk, and that the legal measure of damages of defendant under its set-off or counter claim was the exact contract price”.

By construction of the words of the contract “f. o. b. mines” a delivery of the coal at the mines to a common carrier consigned as directed, constituted a delivery to plaintiff, and therefrom the coal was at its risk. Shaw v. Lady Ensley Coal Co., 147 Ill. 526.

Delivery of goods to a common carrier to be forwarded to the purchaser is a delivery to the purchaser and thereby passes title to such purchaser, subject to the consignor’s right of stoppage in transitu. Kelsea v. Ramsey, 55 N. J. L. 320. See authorities cited in note to Ramsey case, supra, 22 L. R. A. 415 to 418, where the whole doctrine is thoroughly discussed.

The place of delivery is, by analogy, the point for inspection, and if the coal was of the grade and quality designated in the contract when delivered to the carrier, that provision of the contract was fulfilled.

Being unable to say from the proof that the finding of the trial court that the three cars of coal were, when delivered to the common carrier at the mine and consigned according to instructions, up to contract grade, is manifestly contrary to the probative force of the evidence, we will not disturb that finding, but concur in it.

Whether or not an unliquidated claim may be set-off against a claim for liquidated‘damages in an action in the Municipal Court, is of no importance on this appeal in the light of our holding that the counter-claim of defendant was for liquidated damages for the contract price of the three cars of coal in controversy. This in no way violates the doctrine announced in Higbie v. Rust, 211 Ill. 333, for there the holding of the court is restricted to a counterclaim for unliquidated damages under a contract entirely foreign to the claim and subject matter of the original suit.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Isador Good, Plaintiff in Error, v. Simon Arkin, Defendant in Error.
    Gen. No. 14,322.
    1. Agency—burden of proof to establish. The onus of proving agency and resulting authority in the agent to collect an account rests upon the defendant who has interposed payment which is an affirmative defense.
    2. Municipal Court—when final judgment .entered upon appeal. Where a case has been tried in the Municipal Court without the intervention of a jury the Appellate Court will on appeal render a proper final judgment, if the record will admit of it.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Oscab M. Tobbison, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and judgment here.
    Opinion filed March 4, 1909.
    Gardner, Stern & Anderson, for plaintiff in error.
    No appearance Tby defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

The plaintiff, doing business in St. Louis, Missouri, sued defendant, engaged in business in Chicago, claiming $182.83 for goods sold and delivered. An item charged in this account of $51.53, it was conceded on the trial, was not received by defendant, which reduced the amount for which plaintiff asked judgment to $137.83. Defendant, while admitting the receipt of goods to amount and value of $137.83, defended on the ground that he discharged the claim by payment to plaintiff’s representative. The trial judge, holding that defendant had sustained his contention of payment, entered a judgment of nil capiat and for costs against plaintiff. Plaintiff brings the record to this court for review and asks a reversal of the judgment of the Municipal Court and judgment in his favor here for the- amount of his claim.

It seems that plaintiff had in his employ at St. Louis a man named Jacob Guggenheim as bookkeeper. As such bookkeeper part of his duties was to conduct correspondence in the business of plaintiff. There was at no time any personal dealings between Guggenheim and defendant, and no personal acquaintance. On June 30, 1907, Guggenheim was discharged and quit the employment of plaintiff. He caine to Chicago and, July 1, 1907, saw defendant at his place of business and presented the account in question for payment. Not being personally known to defendant he identified himself by demonstrating that the correspondence from plaintiff to defendant, although none of it was signed in Ms name, was in Ms handwriting. He also claimed to be a partner with plaintiff in the business of the Chic Waist Company. There was nothing in the correspondence or in the letter or bill heads or other stationery used by plaintiff in Ms business to lend verity to this claim. Defendant thereupon gave to Guggenheim a check as follows:

“Kraus Savings Bank No. 1961.
(John M. Kraus & Sons)
Chicago, July 1, 1907.
Pay to the order of Chic Waist Co..................(131.60)
One Hundred thirty one & 60/100 Dollars.
Simon Akkin.”

This check was certified by the bank and endorsed “CMe Waist Co. J. Guggenheim, J. Oswego”.

On plaintiff discovering the fraudulent endorsement of tMs check by Guggenheim, payment was stopped at the bank, and defendant testified that the money is in the bank subject to payment to the rightful owner.

It is clear that defendant cannot escape payment of plaintiff’s claim, save upon the theory that Guggenheim was plaintiff’s agent, and authorized to receive the amount due and discharge payment thereof. There is no proof in this record that Guggenheim was the agent of plaintiff, authorized to collect this account. The onus of proving agency and resulting authority in Guggenheim to collect the account rested upon defendant as an affirmative defense. The law does not presume agency in such cases. It must be proven by competent evidence or such facts and circumstances sufficient to raise therefrom the presumption of agency. The authorities to tMs effect are numerous and uniform. 2 Mechem on Agency, sec. 276; Abrahams v. Weller, 87 Ill. 179; Clark v. Smith, 88 Ill. 298; Williams v. Anderson, 107 Ill. App. 32.

As the cause was tried before the court without a jury, we will render judgment here for the amount of plaintiff’s claim, that being the judgment wMch should have been entered by the Municipal Court under the evidence in the record.

Therefore the judgment of the Municipal Court is reversed and a judgment will be entered here in favor of plaintiff below for the sum of $137.83.

