text:
    James J. White & Company, Plaintiff in Error, v. Bertha N. de Tarnowsky, Defendant in Error.
    Gen. No. 22,444.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon.. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment of nil capiat here.
    Opinion filed December 18, 1916.
    Rehearing denied December 29, 1916.
    Statement of the Case.
    Action by James J. White & Company, a corporation, plaintiff, against Bertha N. de Tarnowsky, defendant, on a contract. To review a judgment against the defendant for an amount less than deemed adequate by the plaintiff, the latter prosecutes a writ of error.
    On May 31,1913, defendant made a written proposal to plaintiff to have it insert in a volume of its encyclopedia “a full page half tone portrait to accompany the biography of William Penn Nixon,” etc. There are some indorsements on the back and made a part of the contract, among which Was: “Will decide soon and send photo desired.” While plaintiff thereafter acknowledged to defendant the receipt of her order, the acceptance was not in the terms of the order, but varied from it in a material particular. On July 2, 1913, defendant canceled the order by mail. The acceptance ignored the condition that defendant reserved the right to send a photo from which the half tone should be made, and put forth a new condition, viz., that the contract price should be payable “on submission of proof.” This new condition interpolated by plaintiff was never accepted by defendant.
    Auden, Latham & Young, for plaintiff in error; Charles Martin, of counsel.
    Helmer, Moulton, Whitman & Whitman, for defendant in error; Charles B. Holton, of counsel.
    Abstract of the Decision.
    1. Contracts, § 385

      —when evidence does not show acceptance of offer. In an action on an alleged contract whereby the defendant was to pay the plaintiff for the insertion of a portrait of the defendant’s father in a book published by the plaintiff, evidence held to show that the defendant’s offer had not been accepted in terms by the plaintiff and that no contract came into existence.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Contracts, § 44 —what essential 'to make a contract where acceptance varies -from offer. To make a contract a proposition must be unconditionally accepted, and interpolation in the acceptance of any new condition or any departure from the exact terms of the proposition constitutes a new offer, and before the parties are bound such new offer must be unconditionally accepted by the party making the original proposition.


source: Caselaw Access Project

author: Mr, Justice Holdom

license: Public Domain

text:
    Frank I. Bennett et al., trading as Highlands Company, Plaintiffs in Error, v. John Sydney Baxter, Defendant in Error.
    Gen. No. 22,449.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Court-net, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here for $127.57.
    Opinion filed December 18, 1916.
    Rehearing denied December 29, 1916.
    Statement of the Cage.
    Action by Frank I. Bennett, George R. Bennett, Charles J. Bonr, Clyde L. Day, Frank B. Harrimon, Luther W. Conover, Edward P. Skene, William J. Harahan, David W. Ross, Samuel G. Hatch and Francis B. Bowes, ■ trading as Highlands Company, plaintiffs, against John Sydney Baxter, defendant. To review a judgment for defendant, plaintiffs prosecute a writ of error.
    Church, Shepard & Day, for plaintiffs in error; Howard W. Lewis, of counsel.
    John J. Beilman, for defendant in error.

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

   Mr, Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Accord and satisfaction, § 3 —what is essential to mate accord and satisfaction a defense. Where a defendant resisted recovery on the ground that one of the plaintiffs had released him from payment of a certain interest charge, held that, inasmuch as there was no dispute as to the amount owing, there could be no accord and satisfaction on payment of an amount less than that due as there was no consideration for the promise.

2. Judgment, § 208*—when judgment non obstante veredicto properly entered. Where the defense embodied in an affidavit of merits does not state facts, which, if uncontroverted, would entitle the defendant to prevail, a judgment non obstante veredicto should be entered on the plaintiffs’ motion.

3. Accord and satisfaction, § 7*—When affidavit of merits setting up is insufficient. Where an affidavit of merits stated that there was an accounting between the plaintiffs and the defendant and the amount of the defendant’s indebtedness settled in such accounting, that such amount was to be secured by a mortgage and that the negotiation of the mortgage resulted in the payment of commissions, without stating to whom the commissions were paid, held that as such expense, unexplained, was the mortgagor’s, and no intendment to the contrary could be indulged in the absence of any direct statement concerning it, the affidavit presented to meritorious defense,' and that the plaintiffs’ motion for a judgment non obstante veredicto should have been granted.

4. Appeal and error, § 1810*—when judgment on reversal entered in Appellate Court. Where, in an action in the Municipal Court of Chicago, the amount claimed by the plaintiffs was liquidated, fixed and ascertained and the defendant’s affidavit of merits did not state a valid defense, a judgment for the defendant was reversed and judgment for the plaintiffs for the amount claimed together with interest to the filing of the opinion was entered in the Appellate Court. .


author: Mr. Justice Hóldom

text:
    Lizzie Baskes, Plaintiff in Error, v. Evening American Publishing Company, Defendant in Error.
    Gen. No. 22,459.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Rehearing denied December 29, 1916.
    Statement of the Case.
    Action by Lizzie Baskes, plaintiff, against the Evening American Publishing Company, defendant, to recover damages for personal injuries inflicted June 19, 1913, the action was commenced July 28, 1914, against the Illinois Publishing Company, Chicago American and Chicago Examiner. Only the first-named defendant was served with process. On January 14, 1916, the Evening American Publishing Company was made a party defendant and summons was served upon it January 26, 1916. On March 4, 1916, the action was dismissed as to defendants Illinois Publishing Company and Chicago Examiner. From a judgment for defendant, plaintiff brings error.
    Jacob Levy, for plaintiff in error; Josiah Burnham, of counsel.
    Boy D. Keehn, for defendant in error.
    Abstract of the Decision.
    Limitation op actions—when action against corporation sued under trade name is darred. Where a corporation is known by a certain name under which it trades and it is made defendant in a suit under such name, and service of summons is not made on the corporation under its correct name until after the statute of limitations had run, the action is barred, and it is immaterial as to what was the intention of the plaintiff.
   Mr. Justice Hóldom

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    Sarah J. Kelly, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 22,495.
    (Not to be reported in full.)
    Error to the Municipal Court_ of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Action by Sarah J. Kelly, plaintiff, against the Chicago City Railway Company, defendant, for damages for personal injuries alleged to be due to the sudden starting of defendant’s street car while plaintiff was attempting to alight therefrom. From a judgment for defendant, plaintiff brings error.
    Joseph H. Lawler, for plaintiff in error.
    Warren D. Bartholomew and Frank L. Kriete, for defendant in error; W. W. Gurley and J. R. Guilliams, of counsel.
    Abstract of the Decision.
    1. New trial—when refusal to grant motion for is not error. In a trial before the court without a jury, error cannot be assigned on the failure of the court to grant a motion for a new trial, because no such motion is necessary, and the error, if any, in such condition arises on the court’s finding in the entry of judgment thereon.

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Gabriebs, § 476 —when evidence sufficient to sustain judgment for defendant in action for personal injuries. In an action by a street car passenger against the street railway company for damages for personal injuries sustained while plaintiff was attempting to leave the car, and in which defendant contended that plaintiff was thrown and injured in attempting to get off while the car was in motion and before it had stopped, evidence held sufficient to support a judgment for defendant.

3. Appeal and error, § 1414*—when finding of trial court will not be disturbed: The finding of a trial judge will not be disturbed on appeal as unsupported by the evidence unless such finding is manifestly contrary to the probative force of the evidence.

