text:
    Frederick W. McKinney, Plaintiff in Error, v. James A. Brady Foundry Company and Guy S. Burtis, Defendants in Error.
    Gen. No. 16,614.
    1. Landlord and tenant—forfeiture of lease. Forfeiture of a lease by a landlord is permitted only upon strict compliance with the law, or with a contract whereby compliance therewith is waived.
    2. Landlord and tenant—demand for rent. A demand for immediate payment of rent, not made on the date it was due, does not comply with the common-law requirement that demand be made on such date, or with R. S. c. 80, § 8, providing for a demand for payment at a time mentioned in the notice not less than five days after service thereof.
    3. Landlord and tenant—notice to quit. Notice of the landlord’s election to terminate the tenancy for nonpayment of rent and' demand for immediate possession are insufficient under R. S. c. 80, § 9, which provides for not more than ten days’ notice.
    4. Landlord and tenant—demand for rent and possession. Where a landlord seeks to terminate the tenancy by notice and demand for rent and possession and does not undertake to regain possession under the terms of the lease, which it is alleged waive notice of election to terminate the tenancy and provide for immediate entry, such notice and demand must conform to R. S. c. 80, §§ 8, 9, in order to support forcible entry and detainer.
    5. Landlord and tenant—forcible entry and detainer. No right of action in forcible entry and detainer accrues where the landlord makes demand for immediate payment of rent and demands immediate possession, since R. S. c; 80, §§ 8, 9 provide for demand for payment at a time mentioned in the notice not less than five days after service thereof and for not more than ten days’ notice to quit.

      Forcible entry and detainer. Error to the Municipal Court of Chicago; the Hon. Mjchael F. Girten, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed,
    Opinion filed December 11, 1912.
    Charles Scribner Eaton, for plaintiff in error.
    George D. Wellington and Francis A. Harper, for defendants in error.
   Mr. Justice Graves

delivered the opinion of the court.

This is a proceeding in forcible entry and detainer. The judgment in the Municipal Court was against the plaintiff for costs. The evidence tends to show that at the time this suit was begun, i. e., December 15, 1909, defendants in error were in arrears for rent due December 1, 1909. Sections 8 and 9 of chapter 80, E. S., provide two ways in which the landlord may proceed to forfeit the lease and regain possession of leased premises when the tenant is in default in the payment of rent, viz:

‘1 Section 8. That a landlord or his agent may, any time after rent is due, demand payment thereof and notify the tenant, in writing, that unless payment is made within a time mentioned in such notice, not less than five days after service thereof, the lease will be terminated. If the tenant shall not within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended, and sue for the possession under the statute in relation to forcible entry and detainer, or maintain ejectment without further notice or demand. ’ ’

“Section 9. When default is made in any of the terms of a lease, it shall not be necessary to give more than ten days’ notice to quit, or of the termination of such tenancy, and the same may be terminated on giving such notice to quit at any time after such default in any of the terms of such lease; which notice may be substantially in the following form, viz:

“ ‘ To A. B.: You are hereby notified that in consequenco of your default in (here insert the character of the default) of the premises now occupied by you, being, etc., (here describe the premises) I have elected to determine your lease, and you are hereby notified to quit and deliver up possession of the same to me within ten days of this date, (dated, etc.)’

To be signed by the lessor or his agent; and no other notice or demand of possession or termination of such tenancy shall be necessary.”

Courts never permit a forfeiture except upon strict compliance with the law, or with the contract of the parties, by which a compliance with the law is waived. Lane v. Brooks, 120 Ill. App. 501.

The evidence in this case discloses that at 9 o’clock, December 15, 1909, plaintiff in error made a written demand on defendants in error for the payment “forthwith” of the rent in arrears; that defendants in error refused to pay; that thirty minutes later plaintiff in error served defendants in error with a written notice of his election to declare the lease at an end, and made a written demand for immediate possession of the premises; that later, on the same day this suit was begun; that later, and still on the same day defendants in error, through their attorney, tendered to plaintiff in error a certified check for the rent due, which plaintiff in error refused to accept, unless upon condition that the receipt of the same should not be a waiver of his right to forfeit the lease, and to prosecute the suit already begun; that these conditions were not agreed to by defendants in error and the check was not left with plaintiff in error.

The demand for rent made in this case was not in accord with section 8 of chapter 80, because it was for immediate payment, while that section provides for a demand for payment to be made at a time mentioned in the notice' not less than five days after the service of notice. Neither was it a sufficient demand at common law, because it was not made on the date the rent became due. The notice of the landlord’s election to terminate the tenancy and the demand for possession is not sufficient under section 9 of Chapter 80, because it called for immediate possession, while that section provides for not more than ten days’ notice, and it has been held that the tenant has the full ten days in which he may pay the rent and avoid the forfeiture. Chadwick v. Parker, 44 Ill. 326; Chapman v. Kirby, 49 Ill. 211; Woodward v. Cone, 73 Ill. 241. It is, however, contended that a compliance with sections 8 and 9 of chapter 80, R. S., was waived by the following terms of the lease, viz:

“It is expressly agreed, Between the parties hereto that if default be made in the payment of the rent above reserved or any part thereof, or in any of the covenants and agreements herein contained, to be kept by the parties of the second' part, its shall be lawful for the party of the first part or the legal representatives of said party, at any time thereafter, at the election of the said first party, or the legal representatives thereof, without notice, to declare said term ended, and to re-enter said demised premises, or any part thereof, either with or without process of law, and the said parties of the second part, or any person or persons occupying the same, to expel, remove, and put out, using such force as may be necessary so to do, and the said premises again to repossess and enjoy as before this demise, without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenants.”

Whatever might be said of the sufficiency of this provision of the lease as a waiver of notice of the election of the landlord to declare the tenancy at an end, the landlord did not undertake to regain possession under the terms of the lease without notice, but did elect to terminate the tenancy by notice and demands for rent and possession. Having undertaken to terminate the tenancy by notice and demand for rent and possession, such notice and such demands must conform to the provisions of the statute above quoted, before right of action by forcible entry and detainer accrues. This he did not do. The suit was, therefore, properly dismissed.

The judgment of the court below is, therefore, affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    David H. Roblin, Defendant in Error, v. Athenaeum Business College, Plaintiff in Error.
    Gen. No. 16,647.
    Bills and notes—when indorsement in corporate name is not that of corporation. A business college not incorporated occupied certain rooms and its business was taken over by a corporation which executed a promissory note, payment being guarantied by an indorsement in the name of the college, by its president, who was the president of the corporation. Subsequently a corporation in the name of the college was formed, but its business address was different and it was in no way connected with the old college or the corporation executing the note. There was no evidence that the president indorsing the note was authorized to act, that he was the president, that the indorsement was- written with the knowledge or acquiescence of the incorporated college or its officers or stockholders, or that the corporate college received any of the proceeds. Held, the indorsement was not that of the incorporated business college and it was not liable on the note.
    Error to the Municipal Court of Chicago; the Hon. Chables N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Reversed with finding of fact.
    Opinion filed December 11, 1912.
    Rehearing denied December 26, 1912.
    Daniel W. Scanlan, for plaintiff in error; Charles S. Frank and Don P. Pennywitt, of counsel.
    L. L. Smith, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

This suit was begun to recover on two promissory notes for the total amount of $1,000, signed “Illinois College of Commerce, Samuel B. Willey, Supt.,” and endorsed “The payment of the within note according to its terms is hereby guaranteed. Athenaeum Business College, By-Samuel B. Willey, President.” One of these notes was dated June 21, 1909, and the other was dated June 25, 1909. The Athenaéum Business College, a corporation, The Illinois College of Commerce, a corporation, and Samuel B. Willey, Charles A. Brillow, Frank F. Bobinson, James W. Howell, James H. Tymeson and George H. Haberer individually and as partners, doing business as Athenaeum Business College, and Bev. Frank C. Bruner, were all made parties defendant and were each in court either by service of summons or by appearance or both. The case was dismissed as to all of the defendants, except the Athenaeum Business College and the Illinois College of Commerce, and judgment was rendered against those two defendants for $1,039. To reverse this judgment the Athenaeum Business College alone prosecutes this writ of error.