Reversed and judgment here.


text:
    The People of the State of Illinois, Appellee, v. Barney Cohen, Appellant.
    Gen. No. 14,539.
    1. False pretenses'—when information in prosecution for, insufficient. An information in a prosecution for obtaining property by false pretenses is fatally defective if it does not charge that the false pretenses were made “with intent to cheat and defraud.”
    2. Pleading—when intent essential to he alleged. An indictment or information is sufficient under the laws of this state where it states the offense in the language of the statute, but where the intent is mentioned in the statute as an element of the offense it ought to be alleged.
    Information for obtaining money under false pretenses. Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed.
    Opinion filed March 4, 1909.
    James Turnock, for appellant.
    John J. Healy and Clifford Gf. Bob, for appellees; Q. J. Chott, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

Appellant, Barney Cohen, and the appellant William H. Herron in the next case, general number 14540, (post p. 396) were each prosecuted on separate in-formations for obtaining property by false pretenses. On a waiver of a trial by jury, the presiding judge found them guilty and sentenced each to pay a fine of $25 and to serve a term of imprisonment in the county jail of thirty days and to pay the costs of the prosecution, from which judgment each prosecutes a separate appeal praying a reversal.

The evidence upon which the convictions followed is the same in each case.

Each of the informations charged that the defendants obtained certain goods from the Chicago Leather Mercantile Co., describing them in each case, hy falsely representing that the defendant, William H. Herron, was “ J. Wilson, a wealthy merchant from Texas, as the owner of department stores in Texas”; that said representations were false and so known to them to be false and untrue, “contrary to the form of the statute in such case made and provided”. The statute so alleged to be violated is section 198, chapter 38 of Starr & Curtis’s Ed. of the R. S., and reads in part: “Whoever, with intent to cheat and defraud another, designedly by color of any false token or writing, or by any false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money, personal property or other valuable thing, shall be fined in any sum not exceeding $2,000 and imprisoned not exceeding one year. * *

The information does not charge that the false pretenses were made “with intent to cheat and defraud”. This was an essential element to constitute the crime under the statute. It was not waived by pleading and proceeding to trial. A motion in arrest of judgment was sufficient to preserve the right to object upon appeal. Judgment should have been arrested upon the motion to arrest. Pritchard v. People, 149 Ill. 50. There could be no lawful conviction under the information, which was fatally defective in failing to aver that the representations were made “with intent to cheat and defraud”. The statute makes such averment necessary, and lacking it, no crime known to the law was stated as violated by defendant.

An indictment is sufficient under the laws of this State where it states the offense in the language of the statute, but where the intent is mentioned in the statute as an element of the offense, it ought to be alleged in the indictment. McCullough v. People, 69 Ill. 601. The same precision is as essential to an information as an indictment.

Cohen and Herron, in what they did at the store of the Chicago Leather Mercantile Co., and the talks they had with Samuel B. Panama, the secretary and treasurer of the company, were working in consort with and under the permission of the police department of Chicago. They were in this particular instance employes of the police department, and were paid $50 for their blundering by the department. Cohen represented Herron to be a wealthy merchant from Texas, who was in Chicago to buy goods for several department stores which he was operating in Texas. Cohen wanted a commission upon goods which might be sold to Herron on his introduction, which Panama agreed to pay him. Surely, this was not an indictable offense either by .the statute or by force of the common law, if such statements were untrue. Panama was free to make his own inquiries and verify in the usual way Cohen’s statements. It seems that Cohen and Herron proceeded upon the theory that Panama had stolen property in the store of the Chicago Leather Mercantile Co., which they were offering for sale. Acting in this supposed belief, they arranged with the police department to capture the goods and prosecute Panama as a receiver of stolen property, with guilty knowledge of its being stolen. The police went so far as to seize some sealskins at the store of the Chicago Leather Mercantile Co. However, upon an examination by the police, they discovered that there was no foundation for the suspicion that the sealskins were stolen, and the police at once returned them, and the services of Cohen and Herron were immediately dispensed with. No criminal intent is inferable in the remotest degree from these facts. The only inference which can be reasonably indulged is, that Cohen and Herron were indifferent detectives, and the police department, in this particular case, was easily imposed upon.

The judgment of the Municipal Court is reversed.

Reversed.


text:
    The People of the State of Illinois, Appellee, v. William H. Herron, Appellant.
    Gen. No. 14,540.
    This case is controlled by the decision in the case of People v. Cohen, ante, p. 393.
    Information for obtaining money by false pretenses. Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed.
    Opinion filed March 4, 1909.
    James Turnock, for appellant.
    John J. Heart and Clifford Gl. Bob, for appellee; Q. J. Chott, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a.conviction under a charge of obtaining goods by false pretenses, contrary to the statutes of this State, for which Herron was sentenced' to pay a fine of $25 and to suffer imprisonment in the county jail for thirty days.

This case is the same on fact and law as the case of Cohen, general number 14539, ante, p. 393. For the reasons stated in the Cohen case, the judgment of the Municipal Court is reversed.

Reversed.


author: Mr. Presiding Justice Smith

text:
    Mrs. Charles A. Bradley, Plaintiff in Error, v. Chicago & Northwestern Railway Company, Defendant in Error.
    Gen. No. 14,419.
    1. Municipal Court—how appeal determined in fourth class cases. The Appellate Court in reviewing a judgment of the Municipal Court rendered in a fourth class case will decide the same upon its merits as they appear from the record and in so doing may disregard incidental errors of law.
    2. Passenger and carrier—when responsibility for baggage does not attach. The carrier’s responsibility for baggage does not attach unless the relation of passenger and carrier has been established. One having a ticket cannot leave his baggage with the carrier and provide for its transportation in due course unless he himself intends at such time to proceed upon his journey. The carrier’s liability with respect to baggage is an incident to the relationship of passenger and carrier and if such relationship does not exist at the time of the carriage of the baggage the only responsibility of the carrier is that of a warehouseman.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed March 9, 1909.
    Thatcher, Grieein & Wright, for plaintiff in error.
    S. A. Lynde and Frederic Burnham, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Plaintiff in error brought an action in the Municipal Court of Chicago against the defendant in error railway company to recover the value of certain articles of wearing apparel stolen from her trunk while in the possession of the defendant in error at the station at River Forest, Illinois. The trial was had before the court without a jury upon an agreed statement of facts, and the court found the issues for the defendant in error and gave judgment for costs against the plaintiff in error. By this writ of error it is sought to reverse the judgment.