4. Dismissal, nonsuit and discontinuance, § 43*—when motion for nonsuit is too late. A motion for a nonsuit in a case tried without, a jury cannot be entertained after the trial court has announced its findings and declared its decision of the case.


text:
    Almy Manufacturing Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 22,663.
    1. Gaming—when slot machine constitutes a gambling device. A slot machine which- is operated by the insertion of a nickel in the slot for which the customer receives merchandise valued at from five to twenty-five cents, and which indicates the amount of the check next to be received, and will produce checks of certain denominations in regular rotation if the mechanism of the machine is not interfered with, all of which can be determined by reference to a printed card hanging on the front of the machine and to certain discs on the back of the machine which are invisible from the front, but is susceptible of arrangement by a mechanism in a few seconds so that the checks will appear in irregular manner, is a gambling device, as it is immaterial that by reference to the chart and the discs, with the mechanism in an altered condition, there would be no element of chance.
    2. Lotteries, § 1*—what is a lottery. A lottery is a scheme for the distribution of prizes by lot or chance; a hazard in which sums are ventured for the chance of obtaining greater value.
    3. Gaming—what constitutes gambling. The hazard on small amounts to win larger amounts is gambling.
    Interlocutory appeal from the Superior Court of Cook county; the Hbn. Wuxiam Fenimore Cooper, Judge, presiding. Heard in this court.
    Reversed.
    Opinion filed December 18, 1916.
    Rehearing denied December 29, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Samuel A. Ettelson, F. D. Ayers and C. E. Cleveland, for appellant.
    Brady, Rutledge & Devaney, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

Complainant company manufactures and vends slot machines of the nature and with the characteristics of the machine in evidence in this litigation, which machine was manufactured by it. This machine was seized and carried away by the police of Chicago from the saloon of one Thomas Madden, who was arrested to answer a charge of violating section 984 of the Revised Ordinances of the City of Chicago on the theory that the slot machine seized was an implement of gambling. Under section 137g, ch. 38, Rev. St. (J. & A 3747), being “An Act to prohibit the use of clock, tape, slot or other machines or devices for gambling purposes,” the machine, if a gambling device, might be destroyed by the municipal authorities. The machine is labeled “Automatic Cashier and Discount Machine. ’ ’ The bill in this case asks that the municipal authorities be enjoined from seizing, interfering with or preventing the use and operation of any of such machines, either manufactured, sold or leased by complainant, and from arresting or causing to be arrested any person who shall keep, own, operate or use in any room, saloon, building, etc., any of such machines. A reference to a master was made to determine whether the machines were gambling devices or legitimate mechanical devices. On this reference the master heard evidence and examined and operated the machine in evidence. The master reported that the machines were legal and legitimate and not gambling devices. After overruling exceptions of the city to the report, the interlocutory injunctional order appealed from restraining the city and its officers as prayed was entered.

The machine and the manner in which it is susceptible of being worked is about as follows: At the top of the machine there are places where it says, “Five cents buys five cents worth of mdse.”—“Five cents buys ten cents worth mdse.”—“Five cents buys fifteen cents worth mdse.”— “Five cents buys twenty-five cents mdse. ’ ’ Moving pictures of a more or less lascivious character, which are operated with a spring, repeat first from the left to the right and contrariwise. Just below the pictures is a glass which shows a music disc, and when the machine responds to the insertion of a nickel it gives forth music. When the machine is in running order and fed with nickels one light appears behind one of the four glasses, designating the amount in merchandise of the check paid. The merchandise check which brings about the changes in amounts consists of four tubes that hold the different checks, each holding five, ten, fifteen and twenty-five cent checks respectively. At the lower end of each tube is a little finger. Where these fingers come up they knock out certain checks at the bottom of the tubes under which they are. These fingers are connected and revolve on a drum on the inside about four inches in diameter and one and a half inches thick. This drum is perfectly smooth except for the openings in the surface where the fingers drop. The finger representing the five cent check remains on a depression in the drum except when the finger representing a ten, fifteen or twenty-five cent check drops in, when the finger representing the five cent check is held np. The finger that ejects the merchandise check also operates the mechanism so that the light representing the amount of the check that is next to be ejected is lighted up. The drum wheel is moved by a ratchet on the lever that works in notches that are in the drum, fifty-four in number. The ratchet arrangement which shifts the drum forward causes it to move from one notch to various numbers from one to five. The machine could be so arranged that it would play each notch individually and successively without jumping any notches. There are two discs that connect with this drum wheel; the large disc is connected in such a way that it revolves with the inside drum to control the fingers. There is also a small disc that is connected with a mechanical arrangement that tells how many teeth the ratchet will shove the drum around by the operation of the handle. The large disc is about ten inches in size and is of a brass color with black letters on it. The smaller disc is about three and a half inches, brass color, with black letters and figures. Neither the large nor the small disc can be observed from the front of the machine. Two cards or charts hang on the front of the machine, and may be detached or turned with their backs to the front without any effort. The white card hanging in front of the machine gives the directions for its use. The same amount of money is played in the machine at all times. The machine never pays a check for less than five cents to be traded, nor more than twenty-five cents. By means of the card and the discs, many plays in advance could be figured out. By the aid of the lights alone, the card being removed or hidden from view, one play in advance could be determined. It would not be much of a mechanical task to change the machine so that it would operate differently than when operated by the card, and it would take a mechanician about twenty seconds to make this change providing the machine was open, and the door of the machine could be readily opened with a key. It is a simple operation to make the machine pay differently than the directions indi-cate, and the machine could be easily set back to its original order without any injury to the same. It is virtually conceded that the machine without the card hung upon the brass hook is a gambling device. While the card indicates when a winning is to be made, without it all is chance.

The “card” is evidently intended to take the “curse” off the machine as a gambling device, but we think it utterly fails to do so. Players may be deluded into so believing, but this court cannot be. The card is movable and transitory in its nature and is not an integral part of the machine in any sense.

The purpose of the machine, its quality and character, the possibilities of its operation and the manner in which it is susceptible of use are controlling factors in determining whether it is a gambling device in fact or not. "We think the machine must be judged as to its being a gambling device or not without reference to the “card,” because the “card” may or may not be in sight, according to the whim, wish or desire of the operator. While it is true that the player will receive five cents in trade for the nickel which he places in the slot of the machine, yet that is not what induces the player to make the venture. It is the lure and the chance to get maybe ten, fifteen or twenty-five cents as a return for the five cent investment. It is the lure of the game that makes it gambling. This is the attraction that incites the cupidity of the player.

Again, the machine is not an “automatic cashier and discount machine.” To so characterize it is simply another attempt to- disguise its real character. The case with which the mechanism can be manipulated so that it may be diverted from its apparent innocent character to that of a gambling device brings the machine within the statute and the ordinance as a gambling device. The machine gives forth nothing' but a check. The check takes the place of the nickel deposited in it, therefore it does not perform the function of a cashier, because the check takes the place of the nickel and must be handed to the person who returns to the player the value of the check.

Upon what theory the machine performs the function of a “discount machine” we are unable to discern either from the machine itself or anything we find in the record. The machine is an exhibit in the case and is before us. We have examined it, operated it and tested its various capacities for good or evil, and from the record and the machine, and its manner and method of working, we are of the opinion that it is a gambling device and under the ban of the law. The machine is evidently masquerading under a false title, and is,, we think, akin to a lottery in its operation, coming within the definition of the lexicographers of a lottery, which is, “a scheme for the distribution of prizes by lot or chance”; “a hazard in which sums are ventured for the chance of obtaining a greater value. ’ ’ The hazard of small amounts to win larger is gambling. The hazard of putting five cents in the slot of this machine with a chance of winning ten, fifteen or twenty-five cents stamps it as a gambling device andj as the evidence shows, the machine can be so manipulated that the winning of more than the amount invested is chance in which neither the will nor the skill of the operator can influence the result, which further characterizes it as a gambling device.

A case similar to the facts and the same in principle is Lang v. Merwin, 99 Me. 486. This was a slot machine case, in its essence akin to the one at bar. There, as here, the playing was a nickel, the return for the nickel being a nickel cigar with a chance of winning-more cigars to the amount of fifty, and the court said:

“In the ease before ns it is idle to assume, or concede, that the person putting his five cents into the machine may be doing so merely as a means or mode of buying a five cent cigar. It is idle to deny that the impelling motive is the hope of getting other cigars for nothing. If the machine did not afford that chance it would not be used. True, the cigar dealer sets up the machine to increase his trade and is recouped by that increase for any losses, so that in the end he loses nothing, but he does so by arousing and stimulating the gambling propensity, the very propensity the legislature evidently seeks to repress. The element of chance is the soul of the transaction. The operator hopes by chance to get something for nothing. The dealer hopes chance will save him from giving something for nothing. Each is pecuniarily interested adverse to the other in a result to be determined solely by chance. To use the language of the street, ‘it is a gamble’ which will win, and we have no doubt the transaction is ‘gambling’ in the statutory sense of the word..”

We think the logic and the reasoning in the case supra are pertinently applicable to the facts of the instant case. Lot and chance are the elements of this device, which stamp it as gambling.

In Horner v. United States, 147 U. S. 449, the scheme of the Austrian government to float some bonds was declared to be a lottery, and the court said:

“Although the transaction in question was an attempt by Austria to obtain a loan of money to be put into her treasury, it is quite evident that she undertook to assist her credit by an appeal to the cupidity of those who had money. * * * Every holder of a bond has an equal chance with the holder of every other bond of drawing one of such prizes. Whoever purchases one of the bonds, purchases a chance in a lottery, or, within the language of the statute, an ‘enterprise offering prizes dependent upon lot or chance.’ The element of certainty goes hand in hand with the element of lot or chance, and the former does not destroy the existence or effect of the latter.”