The contention of plaintiff in error is that the evidence fails entirely to show any liability on its part, while defendant in error insists that the evidence fairly' tends to show that plaintiff in error was a de facto corporation, and as such guaranteed the notes in question; that a de facto corporation has the right and power to make contracts and that when such an existence is shown suits will lie against such associations, as corporations, to enforce their contracts. Assuming the contention of defendant in error as to the law to be correct, his right to recover is not thereby established. The only way in which plaintiff in error can be held liable is on the contract of endorsement. By its appropriate plea it denied that the endorsement on the note was made by it or by any of its officers or agents. The evidence discloses that at one time a business college, known as the Athenaeum Business College, was conducted at 26 Van Burén Street, Chicago. Subsequently, a corporation was formed under the corporate name of the Illinois College of Commerce. Whether this corporation was formed or controlled by the owners of the Athenaeum Business College, the record does not disclose, but however that may be, after the Illinois College of Commerce became incorporated, it conducted a business college in the rooms formerly used by the Athenaeum Business College and under that name, and advertised that, by that name, it had been established thirty-eight years and that it had kept pace with the growth, progress and enterprise of the city in its various lines of activity in behalf of young people and had 40,000 graduates. These facts were known to defendants in error. One Samuel B. Willey was the active head of the Illinois College of Commerce. He testified that he was the president of that corporation, although he signed his name as “Supt.” Who, if anyone besides Willey, owned any stock in the Illinois College of Commerce, or was in any business way interested therein the record does not disclose.

On November 25, 1908, a license to open books for subscription for capital stock in a corporation to be known as “Athenaeum Business College” was issued by the Secretary of State to Charles A. Brillow, Bobert F. Bobinson and James W. Howell, as commissioners. A certificate of complete organization of the “Athenaeum Business College” was issued August 6, 1909, by the Secretary of State and plaintiff in error then first came into existence. The report of the commissioners, on which this certificate was issued, shows that the capital stock was subscribed for by John H. Tymeson, Charles A. Brillow, George Haberer and James W. Howell, and that at a meeting held in Boom 512, 131 LaSalle street, Chicago, on August 3, 1909, Tymeson, Howell and Brillow were elected directors, and that the post office address and business address of the corporation was at Boom 512, 131 LaSalle street, Chicago. None of the persons commissioned to incorporate plaintiff in error, or the directors of this new corporation, or the subscribers for its stock, had ever been in any way connected with the Illinois College of Commerce, or the original Athenaeum Business College, in whose name the Illinois College of Commerce was doing business. Neither had Willey been in any way connected with or instrumental in securing the incorporation of plaintiff in error, so far as is disclosed by the evidence in this record. Prior to the incorporation of plaintiff in error and in fact prior to July 1, 1909, and while the Illinois College of Commerce was advertising and conducting a business school or college in the name of the old Athenaeum Business College, Willey borrowed of defendant in error various sums of money, aggregating $1,000, which loans were evidenced by the two promissory notes sued on. There is no evidence in this record that Willey by this endorsement undertook to bind plaintiff in error, or that he had any authority to bind it, or that he ever was its president or acted as such, or that the endorsement was written by him with the knowledge, authority or acquiescence of plaintiff in error or any of its officers or stockholders, or that any of the money for which the notes were given ever came into the hands of plaintiff in error or was used in any way by it or for its benefit, or that at the time Willey made the endorsement either he or defendant in error had plaintiff in error in mind, or that plaintiff in error then had or pretended to have an existence either de jure or de facto. On the contrary, the evidence fairly tends to show that by the use of the name Athenaeum Business College Willey meant and was understood by defendant in error to mean the old business college by that name that had formerly occupied the rooms then occupied by the Illinois College of Commerce and whose business the Illinois College of Commerce had taken over. The name of which old Athenaeum Business College, as well as the record of its accomplishments and numerous graduates, "Willey, with the knowledge of defendant in error, had extensively used as an advertising attraction for the Illinois College of Commerce.

The proof failing to establish the fact that the endorsement was that of the plaintiff in error, the judgment is not sustained by the evidence, and is, therefore, reversed with a finding of fact to be incorporated in the judgment of this court.

Reversed with finding of fact.

Finding of Fact: We find as an ultimate fact that the endorsement on the notes sued on was not the endorsement of plaintiff in error or of any of its agents or of its officers de facto or de jure.


text:
    The Clinton Company, Defendant in Error, v. Lothar Schwarz and William P. Crockett, Plaintiffs in Error.
    Gen. No. 16,682.
    1. Corporations—when officers of de facto corporation not liable on contract. Where an honest attempt to incorporate a company results in a de facto corporation and its 'officers in good”.faith contract in writing to purchase goods in the name of the company, the seller, dealing with the company as a corporation and extending credit as such, and suing it on the contract as a corporation, is estopped from questioning its corporate existence and cannot hold the officers liable at common law as partners on the contract made by them.
    2. Corporations—what constitutes de facto corporation. Where the secretary of state issues a certificate of complete organization of a corporation, the corporation does not have a de jure existence prior to the recording of the certificate in the office of the recorder of deeds in the county where the principal office of the company is located, as required by the Corporation Act, § 4.
    Error to the Municipal Court of Chicago; the Hon. Shebidan E. Fby, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Reversed with finding of facts.
    Opinion filed December 11, 1912.
    Hoyne, O’Connor, Hoyne & Irwin, for plaintiff in error; Carl J. Appell, of counsel.
    Harvey T. Fletcher, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

This suit was begun in the Municipal Court February 15, 1910, against Lothar Schwarz, William P. Crockett, C. B. Miller and the Sultana Eemedy Company. The affidavit of claim then filed states that the cause of action is upon a contract for the payment of money, and that the demand is for labor and services performed and materials furnished to the defendants at their special instance and request, as set forth in a ■statement of claim therewith filed.

On February 28,1910, the plaintiff filed an amended statement of claim which sets forth that the plaintiff’s claim is for goods, wares and merchandise sold and delivered to- the defendants, Schwarz, Crockett and Miller, doing business as the Sultana Eemedy Company, Inc., upon an order in writing, dated August 26, 1907, and signed Sultana Eemedy Company, Inc., Lothar Schwarz, President, W. P. Crockett, Secretary, and C. E. Miller, Manager, as afterwards verbally modified by the defendants; that the defendants at the time of giving and modifying such order and at the time the goods were delivered respectively claimed to be the president, secretary and manager of the Sultana Eemedy Company, Inc.; that such order was given and modified and the goods received by the defendants in the name of the Sultana Remedy Company, Inc., before any certificate of complete organization as a corporation had been recorded in the recorder’s office of Cook County, where the principal office of the Sultana Remedy Company then was located. In the amended statement of claim the Sultana Remedy Company, Inc., was not mentioned as a defendant, but no formal order dismissing the case as to the Sultana Remedy Company was entered. Appearance by attorney for defendants, Crockett and Schwarz, and an affidavit of meritorious defense to the entire claim and denying joint or several liability by defendant Crockett was filed before the amended statement of claim was filed. After the amended statement of claim was filed an affidavit of meritorious defense to the whole of plaintiff’s demand and denying joint or several liability was filed for defendant Schwarz. Without any question being raised as to the elimination from the amended statement of claim of the Sultana Remedy Company as a defendant, the court proceeded to hear the case without a jury. Pending the hearing, on motion of plaintiff, one George H. Paget was added as a defendant, because the evidence had then disclosed that he was a subscriber for stock in the Sultana Remedy Company. The court found the issues for the plaintiff and entered judgment against defendants Schwarz and Crockett, for $369.27. To reverse this judgment this writ of error is prosecuted.

