text:
    Joseph T. Ryerson & Son, Appellant, v. Alva J. Shaw, Abraham L. Jacobs and John F. Wagner, Appellees.
    Gen. No. 21,382.
    1. Corporations, § 297

      —when officers and agents not personally liable for debts. Officers and agents of a de jure corporation transacting business in its name are not liable as copartners for its debts.
    2. Corporations—what is effect of failure of foreign corporation to procure certificate. The failure of a de jure foreign corporation doing business in this State to procure a certificate required by Hurd’s Rev. St. ch. 32 (J. & A. ¶ 2527), does not put it on the basis of a domestic corporation which has failed to complete its organization, so as to render its officers liable as copartners for obligations entered into in the name of the corporation under the provisions of the statute (J. & A. ¶ 2435).
    3. Corporations—when foreign corporation is corporation de jure. A corporation duly organized in a foreign State and doing business in this State is no less a corporation de jure because it has not complied with the provisions of the Foreign Corporation Act (J. & A. ¶ 2527).
    Appeal from the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Eric Winters, for appellant.
    S. G. Grodson and Blum & Blum, for appellees.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This suit was commenced by appellant against the Chicago Car & Equipment Company for goods sold, delivered, etc., in this State (where all the transactions involved were conducted), but subsequently said company was dismissed out of the case and certain of its directors and officers were made parties defendant, against three of whom only, appellees herein, did the case proceed to trial and judgment. The trial was had without a jury and resulted in a judgment for $917.59 against Jacobs alone, who has entered no appearance here, and in a finding of no liability on the part of Shaw and Wagner. Appellant contends that all three were liable both as partners at common law and as officers under section 18 of our General Incorporation Act of 1872 (Hurd’s Rev. St. 1916, ch. 32, p. 640, J. & A. ¶ 2435).

It was expressly stipulated that at the time of contracting the indebtedness and when the suit was commenced, said company was a duly created corporation under the laws of the State of Maine, and it was not questioned that the credit was extended to said company, and that it was “doing business in this State.”

Appellant’s theory of liability is based on the undenied allegation in its statement of claim, that said corporation has received no certificate to do business in this State pursuant to the requirement of the act to regulate the admission of foreign corporations for profit to do business in this State, approved May 18, 1905, in force July 1, 1905 (Hurd’s Rev. St. 1916, ch. 32, p. 655, J. & A. ¶ 2527).

We are not dealing here with a de facto corporation, but with a corporation de jure, hence, its officers and agents in transacting business in its name are not liable as copartners. (Seeberger v. McCormick, 178 Ill. 404.) The cases of Bigelow v. Gregory, 73 Ill. 197, and Loverin v. McLaughlin, 161 Ill. 417, cited by appellant, are not in point, for as said in the Seeberger case, “in those cases there was a failurei to incorporate.”

It is argued, however, that the failure of said foreign corporation to procure such certificate puts it by virtue of section 26 of our General Incorporation Act (J. & A. ¶ 2443) on the basis of a domestic corporation that has failed to complete its organization, thereby rendering its officers liable under section 18 of that Act.

But while the purpose of section 26 is to bring foreign corporations under the influence of the same law as domestic corporations (North American Ins. Co. v. Yates, 214 Ill. 272; Connolly v. Union Sewer Pipe Co., 184 U. S. 540), we find nothing in the context of section 18 or the authorities construing it that justifies the interpretation contended for by appellant. Section 18 purports to deal with the failure to comply with the requirements of the act pertaining to the steps necessary to a complete organization, and particularly, if not entirely, to the steps required for incorporation under the laws of this State. In our opinion it has no reference to the failure of a foreign corporation to procure the certificate required under the Foreign Corporation Act, which by section 6 (J. & A. ¶ 2531) thereof imposes penalties upon the corporation itself for failure so to do.

In J. W. Butler Paper Co. v. Cleveland, 220 Ill. 128, where it was sought to hold the directors of a domestic corporation liable for its debts under said section 18, because of a departure from the provisions of the act to be pursued” in organizing a corporation in this State, the court said the decision depended on whether it was a corporation de jure, and whether the nature of the provision violated was such as to prevent the corporation from becoming one de jure.

A corporation duly organized in a foreign State is no less a corporation de jure because it has not complied with the provisions of the Foreign Corporation Act. There is no contention that said Equipment Company comes within any of the express provisions of section 18, that it has not legally completed its organization, or that it is a pretended corporation, or that it assumed to exercise corporate powers before its stock was subscribed for in good faith. We think there is a marked distinction between wrongfully assuming to exercise corporate authority, against which creditors are protected by section 18 (Gay v. Kohlsaat, 223 Ill. 260), and the failure of a duly organized foreign corporation to take out a certificate in this State pursuant to the requirements of the Foreign Corporation Act.

Provisions for the liability of directors under section 16 of the General Incorporation Act (J. & A. ¶ 2433) have been held to be not penal, but contractual, “like that of a surety and therefore stricti juris” (Woolverton v. Taylor, 132 Ill. 197; Lewis v. Montgomery, 145 Ill. 30); and we said in Edwards v. Cleveland Dryer Co., 83 Ill. App. 653, that this language was equally applicable to section 18, and that the latter section should be strictly construed. It would in our opinion, contrary to these authorities, be extending section 18 by construction to embrace a case not clearly within its terms to hold it applicable to the facts in the ease at bar.

We are not concerned with appellant’s judgment against Jacobs, but simply whether the court erred in finding no liability against Shaw and Wagner. We think it did not err in that respect.

Affirmed:


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    Walter J. North, Administrator of the Estate of James W. North, Deceased, Appellee, v. Board of Trustees of the University of Illinois, Appellant.
    Gen. No. 21,432.
    1. Workmen’s Compensation Act, § 3

      —when university not within. A university, though using and handling explosives, inflammable fluids and molten metal in the course of giving instruction, is not engaged in -an “enterprise” as designated in the Workmen’s Compensation Act of 1913, sec. 3, par. (b), subd. 6, 7 [Cal. Ill. St. Supp. 1916, ¶ 5475(3)].
    2. Workmen’s Compensation Act, § 13*—when appellee estopped to object against incorporation of evidence and proceedings in bill of exceptions. Where, on appeal from an order of the Circuit Court quashing a writ of certiorari to review proceedings before the Industrial Board under the Workmen’s Compensation Act, the appellee, subsequently to the expiration of the time when a bill of exceptions could be filed, stipulated that the bill of exceptions might be incorporated into the transcript of the record, held that he could not object that the court was without authority to order that the evidence and proceedings before the Industrial Board be incorporated in the bill.
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the March term, 1915.
    Reversed and record of Industrial Board quashed.
    Opinion filed October 10, 1916.
    Oliver A. Barker and MacChesney & Becker, for appellant; Nathan William MacChesney, of counsel.
    Marshall E. Gallion and Edward B. Morris, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Appellee’s intestate lost his life, December 5, 1913, from injuries arising out of and in the course of his employment for appellant as caretaker in the medical department of the University, by falling down an elevator shaft. Against appellant’s protest that the Workmen’s Compensation Act of 1913 did not apply to it, and that the Industrial Board was without jurisdiction in the matter, proceedings for compensation for said intestate’s death were had under said act resulting in an award against appellant of $3,360.

Claiming that said Industrial Board had no jurisdiction to apply the act to the University of Illinois, appellant brought said proceedings before the Circuit Court on common-law certiorari, and this appeal from the court’s action in dismissing the petition and quashing the writ raises the sole question whether appellant comes under the act in question.

The gist of appellee’s argument for sustaining the court’s order is, that appellant is an “employer” as defined by section 4 of said Act [Cal. Ill. St. Supp. 1916, ¶ 5475(4)], and engaged in an “enterprise” as designated in subdivisions 6 and 7, paragraph (b), section 3 of said Act [Cal. Ill. St. Supp. 1916, ¶ 5475(3)], reading as follows:

“6. Any enterprise in which explosive materials are manufactured, handled or used in dangerous quantities ;

“7. In any enterprise wherein molten metal, or explosive or injurious gases or vapors or inflammable vapors or fluids, or corrosive acids are manufactured, used, generated, stored or conveyed in dangerous quantities. ’ ’

The record discloses that except in the course of educational instruction the university is not engaged in any of the “occupations, enterprises or businesses” enumerated in said paragraph (b), but that in the course of instruction and for such purpose only, it uses explosive material and inflammable fluid in its chemical laboratory, and runs a foundry in which molten metal is used.