We therefore hold that the slot machines of complainant of the character of the one in evidence are gambling devices and are subject to be dealt with, together with the persons owning or i a ting the same, as directed by the ordinance of the vny of Chicago and the statutes of the State, supra, regulating such machines.

The interlocutory injunctional order appealed from was improvidently granted and is therefore reversed.

Reversed.


author: Mr. Presiding Justice Barnes

text:
    Fannie C. Bellman, Administratrix of the Estate of Henry J. Bellman, Deceased, Plaintiff in Error, v. Max Epstein, Defendant in Error.
    Gen. No. 21,576.
    1. Witnesses, § 107

      —what interest disqualifies. The interest that disqualifies a witness both at common .law and under the Rev. St. ch. 51, sec. 2 (J. & A. if 5519) must be some legal, certain and immediate interest, however minute, either in the event of the cause itself or in the record, as an instrument of evidence, in support of his own claims in a subsequent action.
    2. Witnesses, § 108*—what is true test of interest of witness who is not a party. The true test of the interest of a witness who is not a party to the action is that he would either gain or lose by the direct legal operation and effect of judgment or that the record will be legal evidence for or against him in some other action, but if the interest is of doubtful nature, the objection goes to the credit of the witness and not to his competency.
    3. Witnesses, § 106*—when witness is not directly interested in event of suit. A witness in an action by the administratrix of an estate on a promissory note, to whom the testator had owed a debt, and to satisfy the debt had authorized him to tell the defendant to pay what was due on the note to him and that the note would be canceled, in pursuance of which arrangement the amount of the note was paid to the witness, is not directly interested in the event of the suit so as to be incompetent to testify as to certain facts under Rev. St. ch. 51, sec. 2 (J. & A. K 5519).
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 19, 1916.
    Rehearing denied December 23, 1916.
    Sheriff, Dent, Dobyns & Freeman, for plaintiff in error.
    Harry M. Rosenblum, for defendant in error; Sydney Stein, 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.

This was a suit brought upon a promissory note for $1,000 and interest by the administratrix of the payee, one Bellman, against the maker, Epstein. The sole question presented for our consideration is whether the evidence of the witness, Mayer, received in support of the plea of payment, was admissible under section 2, chapter 51 of our Revised Statutes (J. & A. ¶ 5519).

He testified in effect that Bellman owed him and to satisfy the debt authorized him to tell Epstein to pay what was due on the note to him and that the note would be canceled; and, further, that in pursuance of that arrangement Epstein paid him the amount of the note. In view of such" testimony the question arises, whether Mayer was,—using the language of the statute,—“directly interested in the event” of the suit.

The interest that disqualifies at common law, as stated in volume 1 of Greenleaf on Evidence (13th Ed.), “must be some legal, certain, and immediate interest, however minute, either in the event of the cause itself, or in the record, as an instrument of evidence, in support of his own claims, in a subsequent action.” (Section 386.) Such interest, too, is in such “event” and not in the question to be decided. tion 389.) The true test of the interest is, as stated by the author, “that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him, in some other action.” (Section 390.) “And,” the author adds, “if the interest is of a doubtful nature, the objection goes to the credit of the witness, and not to his competency.”

In considering the interest that disqualifies a witness both at common law (Curtenius v. Wheeler, 10 Ill. [5 Gilm.] 462) and under said section of'the statute (Ackman v. Potter, 239 Ill. 578, and Stephens v. Hoffman, 263 Ill. 197), as well as the test to be employed (Feitl v. Chicago City Ry. Co., 211 Ill. 279), our Supreme Court has referred to the work of the noted author, and has adopted or paraphrased his language.

The general rule as to the nature of the interest that disqualifies, and as to the test thereof, is simple as thus stated, but the difficulty, as said in the Curtenius case, supra, is in its application. While at first there seemed to be much force in plaintiff in error’s contention that if Epstein lost Mayer would be subject to an action by the former for the recovery of the money and, therefore, had a direct interest in the event of the suit, still on further reflection we are constrained to adopt a different view, and to regard his interest at best of such a “doubtful nature” that the objection to his testimony goes merely to its credibility. (G-reenleaf, sec. 408.)

If we apply the test above stated, it is apparent that rnjder neither branch thereof was Mayer an incompetent witness. He could neither gain nor lose by the direct operation of the judgment. If it were for Epstein it could in no way be construed for his use or benefit, and, if for the estate, it would not of itself in anywise affect his property rights or interests. The difficulty that arises on this phase of the subject consists in confusing the question that was to be decided, namely, whether Epstein was liable on the note, with the event of the suit. Mayer may have been interested in that question to the extent that whichever way it was decided he might become subject to an action by the losing party. Nevertheless, that did not give him a direct interest in the event of the suit because he could neither gain nor lose by direct operation of the judgment. Such an interest did not disqualify him. (Grreenleaf, sec. 389.)

Applying the other branch of the test we fail to discern upon what principle of estoppel or otherwise the record of the suit could be used as- evidence either for or against Mayer in a subsequent action. While it decided the question that Epstein was not liable on the note, and it is true the record of the judgment could be used, even between strangers, to show that such a judgment was rendered, it would not be admissible to prove the truth of the fact, on which the judgment was doubtless founded, that Bellman gave Mayer authority to collect the note and appropriate the proceeds. (G-reenleaf, sec. 404.) This becomes evident when we consider that Mayer had a personal interest in the verity of that transaction and personal rights dependent thereon, but was not a party to the suit. No discussion or citation of authorities is necessary to the elucidation of this point. On such matter, the record could not be used either for or against him.. As, therefore, Mayer’s interest in the event of the suit was not a direct one, when subjected to either branch of the true test, his testimony was admissible: Accordingly, the judgment will be affirmed.

Affirmed.


text:
    Margaret Boyd, Defendant in Error, v. Arthur Foster, Plaintiff in Error.
    Gen. No. 21,675.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goomsrow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed December 19, 1916.
    Statement of the Case.
    Action by Margaret Boyd, plaintiff, against Arthur Foster, defendant, to recover damages for negligence of the defendant as an architect in designing, planning and superintending the construction of a building and also the construction of an adjoining sidewalk, both the building and the sidewalk being constructed at a grade below that established by the city. From a judgment for plaintiff, defendant brings error.
    During the course of construction of the building the error was discovered, and it became necessary in order to have the sewer laid below the basement floor to raise the latter. The basement walls, however, were not heightened, which resulted in a somewhat lower ceiling in the basement, and also resulted, as the sidewalk had to be relaid and raised to grade, in bringing the first floor on a level with the street grade, necessitating the construction of bulkheads about the basement windows.
    William B. Jarvis, for plaintiff in error.
    Gorman, Pollock & Livingston, for defendant in error.

      See Illinois Notes Digest, Vola. 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. Architects and engineers, § 16 —when cost of raising walls is not shown. In an action against an architect to recover damages for negligence in designing, planning and superintending the construction of a building and the construction of the adjoining sidewalk, and in which the plaintiff sought to recover the reasonable cost of restoring the property to the condition contemplated by the accepted plans by raising the basement walls in conformity therewith, the reasonable cost of such work is not established by proof consisting of the testimony of a builder that two years previous he proposed to make such change for a specified sum.

2. Trial, § 91*—when specific objection to admission of evidence is unnecessary. A specific objection to the admission of evidence is unnecessary where it is manifest that the offered proof has no probative value whatever.