The following facts were stipulated by the parties:

“On the afternoon of Saturday, June 9, 1906, between two and half past two o’clock p. m., Mr. Charles A. Bradley, husband of the plaintiff herein, presented to the baggage master at the Chicago & Northwestern Bailway Company’s depot at Wells street, Chicago, a twenty-five ride commutation ticket, good for bearer over the line of said defendant, between its station in the city of Chicago and its station at Biver Forest; said ticket belonged to Mrs. Charles A. Bradley, the plaintiff herein; said Bradley at that time delivered to the defendant a transfer check and requested that the trunk which said check called for and which was then in possession of the defendant, having been delivered to it on a transfer check from the Chicago, Bock Island & Pacific Bailroad Company’s depot, be checked over the road of the defendant to Biver Forest. He was given a regular baggage check for said baggage in return. At about one o ’clock p. m. on Sunday, June 10th, said Bradley and his wife, the plaintiff herein, proceeded to Biver Forest over the Oak Park Elevated Bailroad because, as he says, there was no train convenient on the Northwestern, and they had a dinner appointment at Biver Forest. At about four o’clock p. m. on said day, said Bradley called for said trunk at the defendant’s station at Biver Forest and discovered that it had been broken into and some of the contents therein stolen.

The ticket above referred to had been used prior to June 9, 1906, by the plaintiff in traveling over the line of said defendant and after June 10, 1906, was entirely used and consumed by the plaintiff in traveling over the lines of the defendant between the city of Chicago and Biver Forest.

There were about twenty-two trains either way running from Chicago to Biver Forest daily and stopping at Biver Forest station, and of these forty-four trains six or seven carried baggage. ,

The station of Biver Forest, a suburban village, is located nine miles from the city of Chicago. It is a town of about two thousand inhabitants. Plaintiff had lived there all her life except the two years previous to the loss in question. The station of defendant’s railway at said point is located on the north side of the tracks, is about one hundred twenty-five feet long, east and west, and twenty-five feet wide. It has four rooms; the waiting room toward the east; the office next to that; the baggage or freight room next to that, and a little store-room next to that on the west end. In the waiting room there is one door leading to the outside and one from the waiting room into the office. There is a door leading from the office into the baggage room. The office is a small room extending across the entire building, having one window on the north side and one on the south side. These windows are barred with iron bars on the outside of said windows, held in place by screws. The windows have a sash lock and catch locks on each side of the sash operating by springs. The baggage room has two doors and two windows and all the doors are provided with locks. This is the station as it existed on June 9, 1906. The nearest house to the station is situated about two hundred feet from it across the street. The station platform was lighted with ten kerosene lamps.

On the afternoon of June 9th, at 3:55, plaintiff’s trunk was left at the station at Biver Forest by the defendant. Defendant’s station agent, Mrs. Emily Elliott, received it on its arrival and placed it in the baggage room of defendant’s station. The train on which it arrived was the first train carrying baggage after 2:02. Mrs. Elliott remained at defendant’s station until 7:12 p. m. She thereupon locked the doors and windows herself and went home. This was her usual time for going home. At 8:15 a. m. Sunday, June 10th, she was called to the station by Tom Beck, her assistant, and discovered that two bars on the north window of the office room were broken off and the lower sash pried up; the door between the office and the baggage room open and plaintiff’s trunk broken open and the contents scattered about the floor. There was one other trunk in the baggage room at the time, which belonged to Mrs. Elliott’s daughter and which was also broken open and rifled. The station was disturbed in no.other way.

Thomas B. Beck, Jr., was Mrs. Elliott’s assistant. In accordance with his custom, he went to the home of. Mrs. Elliott on June 10th, which was Sunday, got the keys of the station and came down to meet the 8:15 a. m. train. He noticed the station in the condition in which Mrs. Elliott later found it, notified her, and upon her instructions notified Mrs. Bradley, the plaintiff.

The general rules of the company in reference to baggage provide that baggage may be allowed to remain in the possession of defendant for a period of twenty-four hours, Sundays not included, after its arrival at its place of destination before a charge for storage is made, and that after that period a charge of twenty-five cents for the first twenty-four hours and of ten cents for each subsequent twenty-four hours is made. It appears that the plaintiff had knowledge of this rule.

It is hereby stipulated and agreed that the value of the property of the plaintiff lost from her trunk while in possession of defendant as aforesaid was one hundred fifty dollars ($150).”

Errors are assigned upon the refusal of the court to hold certain propositions submitted by the plaintiff in error to be held as the law applicable to the case, and upon the holding of certain propositions submitted by the defendant in error as the law applicable to the case.

The principal question raised is whether upon the facts the plaintiff in the court below is legally entitled to recover for the loss of her property. This being a fourth-class case, it is the duty of this court, under the provisions of the Municipal Court Act (sec. 23, par. 8) to decide the case upon its merits as they appear from the stipulated facts. If, therefore, there he errors in the holdings of the trial court on the propositions held or refused as law applicable to the case, such errors may be disregarded, if they have not prejudiced the plaintiff in error in the presentation of her case, or if they did not affect the decision of the trial court upon the merits. In the view we take of the case we do not deem it necessary, therefore, to set out in detail the numerous propositions to be held as law in the decision of the case, tendered by the parties, and the rulings of the court thereon, though we have examined them; but we take up the main question as above stated without considering in detail each particular ruling urged as erroneous by counsel for plaintiff in error.