It is conceded that appellant has not elected to accept the provisions of the act, and snch election will not be presumed unless the employer is engaged in one of the occupations, enterprises, or businesses enumerated in section 3, paragraph (b) of said Act. (Uphoff v. Industrial Board, 271 Ill. 312.) If, as we think, appellant was not so engaged, then, it not having so elected, we need not discuss whether it is an “employer” as defined in section 4.

The question is, whether by the use or handling of such explosives, inflammable fluids and molten metal as aforesaid, appellant is engaged in an “enterprise” as designated in said quoted paragraphs 6 and 7. The record does not disclose the extent of their use. But whether “in dangerous quantities” or not, we do not construe the term ‘ ‘ enterprise ’ ’ as used in said act to apply to such a state of facts. The University was chartered to furnish instruction to students in various branches of learning. Neither the general nature and character of the work of educational instruction, nor the methods adopted in giving it, can properly be denominated an “enterprise” as that term is usually defined. (Uphoff case, supra.) Nor would they be brought within the definition of that term as employed in the statute merely by the incidental use and handling of the materials mentioned in the statute.

Were it otherwise, and appellant deemed an employer as defined in section 4, then each employee of the University, no matter how remote his employment from the use or handling of such materials, would be brought within the scope of the act, a construction we cannot regard as within its meaning and intent.

The authorities cited in the argument relate to very different situations, and throw so little light on the construction of section 3 that we shall not discuss them, nor dwell upon the many incongruities a different interpretation would produce.

Beaching the conclusion, therefore, that mere methods of instruction in an educational institution involving the use of such materials, cannot be deemed as embraced within the term “enterprise” as used in said act, and that the facts disclosed in the proceedings before the Industrial Board did not give it jurisdiction to render a decision and make such award against appellant, we shall reverse the action of the court below in dismissing the petition and quashing the writ and shall enter the order here that should have been entered on the hearing before the Circuit Court, and set aside such proceedings and quash the record of the Industrial Board relating thereto. (Behrens v. Commissioners of Highways, 169 Ill. 558.)

Appellee contends that the order of the Circuit Court allowing the evidence and proceedings before the Industrial Board to be incorporated in the bill of exceptions is of no effect because the hill of exceptions was not filed within time, and the court had lost jurisdiction to enter the order. But as appellee subsequently stipulated that the bill of exceptions might be incorporated into the transcript of the record for this appeal, he is in no position to raise the point. (Lederbrand v. Pickrell, 167 Ill. 624.)

Reversed and record of Industrial Board quashed.


text:
    Ed. Hockaday & Company, Plaintiff in Error, v. Chicago, Milwaukee & St. Paul Railway Company, Defendant in Error.
    Gen. No. 21,440.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 965

      —how points of law may not he preserved for review. An agreement between parties as to what questions of law are to be determined upon the trial of a case is not a compliance with the requirements that, to preserve points of law for review, written propositions must be presented to the court to be held as such.
    2. Carriers, § 93*—when consignee may not maintain action for damages for nondelivery of goods. Where, on failure of a carrier to deliver a shipment to a consignee in accordance with the bill of lading, the consignee canceled the order, held that he could not maintain an action against the carrier for damages resulting from his having to substitute other goods in lieu of those shipped, as his special interest in the goods shipped was lost on the cancellation of the order.

      Error to the Municipal Court of Chicago; the Hon. Joseph P. Raffebty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Ed. Hockaday & Company, a corporation, plaintiff, against the Chicago, Milwaukee & St. Paul Railway Company, a corporation, defendant, for damages for nondelivery of a shipment of goods consigned to the plaintiff. To review a judgment for defendant, plaintiff prosecutes a writ of error.
    Benjamin Levering and Elmer H. Heitmann, for plaintiff in error.
    J. N. Davis and J. M. Lorenz, for defendant in error.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Carriers, § 162 —what is effect of failure to timely present claim for damages. Failure of a consignee of goods to present a claim in writing to the carrier within four months, as stipulated in the bill of lading, after the time delivery should have been made, held to preclude a recovery by him for damages for nondelivery.


text:
    Nathan Levy, Defendant in Error, v. Swift & Company, Plaintiff in Error.
    Gen. No. 21,462.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John C. Work, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Nathan Levy, plaintiff, against Swift & Company, a corporation, defendant, to recover damages for injury to the plaintiff’s horse, wagon and harness, resulting from the precipitation of hot lard thereon, occasioned by the bursting of defendant’s pipe through which the lard was being pumped. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    R. C. McManus, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court of Chicago, § 13 —when statement of claim insufficient., A statement of claim alleging that damage resulted to the plaintiff from an act of the defendant, without an averment of negligence when the act itself does not indicate negligence, does not state a cause of action.

2. Negligence, § 187*—when evidence insufficient to show. In an action for damages alleged to have been caused by the bursting of a pipe belonging to the defendant and the precipitation of hot lard upon the plaintiff and his team while driving along a highway, evidence held not to show any negligence on the part of the defendant.

3. Municipal Court of Chicago, § 31*—when judgment reversed. Where a statement of claim does not allege a cause of action, a judgment for the plaintiff will be reversed.


author: Mb. Presiding Justice Barnes

text:
    Herman Freeman and J. E. Darlow, copartners, trading as Freeman & Darlow, Defendants in Error, v. Harold P. Gould, Plaintiff in Error.
    Gen. No. 21,489.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Herman Freeman and J. E. Darlow, co-partners, trading as Freeman & Darlow, plaintiffs, against Harold P. Gould, defendant, to recover commission for the sale of real estate. To review a judgment for plaintiffs, defendant prosecutes a writ of error.
    Sheriff, Dent, Dobyns & Freeman, for plaintiff in error.

      Abstract of the Decision.
    Brokers, § 90

      —when evidence sufficient to show priority in procurement of purchaser by competing broker. In an action for commissions for the sale of real estate, evidence held sufficient to warrant a finding that a written contract binding on the actual buyer had not been presented to the defendant by another broker before he received one from the plaintiffs binding on -their customer and embodying the terms on which the defendant had verbally agreed to sell, and also that such customer was able, ready and willing to make the purchase on the defendant’s terms.
    Joseph G-. Sheldon, for defendants in error.

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

   Mb. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Julius L. Marks, Defendant in Error, v. John Hancock Mutual Life Insurance Company, Plaintiff in Error.
    Gen. No. 21,517.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fey, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Julius L. Marks, plaintiff, against John Hancock Mutual Life Insurance Company, a corporation, defendant, to recover commissions as agent for the defendant in procuring the issuance of policies of insurance on his own life. To review a judgment for plaintiff, defendant prosecutes a writ of error.

      Abstract of the Decision.
    Insurance, § 64

      —when evidence insufficient to show procurement of policies try agent or contract for payment of commissions. In an action against an insurance company for commissions alleged to have been earned by the plaintiff in procuring policies of insurance to be issued on his own life, evidence held to show that the plaintiff had not procured the issuance of the policies and that he had no subsisting contract for the payment of such commissions at the time the policies were applied for.
    Adams, Crews, Bobb & Wescott, for plaintiff in error; George B. McKibbin, of counsel.
    Pines & Newmann, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Paulina Kniat, Appellee, v. Lillian Tiedge, Appellant.
    Gen. No. 21,557.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard' in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Paulina Kniat, plaintiff, against Lillian Tiedge, defendant, for money alleged to have been loaned by the plaintiff. To -«review a judgment for plaintiff, defendant appeals.
    Thomas E. Swanson, for appellant.

      Abstract of the Decision.
    1. Appeal and error, § 1475

      —when admission of incompetent hearsay evidence harmless error. Admission of hearsay evidence in an action for money loaned, though incompetent, being merely cumulative of other evidence which the trial court believed, held insufficient to justify a reversal.
    2. Appeal and error, § 1414*—when findings of trial court not disturbed. Where the record on appeal presents merely a question of credibility of witnesses and the story accepted by the trial court is not improbable, its findings will not usually be disturbed.
    Eileen H. Markley, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Albert Fuchs, Defendant in Error, v. W. J. Kearns, Plaintiff in Error.
    Gen. No. 21,607.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Patrick B. Flanagan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Albert Fuchs, plaintiff, against W. J. Kearns, defendant, for rent of an apartment leased by the defendant to the plaintiff. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    E. C. Mapledoram, for plaintiff in error.
    John H. Cummings, Jr., for defendant in error.