3. Architects and engineers, § 16*—what evidence is inadmissible on question of damages in action for negligence. In an action by the owner of a building against an architect to recover damages for negligence in designing, planning and supervising the construction of a building and an adjoining sidewalk, as the result of which the building and sidewalk were constructed below the grade required by the city, evidence consisting of the testimony of the builder to the fact that two years previously he proposed to make the necessary change for a specified sum is inadmissible upon the question of damages.


text:
    J. H. Johnson, Defendant in Error, v. James Hogg, Plaintiff in Error.
    Gen. No. 21,775.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Pry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 19, 1916.
    Statement of the Case.
    Action by J. H. Johnson, plaintiff, against James Hogg, defendant, to recover for alleged balance on a building contract. From a judgment for plaintiff, defendant brings error.
    The statement of claim alleged that there was a written contract between the parties whereby plaintiff agreed to construct for defendant a building according to certain plans and specifications for a certain price; that the contract provided that the work was to be done under the direction of the architect and that his decision was to be final, that the payments were to be made only upon the architect’s certificates, and that the final certificate should be conclusive evidence of the performance of the contract. It further alleged the issuance of a final certificate under the contract and refusal of defendant to pay. Defendant filed his affidavit of merits and a set-off.
    The affidavit of merits and set-off both set forth numerous facts, pertaining mostly to improper and defective construction and complaints of the owner on the subject, and stated as a conclusion therefrom (1) that the plaintiff “waived and suspended the operation of said final certificate”; and (2) that “said architect issued said certificate in consequence of the mistake as to the actual condition of said walls, floors and elevator pit, and that said mistake was the result of said misrepresentations, concealment and fraudulent omissions of plaintiff’s employees in charge of said work, to disclose to said architect the defects as aforesaid”; and (3) that the terms of the contract had not been fulfilled and that to complete it “in accordance with the terms and conditions of the contract and specifications” would reasonably cost $950.
    Emery S. Walker, Le Boy V. Penwell and E. Carl Tourje, for plaintiff in error.
    Edmund W. Froehlich, for defendant in error.
    Abstract of the Decision.
    1. Building and construction contracts, § 65

      —What is effect of final certificate of architect. Where a building contract provides for the construction of a building according to certain plans and specifications for a certain price, that the work shall be done under the direction of an architect and that his decision shall be final, that the payment shall be made only upon his certificate and that the final certificate shall be conclusive evidence of the performance of the contract, and such final certificate is issued and defendant refuses to pay, the defendant is limited to the defense of fraud and mistake in the issuance of the final certificate.
    2. Municipal Court op Chicago, § 13*—when affidavit of defense is insufficient as a legal defense.' In an action by a building contractor against the owner to recover an alleged balance due on the contract after issuance of a final certificate under the contract and refusal of the owner to pay, an affidavit of defense held to be unresponsive to the issues tendered by the statement of claim and to be insufficient as a legal defense.
    3. Building and construction contracts, § 65*—when evidence sufficient to show architect’s certificate is final. In an action by a building contractor to recover an alleged balance due on the contract after issuance of an alleged final certificate by the'architect and refusal of the owner to make payment, evidence held sufficient to show that such certificate was a final one and intended as such.

      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.

4. Building and construction contracts, § 103 —when evidence sufficient to show waiver of architect’s certificate as final. In an action on a building contract, evidence held sufficient to show waiver of an architect’s certificate as a final certificate.

5. Building and construction contracts, § 103*—when evidence insufficient to impeach final certificate. In an action on a building contract, evidence held insufficient to show fraud or mistake which would impeach a final certificate issued by the architect.

6. Building and construction contracts, § 65*—what constitutes a final certificate. A final certificate issued by an architect is one which is issued after a job is done and whiclj. finally determines the rights of the parties as to money and disputes.

7. Set-off and recoupment, § 40*—when evidence insufficient to sustain plea of set-off. In an action on a building contract to recover a balance alleged to be due after the issuance of a final certificate and in which defendant filed a plea of set-off for alleged defects in construction, evidence held insufficient to sustain a plea of set-off.


text:
    James E. Gordon, Administrator de bonis non of the Estate of Manson L. Hays, Deceased, Plaintiff in Error, v. J. G. Stadelman, Defendant in Error.
    Gen. No. 21,816.
    1. Automobiles and garages, § 3*—when proper to instruct that no recovery can be had for wanton conduct. In an action for the death of the plaintiff’s intestate resulting from his being struck by the defendant’s automobile, held that there being no evidence that would justify the inference that the defendant’s conduct was such as would show a general intent to inflict the injury or negligence of such a high degree as would be deemed equivalent to a wilful or wanton act, it being undisputed that the defendant put on his brakes as soon as the intestate came into the range of the defendant’s vision, that an instruction that there could be no recovery under a count alleging wanton and wilful conduct on the part of the defendant was proper.
    2. Automobiles and garages, § 3*—when instruction proper as to care required of driver. In an action for the death of the plaintiff’s intestate caused by Ms being struck by the defendant’s automobile, an instruction to the effect that the defendant was not bound to exercise the highest degree of care but “ordinary care at and just prior to the time and place in question to avoid injuring the deceased” was proper.
    3. Automobiles and gabages, § 3*—when instruction on burden of proof in sudden emergency not misleading. In an action for the death of the plaintiff’s intestate caused by his being struck by the defendant’s automobile, where the evidence given on behalf of the defendant tended to show that the deceased was crossing a street in the middle of a block, had passed behind a southbound car and in front of a northbound car going in the same direction as the defendant and had stepped into the path of the defendant’s automobile, an instruction which required that the plaintiff show by the preponderance of the evidence that the circumstances were such that the defendant had time and opportunity to become conscious, by the exercise of ordinary care, of the facts giving rise to a duty to avoid injuring the deceased, if the jury believed that the latter was suddenly “without any fault on the part of the defendant” placed in a position of danger, held not reversible error as being misleading.
    4. Automobiles and gabages, § 3

      —when instruction that fact of accident is not evidence of negligence is proper. In an action to recover for the death of the plaintiff’s intestate resulting from his being struck by the defendant’s automobile, an instruction stating that the fact of the accident itself alone was not evidence of negligence on the part of defendant was proper under the circumstances.
    5. Negligence, § 226*—when instruction on care required of injured person not misleading. In an action for the death of the plaintiff’s intestate, an instruction requiring proof that the deceased was free from any want of “ordinary prudence, vigilance and caution for his own safety” was not misleading in view of other instructions stating that the deceased was only bound to exercise ordinary care for his own safety.
    6. Instructions, § 89*—when instruction as to determination of preponderance of evidence is proper. In an action for the death of the plaintiff’s intestate, an instruction to the effect that the preponderance of the evidence does not necessarily depend on the number of witnesses testifying on either side and then proceeding to enumerate various elements to be considered in determining the preponderance of the evidence, held proper.
    Error to the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 19, 1916.
    Elmer & Cohen, for plaintiff in error.
    Miller, Gorham & Wales, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

The plaintiff below brings error to review the record of a judgment in favor of the defendant in a personal injury suit claiming it was brought about by erroneous instructions.

Plaintiff’s intestate, Hays, came to his death from being struck by defendant’s automobile near the east curb of Halsted street, Chicago, which runs north and south, at a point approximately seventy-five feet north of the 50th street crossing. A car line is operated on Halsted street, the northbound cars running on the eastern and the southbound on the western tracks. Hays had come from behind a southbound ear and had passed in front of a moving northbound car only a few feet ahead of it when he suddenly found himself within a few feet, estimated at less than fifteen, of defendant’s automobile which was being driven past the northbound car at a rate of speed variously estimated from eight to fourteen miles an hour by defendant’s witnesses and from fifteen to twenty-five by plaintiff’s witnesses. Apparently 'Hays and defendant could and did see one another at about the same instant of time but not before danger was' imminent, and immediately the former quickened his pace and the latter put on his brakes.

The northbound car had stopped on the south side of 50th street and was running about eight miles an hour. The clanging of its bell as Hays emerged from behind the southbound car in the mortorman’s sight caused Hays, who was an old man, to hasten. Defendant had come from behind the northbound car in the crossing and was “picking up speed” to pass the car. The evidence was contradictory on the point whether Hays alighted from the southbound car, and tended to show that he passed between two moving southbound cars. There were about the same number of witnesses to the res gestes on each side and their testimony presented disputable questions both as to defendant’s negligence and said intestate’s contributory negligence.

The first count of the declaration charged negligence at common law, the second, wanton and wilful conduct, the third, operating the automobile in a residence portion of the city at a speed exceeding fifteen miles an hour contrary to the statute, and the fourth, operating it in a closely built up business portion of the city in excess of ten miles an hour contrary to the statute.

One of the given instructions complained of told the jury that there could be no recovery under the second count. We think the question of wilful negligence was properly taken from their consideration, there being no evidence that would justify the inference that defendant’s conduct was such as “would show a general intent to inflict an injury” or negligence of such a high degree as would be deemed equivalent to a wilful or wanton act. (Chicago City Ry. Co. v. Jordan, 215 Ill. 390.) Plaintiff’s argument on this question is predicated on evidence as to the space within which a car may be stopped. But the evidence is undisputed that defendant put on his brakes as soon as Hays came from behind the northbound car in the range of the former’s vision. The unquestioned proof of prompt action, on becoming aware of the danger, was like that in Feitl v. Chicago City Ry. Co., 211 Ill. 279, where a similar conclusion was reached, adverse to the claim that the evidence tended to show reckless and wanton conduct.