The first controversy arises over the question whether this suit is brought to enforce a common-law right or to recover by virtue of the provisions of section 18 of the Corporation Act.

Plaintiffs in error insist that defendant in error has shown no right to recover on either ground; that if this suit is brought under section 18 of the Corporation Act, it is then a suit to recover a penalty, and, as it was not brought within two years after the right accrued, it is barred by the statute of limitations; while if it is not brought under that section, then defendant in error is estopped from denying that the Sultana Remedy Company is a duly organized corporation, since the contract sued on was made with the Sultana Remedy Company as a corporation, and the Sultana Remedy Company as a corporation was made party defendant to this suit brought to recover on such contract. Defendant in error does not deny that its right, if any, to recover under section 18 of the Corporation Act, is barred by the statute of limitations, and makes no claim of any right to recover under that section, but insists it has a right to recover of plaintiffs in error on the theory that they undertook to do business in the corporate name of the Sultana Remedy Company before that Company had been fully incorporated, and while it was only a corporation de facto, and that under that state of facts plaintiffs in error are liable at the common law as partners for all contracts made by them as officers of the de facto corporation.

The evidence shows that a certificate of complete organization of the Sultana Remedy Company as a corporation had been duly issued to it by the Secretary of State before the contract sued on was entered into by its officers in its name, and that the only thing remaining to be done to constitute it a corporation de jure was to cause its certificate of complete organization to be recorded in a book kept for that purpose in the office of the recorder of deeds in the county where the principal office of the company was located, as required by section 4 of the Corporation Act. There is no suggestion in the evidence that the incorporators of this- company had not made an honest attempt in good faith to have the company properly incorporated, or that in malting the contract in question the officers were not acting in good faith. While it is true that, before the certificate of complete organization was recorded, as required by section 4 of the Corporation Act, the corporation did not have a de jure existence (Hoyt v. McCallum, 102 Ill. App. 287; O. S. Richardson Fueling Co. v. Seymour, 235 Ill. 319); it was a corporation de facto, and if its officers in all respects acted in good faith, as they appear to have done, and defendant in error dealt with it as a corporation and extended credit to it as such, it is, according to the decided weight of authority, estopped from questioning its corporate existence, and cannot hold the plaintiffs in error liable at common law as partners on contracts made by them for and in the name of the corporation. Taylor on Private Corporations, section 148; Hoyt v. McCallum, 102 Ill. App. 287; Bushnell v. Consolidated Ice Machine Co., 138 Ill. 67; Tarbell v. Page, 24 Ill. 46; 2 Morawetz on Private Corporations, sec. 748; Cook on Corporations (4th Ed.), sec. 234. Of course, the foregoing authorities and the principles there announced do not apply to actions based on section 18 of the Corporation Act. The case of O. S. Richardson Fueling Co. v. Seymour, 235 Ill. 319, cited by defendant in error, was a case based on the statute (Seymour v. O. S. Richardson Fueling Co., 103 Ill. App. 625). In that case, the Supreme Court held that the existence of a corporation de facto did not relieve the directors and officers of the corporation from the liability imposed by the statute, and also said: “Independent of any liability under section 18 of the Incorporation Act, the appellants were liable as partners, if the proof showed the delivery of the coal.” This is not, as defendant in error seems to suppose, a holding that the officers of every corporation de facto are liable as partners on contracts made by them for and in the name of the corporation, but is a holding that on the facts in that case the appellants then before the court were liable as partners on the contract there sued on, which was entered into on the part of the Richardson Fuel Co. with the appellants as individuals and without any knowledge of the existence or pretended existence of the Seymour Transportation Company for whom app ellants afterwards claimed to have acted in the transaction.

The facts in the case at bar are very different from the facts in the Seymour case. In the case at bar, the record discloses that the Sultana Remedy Company was a corporation de facto; that the contract sued on was made in writing in the name of the Sultana Remedy Co., and was executed by the president, secretary and manager of that company; that defendant in error dealt with the Sultana Remedy Company as a corporation and not with its officers as individuals or as partners; that it extended credit to the Sultana Remedy Co. as a corporation and sued it on the contract as a corporation.

Upon that state of facts and the authorities cited, defendant in error is estopped from questioning the corporate existence of the Sultana Remedy Company, and cannot hold the officers of that company liable at the common law as partners on the contract sued on. As defendant in error does not claim a right to recover under section 18 of the Corporation Act, there is no occasion for this court to here discuss whether the remedy provided by that section is a penalty or not, or whether the remedy provided for by it is barred by the statute of limitations or not.

For the reasons given, the judgment of the court below is reversed with a finding of facts to be incorporated in the judgment of this court.

Judgment reversed with finding of facts.

Finding of Facts: We find as ultimate facts that defendant in error made the contract sued on with the Sultana Remedy Company as a corporation, and extended credit to, and sued, it as such; that the Sultana Remedy Company was then a corporation de facto.


text:
    Augustine Krygsman, Defendant in Error, v. George Stamatakos et al., Plaintiffs in Error.
    Gen. No. 16,724.
    Landlord and tenant—waiver of breach of covenant not to sublet without written consent. Where a lessee sublets in violation of a covenant in the lease not do so without the written consent of the lessor, and the lessor accepts payment of rent from the sub-lessees and serves them with a five days’ notice, there is a waiver of the breach of covenant, and in an action in forcible entry and detainer it is error to refuse an instruction to that effect.
    Error to the Municipal Court of Chicago; the Hon. Michael F. Gerten, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Reversed with finding of fact and judgment here.
    Opinion filed December 11, 1912.
    Allen G. Mills, for plaintiffs in error.
    Thomas McEnerny, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