      Abstract of the Decision.
    1. Judgment, § 205

      —When court may not render a compromise judgment. A trial court cannot render a compromise judgment which the parties will not accept if the evidence introduced will not support it.
    2. Landlord and tenant, § 79*—when tease deemed to have been terminated. Where the lessee of an apartment, holding under a lease containing the following clause: “Cancellation privilege granted September 30, 1914, if a registered letter notice is given by August 15, 1914, and $30 paid extra,” gave notice as required on August 7, 1914, and sent to the plaintiff a check for $30 which was received by him on September 28th, and retained by him, though not cashed, and delivered the keys to the lessor on September 25th and moved from the apartment, and the lessor placed rent signs in the windows of the apartment, held that the lease was terminated in accordance with its terms.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    White City Electric Company, Defendant in Error, v. Maurice Fleckles, Plaintiff in Error.
    Gen. No. 21,630.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by the White City Electric Company, a corporation, plaintiff, against Maurice Fleckles, defendant, for work done by the plaintiff on the defendant’s building. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Abstract of the Decision.
    1. Building and construction contracts, § 103

      —when evidence sufficient to show ratification of orders for extra work. In an action for extra work done by the plaintiff on the defendant’s building, evidence held sufficient to show that the defendant’s architect had authority to order the work done and that he had delegated such authority to the defendant’s manager and ratified orders given by him, and that the defendant had knowledge of and did not object to the work as done.
    2. Building and construction contracts, § 31*—when evidence sufficient to show waiver of provision for written order for extra work. In an action for extra work done by the plaintiff on the defendant’s building, evidence held to show that a provision in a written contract that all orders for extras should be in writing, had been waived.
    Edward Maher, for plaintiff in error.
    Cleland, Lee & Phelps, for defendant in error; Lester E. Lee, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Patrick McCormick, Defendant in Error, v. National Live Stock Insurance Company, Plaintiff in Error.
    Gen. No. 21,659.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 667

      —when evidence sufficient to show death of horse by accident. In an action on an insurance policy written by the defendant insuring the plaintiff’s horse against death by bodily injuries “inflicted solely through external, violent and accidental means,” held that a judgment for the plaintiff was justified by evidence showing that the horse, while being driven down an inclined brick pavement, slipped and fell and died of a ruptured heart occasioned thereby and not occasioned by fright as claimed by the defendant.
    2. Insurance, § 439*—when notice of death of animal timely. A notice of the death of a horse insured under a policy requiring a notice in case of death to be given “forthwith” to the insurer by registered mail or telegraph, held given in time where sent by telegram the next morning after the death occurred and by registered mail in the evening of the same day, the telegram having been received before a registered letter would have been, had it been mailed at once after the accident.

      Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Patrick McCormick, plaintiff, against the National Live Stock Insurance Company, a corporation, defendant, to recover for the loss of a horse insured by the defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Douglas C. Gregg, for plaintiff in error.
    Robert P. Burkhalter and Mortimer M. Newfield, for defendant in error."

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

   Mr. Presiding Justice Barnes

delivered the opinion of the" court.


text:
    Robert Catherwood, Trustee, Appellee, v. Naomi M. Catherwood Hokanson, Appellant.
    Gen. No. 23,522.
    1. Injunction, § 29

      —when suit in foreign jurisdiction will not he restrained. A court of equity will not restrain the prosecution of a suit in a foreign-jurisdiction unless a -clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injustice.
    2. Injunction, § 29*—when suit in foreign State will not he enjoined. Where, from the facts set out in a petition for an injunction order restraining the defendants in a suit in this State from prosecuting a suit concerning the same subject-matter in a foreign State, it does not appear that the petitioner will be denied any relief or equitable rights he might otherwise obtain in this State, or that the parties sought to be restrained seek the denial of any such right or the evasion of the laws of this State, or what will work a fraud or oppression upon the petitioner, an injunction will be denied.
    3. Injunction, § 29*—when suit in foreign State will not he enjoined. Defendants in a suit in this State will not be enjoined from seeking relief by suit in a foreign State, which they are entitled to as matter of right, concerning the same subject-matter of litigation as is involved in the suit in this State and which cannot be obtained here by them, merely because of the added expense of litigating the same questions in issue in both suits.
    4. Judoment, § 495*—when matters determined in suit hy trustee of estate are res adjudicate. Matters properly determined in a suit by the trustee of an estate created by a will, seeking a construction of the will, the court’s directions concerning the trust and a settlement of the trustee’s accounts, would be res adjudicate in a suit in a foreign court by beneficiaries of the estate seeking the removal of the trustee, a settlement of his accounts and a partition of the trust property.
    5. Injunction, § 29

      —when suit in foreign jurisdiction improperly enjoined. In a suit by the trustee of an estate created by will, seeking a construction of the will and the court’s directions concerning the trust fund and the settlement of the trustee’s accounts, an order restraining parties defendant from prosecuting a suit in a foreign court within whose jurisdiction the property was situated, seeking the removal of the trustee, an accounting and the partition of the property, held improperly granted on the mere ground that the prosecution of both suits would involve the litigation of the same matters and entail unnecessary expense.
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed.
    Opinion filed October 10, 1916.
    Chytraus, Healy & Frost, Carl V. Wisner and John Peter Barnes, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; Silas H. Strawn and E. B. Cresap, of counsel.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Cook county, enjoining and restraining appellant and codefendants to a bill of complaint filed in said court by appellee from instituting or prosecuting, pending the final determination of said suit, any action against appellee in any court, involving any issue growing out of the relationship of the parties to said suit to certain real estate in Benton county, Indiana, described in said bill and the subject of a trust forming the basis thereof, and particularly an action brought by the defendants in the Illinois suit against appellee and his wife, pending in the Circuit Court of said Benton county (except so far as it “seeks a bare partition of said land without more”) and from prosecuting said action or any other with a' view of appointing a receiver, or securing a sale of the land in respect to a partition and distribution of the proceeds therefrom by the Indiana court, and from asking for, or taking any relief in, said court on account of the failure of any defendants to the Indiana cause to plead, answer or demur or otherwise respond to the allegations in the petition before the Indiana Court respecting charges of fraud or the prayer for a receiver or an accounting.

The petition for such order sets forth among other things the proceedings already taken in the Illinois suit in which it was filed; the substance of the bill of complaint, which seeks construction of a will creating a- trust respecting said land, a settlement of complainant’s accounts as one of the trustees, the court’s direction with respect to the trust, and an injunction pendente lite restraining threatened litigation; the fact that a large amount of testimony has been taken by a master to whom the cause was referred; that appellee and his wife have been served as defendants to the Indiana suit, and that it seeks to litigate the same questions involved in the Illinois suit, and would necessitate trying the same issues twice at an expense which, if charged against the trust estate, its funds are inadequate to meet; and that the purpose of prosecuting the Indiana suit and getting a receiver therein is to deprive appellee of the power to execute any decree of the Illinois Court unfavorable to the defendants therein, and also to deprive the Illinois Court of the power to do justice, and to harass and embarrass appellee in prosecuting the Illinois suit and managing the trust property, and to involve him, personally or as trustee, in unnecessary and ruinous expense and a multiplicity of suits with the same parties over the same subject-matter without the protection of the Illinois Court.

The injunction or restraining order was entered on the interlocutory report of said master, which was confirmed over appellant’s exceptions “except so far as they relate to the question of a bare partition” of said lands.

The sole ground given in such report for recommending the order was, that “the greater part of the work already done in the case at bar would be uselessly duplicated under the Indiana petition.” The report contained no finding of any facts supporting the allegations of the petition for the order, either as to the purposes in prosecuting the Indiana suit or as to how it might otherwise harass or vex complainant. The apparent theory on which such equitable relief was granted is that appellee would be put to the trouble and extra expense of litigating the same issues twice.

It is not questioned that a court of equity has the power in a proper case to restrain one citizen within its jurisdiction from prosecuting an action against another in a foreign jurisdiction. (Royal League v. Kavanagh, 233 Ill. 175; Dehon v. Foster, 4 Allen [Mass.] 545.) And it is immaterial that the res of the controversy is beyond the territorial jurisdiction of such court. (Cole v. Cunningham, 133 U. S. 107, 119.) “But,” as said in the Kavanagh case, supra, “the court will not restrain the prosecution of a suit in a foreign jurisdiction unless a clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injustice. ’ ’

What constitutes such a wrong and injustice must necessarily depend upon the particular facts of the case. Generally speaking, the court will exercise such power of restraint when the foreign suit “will result in a fraud or gross wrong or oppression.” (Kavanagh case, supra, p. 183.) In most of the cases brought to our attention where the power hag’ been exercised (several of which are cited in the Cole decision, supra), the foreign suit sought to evade, or deprive a party of the benefit of, the exemption or other laws of his own State. We need not discuss the equitable grounds for interposition in such cases, as they manifestly do not arise in the instant case.