The facts stipulated warrant the inference that at the time the trunk was checked to be delivered at River Forest by plaintiff’s husband, the plaintiff did not intend to take the train for River Forest on which her trunk was to be transported, or any other train of the defendant on that day. This intention was not made known to the defendant. While the plaintiff did not expressly inform the agent who accepted the trunk and checked it, that the plaintiff would accompany her baggage, that was in effect the information conveyed to the agent by failing to inform him that plaintiff intended to go to River Forest on the following day, and possibly by a route other than that of defendant. Silence upon this matter justified the agent in drawing the inference that the plaintiff or owner of the baggage would proceed on the same train (which was the next train) with it. If the defendant undertook to forward the trunk on the same train as that on which the plaintiff proposed to travel (Wald v. P. C. C. & St. L. R. R. Co., 162 Ill. 545) then there was an implied contract on the part of the plaintiff to accompany her baggage on that train, in the absence of any special direction or understanding which authorized the defendant to send her baggage by some other train. The plaintiff, by not taking the train and by proceeding to her destination by another route than that of the defendant, failed to keep her implied agreement with defendant, and the relation of passenger and carrier was not established. Hence, the defendant’s liability as a carrier of baggage was not legally fixed. The defendant became a gratuitous bailee only, on the facts stated in the record.

The law on this question is clearly stated in Hutchinson on Carriers, 3rd Ed., secs. 1274 and 1275, where the learned author uses the following language:

“Sec. 1274. The owner of the property must, of course, stand in the relation of passenger to the carrier in order to fix upon him liability as a carrier of baggage. The carriage is ex vi termini incidental to the carriage of the owner as a passenger. If, therefore, that which would have been properly baggage had it been accompanied by the owner as a passenger, should, by Accident or mistake, be accepted by the carrier for transportation without being accompanied by the owner, and when he is not or does not become a passenger, the carrier would not have it in its custody in the character of baggage, and would not be responsible for it as such. Of course if he accepted such baggage for transportation, knowing that the owner was not and did not intend to become a passenger, he would accept it to be carried as freight, and would be liable for it as a common carrier of goods. But if he accepted it as baggage, supposing the owner to be a passenger, or about to become one, and it should turn out that he was not and did not become a passenger upon the journey upon which the goods were taken, the question would arise: In what character and under what responsibilities was it carried?

“Sec. 1275. Having accepted it to be carried as baggage, will the law imply or impose upon him a different contract or duty from that which he undertook? For although the measure of the liability of the carrier of the baggage is the same as that pf the common carrier of goods as freight, the risk incurred by the carrier in the two cases is not always the same. When the baggage is accompanied by the owner, as the carrier has the right to suppose will be the case, emergencies may arise in which his care and attention to it may preserve it from loss; and when his journey has been safely made, the carrier may at once deliver to him his baggage, instead of being obliged to keep it for him and thereby prolong his own responsibility. Therefore, to make him responsible as a common carrier of freight for that which he has accepted for carriage as baggage, would be imposing upon him a somewhat different undertaking from that to which he had agreed. * * * Where, therefore, the owner of goods, who has secured the right to be carried as a passenger, tenders his goods as baggage, and the carrier, believing that they are to be accompanied by him, accepts them as such, he will thereby incur with respect to their safety the responsibility of a gratuitous bailee only if, through no fault of his, the owner does not become a passenger upon the journey upon which they are taken.”

The same doctrine is announced in the following authorities: Elliott on Railroads, 1st Ed. sec. 1656; Beale & Wyman on Rate Regulation, sec. 147; Marshall v. Pontiac, etc., R. R., 126 Mich. 45; Wood v. Maine Central R. R., 98 Maine 98; Wilson v. Grand Trunk Ry., 56 Maine, 60; Collins v. B. & M. R. R. Co., 10 Cushing 506.

The facts in Marshall v. Pontiac, etc. R. R. Co., supra, show the same relation of the parties, which appears in this case, and the court held that the railroad company was a gratuitous bailee of the trunk for the owner, who had purchased a ticket and checked his trunk with no intention of accompanying it.

We do not regard McKibbin v. Wisconsin Central Ry. Co., 100 Minn. 270, cited by plaintiff in error, an applicable to this case. Nor is the change of tho established rule there suggested because of the modern method and custom of sending baggage on trains other than those on which the passengers travel, to be applied to the case at bar, in our opinion. In that case the railroad company was paid by baggage coupons for the transportation of the sample trunks containing merchandise, and, therefore, the relations of the passenger and carrier were different from those shown by the facts here. In that case the court properly held that “the salesman intended to follow his baggage and that the defendant was not a gratuitous bailee”, on the facts shown.

It is not contended here, and we do not hold that railroads do not assume the relationship of carrier of baggage in respect to baggage shipped on other trains than those on which the passengers travel, where this has been done by special arrangement, or where on account of the carrier’s knowledge of the circumstances, an implied undertaking to db so arises. But, if the fundamental contention of plaintiff in error involved in this case should be held to be the law, a carrier would be forced against its will into a warehouseman’s business, and the obligations thereof; for all that would be necessary would be that the owner have a ticket and a bona fide intention of using it at some time, no matter when. The carrier would thus be compelled to keep in store for days or even months trunks, with no means whatever of relieving itself of their care. This state of affairs is never contemplated by a carrier in selling a ticket and agreeing to carry the passenger’s baggage free, and as an incident thereto, to the point of destination. In C., R. I. & P. R. R. Co. v. Boyce, 73 Ill. 510, the court says, at page 514: “It was never intended that the passenger carriers should become warehousemen of the traveler’s personal luggage. * * * The carrier never con tracted to carry him as a passenger with a view to such extended liability for his baggage.”