On April 15, 1902, defendant in error ° rented to plaintiffs in error, George Stamatakos, Nicholas Stamatakos, and Harry Stamatakos, for a term of ten years, certain premises in Chicago. The rent stipulated for was payable in semi-annual payments in advance on the 15th day of April and October of each year. The lease contained a stipulation against subletting the premises or any part thereof without the written consent of defendant in error. On April 15, 1909, the lessees above named sublet a portion of the premises to plaintiffs in error, Charles Stamatakos, George Heallulos, and Gust Kokores, without obtaining the consent in writing of defendant in error to such subleasing. The decided weight of the evidence tends to show that the plaintiff knew of such subleasing and made no objection thereto, but said she did not care who had the premises; that all she wanted was the rent; that she continued to collect the rent from her tenants after she knew of the subletting and after the subtenants were in possession. The testimony of defendant in error herself further shows that during the first part of October, 1909, she received from her tenant a check for the rent due October 15, 1909, for the six months ending April 15, 1910, which check was by its terms payable October 20, 1909, and on which her agent, a Mr. Glazier, advanced to her the money, but which on presentation by him at the bank for payment was dishonored; that shortly thereafter and on or about the 2nd day of November, 1909, and after she knew of the subletting, and after she knew the check had been dishonored, defendant in error served a five days’ notice on plaintiffs in error which notice was not introduced in evidence, and that on the 2nd day of November, 1909, she made a demand in writing of her tenants and their subtenants, being all of the plaintiffs in error, for immediate possession of the parts of the premises occupied by them respectively, which written demand was introduced in evidence and in which she specifies as the reason for making it that part of the leased premises had been sublet without her consent in writing in violation of the terms of the lease from her to her tenants. Counsel for defendant in error argues that the “five days’ notice,” mentioned by defendant in error and above referred to, is identical with the demand for possession introduced in evidence. If defendant in error, by using the term “five days’ notice” in her testimony meant the demand for immediate possession introduced in evidence, she should have said so and her counsel should have brought it out in his examination of her. Not having done so, this court cannot indulge in the presumption that she so meant, for a five days’ notice is as different from and as incompatible with a demand for immediate possession as any two things can well be. We must, therefore, take her at her word and determine this case on the assumption that she meant what she said, and that in fact she served the five days ’ notice as she testified she did.

Defendant in error further testified that after she had served the “five days’ notice” the money for which the dishonored check was given, was paid, but whether it was paid to her or to her agent, Mr. Glazier, is not made clear. She also testified that the reason why she did not begin her suit until April, after she had served the notice, was “because I had my money and we offered him .the rent back and he would not accept it.” She still further testified that a few days after April 15, 1910, she received by mail a check from her tenant for the rent from April 15,1910, to October 15, 1910. On April 26, 1910, without giving any other notice than the one above mentioned, or making any other demand for possession, or assigning any other breach of the covenants of the lease or returning the check for the rent from April 15, 1910, to October 15, 1910, or in any way informing her tenant that she did not or would not accept it in payment for such rent, she filed in the Municipal Court her complaint in forcible entry and detainer. •

The cause was heard by the court without a jury and resulted in a judgment in favor of the plaintiff, defendant in error in this proceeding, and against all of the defendants, plaintiffs in error here, for the possession of the premises and for costs. To reverse this judgment plaintiffs in error prosecuted this writ of error.

At the close of the case plaintiffs in error asked the court to hold the following proposition of law, with others:

• “The court holds as a proposition of law that if with knowledge that the defendants had sub-let a part of the premises, the plaintiff made any demand for rent accruing after the breach of the covenant not to assign or sublet, she thereby consented to and re-established the tenancy and waived her right to forfeit the lease and terminate the tenancy and made the lease valid in the hands of the sub-lessees.”

This proposition the court refused to hold and this is assigned as one of the reasons why the judgment should be reversed.

The provision of a lease prohibiting the subletting of the demised premises without the consent in writing of the landlord is for the benefit of the landlord, and a violation of such provision renders the lease voidable at the option of the landlord, but not void, and the right to declare a forfeiture of the lease for such violation may be waived by the landlord. Any act done by the landlord with knowledge of such subletting, affirming the continued existence of such lease, and which clearly discloses his intention to hold his lessee to the performance of the other terms of the lease, notwithstanding his violation of the stipulation in it against subletting, is a waiver of his right to elect to declare the lease void for such violation. The acceptance of rent by the landlord, or demand by him for the payment of such rent, for a period of time after a breach of such stipulation has occurred and with knowledge of such breach is a waiver by him of his right to declare a forfeiture therefor. Webster v. Nichols, 104 Ill. 160; Williams v. Vanderbilt, 145 Ill. 238; Hopkins v. Levandowski, 250 Ill. 372; Chicago & S. S. Rapid-Transit R. Co. v. Northern Trust Co., 90 Ill. App. 460; Livingston County Tel. Co. v. Herzberg, 118 Ill. App. 599; Watson v. Fletcher, 49 Ill. 498. The refused finding of law above quoted correctly stated the law and its refusal was error.

The court also erred in rendering judgment against plaintiffs in error on the facts. The judgment was evidently based on the same erroneous theory of law that prompted the refusal of the proposition of law above quoted, i. that accepting rent from the tenant after knowledge of the subleasing of part of the premises was not a waiver by defendant in error of her right to declare a forfeiture for a breach of the covenant in the lease against subleasing without the written consent of lessor. By at least two distinct acts of defendant in error, testified to by her, she clearly waived her right to declare a forfeiture of the lease for a violation of the covenant against subleasing. The first was where ,in November, 1909, she or her agent for her with her knowledge- accepted the money on the check for the rent to April 15, 1910, and kept it after she knew of the breach, and the second was when she accepted and kept the check sent her by her tenant about April 15, 1910, for rent to October 15, 1910. And if shé in fact served her tenant about November 1, 1909, with a “five days’ notice,” after she knew of the subleasing, as she testified she did, then that was a third act recognizing the continued existence of the lease, and a consequent waiver of its breach, for a five days’ notice is a demand for the payment of all rent in arrears and a conditional notice that if it is not paid within a time fixed in the notice, not less than five days after the service thereof, the landlord will terminate the lease (sec. 8, chap. 80, B. S.), and a demand for rent in advance, as provided by the terms of a lease for an unexpired period of time, is a recognition of the continued existence of the lease.

The judgment of the court below is, therefore, reversed with a finding of fact to be incorporated in the judgment of this court, and judgment in this court against defendant in error for costs in both courts. Judgment reversed with findmg of fact and judgment here.

Finding of Fact: We find as an ultimate fact that defendant in error waived the breach of the covenant in the lease sued on prohibiting the subleasing of the premises in question without the consent of the lessor being first had in writing.


text:
    Freudenberg & Company, Defendant in Error, v. Mandel Brown, Plaintiff in Error.
    Gen. No. 16,786.
    1. Appeals and errors—admission of immaterial evidence not reversible error. In an action by a real estate broker for commissions, the admission of evidence not strictly material to the issues is not reversible error where it could have no influence on the decision of the jury.
    2. New tbial—motion should be supported by affidavit of witness. A motion for a new trial on the ground of newly-discovered evidence is properly denied where there is no showing why the affidavit of the witness is not produced.
    3. New trial—newly-discovered evidence. Where the evidence relied on as basis of a motion for a new trial tends only to impeach and discredit a witness, although newly-discovered, it is not sufficient to sustain the motion.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.
    Rehearing denied December 26, 1912.
    Richard J. Cooney and John A. Verhoeven, for plaintiff in error.
    George E. Ruther, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

Defendant in error, a real estate broker, doing business as Freudenberg & Company, brought this suit in the Municipal Court to recover commissions for obtaining a purchaser for certain property belonging to plaintiff in error. The case was tried by a jury and resulted in a verdict and judgment for defendant in error for $425.00.

The evidence is conflicting, but we think fairly tends to show that the property in question was listed by plaintiff in error with defendant in error for sale on a commission of 2% per cent.; that defendant in error procured a purchaser who was ready, able and willing to purchase the same at $17,750, and that plaintiff in error accepted the proposed terms and agreed to convey the premises to the proposed purchaser, but later refused so to do.

"While the conflict in the evidence is sharp and a contrary verdict might have been reached by the jury and sustained by this court, we do not think the verdict returned is so manifestly contrary to the weight of the evidence as to warrant this court in setting it aside for that reason.

During the trial certain evidence was admitted that was not strictly material to the issue, but it was not upon any controlling element in the case and could have had no influence on the minds of the jury in determining the pertinent facts involved, and its admission can not be held to be reversible error.