It is not apparent from the facts set up in either the bill of complaint or the petition for the injunctive order that appellee will be denied any relief or equitable right he might otherwise obtain in Illinois, or that petitioners in the Indiana suit seek the denial of any such right, or the evasion of the laws of this State, or what will work as a fraud or oppression upon appellant. The petition states some conclusions to that effect but no facts that substantiate them, unless the simultaneous conduct of litigation in two jurisdictions over an interpretation of a will and for an accounting as trustee may be so regarded.

It is true that when complete relief can be. had where litigation is pending, the institution of foreign proceedings will be regarded “as a vexatious harassing: of the opposite party.” (The Carron Iron Co. v. McClaren, 5 Clarke’s Cases, H. of Lords, July, 1855; Field v. Holbrook, 3 Abb. Pr. [N. Y.] 377.) But, it is manifest that the petitioners in the Indiana suit, in asking for a partition, seek relief not only not obtainable in Illinois, but to which they are entitled as a matter of right. (Drake v. Merkle, 153 Ill. 318; Hill v. Reno, 112 Ill. 154.)

In Cole v. Young, 24 Kan. 435, where it was sought to restrain a citizen of Kansas from invoking the aid of a Missouri court, Mr. Justice Brewer said what is appropriate here: “The parties plaintiff there, defendants here, were simply invoking the aid of that court to enforce a clear legal right. To compel a party to abandon that right necessitates the existence of an equity superior thereto. ” No such equity is presented in the instant case.

While, as stated in the master’s report, the relief prayed for in the Indiana suit involves a determination of the same issues as are raised in the Illinois suit, it is also true that it asks for relief that the petitioners therein are compelled to go to Indiana to get and which appellee would in any event have to go there to oppose.

Nor can it be questioned that the matters in litigation here are germane and, under the averments of the petition for partition, incidental to the proceeding there, the primary purpose of which is a partition, or sale if necessary, of a farm in which all the parties to the suit at bar claim an interest from a common source of title, namely, in the will creating the trust. A determination of their respective interests involves a construction of such will. Under its provisions and certain agreements between the parties for the extension of the trust, appellee has acted as trustee in managing the farm and disbursing the proceeds therefrom. The petition for partition charges that he has misappropriated the proceeds and it seeks not only a partition or sale, as the case may be, but an accounting from him, a lien on his interest in the lands for any deficiency, and a receiver to collect and hold the rents, etc., pending the suit.

The matters common to both suits may be as properly prosecuted in Indiana as here, and some of the relief sought there cannot be obtained here. But the injunction not only forbids prosecuting there matters being adjudicated here, but places such a limitation on the right to relief obtainable only there as may render nugatory any steps necessary to secure it. For if the necessity for a sale and distribution of the proceeds should arise, which cannot be foretold or adjudicated here, obedience to the injunction would in effect prevent the full exercise of the .petitioners’ undoubted right in respect to partition.

It is no justification of the order that it does not undertake to restrain petitioners in the Indiana suit so far as the petition “seeks a bare partition.” If they may properly proceed in a regular partition, as the order seems to recognize, then they should be permitted to take any steps essential to the benefits of such a proceeding.

We fail to see that this record presents any recognized equitable ground for imposing the limitations to such proceedings contained in the order appealed from. The record shows nothing in the nature of a fraud, no oppression, as the term is employed in such proceedings, no bad faith, no gross injustice or denial of any right,—nothing more than mere inconvenience and additional expense, neither of which alone or together is a ground for equitable interference.

Nor will the Illinois court, without such order, be deprived, as alleged, of the power to do justice to the parties. There is no impediment to adjudicating the matters before it. What is properly determined in either court would be res adjudicata in the other. So far as the record shows, resort to the lands for satisfaction of a decree or judgment either way in the accounting may become necessary. Nor will it be presumed that the Indiana court will not do justice between the parties.

Nor do we know of any case where a court of equity in one jurisdiction has enjoined parties before it from availing themselves of the right to litigate in a legal proceeding in a foreign jurisdiction which they had the unquestioned right to prosecute there, all undetermined matters germane and incidental thereto, especially when their prosecution there did not operate to deprive an adverse party of any equitable right.

The order appealed from will be reversed.

Reversed.


author: Mr. Justice McDonald

text:
    Patrick Brennan, Defendant in Error, v. Ideal Heating Company, Plaintiff in Error.
    Gen. No. 21,443.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1803

      —when judgment must he reversed and remanded for a new trial. Where, in an action, for labor and materials furnished by the plaintiff in making alterations and additions to a hot water heating plant installed by the defendant, the evidence showed merely the value in gross of the various items, some of which were improperly included in the claim, held that a judgment for the plaintiff must he reversed and the cause remanded for a new trial, as the value of such items, not being known, could not he deducted from a judgment.
    Error to the Municipal Court of Chicago; the Hon. Percy L. Persons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.,
    Reversed and remanded.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Patrick Brennan, plaintiff, against the Ideal Heating Company, a corporation, defendant, for the value of labor and materials used by the plaintiff in making alterations and additions to a hot water heating plant installed for the plaintiff by the defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Benson & Fitch, for plaintiff in error.
    Henry M. Hagan, for defendant in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Alexander Smith et al., copartners, trading as Peabody, Houghteling & Company, Defendants in Error, v. Isaac Ettelson, Plaintiff in Error.
    Gen. No. 21,464.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Alexander Smith, Augustus S. Peabody, William E. Stirling, James L. Houghteling, Jr., Burton Thoms and E. M. Mills, copartners, trading as Peabody, Houghteling & Company, plaintiffs, against Isaac Ettelson, defendant, on a contract of indemnity. To review a judgment for plaintiffs, defendant prosecutes a writ of error.
    The contract of indemnity was based upon a letter which the defendant wrote plaintiffs on September 9, 1913, as follows:
    “Peabody, Houghteling & Co.
    “In consideration of your acceptance of my application for a bond issue of $40,000 and for other good and valuable consideration, I agree to protect you against claims of any broker who may have presented this matter to you. "
    Simultaneously, plaintiffs sent defendant a letter wherein they accepted his application in question. The application referred to in each of the aforesaid letters was dated August 27, 1913, and read in part as follows:
    “I hereby engage your services to procure for me a loan or bond issue at your option * * *.
    “As security for such loan I will give a principal note and interest notes or a series of $100 bonds and a mortgage or trust deed.”

      Abstract of the Decision.
    1. Contracts, § 190

      —when instruments should he construed together. Where parties have executed several instruments contemporaneously relating to the same subject-matter, all of such instruments should be construed together in determining the real intention of the parties.
    2. Contracts, § 193*—what considered in construing contract of indemnity. Letters of the plaintiff to the defendant and of the defendant to the plaintiff referring to another letter of the defendant concerning an application for a loan by the latter from the former, considered together with the application in construing a contract whereby the defendant contracted to indemnify the plaintiff against claims for commissions by third parties for procuring the loan.
    3. Indemnity, § 8*—how contract of construed. Where the defendant by letter made an application to the plaintiff for a loan to be evidenced by the defendant’s notes or by a bond issue, at the option of the plaintiff, and, before the loan was made, wrote to the plaintiff referring to the application, that he would indemnify him against claims by third parties for commissions in procuring the loan, the two letters were construed together to mean that the defendant would indemnify the plaintiff irrespective of how the loan was evidenced, as that was a mere incident to the loan.
    Isador Fried and Blum & Blum, for plaintiff in error.
    Charles G. Little and George W. Gordon, for defendants in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    E. M. Gullick, Defendant in Error, v. Peter Schoenhofen Brewing Company, Plaintiff in Error.
    Gen. No. 21,506.
    (Wot to be reported in full.)
    Abstract of the Decision.
    Landlord and tenant, § ‘88

      —when tenancy from year to year created. Where a lessee, before the expiration of his term as subtenant under a lease, signed a renewal lease for three years and gave it to the lessor's agent, who forwarded it to the lessor, who did not notify the agent or the lessee that he had accepted it until a year and a half later and after the lessee, having occupied the premises for a year, had notified the ^.gent of his termination of the lease and had surrendered the premises, held that the lessee was not bound for rent after that time as the instrument was merely a proposed lease and had not been accepted in time by the lessor, the lessee’s continuing in possession creating merely a tenancy from year to year.
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed with finding of facts.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by E. M. Gullick, plaintiff, against the Peter Schoenhofen Brewing Company, a corporation, defendant, for rent under an alleged lease of the plaintiff’s premises. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    James J. Kelly, for plaintiff in error; John T. Fitzgerald and John A. Burke, of counsel.
    Everett & McGonigle, for defendant in error; John C. Everett, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    New City Produce Company, Defendant in Error, v. R. W. Wall, Plaintiff in Error.
    Gen. No. 21,545.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court of Chicago, § 29