Two other instructions relating to the degree of care incumbent on defendant are criticised. The first was to the effect that defendant was not bound to exercise the highest degree of care but “ordinary care at and just prior to the time and place in question to avoid injuring the deceased. ’ ’ The other required that plaintiff must show by a preponderance of the evidence that the circumstances were such that defendant had time and opportunity to become conscious by the exercise of ordinary care of the facts giving rise to the duty to avoid injuring the deceased, if the jury believed the latter was suddenly “without any fault on the part of defendant” placed in a position of danger. It seems to be conceded by plaintiff in error that these instructions were proper as applied merely to the charge of comm on-law negligence, but he urges that they were erroneous when applied to the breach of a statute limiting speed. In this connection plaintiff in error cites a decision under the Motor Vehicle Act (Session Laws 1903), which fixed a speed limit under certain circumstances, but which was repealed and replaced by the act in force at the time of the accident. (Hurd’s Rev. St. 1916, pp. 2300 et seq., J. & A. ¶ 10001 et seq.) The latter act does not fix a speed limit in any locality, but prescribes a rule of evidence to the effect that exceeding certain speed in certain localities will be prima facie proof of running at a rate of speed greater than is reasonable under the circumstances. (People v. Lloyd, 178 Ill. App. 66.) This rule of evidence, as well as that requiring the driver of such a motor vehicle to exercise only ordinary care to avoid injuring pedestrians, was recognized in instructions given at plaintiff’s own request. Hence plaintiff’s argument upon these two instructions relating to the degree of care to be exercised in such a case is not only inconsistent with his own instructions bearing on the subject but rests in the main on a confusion of the statute in force with one that has been repealed.

The last instruction is in substantially the same form as approved in Chicago Union Traction Co. v. Browdy, 206 Ill. 615, where it was held error to refuse it, and in Scanlan v. Chicago Union Traction Co., 127 Ill. App. 406. In both of those cases the accident happened between street crossings. There was evidence given on defendant’s behalf in the instant case that Hays was hit ninety-eight feet north of the crossing, and that he did not get off of the southbound car and that it did not stop, thus supporting defendant’s theory that intestate’s crossing the street under such circumstances at such a time and place was not reasonably to be expected. Such evidence also had a bearing on the reasonableness of defendant’s speed, whatever it was, and presented questions of fact, as to which defendant was entitled to instructions on his theory, if tenable. (Browdy case, supra.)

The instruction is directed to a situation where a duty suddenly and unexpectedly arises towards one suddenly placed in a position of danger without notice to or the fault of another by whom he is injured. It is usually applied where the circumstances are unusual and extraordinary and not such as could reasonably be anticipated. Because of the absence of evidence tending to show such conditions, an instruction based on the theory that the duty to avoid injury arose only so soon as the one charged therewith could by the exercise of ordinary care have had notice or knowledge of the unusual situation, was refused in West Chicago St. R. Co. v. Petters, 196 Ill. 298. But in the Browdy case, supra, the court held it was error to refuse it, there being evidence in the record to support said theory. So in view of the evidence' adduced by defendant in this case, we do not think it was error to give the instruction. It required the jury to believe from the evidence “that the deceased was suddenly and without any fault on the part of the defendant, J. Gr. Stadelman, placed in a position of danger.” This manifestly referred to danger from defendant’s machine, and for defendant to be without fault it comprehended exercise of ordinary care in operating his machine, not only at the time danger became apparent to him but, as the jury were told in the other instruction, “just prior to the time and place in question.” Hence both instructions called on the jury to measure defendant’s duty to avoid injuring pedestrians, not merely by his conduct at the instant of time when sudden danger was first discoverable, but before he reached the place of danger, and hence required consideration of the speed at which he approached the place. It is impossible to say whether the verdict was based on a finding of contributory negligence or absence of defendant’s negligence. It was only as to the latter the instruction could be misleading. We cannot say that it was, however, even, though it may be somewhat involve'd for the comprehension of an ordinary jury.

Another criticised instruction submitted to the jury’s determination in substantially the same form as one on the same subject approved in Chicago City Ry. Co. v. O’Donnell, 208 Ill. 267, whether plaintiff’s intestate, in the exercise of ordinary care, should have looked and ascertained whether defendant’s automobile was approaching. The case of Stack v. East St. Louis & S. Ry. Co., 245 Ill. 308 [1 N. C. C. A. 687], is cited in support of the criticism. The instruction disapproved in the latter case was, as pointed out therein, materially different from that approved in the O’Donnell case, supra, which was like the one in question, and we deem it unnecessary to point out again the distinction between them.

Another criticised instruction began with the statement that the fact of the accident itself alone was not evidence of negligence on the part of the defendant, and thus far, properly as we think, under the eircumstances, told the jury it was not a case for the application of the doctrine of res ipsa loquitur. The rule of law was correct, though we are aware that the refusal to give a somewhat similar instruction in the Fetters case, supra, was justified on the ground that it directed the jury’s attention to a single item of the evidence. We are aware of no reversal for giving such an instruction in a proper case. But the instruction did not leave the jury’s attention upon a single phase of the evidence but proceeded to tell them what were the two elements of proof essential to recovery, namely, negligence of the defendant and ordinary care by the deceased. The expression with regard to the latter contained superfluous words in requiring proof that plaintiff’s intestate was free from any want of “ordinary care, prudence, vigilance and caution for his own safety.” We do not think that use of the synonomous words “prudence, vigilance and caution,” especially in view of other instructions stating that deceased was only bound to exercise ordinary care for his own safety, misled the jury to apply a different and higher degree of care than imputed by the words “ordinary care,” though they might well have been omitted.

The remaining instruction criticised told the jury that the preponderance of the evidence did not necessarily depend on the number of witnesses testifying on either side, and that in determining on which side was the weight thereof, the jury were authorized to consider various enumerated matters such as the witnesses’ relationship, motives, feelings, intelligence, interest or lack of interest, means of information, demeanor while testifying, etc., and concluded with a direction to give such credit to the testimony of each witness as under the evidence and circumstances they believed it to be entitled.

The instruction was not of the kind disapproved in the cases cited by plaintiff in error which undertook to enumerate the elements to be taken .into Consideration in determining the credibility of witnesses or the preponderance of evidence and left out the element of the number of witnesses testifying. In the form given it has been so frequently approved that the citation of authorities seems unnecessary.

Finding no reversible error, we must affirm the judgment.

Affirmed.


text:
    Johnson & Johnson, Appellee, v. Creamery Package Manufacturing Company, Appellant.
    Gen. No. 21,836.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed December 19, 1916.
    Statement of the Case.
    Action by Johnson &. Johnson, a corporation, plaintiff, against the Creamery Package Manufacturing Company, a corporation, defendant, for the purchase price of goods sold and delivered. From a judgment for plaintiff, defendant appeals.
    Alfred W. Craven and Elmer M. Liessmann, for appellant.
    Hoyne, O’Connor & Irwin, 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.

Abstract of the Decision.

1. Sales, § 326 —what evidence admissible to disprove existence of contract. In-an action for the purchase price of goods alleged by the plaintiff to have been sold and delivered to the defendant under a contract where the plaintiff claimed that its salesman quoted the price to the defendant’s buyer as $13 per thousand articles and the defendant’s buyer claimed that he understood the price to be 13 cents per thousand, held that a memorandum made by the defendant’s buyer at the time of the plaintiff’s salesman’s oral offer and in his presence, in which the price appeared as 13 cents, was admissible on the question of mistake and meeting of the minds, -as was also evidence as to what the defendant’s buyer did with respect to the price which led up to the making of a written order by him in which the price appeared as 13 cents, which order was sent to the plaintiff’s salesman, and also correspondence from the defendant to one of its customers after the defendant’s buyer’s first interview with the plaintiff’s salesman and prior to the sending of the written order by the defendant to the plaintiff.