It may be conceded, as urged by plaintiff in error, that the consideration for the carriage of the passenger is the consideration as well for the carriage of his baggage, but it cannot be argued from that in this case that there was any consideration for the carriage of plaintiff in error’s trunk; for it is well settled that a holder of a ticket has no rights as a passenger, until he has presented himself for carriage in the proper manner. No duty arises with respect to him until he has offered himself, and has been impliedly or actually accepted for carriage. And for the same reason the mere fact that he has paid for a ticket does not make his trunk baggage. If he never becomes a passenger his trunk never becomes baggage. If he becomes a passenger after his trunk has been carried to the destination, the consideration for the carriage of it as baggage does not relate back to the carriage of the trunk, because, as we have said, in the absence of some arrangement to that effect, that is not the contract.

In our opinion, when the trunk of plaintiff in error arrived at the Biver Forest station, and, there being no one there to receive it, the defendant in error deposited the trunk in its baggage room, it discharged its full duty, provided the room was a reasonably safe place in which to store it; and the defendant in error became responsible as a warehouseman. Bartholomew v. St. L., etc., R. R. Co., 53 Ill. 227; C., R. I. & P. R. R. Co. v. Fairclough, 52 id., 107; C., R. I. & P. R. R. Co. v. Boyce, supra; Chicago & Alton R. Co. v. Addizoat, 17 Ill. App. 632.

The only remaining question is, whether the baggage room was a reasonably safe and secure place for the trunk. By this is meant, “not an absolutely fireproof or burgular-proof warehouse, but such an one as a man of ordinary prudence would use for the storage of his own goods”, as stated in the Fairclough case, supra. By the stipulation of facts it appears, we think, that the station house of the defendant in error was a reasonably safe and secure place for the storage of property. The evidence fails to show that the defendant in error was guilty of any negligence which would render it liable as a gratuitous bailee or warehouseman for the loss of the property contained in the trunk through the action of a burglar or thief in making a felonious entrance into the station in the manner and at the time shown by the record. There was no want of ordinary care, we think, on the part of defendant in error. Wood v. Maine Central R. Co., supra; Indiana R. Co. v. Zilly, 51 N. E. 141; Byrne v. Fargo, 73 N. Y. Supp., 943; Grossman v. Fargo, 6 Hun. 313; Cohen v. Ry. Co., 59 Mo. App. 66.

We are of the opinion that the judgment of the trial court is just, and is free from substantial error affecting the merits of the cause. The judgment is affirmed.

Affirmed.


text:
    Johanna Enders, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 14,437.
    1. Contbibutoby negligence—when person using public street guilty of. Held, under the evidence in this case, that the plaintiff in choosing to adopt the course of travel which he did, knowing its dangers, was guilty of contributory negligence which barred a recovery.
    2. Negligence—obligation of municipality to erect barriers. A city is not obligated in every case to erect suitable railings where there are dangerous places upon its streets; the question whether such an obligation should be performed is in each case to be determined by an ascertainment as to whether such barriers are necessary to make the street reasonably safe and convenient for travelers who are themselves in the exercise of due care.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Mancha Bbtjggemeyeb, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed March 9, 1909.
    Statement by the Court. The plaintiff in error, Johanna Bnders, brought suit in the Municipal Court of Chicago against defendant in error, city of Chicago, for negligence in allowing a certain excavation to be made in Twenty-third street, rendering the same dangerous to travel, and in failing to place guard rails along the sidewalk or lights or danger signals, by reason whereof the plaintiff, while passing along said street on April 10, 1907, in the evening, fell into the excavation and her right thigh bone was broken and she suffered other injuries.
    On the trial the jury returned a verdict for the defendant, city of Chicago, and, after overruling a motion for a new trial, the court entered judgment for the defendant on the verdict. This writ of error is prosecuted to reverse that judgment.
    The evidence in the case consists wholly of that delivered by the plaintiff and her witnesses. The defendant offered no evidence.
    The evidence shows without conflict that the Vierling McDowell Company’s foundry is situated on Twenty-third street at its intersection with Stewart avenue in the city of Chicago. The foundry extends east from Stewart avenue about one hundred feet along Twenty-third street. On Stewart avenue were a number of railway tracks which were being elevated, and the roadway of Twenty-third street was being lowered from a point 100 to 150 feet east of Stewart avenue in order to carry the street under the railroad tracks when elevated. The sidewalks along the street were in good order. By the excavation made in the roadway for the purpose indicated, the surface of the road was two or three feet below the surface of the sidewalk. Twenty-third place is the first east and west street south of Twenty-third street. A private way leads from Twenty-third place across the premises of the foundry company to Twenty-third street. At Twenty-third street this private way is closed by a gate, through which it is necessary to pass when going north before reaching the sidewalk of Twenty-third street.
    Plaintiff, at the time of the accident, lived on Canal street, south of Twenty-third street. About eight o’clock in the evening of April 10, 1907, she started to go to King’s tea store which was on Archer avenue. She walked from her house on Canal street to Twenty-third place, thence to the foundry, and through the private way. She walked through the gate at Twenty-third street, and across the sidewalk, and in stepping from the sidewalk to the roadway fell and was injured. Plaintiff was accustomed to go by this route from her home to the tea store and knew that the street was undergoing improvement. At the time of the accident she was walking rapidly.
    Samuel C. Herren, for plaintiff in error.
    Edward J. Brundage and John E. Caverly, for defendant in error; Edward C. Pitch and David T. Alexander,- of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The argument of plaintiff in error is confined to the assignments of error which question the rulings of the trial court in giving and refusing instructions, although other errors are assigned.