      —when presumed that trial court heard sufficient evidence to determine existence of irregularities in lease. Where a judgment for rent was entered by confession under a lease alleged to have been executed by the plaintiff to the defendant, held that in the absence of a hill of exceptions, the trial court having found that a statement of claim and warrant of attorney and a lease and cognovit had been filed, the appearance of the defendant entered and the amount due on the lease confessed, it must he presumed that the court also heard sufficient evidence to correctly determine whether or not any irregularity existed, though in the, body of the lease, which was executed by the plaintiff by its president and by the defendant, the president was named as the lessor and no mention was made of the lessee’s name.
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915. Petition for certiorari dismissed.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by the New City Produce Company, a corporation, plaintiff, against R. W. Wall, defendant, for rent under a lease of the plaintiff’s premises executed by the defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Henry Knaus, for plaintiff in error.
    Brown, Brown & Brown, for defendant in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Luke Burlingham, Plaintiff in Error, v. Bernice Gordon, Defendant in Error.
    Gen. No. 21,562.
    1. Landlord and tenant, § 209

      —when lessee not obliged to make outside repairs to building. A lessee of a part of a building under a lease requiring her to keep “the premises” in repair, held not obligated to make outside repairs on the building, such as painting exterior walls, fire escapes, etc.
    2. Landlord and tenant, § 209*—-when contract by tenant to make repairs not created. Where a lessee of a part of a building was not, under the terms of the lease, required to make outside repairs, held that her making such repairs in compliance with a request of the lessor did not create a new contract to make them, a breach of which would authorize the lessor to terminate the tenancy.
    Error to the Municipal Court of Chicago; the Hon. Prank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Charles S. Knudson, for plaintiff in error.
    Walther & Lanaghen, for defendant in error; Walter S. Hull, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.

Plaintiff in error (plaintiff below), brought an action of forcible entry and detainer against defendant in error (defendant below), for the possession of certain premises located in the City of Chicago. At the close of plaintiff’s case, the court, on motion of the defendant, instructed the jury to return a verdict finding the issues for the defendant; and by this writ of error plaintiff seeks a reversal of the judgment rendered thereon.

It is urged by plaintiff, that under the terms of the lease entered into by and between the parties hereto, the defendant agreed to make certain outside repairs to the building in question, such as painting the exterior of the walls, fire escapes, etc. That part of the lease relating to repairs, replacements, etc., provides as follows:

“Second. That she (defendant) has examined and knows the condition of said premises, and has received the same in good order and repair, except as hereon otherwise specified, and that no representations as to the condition or repair thereof, have been made by the party of the first part or the agent of said party, prior to or at the execution of this lease, that are not herein expressed or endorsed hereon; and that she will keep said premises in good repair, replacing all broken glass with glass of the same size and quality as that broken, and will keep said premises, appurtenances, including catch basins, vaults and adjoining alleys, in a clean and healthy condition, according to the city ordinances, and the direction of the proper public officers during the term of this lease, at her own expense; and will, without injury to the roof, remove the snow and ice from the same when necessary, and clean the snow and ice from the sidewalks in front of said premises; and upon the termination of this lease, in any way, will yield up said premises to said party of the first part in good condition and repair (loss by fire and ordinary wear excepted), and will comply with all city ordinances, said first party to erect necessary fire escapes when required.”

Defendant occupied the second, third, fourth, fifth and sixth floors and a part of the basement, of plaintiff’s building. The first floor consisted of stores, which were rented to various tenants, each of whom had also the use of a part of the basement. Defendant, therefore, was not the sole tenant of this building. The lease in question does not include the entrances to the building, or the roof or exterior, and makes no mention of any repairs thereto. Under such circumstances, the control thereof remained in the plaintiff, who was also responsible for their maintenance in a safe condition. We think the following language in Fairmount Lodge v. Tilton, 122 Ill. App. 636, 638, is particularly applicable to the facts in the case at bar :

“It is conceded by appellant to be settled law, that in the absence of a covenant by the lessor to repair, it is incumbent upon the lessee to keep the leased premises in repair during the term of the lease (Sunasack v. Morey, 196 Ill. 569; Smith v. McLean, 123 Ill. 210), but it is contended that this rule is not applicable to the case at bar, because the lease is for a parcel only of the entire premises. Bissell v. Lloyd, 100 Ill. 214; Johns v. Eichelberger, 109 Ill. App. 35. In 1 Taylor on Landlord and Tenant, sec. 175a, it is said: ‘A demise of parcels out of a building leaves the responsibility for what is not demised, upon the landlord. The roof, halls and passages not demised, chimneys, eaves and outside walls, remain the landlord’s charge.’ ”

In view of this language it must be held that defendant did not agree by the foregoing terms of the lease, to make outside repairs.

It appears from the evidence, that pursuant to' plaintiff’s request, defendant made certain repairs on the outside of the building in question. It is urged by plaintiff, that thereby the defendant construed the lease as requiring her to keep the exterior of the entire building in a good state of repair. Without conceding the correctness of plaintiff’s contention, it is sufficient to say that such construction cannot change the rights and liabilities of the parties. If, under the terms of the lease the defendant was not required to malee the repairs requested, then a partial compliance with plaintiff’s request so to do did not create a new contract to repair, the breach of which would authorize plaintiff to terminate the tenancy. Watson v. Almirall, 61 App. Div. (N. Y.) 429, 70 N. Y. Supp. 662.

Finding no reversible error, the judgment will be affiirued.

Affirmed.


text:
    Peter Fox et al., trading as Peter Fox Sons Company, Defendants in Error, v. Western Union Telegraph Company, Plaintiff in Error.
    Gen. No. 21,579.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed October 10, 1916.
    Rehearing denied October 23, 1916.
    Statement of the Case.
    Action by Peter Fox, Anthony M. Fox, John L. Fox, Joseph J. Fox, Frank G. Fox, Michael E. Fox, William J. Fox and Eng. E. Fox, trading as the Peter Fox Sons Company, plaintiffs, against the Western Union- Telegraph Company, a corporation, defendant, for damages resulting from the alleged negligence of the defendant in transmitting a telegram. To review a judgment for plaintiffs, defendant prosecutes a writ of error.
    West & Eckhart, for plaintiff in error.
    Pines & Newmann, for defendants in error; Alvin E. Stein, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.

Abstract of the Decision.

1. Telegraphs and telephones, § 32 —what is measure of damages for error in transmission of telegram. Where a telegram in' which the plaintiff offered to purchase potatoes at sixty-nine cents a bushel was erroneously transmitted by the defendant so as to read seventy-nine cents, which offer was accepted by the addressee, and after the error had been discovered the shipment was made and paid for by the plaintiff at the latter price, held that in the absence of any proof as to the value of the potatoes at the time in question and of evidence from which it could be reasonably inferred that the -plaintiff suffered any loss by reason of the alleged negligence of the defendant, the plaintiff was entitled to recover only the amount paid for the transmission of the telegram and interest thereon.

2. Telegraphs and telephones, § 37*—when burden of proof is on plaintiff. In an action for damages alleged to have resulted from the negligence of the defendant in transmitting a telegram, held that the burden of proving the damages was on the plaintiff.


author: Mb. Justice McDonald

text:
    Catharyn Wilson, Executrix, Defendant in Error, v. F. Norwood Wilson, Plaintiff in Error.
    Gen. No. 21,586.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby M. Pisheb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Catharyn Wilson, executrix of the estate of Thomas S. Wilson, deceased, plaintiff, against F. Norwood Wilson, defendant, on a promissory note alleged to have been made by the defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.

      Abstract of the, Decision.
    1. Bills and notes, § 407

      —when burden of proof is on defendant. In an action on a promissory note, held that the burden of proving the defense of failure of consideration was on the defendant.
    2. Bills and notes, § 461*—when verdict properly directed. Evidence in an action on a promissory note held to justify a directed verdict for the plaintiff.
    James A. Wagoner, for plaintiff in error.
    Culver, Andrews, King & Cook, for defendant in error.