2. Sales, § 326*—when improbability of evidence does not affect its admissibility. In an action for goods sold and delivered where the plaintiff’s salesman testified that he quoted the price of the articles to the defendant’s buyer at so many dollars per thousand and the defendant’s buyer testified that he understood the price to be cents per thousand, held that the admissibility of competent evidence, tending to show what the real understanding of the defendant’s buyer was, was not affected by the fact that the price which the defendant’s buyer claimed he understood to be the price of the goods was ridiculous in view of their value, the buyer having testified that he was not familiar with the value of such goods.


text:
    George Pyzik, Appellee, v. Marie Ferke and City of Chicago, on appeal of Marie Ferke, Appellant.
    Gen. No. 21,845.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed December 19, 1916.
    Rehearing denied January 3, 1917.
    Statement of the Case.
    Action by George Pyzik, plaintiff, against Marie Ferke and City of Chicago, defendants, for personal injuries sustained by the plaintiff as the result of his falling into a coal hole in the sidewalk in front of Marie Ferke’s premises. From a judgment for plaintiff for $3,750, defendant Marie Ferke appeals.
    Louis S. Gibson, for appellant.
    Aaron R. Eppstein and Sidney Lyon, for appellee.
    Abstract of the Decision.
    Landlord and tenant, § 260

      —when instruction as to liability for dangerous condition of sidewalk improver. In an action for personal injuries sustained by the plaintiff as the result of his falling into a coal hole in the sidewalk in front of the defendant’s building, where the evidence tended as much to show joint use of the cellar under the coal hole by two of the defendant’s tenants as to show joint use by her and one of her tenants, an instruction that “where there is an opening through a public sidewalk into a cellar underneath, and that such cellar is used in common by two or more persons who are tenants or occupants of the land or buildings adjacent thereto, then it becomes the duty of the owner of such land or buildings to use reasonable care to keep and maintain the said opening and its cover in reasonably safe condition for persons traveling upon the highway,” held erroneous as the verdict, which was returned in favor of the plaintiff, may have been based on the assumption of liability on the part of the defendant although she retained no control over the cellar in question.

      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:
    In the matter of the Petition of Maximilian Meinhardt, arrested at the suit of G. Bernhard Anderson, Conservator of the Estate of Brita Matson, Insane.
    Gen. No. 21,879.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. Thomas P. Scully, Judge, presiding. Heard in the Branch Appellate Court at thé October term, 1915.
    Affirmed.
    Opinion filed December 19, 1916.
    Statement of the Case.
    Petition by Maximilian Meinhardt, an insolvent debtor, for release from imprisonment on an execution capias ad satisfaciendum. From an order denying the petition and remanding the petitioner'to the custody of the sheriff, the petitioner appeals.
    Wagner & Beckman, for appellant.
    Anderson, Anderson & Anderson, for appellee.
    Abstract of the Decision.
    1. Execution, § 302

      —who has burden of disproving malice on petition for discharge of insolvent debtor. On a hearing on a petition of an insolvent debtor for release from imprisonment on an execution in an action of which he claims malice was not of the gist, the burden of proof of such claim is on the petitioner.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, samo 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.

2. Execution, § 295 —what is not conclusive as to whether malice was gist of action. The mere fact that the statement of claim, filed in an action in which a capias ad satisfaciendum issued, does not disclose that malice was of the gist of the action does not entitle an insolvent debtor to release from imprisonment under such an execution, since the evidence offered on the trial may have been sufficient to support the judgment on which the capias was issued.


text:
    Morris Chainowitz, Appellant, v. Stanley Formanek, Appellee.
    Gen. No. 21,891.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 19, 1916.
    Statement of the Case.
    Action in replevin by Morris Chainowitz, plaintiff, against Stanley Formanek, defendant. From a judgment for defendant, plaintiff appeals.
    Saltier & Rossen, for appellant.
    John J. Moser, for appellee.
    Abstract of the Decision.
    Replevin, § 17*—when action will not lie. In an action of replevin where the plaintiff based his claim on an alleged sale of the goods in question by the defendant through the agency of the lat-tor’s wife, and the evidence showed that the defendant repudiated the alleged arrangements, never received the purchase price and never parted with possession of the goods, held that a judgment for the defendant was proper.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Perciles C. Gounaris by George C. Gounaris, Appellee, v. Louis Pavlakos and Tony Kascos, Appellants.
    Gen. No. 21,921.
    1. Estoppel, § 16

      —when judgment in attachment suit is a Vttr to hill in equiti/. A judgment against a plaintiff, a minor, in an attachment suit, brought against two defendants, one of whom had been dismissed from the suit before judgment, held a bar to a bill in equity against the defendant in whose favor the judgment in said suit had been rendered, who was joined with the defendant who had been dismissed from the attachment suit, seeking to have annulled a partnership agreement between the complainant and defendant, who had been dismissed from the attachment suit, and for the cancellation of certain notes and mortgages, the two suits involving the same questions and relief and the liability of the defendants, even though joint, being also several under the statute.
    2. Estoppel, § 16*—what essential to estoppel hy judgment. It is no objection to the operation of a judgment, rendered in a former action as an estoppel, that the former action included some parties who are not joined in the second action or vice versa, provided the judgment in the former action" was rendered on the merits and provided the cause of action in both cases is the same and the party against whom the estoppel is set up was actually a party to the former litigation.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed with directions.
    Opinion filed December 19, 1916.
    Morgan & McFarland, for appellants.
    Beauregard F. Moseley, 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.

This is a bill in chancery brought in behalf of Perciles C. G-ounaris, a minor, against appellant Pavlakos and one Kascos seeking the annulment of a certain partnership agreement between the minor and Kascos, and certain notes, mortgage, etc., pertaining to the transaction, and an accounting and recovery of $276 in money paid out by the minor to the defendants in connection therewith. Both defendants answered. Pavlakos set up among other defenses that previous to filing the bill an attachment suit was brought in the Municipal Court of Chicago in behalf of said minor against these defendants for the sum of $376, that the demand grew out of the same transaction and involved the same subject-matter as in said bill, that the suit was dismissed as to Kascos, and that as to Pavlakos there was a trial of the issues resulting in a finding and judgment against plaintiff.

Upon the issues thus made the cause was referred to a master in chancery to take proofs and report the same with his conclusions of law and fact. He found the facts as to such attachment suit to be as pleaded in appellant’s answer, and found that the judgment therein was a bar to the bill so far as Pavlakos was concerned, but not as to Kascos, and recommended dismissal of the bill for want of equity as against the former and a decree for the sum of $276 against the latter. The report coming before the chancellor on exceptions thereto, a decree was entered to the effect that said attachment suit was not a bar and that complainant recover said sum from both defendants, from which Pavlakos appeals.

The only question for review is whether the conclusion of the master or court was correct as to the effect of the judgment in the attachment suit. Do the facts bring the case within the doctrine of estoppel by verdict? (City of Chicago v. Partridge, 248 Ill. 442; Wright v. Griffey, 147 Ill. 496; Hanna v. Read, 102 Ill. 596.) They seem to, unless affected by the absence of exact identity of parties in both suits, which is not always essential to the doctrine. (Hanna v. Read, supra; Rohn v. Rohn, 117 Ill. App. 512; Wells on Res Adjudicate, 19; 23 Cyc. 1112.) While its application-to cases where the parties to one suit are not all the parties to the other may depend on varying circumstances and distinctions, yet it is generally true, as stated in 23 Cyc. 1112, that “it is no objection to its operation as an estoppel that the former action included some parties who are not joined in the present suit or vice versa, provided the judgment was rendered on the merits * * *, and provided the cause of action in the two suits is the same, and the party against whom the estoppel is set up was actually a party to the former litigation.” These three conditions were present in both cases. The different form of the two proceedings, the fact that this is a suit in chancery and the other was one at law, affords no ground for distinction in the instant case. For it is clear that as the relief given in this suit was not peculiar to equity nor dependent on the enforcement of equitable principles, it being nothing more than a judgment for money had and received of a minor on disaffirmance of his contract, the decree involved nothing more or less than an adjudication of the same question that was decided in favor of Pavlakos in the attachment suit. Both suits grew out of the same transaction, and, so far as the sum sued for in the lawsuit and decreed to be paid in this is concerned, involved merely the right to withhold the sum paid by a minor in a transaction he had disaffirmed. Hence the dismissal of G-ascos out of the lawsuit did not render the judgment therein any less binding as an adjudication of that question between the minor and Pavlakos. Both suits reduced themselves to the determination of the same question so far as the minor and appellant were concerned, and it was immaterial to an adjudication of its merits that the latter was subsequently sued with another party for the same matter. Even if there was in fact a joint liability of the parties sued yet it was also several, under the statute, on the facts disclosed in the record. There are no features of this case that take it out of the operation of the rule above cited. Accordingly the decree will be reversed with directions to dismiss the bill for want of equity as to Pavlakos.