The court instructed the jury orally, as is authorized by the Municipal Court Act, and while, if the instructions had been carefully prepared, certain expressions would likely not have been used, we think the instructions fairly and fully presented the law governing the case to the jury.

The motion for a new trial was based in part on newly discovered evidence. This was presented by an affidavit of plaintiff in error only, and no showing was made why the affidavit of the witness by whom the newly discovered facts could be proven was not produced. The affidavit of such witness should have been produced, or a showing should have been made why it was not produced. Janeway v. Burton, 201 Ill. 78.

Even if the affidavit of the witness had been produced, the facts relied on as newly discovered evidence tend only to impeach and discredit the witness, Harmon, and it has been frequently held that evidence of that character, though newly discovered, will not warrant the granting of a new trial in order that it may be introduced. Bemis v. Horner, 165 Ill. 347.

Finding no reversible error in the record, the judgment of the Municipal Court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Clark

text:
    Frank W. Marden et al., copartners as Marden, Orth & Hastings, Appellants, v. E. F. Southard et al., copartners as Tellico Extract Company, Appellees.
    Gen. No. 17,422.
    Peinoipal and agent—agent must inform principal of contract with competitor. Where an agent agrees, in a contract appointing him an exclusive sales agent, to secure the hest price obtainable for the products of the principal, and does not' make known that he has made agency contracts with competitors, agreeing with one to give his products a preference in selling and with another that he will not give preference of advantageous price offers to other like products, the principal may abrogate and repudiate the contract.
    Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Postee, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 17, 1912.
    Fassett & Andrews, for appellants.
    S. M. Meek, for appellees.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit was brought by the appellants, hereinafter referred to as plaintiffs, against the appellees, hereinafter referred to as defendants, upon a contract made by the defendants with the firm of Leonard & Co. and their successors in business, in and by which Leonard & Co. were made the sole and exclusive sales agents for all the "tannin products which they might manufacture during the five years beginning May 1, 1904. Leonard & Co. in November, 1906, transferred their property, assets and good will, including, as it is said, their rights under the contract in question, to the plaintiffs, - who were doing business as Marden, Orth & Hastings.

The declaration alleges that in September, 1905, there was a breach of the contract, in that the defendants refused to sell their products, manufactured or to be manufactured, to persons with whom Leonard & Co. had previously made contracts, and refused to fill orders which Leonard & Co. had requested them to ship, and that they wholly abrogated and repudiated the contract and refused to be bound thereby.

The case was tried before the court without a jury, and a finding was made in favor of the defendants and judgment entered thereon. From this judgment the plaintiffs appeal.

The sum to which plaintiffs claim they are entitled is the amount of commissions at the rate specified in the contract between Leonard & Co. and the defendants on all products sold by the defendants from the time the contract was repudiated by the defendants, namely, November 1, 1905, to April 30, 1909.

The second paragraph of the contract in question reads as follows:

“The said second parties hereby agree that they will sell from time to time, as the same may be produced, the entire output of tannin products, which may be manufactured by said first party, and agree to use their best efforts to secure the best price obtainable for said products at all times, and to establish a lasting and valuable custom for same.”

The fifth paragraph reads as follows:

“The said first party agrees to turn over to said second parties all direct inquiries for the tannin products of said first party, and all the information which it may receive which might assist in the sale of said products, or which might affect the financial standing of its customers.”

By other provisions of the contract it was stipulated that shipments might be made to different stores of Leonard & Co., and that such shipments could be considered as sales and Leonard & Co. allowed 4% commission thereon. As to other sales Leonard & Co. were to be paid 2% of the net amount received for keeping books of sale, collecting, remitting, etc., and in addition thereto 4% commission. Leonard & Co. were to guarantee the payment for each shipment of goods on their order, and agreed that they would remit promptly for all shipments in accordance with the terms of sale in each case, notwithstanding that they, Leonard & Co., might not have received payment from their customers for such shipments.

The contention on behalf of the defendants is that they were justified in refusing to proceed with the contract because at the time the contract was entered into Leonard & Co. had made contracts with other concerns, competitors of the defendants, which contained in them, unknown to the defendants, provisions which made it impossible for Leonard & Co. to carry out the contract with the defendants in good faith. One of these contracts was with the Cherokee Tanning Co. This contract contained a provision which is charged not to have become known to the defendants until about the time of the hearing of the case in the Municipal Court. We think that the record bears out the contention of defendants in this respect. The provision referred to appears in section 2 of the contract between the Cherokee Tanning Co. and Leonard & Co., which reads in part as follows:

* * that they will endeavor to obtain the best prices at all times, and the said George H. Leonard and Company agree further, that if they should be handling other makes of tannin products, of similar nature and quality, and the market conditions should make it difficult or impossible to dispose of both,' or all makes, then in that case, they will give preference in selling or contracting for shipment, to the tannin products of said first party.”

It also appeared upon the trial that Leonard & Co. had a contract with the Brevard Tanning Co., the provisions of which were not communicated to the defendants and did hot become known to them until the trial of the case; and one with the Alverez Land and Timber Company, both of which it is charged contained provisions that were inconsistent with the provisions of the contract made by Leonard & Co. with the defendants. Section 4 of the Alverez Co. contract reads as follows:

“Said second parties further agree that in selling to the Canadian trade, they will not give preference of advantageous price offers to other makes of like product, and to satisfy said first party that they are carrying out this provision, will submit to it each quarter a list of sales in Canada of other makes of like product.”

As clear a statement as we have been able to find of the law which, in our opinion, should he applied to this case, is set forth in Mechem on Agency, section 66, which reads as follows:

“One cannot be Agent if Duty and Interest conflict. A person will not be permitted to take upon himself the character of an agent, where on account of his relation to others, or on account of his own personal interest, he would be compelled to assume incompatible and inconsistent duties and obligations. An agent owes to his principal a loyal adherence to his interests, and it would be a fraud upon the principal and would contravene the public policy, to permit an agent, without full knowledge and consent of his principal, to enter into a relation involving such a duty, when his allegiance had already been pledged to one having adverse interests, or when his own personal interests would be antagonistic to those of his principal.”

Some of the Illinois cases to which our attention has been called and which seem fully to recognize the rule are Ballance v. Vanuxem, 191 Ill. 319; Leonard v. Springer, 197 Ill. 532; Mexican Amole Soap Co. v. Clarke, 72 Ill. App. 655; Edelman v. Byers & Gilmore, 75 Ill. 367; Allen v. Hart, 72 Ill. 104, and Linington v. Strong, 107 Ill. 295.

We think the evidence justified the trial court in the conclusion that Leonard & Co. at the time they entered into the contract with'the defendants did not inform them of the provisions of other contracts which they had made, which provisions, if carried out, would vitally affect defendants’ interests.. We think the trial court was warranted in finding that there could be no recovery.

The judgment is affirmed.