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

   Mb. Justice McDonald

delivered the opinion of the court.


text:
    Stanislaw Kuzmierczyk, Defendant in Error, v. Joseph Schlitz Brewing Company, Plaintiff in Error.
    Gen. No. 21,619.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. D. H. Wahsley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Stanislaw Kuzmierczyk, plaintiff, against the Joseph Schlitz Brewing Company, a corporation, defendant, for damages to property alleged to have been caused by the negligence of the defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    The statement of claim filed herein alleged as follows:

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when need not he set forth in statement of claim. It is not essential that a statement of claim in an action of the fourth class in tort, based on the defendant’s negligence, set forth that the plaintiff was in the exerpise of due care prior to and at the time of the defendant’s negligent act.
    2. Municipal Court of Chicago, § 13*—when statement of claim sufficient. A statement of claim, in an action of the fourth class, for injuries to the plaintiff’s wagon and harness and death of his horse, alleged to have been caused by the negligence of the defendant, held to comply with the requirements of the Municipal Court Act, sec. 40 (J. & A. ¶ 3352).
    3. Roads and bridges, § 239*—when evidence sufficient to show negligence of owner of team. In an action for damages to the plaintiff’s wagon and harness and for the death of his horse, alleged to have been caused by a collision with a team belonging to the defendant, evidence that the defendant’s team was left standing unattended in the street, the horses’ heads being fastened by hitching straps to the pole of the wagon to which they were attached. held to sufficiently show negligence on the part of the defendant to sustain a judgment for the plaintiff.
    “Plaintiff’s claim is for the killing of his horse and injuries caused to plaintiff’s wagon and harness on to-wit: the 3rd day of March, A. D. 1914, in Milwaukee Ave., at or near its intersection with Chicago Ave., in the city of Chicago, by reason of a wagon then and there belonging to defendant corporation and then and there operated and managed and under the control of a servant of defendant corporation, colliding with plaintiff’s said horse, wagon and harness; said collision being caused by the negligence of the servant of defendant corporation to the damage of plaintiff in the sum of $200.00.”
    Timothy J. Fell, for plaintiff in error; Hermann P. Haase, of counsel.
    Walter J. Fried, for defendant in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    John O’Donnell and M. Carvell, copartners, trading as O’Donnell & Carvell, Defendants in Error, v. W. J. Turnes, H. W. Jones and William Williman, trading as W. J. Turnes Company, Plaintiifs in Error.
    Gen. No. 21,644.
    Judgment, § 190

      —when may not he entered against only one of several joint defendants. Where a summons was issued against only one of several defendants sued jointly on a contract, held that a judgment against such defendant only could not be sustained.
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed October 10, 1916.
    Beckman, Cottrell & Phillips, for plaintiffs in error.
    P. J. O’Shea, for defendants in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.

This writ of error brings up for review a judgment rendered in favor of defendants in error (plaintiffs below), against W. J. Turnes, one of the plaintiffs in error (defendants below), in a fourth-class contract action.

It is urged that the judgment is erroneous in that the action was brought against three defendants jointly, while the judgment is. against defendant Turnes alone. In examining the record, we find that a summons issued only against defendant Turnes. Section 14 of our Practice Act, Rev. St. ch. 110 (J. & A. ¶ 8551), provides as follows:

“If a summons or capias is served on one or more, but not on all of the defendants, the plaintiff may proceed to trial and judgment against the defendant or defendants on whom the process is served, and the plaintiff may at any time afterwards have a summons, in the nature of scire facias, against the defendant not served with the first process, to cause him to appear in said court and show cause why he should not be made a party to such judgment; and upon such defendant being duly served with process, the court shall hear and determine the matter in the same manner as if such defendant had been originally summoned or brought into court, and such defendant shall also be allowed the benefit of any payment or satisfaction which may have been made on the judgment before recovered, and the judgment of the court against such defendant shall be that the plaintiff recover against such defendant, together with the defendant in the former judgment, the amount of his debt or damages, as the case may be. ’ ’

It appears from plaintiff’s statement of claim that the liability of the defendants was joint, hence the judgment must be against all or none. Section 14, supra, provides that if service of summons has not been had upon all of the defendants, plaintiff may proceed to judgment against those who have been <served, and thereafter make the defendants not served parties to such judgment by summons in the nature of scire facias. This provision of the statute, however, contemplates that a summons must first issue against all of the joint defendants before proceeding to judgment against any. In Sherburne v. Hyde, 185 Ill. 580, it was held, p. 584:

“In other States, by statute, suits may be brought against one of several partners on a partnership contract. But not so in this State. Here all ostensible members of the co-partnership must be joined. (Citing Page v. Brant, 18 Ill. 37.) They are declared against as partners, and the statute confers no authority to sue and declare against one, only, as in the case of other joint debtors.”

And on page 585 the court cites with approval the following language from Evans v. Gill, 25 Ill. 116, which is applicable to the case at bar.

“At the common law, where several defendants were sued upon a joint contract, the plaintiff was not entitled to judgment against any of them until all were served with process, or until those not served were prosecuted to outlawry. * * * But to remedy the inconveniences of the common law practice, the statute has provided that a return of non est inventus as to a part of the defendants shall authorize the plaintiff to proceed to trial and judgment against those upon whom service has been had, and authorizes the issuing of a summons in the nature of a scire facias, to make the defendants not served parties to the judgment.”

In view of the foregoing provision in our statute, and the holding of our Supreme Court in Sherburne v. Hyde, supra, we are of the opinion that the trial court erred in entering judgment against the defendant Turnes alone. Accordingly the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Chicago Washed Coal Company, Appellant, v. R. C. Whitsett and A. H. Whitsett, copartners, trading as R. C. Whitsett Coal & Mining Company, Appellees.
    Gen. No. 21,663.
    (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 364

      —when party in default may not maintain action for breach of contract. Where the plaintiff, after notice to it by the defendants that tbe latter would make no further shipments of coal under a contract between the parties, notified the defendants that it would insist that the shipments be made as agreed, but failed to pay, at the time agreed, for coal already shipped or to offer to make payment by setting off its damages resulting from the defendants’ breach, held that as it had elected to keep the contract alive and was itself in default, it could not recover for the defendants’ breach.
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Rehearing denied October 23, 1916.
    Statement of the Case.
    Action by the Chicago Washed Coal Company, a corporation, plaintiff, against R. C. Whitsett and A. H. Whitsett, copartners, trading as R. C. Whitsett Coal & Mining Company, defendants, for breach of contract to deliver coal. From a judgment for defendants, plaintiff appeals.
    George C. Otto, for appellant.
    Pomeroy & Martin, for appellee R. C. Whitsett.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Nellie Hayes et al., Defendants in Error, v. W. M. Whitenton, Plaintiff in Error.
    Gen. No. 21,679.
    (Not to be reported in full.)
    Abstract of the Decision.
    Judgment, § 82

      —when proof sufficient to require vacation of judgment by confession for rent. A petition and affidavit, filed on a motion by a defendant to vacate a judgment entered by confession for rent alleged to be due under a lease, alleging that the lease was signed by the defendant and delivered to the agent of the plaintiffs with the agreement that if the references given by the defendant proved satisfactory to the plaintiffs they would notify the defendant to that effect and return one of the copies of the lease to him within ten days, and that after the expiration of ten days, the plaintiffs not having given any notice or returned the copy of the lease, the defendant notified the plaintiffs that he did not want the premises, held sufficient to have required the court to grant the defendant’s motion.
    Error to the Municipal Court of Chicago; the Hon. Chakles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Nellie Hayes, Mary A. Hayes and John Hayes, plaintiffs, against W. M. Whitenton, defendant, for rent alleged to be due under a lease signed by the defendant. To review an order denying the defendant’s motion to vacate a judgment entered by confession, defendant prosecutes a writ of error.
    Willis E. Thorne and Alvin W. Wise, for plaintiff in error.
    Perley H. Bishop, for defendants in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Max Braude et al., trading as Braude Brothers, Plaintiffs in Error, v. Louis Vehon, trading as Louis Vehon & Brother, Defendant in Error.
    Gen. No. 21,724.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Compositions with creditors—when burden of proving compliance with agreement on defendant. In an action for goods sold and delivered, where the defendant set up as a defense a creditor’s compromise agreement signed by the plaintiffs, held that the burden was on the defendant of proving his compliance therewith.
    2. Compositions with creditors—when evidence insufficient to show compliance with agreement. Evidence in an action ‘wherein a compromise agreement was set up as a defense, held to show that the defendant had not made payment to the plaintiffs within the time fixed by the agreement.

      Error to the Municipal Court of Chicago; the Hon. Patrick B. Flanagan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment here with finding of facts.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Max Braude, Simon Braude and Benjamin Braude, trading as Braude Brothers, plaintiffs, against Louis Vehon, trading as Louis Vehon & Brother, defendant, for goods sold and delivered by the plaintiffs to the defendant. To review a judgment for defendant, plaintiffs prosecute a writ of error.
    Fleming D. Hedges and J. C. DeWolfe, for plaintiffs in error; Fleming D. Hedges and Earl J. Smith, of counsel.
    Cratty Bros. & Flatau, for defendant in error.
   Mr. Justice McDonald

delivered the opinion of the court.