Defendant in error offered no evidence on the trial and submitted its case on the facts disclosed by the testimony offered on behalf of plaintiff in error. There being no conflict in the evidence on any essential fact, the jury as reasonable men could draw but one conclusion from the facts, namely, that the defendant in error was not guilty of the negligence averred, and that the plaintiff in error was guilty of contributory negligence causing the injury.

The record shows that the defendant in error was engaged in improving the street at the point where the accident happened, and that plaintiff in error knew that the street at this point was being excavated. She chose to take the route through the foundry to the store where she desired to go; and then, instead of using the sound and safe sidewalks and crossings provided, she departed from the sidewalk and attempted to cross the street about midway between the crossings, unmindful apparently of the conditions which she knew existed there.

It is urged that the plaintiff in error had the right to cross the street at this point and that the city was guilty of negligence in failing to erect a barrier or railing along the sidewalk to prevent people from stepping or falling from the curb to the lower level of the roadway. We cannot agree with this contention under the facts of this case. Under some circumstances it would undoubtedly be the duty of the city to maintain a barrier or railing for the purpose indicated.

In Logan v. City of New Bedford, 157 Mass. 534, the evidence showed that there was a difference of about three feet between the level of the sidewalk and the ground at the base of a retaining wall about six feet from the line of the sidewalk.. The plaintiff while passing along the sidewalk between nine and ten o’clock in the evening strayed from it arid fell over the wall and was injured. The contention was that the street was defective for want of a fence or railing at that point. The court said: ‘‘Cities and towns are required to provide ways that shall be reasonably safe and convenient for travelers. They are not bound to fence them so as to prevent travelers from straying outside of them, and they are not obliged to mark their limits. Stone v. Attlborough, 140 Mass. 328; Damon v. Boston, 149 Mass. 147. They are required to erect suitable railings where there are dangerous places in such proximity to the highway as to render barriers necessary in order to make the way reasonably safe and convenient. But a railing or barrier is not to be erected because a traveler may meet with an accident if there is none. The question in each case is whether one is needed to make the highway reasonably safe and convenient for travelers who are themselves in the exercise of due care.” There was held to be no liability. See also Mulvane v. City of South Topeka, 45 Kansas, 45; Hannibal v. Campbell, 57 U. S. Appeals 484; Barnes v. Inhabitants of Chicopee, 138 Mass. 67; City of Dayton v. Taylor, Admr., 62 Ohio 11.

In Holding v. City of St. Joseph, 92 Mo. App. 143, the plaintiff sued for damages for an injury sustained in stepping from the sidewalk down into the roadway while attempting to cross the street at an unusual place on a dark night. The court held that the plaintiff could not recover, and at page 148, say: “The question here is clearly presented as to whether a city is liable for an injury to a person who steps off a sidewalk other than at the usual place provided for crossing from one side to the other of a street on a dark night without proper caution. It is a matter of general knowledge that streets are constructed with a depression or gutter next to the sidewalk, for the purposes of drainage. We know of no general rule as to the depth these gutters should be constructed in all cases. But it is safe to say, from the variety of circumstances, for instance, the topography of the locality, their depth and width are not necessarily uniform, but on the contrary must differ in that respect.” On the question of contributory negligence the court say: “Here the plaintiff was not using the street in question in the usual and ordinary manner in which they are used, but was without care or caution attempting, as has been said, on a dark night, without previous knowledge of the conditions of the locality, to pass from the sidewalk space into the street, where she fell and was injured. It appears to us that she was without doubt guilty of contributory negligence, without which she would not have been injured.”

In the case before us the plaintiff in error knew that the street had been excavated. She had frequently traveled the street and knew how it was lighted. Her negligence was therefore greater than that of the plaintiff in the Holding case.

We are of the opinion that substantial justice has been done in this case and that it is our duty to affirm the judgment, although we might think that the court erred in giving or refusing instructions. Berry v. I. C. R. R. Co., 92 Ill. App. 488; Beard v. Maxwell, 113 Ill. 440.

The judgment is affirmed.

Affirmed.


author: Me. Pbesiding Justice Smith

text:
    Charles Chapman, Appellee, v. Gustave Meiling et al., Appellants.
    Gen. No. 14,456.
    1. Evidence—burden of proof to show payment. A party who by way of defense to an action seeks to obtain a credit for a particular item is bound to assume and prove by a preponderance of the evidence that he is entitled to such credit.
    2. Contracts—when contractor not bound by specifications. If an architect having charge of the construction of a building permits sets of specifications to go out of his office to be used for the purpose of making estimates which differ from other specifications claimed as the originals, the contractor may rely upon and recover upon the basis of the specifications employed by him in making his estimates.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and judgment in this court.
    Opinion filed March 9, 1909.
    S. J. Lumbard and H. W. Kuetemeybb, for appellants.

      Hamilton & Hamilton, for appellee.
   Me. Pbesiding Justice Smith

delivered the opinion of the court.

Appellee, Charles Chapman, brought this action in the Municipal Court of Chicago, against appellants, Gustave Meiling and Frederick W. Walthier, to recover a balance due on several different building subcontracts between them and for extra work and materials, amounting in all to $1,504.26. A trial was had before the court without a jury and the court found the issues for the plaintiff and assessed his damages at $1,015. After overruling a motion for new trial and a motion in arrest of judgment, the court rendered judgment on its finding, from which this appeal is prosecuted.

The assignments of error and the arguments of counsel present three items of controversy, the first of which is a charge of $27 for a bill of Furst & Fanning paid by appellants and charged by them to appellee on the ground that appellee ought to have, paid it, and that he agreed with appellants that it was properly chargeable to him. This amount was for recutting some old stone on what is called in the record the Ebart contract.