Affirmed.


text:
    L. E. Cohn, trading as Tobacco Products Company, Plaintiff in Error, v. Mechanics & Traders Insurance Company, Defendant in Error.
    Gen. No. 17,590.
    1. Insurance—method of cancelling policy. A fire insurance policy providing that it may he canceled at any time at the request of the insured or by the company by giving five days’ notice, may be canceled by the insured or by the company as provided by the policy, or by agreement of the parties.
    2. Insurance—insufficient evidence of cancellation of policy. Where a broker notifies an insured that his fire insurance policies are to be canceled and the insured declines to surrender them, stating that he will take advantage of a clause requiring five days’ notice, and testifies that after a fire he informed a fire patrolman only that he had received notice the policies would be canceled, evidence by the patrolman that the insured had informed him that the policies had been canceled is not sufficient to establish such fact.
    3. Insurance—when failure to pay premium will not defeat recovery. If credit for a premium on a fire insurance policy is given by an agent of the insured, the mere failure to pay the premium does not defeat a right to recover on the policy.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 17, 1912.
    Lipson & Levy, for plaintiff in error.
    Charles B. Obermeyer, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This case, which was an action brought by the plaintiff against the defendant upon a fire insurance policy, was tried before the court and a jury, resulting in a verdict and judgment for defendant.

The plaintiff had in his possession at the time of the fire, insurance policies made by fourteen insurance companies, the policies aggregating $17,500. One of these policies was issued by the defendant for $1,000 in amount, and another by the North British • & Mercantile Insurance Company for $1,500. The latter policy is the subject of a suit pending on an appeal in this court, general number 17848 (Cohn v. North British and Mercantile Insurance Co., post, p. 612). The latter case was heard by the court without a jury, and a finding was made in favor of the plaintiff. The two cases have been submitted upon the same briefs and printed and oral arguments. The evidence taken before the jury and court in the case now under consideration was by stipulation submitted to the trial court in the second case, with additional proof as to the issuance of the policy involved in that case, etc.

It appears that on February 9, 1910, policies aggregating $12,500 had been issued, $7,500 in amount having been obtained from Martin & Co., brokers, and $5,000 from a broker named Alexander. This was in addition, as we understand the record, to a policy of $2,500 upon fixtures. The policies obtained through Alexander were issued by Fred S. James & Co., as agents, and included the two policies involved in the cases now under consideration. On February 10th Alexander called at plaintiff’s store and stated to plaintiff in substance, as plaintiff testified, that he had received a letter from the “James people” and that they were going to cancel the policies and had requested him to get them. Plaintiff refused to surrender the policies, stating that he had five days’ time, evidently referring to the provisions of the policies whereby the insurance companies had the right to cancel them by giving five days’ notice. The plaintiff told Alexander to get new policies, and the broker replied that he would be back in five days with other policies to replace the old ones. Alexander did. not bring the new policies. Plaintiff testified that thereafter he discussed the matter with his brother, and that as he claimed the stock to be worth $18,000 they decided that additional insurance .should be procured. Thereupon the brother ordered through Martin & Co. additional policies aggregating $5,000. On February 11th the fire occurred. The Martin policies had not been delivered but had been issued. On adjustment it was found that the value of the stock was $17,376.47, and the loss by fire $13,390.99. It is admitted of record that all of the companies excepting the two whose policies are involved in the present proceedings paid their proportion of the loss on the assumption that the so-called James policies were valid, subsisting insurance which should contribute. It is further stipulated that the proportion payable by the Mechanics and Traders Insurance Company, if it is liable, is $765.20 and that of the North British and Mercantile Insurance Company $1,147.80.

The contention on behalf of the two insurance companies is that there was an agreement to cancel the policies. The testimony respecting this matter seems to be confined to that of James Wolf, a policeman of the fire attorney’s office of the City-of Chicago, who •testified that the morning after the fire the plaintiff told him that he had $15,000 of insurance; that he mentioned the names of the agents who placed it for him, namely, Martin and Alexander; that he asked the plaintiff how it came that he got the increased insurance, and whether he had increased his stock proportionately at the time; that the plaintiff said “no,” and proceeded to explain that there was $5!,000 canceled by Alexander, and that he had called up Martin and told him to place $5,000 to take the place of the insurance that Alexander canceled. With respect to this matter the plaintiff testified that he did not say to Wolf that the insurance had been canceled but that he had received notice that they were going to cancel it; that he had always carried $15,000 and that he had ordéred $5,000 more from Martin the day before, and that James & Co. had notified him that they were going to cancel policies aggregating $5,000.

The provision of both policies as to cancellation is as follows: “This policy shall be canceled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation.” Provision is then made as to the return of a portion of the premium if canceled by the insured, and the retaining of a pro rata amount if canceled by the company.

We agree with counsel for the insurance companies that there are three ways in which policies like those we are considering may be canceled: First, by an exercise of that right on the part of the insured, as therein provided; second, by action of the insurance company in giving the requisite five days’ notice; third, by agreement of the parties. In the cases before us, if there were a cancellation in legal contemplation, it was because the same was agreed to. We do not think the testimony of the policeman sufficient to show such an agreement to the cancellation. The policies were not formally canceled. On the other hand the evidence is undisputed that the plaintiff refused to surrender them until others should be received in their place. Alexander was a mere broker, and there is nothing in the record pointing to the conclusion that he was authorized as agent for the plaintiff to consent to a cancellation, or that in effect he did consent on behalf of the insured to such cancellation.

We think the facts in this case distinguish it clearly from the cases referred to in the briefs filed on behalf of the insurance companies. Home Ins. Co. of New York v. Chattahoochee Lumber Co., 126 Ga. 334; Arnfeld v. Guardian Assurance Co., 172 Pa. St. 605; Larsen v. Thuringia Amer. Ins. Co., 208 Ill. 166. Our attention has been called to two recent decisions which we regard as authority for the position taken in the case; Scheel v. German American Ins. Co., 228 Pa. St. 44, and Northern Pine Crating Co. v. Liverpool & L. & G. Ins. Co., 143 Wis. 433.

It is true that the insurance premium was not paid, or offered to be paid, until after the loss; but it is the settled law of this state that if credit is given by an agent of the insured, the mere failure to pay the premium does not defeat the right to recover' on the policy. Firemen’s Ins. Co. v. Kuessner, 164 Ill. 275.

At the close of the testimony the plaintiff submitted an instruction to the court to the effect that the verdict of the jury should be for the plaintiff. After a careful examination of the record we are satisfied that this instruction should have been given. It therefore becomes unnecessary to consider other questions raised in the case.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    William H. Ward, Defendant in Error, v. Northern Michigan Transportation Company, Plaintiff in Error.
    Gen. No. 17,618.

      Carbiers—verdict sustained when not against weight of evidence. In an action for personal injury sustained by plaintiff, a passenger on defendant’s boat, the verdict is sustained, it appearing to the court after a careful examination of the record that the damages are not excessive and the verdict not against the manifest weight of the evidence.
    Error to the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 17, 1912.
    Rehearing denied December 31, 1912.
    George I. Hicks, for plaintiff in error.
    Fowler, McDonnell & Rosenberg, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This case is a suit for damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant while the plaintiff was a passenger on one of defendant’s boats. There was a trial before the court and a jury, resulting in a verdict for $200, upon which judgment was entered. We are asked to reverse this judgment on the ground that it is against the manifest weight of the evidence.

The plaintiff’s claim is based upon the allegation that he was struck by a show case which, during a violent storm, knocked him down and injured him; that this was in the lobby or social room of the steamer. The testimony offered on his behalf seems to bear out this claim.

Conflicting testimony was offered by the defendant to the effect that plaintiff was not in the social hall at the time that the show case shifted, but that he was in the corridor aft the boiler room, near some baggage, and that he had stated after the accident that he had been hit by the baggage as the vessel rolled.

We cannot reconcile the testimony, but after a careful examination of the record are unable to say that the verdict was against the manifest weight of the evidence.

It is further contended that the damages are excessive. We have examined the record carefully with respect to this matter also, and are unable to agree with defendant in this contention.