3. Compositions with creditors—how original debt revived. Where a debtor fails to pay the agreed percentage of a claim'within the time fixed therefor in a creditor’s compromise agreement, the original debt is revived and the full amount thereof may be recovered by the creditor.


text:
    Arthur J. Dunbar, Defendant in Error, v. Alexander Eisenstein and Samuel Isenstein, copartners, trading as Eisenstein & Isenstein, Plaintiffs in Error.
    Gen. No. 21,737.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Shebidan E. Pbt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Arthur J. Dunbar, plaintiff, against Alexander Eisenstein and Samuel Isenstein, copartners, trading as Eisenstein & Isenstein, defendants, for goods sold and delivered by the plaintiff to the defendants. To review a judgment for plaintiff, defendants prosecute a writ of error.
    Max M. Korshak, for plaintiffs in error.
    McMahon & Graber, for defendant in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1752 —when judgment affirmed. Where the trial court refused to allow the defendants’ counterclaim for rent alleged to be due them from the plaintiff under a lease, which the defendants did not set up in their abstract of record on appeal, a judgment for the plaintiff was affirmed, the court holding that it would not go to the record to correct an abstract or to supply omissions in order to reverse a judgment.

2. Set-off and recoupment, § 40*—when evidence sufficient to sustain disallowance of counterclaim. Evidence in an action for goods sold and delivered by the plaintiff to the defendants, wherein the defendants sought to counterclaim for rent alleged to be due them from the plaintiff under a lease, held to justify a judgment for the plaintiff and a disallowance of the counterclaim.


text:
    Frank P. Heilman and George J. Beierle, copartners, trading as George J. Beierle & Company, Defendants in Error, v. Mrs. Rose L. Katz and Louis Katz, Defendants. Louis Katz, Plaintiff in Error.
    Gen. No. 21,751.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Frank P. Heilman and George J. Beierle, copartners, trading as George J. Beierle & Company, plaintiffs, against Mrs. Bose L. Katz and Louis Katz, defendants, for goods alleged to have been sold to the defendants jointly. After a joint affidavit of merits was stricken from the files the defendants were ordered to file other affidavits within ten days. After the expiration of such time the defendants filed separate affidavits of merits denying that they were individually liable, which affidavits were stricken from, the files and judgment entered for the plaintiffs, on which execution was issued and served upon the defendants. To review an order refusing to quash the execution and vacate the judgment and order, the defendant Louis Katz prosecutes a writ of error.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when affidavit of merits insufficient. An affidavit of merits filed by a defendant sued jointly with another on a contract for the purchase of goods, denying that he ordered or purchased or that the plaintiffs sold him the goods, or that he personally was indebted to the plaintiffs therefor, or on an account stated, held properly stricken from the files as being ambiguous and evasive and not meeting the plaintiffs’ allegation that both defendants were jointly indebted for .the goods, as required by Rule 20 of the Municipal Court of Chicago.
    2. Municipal Court of Chicago, § 13*—when affidavit of merits properly stricken from files. An affidavit of merits not filed within the time ordered by the trial court, held properly stricken from the files.
    William L. Martin, for plaintiff in error.
    Eastman, White & Hawxhurst, for defendants in error; Homer C. Dawson, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Nellie B. Frame, Appellee, v. Harder’s Fireproof Storage & Van Company, Appellant.
    Gen. No. 21,818.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Trover and conversion, § 39

      —when evidence insufficient to sustain judgment for plaintiff. In an action for the conversion of a piano, brought by the owner and mortgagor thereof against a warehouseman with whom it had been stored and who had delivered it to the mortgagee, held that a judgment for the plaintiff could not be sustained, as the evidence showed that at the time of the delivery the plaintiff was in default in payment thereon to the mortgagee, and that the latter under the terms of the mortgage was therefore entitled to the possession.
    2. Trover and conversion, § 37*—when burden of proof on bailee to prove paramount title of third person. While a bailee may not dispute the bailor’s title to the thing bailed, yet where the bailee has surrendered it to one having a paramount title thereto, he may prove such surrender as a valid defense to an action against him by the bailor for the conversion of the property, the burden being upon him to prove such paramount title in the party to whom the property had been surrendered.

      Appeal from the County Court of Cook county; the Hon. S. N. Hoover, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed with finding of facts.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Nellie B. Frame, plaintiff, against Harder’s Fireproof Storage & Van Company, defendant, for the conversion of a piano. From a judgment for plaintiff, defendant appeals.
    Robert W. Dunn, for appellant.
    Alonzo M. Griffen, for appellee; William C. Meter, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


author: Mr. Justice McGoorty

text:
    Joseph Kaufman and William Bernstein, trading as Joseph Kaufman & Company, Plaintiffs in Error, v. Chicago, Indianapolis & Louisville Railway Company, Defendant in Error.
    Gen. No. 21,266.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Ma-honey, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Joseph Kaufman and William Bernstein, trading as Joseph Kaufman & Company, plaintiffs, against the Chicago, Indianapolis & Louisville Railway Company, a corporation, defendant, for damages ° for wrongful detention of a shipment consigned to the plaintiffs. To review a judgment for defendant, plain-' tiffs prosecute a writ of error.
    Charles A. Butler, for plaintiffs in error; Frantklin Raber, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice McGoorty

delivered the opinion of the court.

Abstract of the Decision.

Carriers, § 93 —when exclusion of bill of lading as evidence erroneous. In an action by a consignee of a shipment against a carrier for wrongful detention thereof, held that refusal of the trial court to admit in evidence a bill of lading issued by the carrier, and showing that the shipment was consigned to the plaintiffs, was reversible error.


text:
    John F. Devine, Administrator of the Estate of Jesse R. Givens, Deceased, Appellee, v. Union Elevated Railroad Company, Appellant.
    Gen. No. 31,343.
    1. Master and servant, § 653

      —when expert evidence admissible in action for death of dynamo tender. In an action for the death of a dynamo tender employed in an electric power house, caused by his coining in contact with an equalizing switch, held that expert testimony as to the standard custom in wiring such switches was properly admitted on the question of contributory negligence of the deceased. •
    2. Master and servant, § 627*—when expert evidence admissible in action for death of dynamo tender. In an action for the death of a dynamo tender employed in an electric power house, caused by his coming in contact with an equalizing switch, held that expert testimony as to the cost of wiring the switch in accordance with the general practice was properly admitted on the question of the defendant’s negligence, in view of evidence that the defendant’s method of wiring was dangerous and an admission by the defendant’s superintendent that he knew of the danger.
    3. Master and servant, § 823*—when instruction on burden of proof properly refused. In an action against an employer for the death of an employee alleged to have resulted from defective appliances, the refusal of an instruction to the effect that, in ordeto recover, the burden was on the plaintiff to prove that the employer had notice of the defect, was not error where the declaration charged and the evidence tended to show negligent construction of the appliances.
    4. Master and servant, § 698*—When evidence insufficient to show knowledge by dynamo tender of dangerous condition of switch. In an action for the death of a dynamo tender employed in a power house, resulting from his coming in contact with an electric switch not wired in the customary manner, evidence held not to show that the deceased had either actual or constructive knowledge of the dangerous condition of the switch.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement by the Court. This is an appeal from a judgment for $8,000 entered by the Circuit Court of Cook county in favor of appellee (plaintiff below), in an action to recover damages for the death of Jesse B. Givens, a dynamo tender employed in appellant’s power house. The deceased (twenty-two years old at the time of his death), went to work for appellant (defendant below), in its electrical power plant in Chicago on the night of May 13, 1911, and was killed on June 20, 1911, by coining in contact with an equalizing switch, known as No. 1, charged with electricity. The facts as to conditions in such plant at the time of the accident are not in dispute. Three generators of the same type and capacity, known as Nos. 1,2 and 3, respectively, were installed therein in 1895 or 1896, by defendant, and a fourth generator, known as No. 4, of a different type and capacity, was installed in 1907. In front of each generator was an equalizing switch used to connect and disconnect the generator with au 1 ‘equalizing bus.” The “equalizing bus” equalized the voltage between the several generators, preventing one generator from taking the entire voltage, and was always charged or “alive,” whenever any generator was in operation. The four equalizing switches were connected with the equalizing bus.
    It is undisputed that the uniform practice and method in wiring equalizing switches “since the beginning of the art” was to connect the equalizing bus to the “upper clip or jaw” of the switch in such manner, that when the switch itself was open, the blade of the switch would be ‘ ‘ dead, ’ ’ providing that the generator with which it was connected was “dead.” Defendant did not adopt such practice of wiring, as to equalizing switches Nos. 1, 2 and 3, respectively, but did as to No. 4. When equalizing switch No. 1 was open, and equalizing switch No. 4 was closed, with generator No. 4 operating, the metal or blade part of switch No. 1 would be charged with practically the full voltage of generator No. 4. Upon the other hand, if generator No. 4 was “dead,” equalizing switch No. 4 would be “dead.” The undisputed evidence is, that to have wired equalizing switches Nos. 1, 2 and 3, respectively, to correspond to the wiring of equalizing switch No. 4, would have cost not to exceed $10 for each switch.
    The equalizing bus was in the basement under the engine room, and the wiring connecting the equalizing switches with the equalizing bus was inclosed in insulated conduits and was not apparent without thorough inspection. The floor of the power house was of iron. One wooden mat, for insulation purposes, was kept in front of each generator and another in front of each switch, so that if any person, while standing on such mat, made a contact with a charged switch blade with any part of his body, he would not be injured thereby. No one saw the accident which resulted in Givens’ death. At that time generators Nos. 1, 2 and 3, respectively, were shut down, but generator No. 4 was operating. Under this condition the blade of switch No. 1 was “alive.” Givens was seen about a minute before the accident cleaning the floor in front of equalizing switch No. 1, with his body bending forward in such a manner that his head and shoulders were only a few inches from the blade of said switch. He was standing on the iron floor within about two and one-half feet of the nearest wooden mat. When next seen he was prostrate on the floor, his feet nearest the switch. The mats at that time were out of position and a pair of gloves were lying on the floor near his body. It is not disputed that he received a shock and was electrocuted by his body coming in contact with the blade of said switch.
    The evidence is undisputed that Givens had studied electricity, was familiar with the kind of electrical current used in defendant’s plant, had worked in two other similar power houses, covering a period of three and one-half years, and was a man of careful habits. There is a sharp conflict of evidence as to whether Givens knew that the blade of equalizing switch No. 1 was charged with electricity and dangerous while it was open, and its generator “dead,” provided any of the other generators, and particularly generator No. 4, was operating. The question of assumed risk is the principal one raised under plaintiff’s declaration and the evidence presented at the trial.
    Addison L. Gardner and Carroll H. Jones, for appellant.
    George H. Mason, for appellee; Joseph B. W. Cooper and James H. Wright, of counsel.