Reversed with directions.


author: Mr. Justice McDonald

text:
    Elbridge Hanecy, Appellee, v. Benjamin E. Page, Appellant.
    Gen. No. 21,824.
    1. Pledges, § 44

      —what evidence is admissible in action between assignees of stock. In an action between assignees of corporate stock, where defendant denied plaintiff’s claim that he had notified the defendant of the assignment to him of the stock prior to defendant’s making an additional loan thereon to the owner thereof, evidence showing the manner in which defendant secured possessiot of the stock, and the items of the indebtedness for which it was held by the defendant as collateral security, together with canceled checks of the defendant evidencing the loans, is admissible.
    2. Pledges, § 44*—what evidence is admissible to show title of pledgee. Where certificates of stock which had been held by defendant as collateral security for a loan were sent to New York, for transfer to defendant’s name so as to permit of a sale thereof by the owner, and while in transit they were assigned by the owner to plaiptiff prior to the making of an additional loan thereon by defendant to the owner, evidence as to the arrangement between defendant and the owner under which the certificates were sent to New York is material on the question of defendant’s title.
    3. Pledges, § 44*—when evidence as to discussion of plaintiff’s claim by defendant and pledgor improperly excluded. In an action between.• assignees of stock, where defendant, who had held the stock as security, denied having received notice of the assignment of same to plaintiff prior to making an additional loan thereon to the owner, a question addressed to defendant as to whether on or about the date of the assignment to plaintiff he had discussed the matter of plaintiff’s claim to the stock with the owner, held improperly excluded on the ground that the conversation occurred in plaintiff’s absence.
    4. Pledges, § 44

      —what evidence is admissible in action between assignees of stock. Where in an action to recover the proceeds .of the sale of stock plaintiff relied upon an assignment of the stock, which at the time had been pledged to defendant to secure prior loans, evidence that after the date of such assignment defendant without notice thereof advanced an additional sum to the owner thereof, on the security of such stock, and that said loan was evidenced by a check payable to the owner, indorsed by him and marked “canceled,” is admissible.
    5. Pledges, § 44*—when instruction on burden of proof to show notice of assignment of stock is improperly refused. Where, in an action by the assignee of stock to recover the proceeds of the sale thereof, the defendant, who at the time of the assignment to plaintiff was the pledgee of said stock, claimed to have advanced an additional sum to the owner of said security in ignorance of the assignment to plaintiff, an instruction that plaintiff in order to recover must show by a preponderance of the evidence that defendant had notice of the assignment of the stock to plaintiff prior to or at the time of the making of the additional loan to the owner, held improperly refused.
    Appeal from the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed December 19, 1916.
    Miller, Starr, Brown, Packard & Peckham, for appellant.
    William A. Bogan, for appellee.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

Appellee, as assignee of one hundred shares of certain stock from one Francis G-. Porter, brought suit and recovered judgment against appellant, Benjamin E. Page, for moneys alleged to have been wrongfully withheld from the proceeds of the sale of said stock. There were two trials. The first resulted in a verdict for the defendant, and a new trial was granted. On the second trial the jury returned a verdict for the plaintiff, and the judgment herein complained of was entered thereon.

During the month of July, 1913, defendant loaned said Porter $1,300, to be repaid within a few days. Very shortly thereafter, upon request of the said Porter, defendant loaned him an additional $2,200, making in all $3,500, for which amount the latter gave defendant his note, and also assigned and delivered to him, as security, the stock in question. Defendant in turn borrowed a like amount from the Colonial Trust & Savings Bank of Chicago, for which he gave his note and pledged the stock in question as collateral security. A few days later, the said Porter decided to sell said stock, and thereupon he made an arrangement with defendant to procure the certificate- from the bank and send it to New York to have the stock transferred to defendant’s name so he (defendant) could make delivery thereof to the purchaser. On August 4, 1913, while the stock certificate was in process of transmission between Chicago and New York, the said Porter applied to defendant for an additional $2,500, assuring defendant that the proceeds from the stock pledged to him was ample security to cover same, as well as the $3,500 already loaned. Defendant thereupon made the additional loan—making Porter’s total indebtedness to him $6,000. The stock having been transferred on the books and a new certificate issued to Page, it was returned in due time and on sale thereof a check for $6,991.25 was delivered by the brokers to Porter, who delivered it to defendant. The latter then paid himself the $6,000 due from Porter and gave him his check for $991.25, the balance due him on the sale of said stock. On August 1, 1913, a few days before defendant made the $2,500 loan to Porter, and while said stock was still pledged with defendant and on its way to New York as aforesaid, as was then known to plaintiff, the said Porter executed a written assignment of his interest in the stock to plaintiff, on which the latter’s claim in the case at bar is-based.

The controversy hinges on the question of whether defendant had notice of such assignment at the time he made the additional loan of $2,500, as to which there is a conflict of evidence. Plaintiff testified in his own behalf that he notified defendant of this assignment immediately after receiving it. This was denied by the defendant. They were the only witnesses who testified in the case.

From the foregoing it will be seen that the controversy between the parties involved a conflict of title to the proceeds of the stock. It is immaterial to the question which right was superior, that plaintiff’s assignment was in writing and defendant’s was an oral assignment accompanied by delivery to defendant of the stock for the purpose aforesaid. Under such circumstances the controlling question was whether defendant had received notice of plaintiff’s rights before making the additional loan on the faith of the security so in his possession and control.

Having denied receiving notice of plaintiff’s claim prior to the additional loan, defendant in support of his claim sought to show by his own testimony that on July 18, 1913, he.loaned Porter $2,200 and took his note for $2,300; that on July 21st Porter paid defendant $1,000 on said note; that on July 23rd the said Porter delivered the said stock to defendant, with the request to raise some money on same; that defendant borrowed $3,500, pledging said stock with his own note, to the Colonial Trust & Savings Bank; that out of the proceeds of that loan he paid himself the $1,300 that was still due on the original note of Porter for $2,300, and gave Porter his check for $2,182.50, dated July 22, 1913, taldng the latter’s note for $3,500, due in thirty days, evidencing the transaction between Porter and himself. All this was relevant to establishing the amount of defendant’s claim to the proceeds of the pledged stock. Upon objection by plaintiff this testimony was excluded. Defendant also sought to introduce in evidence certain canceled checks as evidence of payment of money to Porter, for the repayment of which the said stock was pledged, but on objection by plaintiff the court made the anomalous ruling of admitting the checks in evidence but excluding them from the consideration of the jury. Defendant then testified that the stock certificate on August 2, 1913, was in transit to New York or return, but was denied the right to state why and under what arrangement with Porter it was sent there. Defendant having disclaimed any notice of plaintiff’s assignment, said proof was material to the establishment of his own.

Defendant, after having testified that he had received no notice from plaintiff or any one on his behalf, of this assignment, was asked whether the matter of plaintiff’s claim to said stock was discussed with Porter on or about August 2nd. An objection to this question was wrongfully sustained by the court, upon the ground that this occurred during plaintiff’s absence. Defendant then offered to prove that on August 4th, he loaned Porter $2,500 on the security of the stock in question or its proceeds, and without notice of plaintiff’s assignment; that said loan was made at Porter’s request, and that said sum was evidenced by a check on the Colonial Trust & Savings Bank, dated August 4, 1913, to the order of Porter, and by him indorsed, and marked “canceled”; but all of the foregoing offered evidence was excluded by the court. It is difficult to perceive upon what theory the court proceeded in thus excluding evidence that was unquestionably competent to show defendant’s interest in the stock or the proceeds thereof which he claimed.was pledged to secure the additional loan of $2,500—a showing that was vital to his defense.

In volume 12, Encyclopedia of Evidence, p. 599, it is stated:

“Testimony as to statements, declarations and conduct which would otherwise be inadmissible as evidence of title or against it, is often admitted as part of the res gestee when such statements' or declarations were made, or such conduct took place at the time of the transaction in which the alleged title was acquired or lost, of when the claim of title is of such a nature, or arises under such circumstances that it can only be proved by acts and words of the claimant. In such cases even self-serving declarations are sometimes admitted as evidence of the title of the declarant. * * *
“Testimony as to the possession of * * * specified personal property by a particular person, is admissible (subject to the best evidence rule) as evidence of his title thereto at the time of such possession.”