The judgment will be affirmed.

Affirmed.


text:
    Ike Goldberg, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 17,694.
    1. Municipal corporations—failure to guard bridge. In an action for the loss of a team of horses and load of produce caused through negligence of defendants in' not guarding the approach to a bridge when it was open, the questions as to whether defendant was guilty of negligence or plaintiff guilty of contributory negligence were properly submitted to the jury.
    2. Appeals and errors—duty of court to reverse. It is the duty of a court of review to reverse a judgment where it appears that the verdict of the jury is against the manifest weight of the evidence.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 17, 1912.
    William H. Sexton and N. L. Piotrowski, for plaintiff in error; David E. Levy, of counsel.
    Moses, Rosenthal & Kennedy, for defendant in error; Walter Baohraok and Oscar Blumenthal, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This is a suit for damages alleged to have heen sustained by the plaintiff in the loss of a team of horses, a wagon and harness and a quantity of produce, through the negligence of the defendant. The' negligence charged is that the defendant failed to use reasonable care and diligence in having the east approach of the Twelfth street bridge over the Chicago river properly lighted and safely guarded by means of chains or otherwise, and failed to have a suitable watchman to prevent persons intending to cross the bridge from being precipitated into the river, when the bridge should be open to permit the passage of boats and vessels in the river, whereby the horses were drowned, and the wagon, harness, etc., “damaged and destroyed and rendered worthless. ’ ’ There was a trial of the case before the court and a jury. The verdict of the jury was for the plaintiff and damages assessed in the sum of $725. From a judgment rendered upon such verdict this writ of error has been taken. -

We are asked to reverse the judgment on the ground that the verdict was against the weight of the evidence; that there was no proof of the lack of contributory negligence on the part of the plaintiff; that therefore the trial court erred in not directing a verdict in favor of the defendant as requested.

The driver was not the plaintiff himself, but an employee of the plaintiff.

The decision of the case turns upon questions of fact. We have carefully read the record,, briefs and arguments in the case, and are unable to say that the defendant was not guilty of negligence, or that the plaintiff’s agent was guilty of contributory negligence. These questions were submitted to the jury, and, we think, properly. The power of this court to reverse the judgment of a trial court and enter a judgment here, in a case like the one before us, is indisputable, and such is its duty, provided it appear that the verdict of the jury is against the manifest weight of the evidence. We are unable to reach this conclusion, and the judgment will therefore be affirmed.

Affirmed.


text:
    Smeeth-Harwood Company, Appellee, v. James F. Hutchison, Appellant.
    Gen. No. 17,628.
    1. Executions—trial of - right of property. In a proceeding for the trial of right of property, defendant is entitled to show that plaintiff’s title is founded in fraud.
    2. Corporations—where seller acts as buyer for corporation. Where the seller acts as buyer for a corporation, a ratification by subsequent acts of the corporation may be shown, but acts done by or under the direction of such individual acting as an officer of the corporation are not conclusive.
    3. Fraud—in sale to corporation by officer. Where an officer sells an automobile to the corporation, issuing a check of the corporation to himself in payment, and continues to use the car in going to and from the company’s plant, there is not such a public transfer as precludes the inference of fraud from the omission to change possession.
    4. Executions—trial of right of property. In a proceeding for the trial of right of property, where a corporation officer, heavily indebted, sells an automobile to the corporation, issuing a check of the corporation to himself in payment, and continues to use the car in going to and from .the company’s plant, the company paying for the license and repairs, there is not such proof as shows conclusively a valid transfer, and it is error to direct a verdict for plaintiff.
    5. Executions—trial of right of property. In a trial of right of property there are no written pleadings and a plea of nul tiel corporation is properly stricken from the files.
    6. Evidence—trial of right of property. In a trial of right of property it is error to exclude evidence as to indebtedness of the judgment debtor at the time he transferred the property in question.
    Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 17, 1912.
    A. W. Martin and Edward E. S. Martin, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; John D. Black and John C. Slade, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This appeal brings up for review a judgment entered in the County Court of Cook county in a suit for the “trial of right of property,” under the provisions of chapter 140-A of the Revised Statutes.

On December 22, 1910, appellant (defendant) obtained judgment in the Circuit Court of Cook county against Edwin E. Smeeth for $1,247.42, and a levy was made by the sheriff on an execution theretofore placed in his hands, upon two automobiles which plaintiff claimed to own. The trial was before the court and a jury. The court, at the close of the evidence, directed the jury to find for the plaintiff. This appeal is taken from the judgment entered upon a verdict rendered in pursuance of such instruction.

The evidence disclosed that one of the motor cars, called a “Fal-Car,” was purchased by the plaintiff corporation in September, 1910. The evidence tending to establish this fact consisted of an order given by the Smeeth-Harwood Company to the Fal Motor Company, an invoice by the Fal Motor Company to the Smeeth-Harwood Company for the same, and a canceled check made by the Smeeth-Harwood Company to the Fal Motor Company for the., purchase price.

The other machine is known as a Pope-Toledo. To establish its claim to ownership of this machine, the plaintiff introduced a bill of sale from Edwin E. Smeeth to the Smeeth-Harwood Company dated April 9, 1910, and a canceled check drawn on the Prairie National Bank of Chicago to the order of Edwin E. Smeeth for $500, signed “Smeeth-Harwood Co. by E. E. Smeeth, Treasurer.” The endorsement of this check indicates that it was paid through the Chicago Clearing House on April 13, 1910. There was testimony tending to show delivery by the Fal Motor Car Company to the Smeeth-Harwood Company at the latter’s place of business, of the machine first referred to. As to the Pope-Toledo car, testimony was introduced tending to show that the car was purchased by Smeeth in 1905; that subsequent to that time it was sold by him, and thereafter repurchased (some time in 1909), and that it was owned by him up to the time of the alleged sale to the plaintiff in April, 1910. The testimony further tended to show that the plaintiff had paid for repairs on both cars after the alleged purchase of 'the Pope-Toledo car, and as to the latter car that a license was issued on May 28,1910, by the village clerk of Oak Park to the plaintiff, as owner, authorizing it to operate a “seventh class” vehicle in that village, and that the license fee was paid by plaintiff.

We first consider the question as to whether or not the court was justified in directing a verdict. The Smeeth-Harwood Company it appears had as its officers Jennie H. Smeeth, president, and her husband, Edwin E. Smeeth (the judgment debtor), as secretary and treasurer, both of whom were witnesses at the trial, as was also Harvey A. Dissinger, who testified that he was a director of the company. The transaction with reference to the purchase of the Pope-Toledo car on behalf of the company seems to have been conducted by Mr. Smeeth, as secretary and treasurer of the company, with himself, as an individual. He signed the bill of sale, and also, as secretary and treasurer of the company, signed the check issued to himself for the alleged purchase price of the machine, namely, $500.

The plaintiff or claimant in a suit for the “trial of the right of property” is in a similar position to a plaintiff in a suit in replevin. In replevin cases the rule is elementary that where a plaintiff claims to own goods levied on in execution against a third person, it may be shown that plaintiff’s title is founded in fraud in fact or fraud in law. Cobbey on Law of Replevin, section 784. Ordinarily a person may not legally purchase on account of another that which he sells on his own account (Michoud v. Cirod, 4 How. (U. S.) 503), and it has been said that this rule applies especially to directors of a corporation. Stanley v. Luse, 36 Ore. 25; Cook on Corporations, section 652. It follows in such a case that the transaction may be repudiated by the corporation. Ratification by subsequent acts may of course be shown, but where those acts are directed to be done or are performed by the vendor himself, acting as the officer of the corporation, they are not conclusive.