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

   Mr. Justice McGoorty

delivered the opinion of the court.

Defendant’s counsel rely upon a reversal of the judgment upon the following assignments of error: That the court erred (a) in the admission of certain evidence on behalf of plaintiff; (b) in its refusal to give to the jury certain instructions requested by defendant; and (c) that the verdict is contrary to the weight of the evidence.

Defendant’s counsel, by their first assignment of error urge that the court erred in permitting three of plaintiff’s expert witnesses to testify that the standard custom in wiring equalizing switches in high tension electrical generating plants is to wire them in such manner that when the switch is open and its generator “dead,” the metal part or blade of the switch is “dead” and does not carry any electrical current. When defendant’s equalizing switch No. 1 was open, and its generator “dead,” the metal part would be charged with electrical current if any other generator was running. Plaintiff’s experts did not testify.that the standard practice of wiring equalizing switches was a safer o.r better method than the method used by defendant in wiring equalizing switch No. 1, and did not testify as to whether defendant’s method in wiring said equalizing switch was safe or unsafe. The jury were permitted to determine from the evidence which, if either, method was unsafe. It is obvious that the question of the correct method of wiring said switch was a proper subject of expert testimony. Upon what other basis could the jury have determined the question as to defendant’s negligence? The deceased was experienced in the operation of similar electrical power plants, and if said switch had been wired by defendant in accordance with the general practice and standard custom, the jury would have had the right to have found that Givens had knowledge of the actual condition there and had assumed any hazard incident thereto. If however, as in the instant case, the evidence shows that the uniform custom and practice was to wire equalizing switches so that the metal part or blade would be “dead” when the switch was open and its generator “dead,” then the existence of such uniform custom, of which Givens presumably had knowledge, would tend to show that he did not assume the risk and that he was not guilty of contributory negligence.

If such evidence had been excluded, upon what basis could the jury have determined that any other method of wiring equalizing switch No. 1 was open to defendant? “Oh the question whether the employer has exercised reasonable and ordinary care in providing and maintaining safe appliances, and places for work, the" plaintiff may show the general practice of other employers in similar lines of employment in these respects.” Thompson on Negligence, vol. 6, p. 709. The court did not err in admitting such evidence. McCormick Harvesting Machine Co. v. Burandt, 136 Ill. 170; Stephen v. Duffy, 237 Ill. 549-558.

It is also urged as error by defendant’s counsel, the admission by the court of expert testimony as to the cost of wiring its equalizing switches, Nos. 1, 2 and 3, according to the general practice. This evidence tended to show that such change in wiring could be made at a very slight expense, and was therefore pertinent to the issue of defendant’s negligence, especially in view of the discovery made by defendant’s chief switchboard operator that the blade of equalizing switch No. 1 would be charged with electricity when its generator was not in operation, which fact was reported to defendant’s superintendent several months prior to Givens’ death, and in further view of the admission by the latter that he had always known of such danger.

It is urged that the court erred in refusing three instructions tendered by defendant. Two of defendant’s refused instructions were fully covered by defendant’s given instructions. The third of defendant’s refused instructions required the servant, in order to recover for defects in the appliances of the master’s business, to prove that the master had notice or knowledge thereof. In the instant case the declaration charges and the evidence tends to show negligent construction by the defendant of the switch in question, and therefore proof of notice to the master' (defendant) was not necessary. Linquist v. Hodges, 248 Ill. 491-497.

It is further urged that the verdict is against the manifest, weight of the evidence on the ground that Grivens had actual knowledge of the dangerous condition of equalizing switch No. 1; knew that the blade of said switch was charged with electricity, when its generator was “dead” if any other generator was then operating, therefore assumed the hazard thereof, and was guilty of contributory negligence. It is to be considered that the deceased was experienced in his duties; had worked in other plants where equalizing switches had been wired in accordance with the standard custom, so that if a generator was not running, the blade of its switch would be “dead,” and in the absence of actual knowledge, had the right to assume that defendant, in the exercise of ordinary care, had adopted such method in wiring equalizing switch No. 1. There, is a sharp conflict of evidence as to Grivens’ actual knowledge of the dangerous condition of said switch when open. Upon a most careful examination of all of the evidence, we are unable to say that Grivens had either actual or constructive knowledge of such dangerous condition, or that the verdict is against the manifest weight of the evidence. The judgment of the Circuit Court will therefore be affirmed.

Judgment affirmed.


text:
    Ida Mark, Defendant in Error, v. Robert Mitchell, Plaintiff in Error.
    Gen. No. 21,421.
    (Not to be reported in fall.)
    Abstract of the Decision.
    1. Assumpsit, Action of, § 88

      —when exclusion of evidence of financial condition of borrower of money erroneous. In an action by a woman against a former employer for money alleged to have been loaned to him by her, held that the exclusion of evidence of the financial condition of the defendant’s business, offered for the purpose of showing the improbability of the defendant having borrowed the money, was reversible error in view of the unsatisfactory character of the plaintiff’s testimony.
    2. Evidence, § 165*—what constitute self-serving declarations. In an action for money alleged to have been loaned by the plaintiff to the defendant, a promissory note drawn by the plaintiff but not signed by the defendant, held improperly admitted in evidence, as it was but a self-serving declaration.
    Error to the Municipal Court of Chicago; the Hon. John R. New-comes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Action by Ida Mark, plaintiff, against Robert Mitchell, defendant, for money alleged to have been loaned by the plaintiff to the defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Cantwell & Smith, for plaintiff in error.
    Harry A. Fleck, for defendant in error.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Frank Walker, alias Clark, Plaintiff in Error.
    Gen. No. 21,509.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1751

      —when judgment affirmed. Where a defendant sought to reverse a judgment against him on the ground that the trial court erroneously denied his petition for a change of venue, held that the petition not having been preserved by certificate of evidence or bill of exceptions, the judgment must be affirmed.
    Error to the Municipal Court of Chicago; the Hon.- John A. Ma-honey, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed October 10, 1916.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Frank Walker, alias Clark, defendant. To review a judgment entered gainst the defendant, he prosecutes a writ of error.
    Cantwell & Smith, for plaintiff in error.
    Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.

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

   Mr. Justice McGoorty

delivered the opinion of the court.