In Lewis v. Havens, 40 Conn. 363, it was contended that certain statements made outside the hearing and in the absence of plaintiff were not admissible. In that case the question under consideration was whether or not the defendant had taken possession of certain premises. It was claimed by plaintiff that defendant had taken possession through a certain woman whom defendant was alleged to have employed to clean the premises. Defendant denied such employment and introduced evidence of a parol agreement between the said woman and another person, to clean the premises, and the court in holding this evidence admissible, •stated, p. 368: '

“What transpired did not concern the plaintiff. He had no interest in the matter. His presence or absence was of no importance. If he had been present he would have been an idle spectator, and the facts would have remained the same.”

To the same effect are: Gill v. Crosby, 63 Ill. 190; First Nat. Bank of Monmouth v. Strang, 138 Ill. 347; Fredin v. Richards, 66 Minn. 46, 68 N. W. 402; Fuller v. Wilder, 61 Me. 525; Johnson v. Elliot, 26 N. H. 67; Atherton v. Tilton, 44 N. H. 452. The foregoing represent the overwhelming weight of authority on this question.

By the erroneous rulings of the court, defendant was denied the right of showing by what authority he retained the $2,500 that plaintiff claimed did not belong to him. Without such testimony being brought to the attention of the jury, defendant was placed in the unfavorable position of one who had appropriated to his own use money which did not belong to him, the evidence admitted on behalf of defendant being too meager to disclose the entire transaction.

Defendant also requested the court to instruct the jury that, in order to recover, plaintiff must show by a preponderance of the evidence that defendant had notice of the assignment of the stock in question to plaintiff, prior to or at the time he made the additional loan of $2,500 to Porter. This instruction went to the vital question at issue and it was error to refuse it.

For the reasons hereinabove assigned, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Harry L. Mooar, Appellee, v. Wheeling Tile Company, Appellant.
    Gen. No. 21,827.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed December 19, 1916.
    Statement of the Case.
    Action by Harry L. Mooar, plaintiff, against the Wheeling Tile Company, a corporation, defendant, to recover commissions on orders solicited by him.
    On November 15, 1910, the parties hereto entered into a contract whereby plaintiff was employed to sell tile, to be manufactured by the defendant, within a designated territory, and as compensation for his services he was to receive a commission on all orders solicited by him, and also on mail orders coming from his territory, whether solicited by him or not.
    Plaintiff secured many orders for different quantities of the various kinds of tile manufactured by defendant, largely from contractors who were dealers in or users of tile. Said orders usually covered their floor tile requirements for a year from the date thereof. These orders were not in the form of contracts but were in the nature of general requisitions, showing the name of' the customer, the gross amount of tile ordered, the purchase price, the terms of payment and shipment, and were sighed by plaintiff as agent for defendant, and contained the signature or initials of the purchaser. From time to time the customers would order out specific quantities and kinds of tile under these general orders, as the requirements of their business demanded.
    The said contract of employment provided that plaintiff should receive as his compensation a certain percentage of the selling price of all “goods sold,” and recited further, that “all settlements on the account of the second party (plaintiff) shall be made by the tenth of each month, covering accepted and shipped orders of the month previous.”
    Newman, Popfenhusen & Stern, for appellant; Edward E. Johnston and Lawrence A. Cohen, of counsel.
    James J. Kelly, for appellee; John A. Burke and John T. Fitzgerald, of counsel.
    Abstract of the Decision.
    1. Master and servant, § 66

      —when goods must he actually sold before commissions are earned. Where a contract of employment provides that commissions shall be based on the selling price of all goods sold, there must be an actual sale of the goods and not a mere contract to sell before the commissions are earned, as the term “goods sold” implies a transfer of title.
    2. Sales, § 183*—when title to ordered goods passes. Title does not pass until goods ordered have been manufactured and appropriated for the purpose.
    3. Master and servant, § 66*—when contract construed as requiring shipment of goods as condition precedent to payment of commissions. Where a contract of employment provides that a servant shall receive as his compensation for the sale of goods a certain percentage of the selling price of all goods sold, and that all settlements on the account shall be made by the tenth of each month, covering accepted and shipped orders of the month previous, and orders in the nature of general requisition are obtained under which it was customary for the customers to order specific quantities and kinds of tiles as requirements of their business demanded, such contract must be construed as making the shipment of the tile sold a condition precedent to the payment of commissions, and especially where "such construction of the contract is adopted by the parties themselves by the sending of a statement showing commissions due for tile shipped on orders during the preceding month, accompanied by a check in payment of such commissions, and a voucher reciting that the servant had received the amount named therein in full payment thereof.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    John Kozik et al., Appellees, v. Slovak Evangelical Augsburg Denomination, Parish of Sts. Peter & Paul, Appellant.
    Gen. No. 21,885.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Mastín, Judge, presiding. Heard in the Branch Appellate Court at the October term, .1915.
    Affirmed.
    Opinion filed December 19, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by John Kozik and thirty-two others, plaintiffs, against the Slovak Evangelical Augsburg Denomination, Parish of Sts. Peter & Paul, a corporation, defendant, to recover on a promissory note given 'to a local fraternal lodge of the Slovak Evangelical Union of America, known as Spolek Dr. Milos Stefanovie No. 83, and which had been surrendered to the defendant by the seceding members of such local lodge against the wills of the plaintiffs. Prom a judgment for plaintiffs, defendant appeals.
    The aforesaid plaintiffs constituted the remaining loyal members of the Spolek Dr. Milos Stefanovic No. 83. The subordinate lodges were organized under and governed by the constitution and by-laws of the parent organization, whose principal, object was to pay sick and death benefits.
    At the annual convention of the parent organization held during the fall of 1912, a change was made in the method of assessing its members, from a uniform assessment plan for all members to one under which the members were assessed according to their respective ages. Said change was to have become effective January 1, 1913. This new plan of assessment met with the disapproval of a majority of the members of Spolek No. 83, as a result of which, at a meeting held early in January, 1913, upwards of one hundred of the one hundred and sixty-three members of said spolek withdrew from the association and formed a rival organization. At the meeting at which this action was taken there were present fifteen or sixteen members of the organization, who manifested their determination to remain loyal to the parent organization. These loyal members were compelled to leave the meeting, after which the insurgent members proceeded to dispose of all the property belonging to Spolek No. 83. The money in its treasury, amounting to upwards of $500, was donated to one John Ducaj, the then treasurer, for his services, while the $1,000 note in question was donated to the appellant church, the maker thereof. A few days later, the loyal adherents of the said Spolek No. 83 called a meeting of all loyal members thereof, at which they formally protested against the action of the secessionists who had dissolved the said spolek and disposed of its property, and subsequently demanded a return of all of its property.
    The constitution and by-laws of the parent organization contained the following provisions:
    “Section 131. No assembly can be dissolved or expelled as long as it has seven members in good standing.”
    “Section 163. At a regular meeting of an assembly seven members in good standing shall constitute a quorum to transact all official matters legally.”
    Q. J. Chott, for appellant.
    Charles A. .Churaw, for appellees.

      Abstract of the Decision.
    1. Fraternal and mutual benefit societies—who are entitled to use and enjoyment of property on secession of majority of members of subordinate lodge. As long as the minimum number of members necessary to constitute the existing local organization remain in a subordinate lodge of a fraternal insurance order such members, even though in the minority, are alone entitled to the use and enjoyment of the property of the organization, and the members of the lodge who secede therefrom lose their right to the property and funds of the lodge, although they constitute a majority of the members.
    2. Fraternal and mutual benefit societies—when majority of members of subordinate lodge may not dissolve lodge. A majority of the members of a subordinate lodge have no power or authority to dissolve or destroy the lodge so long as the minimum number of members necessary to constitute a quorum to transact business provided for in the constitution and by-laws of the parent organization remain loyal and desire to continue the organization.
    3. Fraternal and mutual benefit societies—when majority of members of subordinate lodge may not donate property of lodge. Where the constitution and by-laws of the parent lodge of a fraternal insurance order provide that a specified number shall constitute a quorum to transact all official matters legally, the majority of the members of a local lodge at a meeting held for the purpose of dissolution of such local lodge and for the establishment of a rival organization, to be effective as soon as the property of the local lodge is disposed of, may not, after excluding a number of loyal members sufficient to constitute a quorum, donate a note owned by the local lodge to the maker thereof.
   Mr. Justice McDonald

delivered the opinion of the court.

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