Appellant Walthier testified to a conversation with appellee in regard to this item in which he says he told appellee that Furst & Fanning had presented a bill for the item and that it belonged to appellee’s contract; that he asked appellee if he, the witness, was to pay the bill and Chapman replied, “I suppose so”, and that the witness then paid the bill. The witness further testified that the first he knew that Chapman objected to its being a proper charge against Mm was at the time they came together to make a final settlement and he objected to it and said it was not in the specifications, or in Ms contract. The contract between the parties was not offered in evidence, but reliance was had on the trial on the promise of appellee, Chapman, to pay the bill.

Appellee, Chapman, denied the conversation testified to by Walthier and denied that he ever agreed or consented to pay the claim or that it was a part of his contract.

Inasmuch as appellants were seeking to obtain credit for this item in their accounts with appellee, a statement of which was offered in evidence, the burden of proof was upon them under the state of the evidence in the record. We are of the opinion upon the evidence that appellants failed to sustain this item or claim by a preponderance of the evidence. The trial court therefore correctly disallowed this item to appellants.

The second item in controversy here is for $218.95 which appellants have retained and held out of the contract price between appellants and appellee for the masonry work on the Ward building on Lake avenue and Forty-seventh street, Chicago.

Appellee offered in evidence on the trial a statement rendered by appellants to appellee some time prior to the trial, showing a credit to appellee of $4,475, the entire contract price on the Ward building. It was agreed between the parties at the trial that this statement was correct with the exception of the three or four items in dispute. The item now under consideration appears in that statement as a charge against appellee as follows: “In abeyance amount of deduction claimed by Richard E. Schmidt, Arch’t., on account for masonry for A. Montgomery Ward’s Bldg., $218.95.”

Appellee contends that appellants are not entitled to retain this amount from the contract price for two reasons: (1) because it was not a part of appellee’s contract to support the wall of the adjoining building, and (2) admitting it was a part of appellants’ contract, the expense of sustaining the wall was voluntarily paid by Mr. Ward and the adjoining owner, and was not charged against appellants, hut that this amount was alleged to have been paid by Mr. Ward for damages done to the adjoining building in the course of the construction of the Ward building, and not for supporting the wall, and therefore is a matter with which appellee has nothing to do.

The record shows that two sets of specifications were offered in evidence, both issued by the architect Schmitt. Appellee offered in evidence the set on which he figured when the contract with appellants was made and which was used in doing the work. In this set it is provided in reference to the adjoining wall, “Notify the neighbors to protect their foundation walls, footings, etc., and do not allow water or sand to run from under their foundations.” Appellants offered in evidence the office copy of the specifications of Mr. Schmitt which had been in his office all the time until a few weeks before the trial, when appellants obtained it. This copy contained a provision as follows: “If the neighbor to the south does not support his house promptly the contractor shall do so, so as not to delay the progress of the work.”

The evidence does not show and it is not contended that appellee had this set of specifications before him when he figured on the work and the contract was made. The evidence shows that it always remained in the architect’s office; that there were several sets of specifications out and that appellee made his estimates on the work in appellants’ office. The evidence shows further that the set of specifications offered in-evidence by appellee was used by both parties on the work while it was in progress. The architect, Schmitt, testified that the set used by appellee was prepared by him, and that some one in his office must have given it out; that the sets of specifications were made up at different times; the first specifications were made up about two years before the building was erected and later quite a number of corrections and additions were made.

If the architect permitted Sets of specifications to go out from his office and to be used for the purpose of making estimates and in the actual construction of the building which differed in their provisions from his office copy, we think the responsibility for any mistakes or omissions in them cannot be placed upon appellee. He cannot be held to the provisions of specifications which he never saw or used. It would be an imposition and a fraud upon him to furnish him with one set of specifications on which to base his figures and make his contract, and then hold him bound by another set which contained provisions not to be found in the specifications furnished him. We are compelled'to hold on the evidence that appellee’s contract did not require him to support and sustain the wall of the adjoining building, and that appellee was right in declining to do what his contract did not require him to do.

Assuming, however, that it was the duty of appellee, under his contract, to support the wall of the adjoining building, the evidence in the record fails to show, in our opinion, that the $218.95 was necessarily expended by appellants in supporting the wall, or that said amount was actually paid for that purpose alone. Nor does the evidence show that it was reasonably worth that amount to support the wall. We conclude therefore that the judgment of the trial court in allowing to appellee this item was correct.

The third item in controversy between the parties arises upon the cross-errors of appellee. It is contended by appellee that the trial court erred in refusing to allow to him the claim or item of $157 for extra work done on the Saddle & Cycle Club contract.

As in the Ward contract there was a difference between the specifications furnished to appellee and upon which he made his sub-contract with appellants, and those under which appellants were working. It appears from the evidence that the specifications offered and received in evidence embraced specifications for all the different trades, but divided into separate specifications for each particular trade and are bound together in a large document. At the foot of the document was fastened what is entitled, “Addenda Specifications Saddle & Cycle Club, December 27, 1905.” This was at the extreme end behind the plumbers, steam-fitters, masons and every other trade. Appellant Meiling testified that this was added to the specifications and their contract as an extra before appellee signed his contract, and he called appellee’s attention to it especially for that reason. He also testified: “We signed up the contract with the Saddle & Cycle Club about three days after Chapman signed his. Just about .two days before we signed our contract, this last page was added to the specifications. Chapman’s contract with us was signed on the 30th of December.”

Appellant Walthier testified that he had nothing to do with the making of the contract with appellee, but some time after the contract was made and the work under it was started, he had a dispute with appellee over the question whether what the “addenda” contained was included in his contract, and then pointed out to appellee the last page which had a reference in it to the brick terrace which was to be as marked on the plans. Appellee denied ever having seen the “addenda” until he tried to get a settlement after the work was done; and denied that Meiling ever told him about it being attached before the contract was signed, and that Walthier ever pointed it out to him as he testified.

The mason specifications which appear in the record and upon which appellee made his figures according to his testimony contain the following: “Terrace: Terrace not included in this contract.” These specifications were produced by appellants upon notice from appellee and were offered in evidence by appellee. Appellant put in evidence the last page at the foot of all the specifications above referred to. This page contains the following’: “Brick Terrace: To be as marked on plan. Brick to be a $14.00 per M. vitrified paver laid flatwise with cement joints in regular band over a 6" cinder foundation. Do all necessary filling with sand to bring terrace to level shown on plans. Sand base to be no less than 12" thick at any point.”

The evidence shows that appellee on April 4, 1906, made an estimate for appellants offering to lay this pavement for $157, and gave it to appellant Walthier. Nothing appears to have been done about this particular matter until the repairs on the club house were near completion and the club desired to open the club house on a certain Saturday, and on the Monday previous appellants ordered appellee to proceed with the terrace work and complete it by Saturday. No question is made in the record as to the fact that appellee did the work. This is substantially conceded.

The evidence shows that a copy of the “Masonry Specifications” was made in the office of appellants and delivered to appellee eyid that he made his contract with appellants for the work described therein on the basis of the specifications so furnished him. This copy was used by appellee in doing the work. The copy was identified by appellee and by Fitzgerald, appellants’ clerk who made it, sufficiently to entitle it to be received in evidence. The trial court erroneously excluded it when offered by appellee, but, inasmuch as the original specifications were admitted in evidence subsequently the error in excluding the copy furnished to and used by appellee was harmless.

From an examination of the evidence we are of the opinion that the item of work now in question was not included in the masonry specifications furnished to appellee by appellants and used by him in performing his work, and was not included in his contract with appellants. We are further of the opinion that having performed the work and furnished the materials at the request of appellants and upon their order appellee is entitled to recover the amount of $157 therefor, upon the evidence in the record; and that the trial court erred in finding against appellee as to that item.

The judgment of the trial court is reversed and judgment is entered here in favor of appellee Charles Chapman and against appellants Gustave Meiling and Frederick W. Walthier for $1,172.09.

Reversed and judgment in this court.


text:
    Yost Electric Manufacturing Company, Appellee, v. Cavanaugh-Darley Company, Appellant.
    Gen. No. 14,467.

      Cobpobatioiís—what not doing business in this state. Meld, that a corporation of another state which did not maintain an office in this state and which sold only upon written orders sent to its place of business in such other state, was not doing business in this state within the meaning of the statute regulating foreign corporations.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. G-eobge A. Cabpentee, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed March 9, 1909.
    Benjamin F. J. Odell, for appellant.
    Edward A. Biggs, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Appellee instituted this action in the Circuit Court against appellant to recover the sum of $445, together with interest and protest fees, on two promissory notes, each dated March 24, 1906, and due respectively in two and three months after the date thereof, and the further sum of $142.77, due on an open account from appellant to appellee, contracted between a date a little prior to March 24, 1906, and April 19, 1906. Appellant pleaded the general issue, and a special plea averring that the plaintiff is a foreign corporation organized 'for profit and is not a railroad or telegraph company, nor in the insurance, banking or money loaning business; that the merchandise for which the suit is brought was sold to the defendant and bought by it within the State of Illinois since January 1,1905; that the notes upon which suit is brought were also executed and delivered, if at all, since January 1, 1905, in the State of Illinois, and when plaintiff was not authorized to transact business in the State of Illinois; that plaintiff had not at the commencement of this suit, as by statute provided, filed with the secretary of state its articles of incorporation, statement of capital stock represented in Illinois, nor designated an officer upon whom service could be had; nor had the secretary of state of Illinois at commencement of suit issued any certificate or license authorizing plaintiff to do business within the state of Illinois as by statute provided; nor had any such certificate or license at any time been issued to plaintiff.

The plaintiff, appellee, filed a similiter to the first plea, and a replication to the special plea averring that it was not and is not doing business in the state of Illinois, and that the goods, wares and merchandise sold by the plaintiff to the defendant were sold within the state of Ohio and not within the state of Illinois.

The cause was submitted to the court without a jury for trial; and the court found the issues for the plaintiff and assessed the plaintiff’s damages in the sum of $567.02 and entered judgment on the finding.

The issue formed on the special plea of appellant was one of fact, namely, that appellee was not doing business in this state, and that the goods, wares and merchandise sold by appellee to appellant were not sold within this state.

The evidence in the record upon this issue was to the effect that the purchases of goods by appellant from appellee were made by written orders mailed to appellee at Toledo, Ohio, and that appellee there accepted the orders and shipped the merchandise as directed by appellant either to it in Illinois or to customers of appellant in other states. Under such circumstances the transactions were not had in the state of Illinois. Appellee did not have or maintain any office in the state of Illinois. In our opinion the cases relied on in argument by appellant (United Lead Company v. Reedy Elevator Mfg. Co., 222 Ill. 199, and Cincinnati M. H. A. Co. v. Rosenthal, 55 id. 85) are not in point on the question presented by the facts in this record.

As to the notes sued on it appears that they represent forty-five per centum of a claim due from the Empire Electric Supply Company to appellee at the time that company became financially involved, and the appellant purchased all its assets for a sum sufficient to pay the creditors of the Empire Company forty-five cents on the dollar of their claims. Appellant, in consideration of the assets so purchased, assumed and agreed to pay the creditors of the Empire Company that amount of their claims, and paid the other creditors in cash. But to appellee, the largest creditor, it gave the notes sued on, instead of cash. We do not think that transaction is prohibited by the statute.

The evidence, in our opinion, sustains the finding and judgment of the Circuit Court, and the judgment is affirmed.

Affirmed.