The defendant offered to prove that at the time the bill of sale was executed by Smeeth to the Smeeth-Harwood Company, Smeeth was indebted to many persons and in large amounts, and that some of these claims had been reduced to judgment. This, however, he was not permitted to do.

The machine, prior to the making of the bill of sale, had been used, as the record shows, by Mr. Smeeth and his wife as their own. The testimony of both Mr. and Mrs. Smeeth is to the effect that after the alleged sale to the corporation, it was used in the business of the corporation, principally in transporting Mr. Smeeth between his house and the manufacturing plant, and in conveying Mrs. Smeeth to places where she needed to go as an officer of the company. It was kept at night in a bam on premises occupied by them, title to which stood in Mrs. Smeeth. Mrs. Smeeth testified that she had an active part in the management of the company, but that she did not have a desk at the office of the company; that she was not its manager; that she did not give any orders direct to employees of the company, that her husband was the manager and that he attended to the details. She further testified in answer to a question that the capital stock of the corporation belonged to her, but the answer was stricken out on motion.

The question of whether or not there was a change of possession of the Pope-Toledo machine is in the case. It is true that in such circumstances “when the transfer is founded on a good consideration and there is no intention in fact to defraud creditors, the legal presumption of fraud created by the nondelivery of possession does not arise if the transfer or transaction were a matter of publicity or notoriety.” And that “if the assignment be notorious, fraud cannot be inferred from the omission to take possession.” Chitty on Contracts, 7 Am. Ed. 412. In the case before us it cannot in our opinion be said that the transfer or transaction was a matter of publicity or notoriety. From the testimony of Mrs. Smeeth it would appear that she had nothing to do with the purchase at the time it was said to have been made. There is no proof that it was authorized by the board or that it was known to Dissinger, the third director, if there were but three. This being so, the fact that Smeeth notified the attorney for the defendant and the deputy sheriff when the levy was about to be made that.the property belonged to the Smeeth-Harwood Company would not, in our opinion, estop the defendant from claiming and attempting to show that the alleged purchase by the company was fraudulent so far as creditors were concerned. Under the circumstances the defendant should have been allowed to show all of the details of the transaction. It was for the jury to determine whether or not fraud entered into it. We cannot say that the proof shows conclusively, thus making it a question of law, that there was a valid transfer. That being so, the direction of the trial court to the jury to find a verdict for the plaintiff was erroneous. If the original taking was fraudulent, the fact that the company thereafter paid for repairs upon the machine and the license tax is unimportant.

A plea of ,nul tiel corporation was filed by the defendant but stricken from the files by order of the court. This we think was proper, because in cases of this nature the statute provides that there shall be no written pleadings. We think the court should have permitted the defendant to show the amount of the indebtedness owing by Smeeth at the time the bill of sale was made. His knowledge was the knowledge of the corporation.

Other matters are discussed in the briefs, but we think it is unnecessary to consider them, as the same questions are not likely to arise upon a retrial.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Joseph L. Connelly Company, Defendant in Error, v. John McCabe, Plaintiff in Error.
    Gen. No. 17,652.
    Statute of frauds—original contract. Where a contractor promises to pay the bill of a subcontractor, a mason, in consideration that he guaranty a wall for five years, there is an original contract supported by sufficient consideration and not within the statute of frauds.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 17, 1912.
    McCabe, Cloyes & Kull, for plaintiff in error.
    Edmund S. Cummings, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This is a writ of error taken from a judgment entered in a suit of the fourth class in the Municipal Court. There was a trial before the court without a jury, and a finding for plaintiff in the sum of $325, upon which judgment was entered.

It appears from the record that the defendant (plaintiff in error) had entered into a contract with one J. E. Sexsmith for the construction of an apartment building. Plaintiff was a subcontractor for mason work. The defendant complained of the character of the work, and there was a meeting between him, JohnKinnare, a mason contractor, president of the Chicago Masons ’ and Builders’ Association, Martin Connelly, the secretary and manager of the plaintiff company, and the architect. This meeting so far as Connelly and Kinnare were concerned was for the purpose of persuading the defendant to accept the work. The testimony of Kinnare and Connelly was to the effect that the defendant agreed to pay the amount of plaintiff’s bill provided the. plaintiff would furnish a guaranty. Thereafter Connelly presented a bill made out against the defendant aggregating $331, upon which the following appears:

"Guarantee of the Joseph L. Connelly Co., Inc.:

“For and in consideration of the payment of this bill, we, the undersigned, hereby guarantee the stone walls against' leaking or cement falling off, also the terra cotta coping on fire walls against blowing off or joints getting loose, for the term'of five (5) years.

Joseph L. Connelly Co., Inc.,

Per Martin Connelly, Secretary.”

Connelly’s testimony is to the effect that he presented this paper to the defendant, reading it over to him first, that the son and daughter of the defendant were present, and that the latter read it over; that the defendant then promised he would pay the amount in a day or two.

The defense rested, so far as the evidence is concerned, upon the testimony of the defendant himself, which differs in many material respects from the tesr timony offered on behalf of the plaintiff. Among other things he testified that the guaranty was left upon a show case in his saloon and that he did not accept it. He did, however, retain it, and it appears to have been produced by his attorneys at the trial.

It is insisted by the defendant (plaintiff in error) that the action may not be maintained because the debt was the debt of Sexsmith and not that of defendant, and that therefore no action can be maintained on the promise to pay the same, the promise not being in writing.

The promise by one person to pay the debt of another, supported by a valuable consideration moving to the person making the promise, is an original undertaking and not within the statute of frauds. Scott v. Thomas, 2 Ill. (1 Scam.) 58; Eddy v. Roberts, 17 Ill. 505; Boldenwick v. Cahill, 86 Ill. App. 561, aff’d 187 Ill. 218.

The consideration in the case before us was the guaranty, and the contract is not therefore within the statute. This presupposes that there was an acceptance by the defendant of the guaranty as presented. Whether or not there was such an acceptance is a question of fact, upon which there is conflicting testimony. Upon a careful reading of the record we are unable to say that the trial court reached a wrong conclusion. The judgment will therefore be affirmed.

Affirmed.


text:
    Joseph F. Kern for use of J. A. Ferguson, Plaintiff in Error, v. The Western Railway Weighing Association and Inspection Bureau, Defendant in Error.
    Gen. No. 17,715.
    1. Appellate court—powers. The appellate court has no power to reverse a verdict and judgment and enter a money judgment in favor of the opposite party.
    2. Assignments—notice of assignment of wages. No recovery can he had against an employer on an assignment of wages if no proper notice of the assignment was given.

      3. Municipal court—rule S, constitutional. Municipal court rule 8, providing for an oral charge, does not violate Const, art. IV, § 22, and art. VI, § 29.
    Error to the Municipal Court of Chicago; the Hon. Max Eberhabdt, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 17, 1912.
    Weldon Webster, for plaintiff in error.
    Thurman, Hume & Kennedy’ for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit was brought by plaintiff in error against defendant in error upon an assignment of wages alleged to have been made by Kern to Ferguson. The case was tried before the court and a jury and resulted in a verdict for the defendant in error. The jury made special findings to the effect that the assignment sued upon was not executed by Kern, the nominal plaintiff, and that no notice in writing of the existence of the alleged assignment sued upon was given to the Western Railway Weighing Association and Inspection Bureau. Judgment was entered upon a verdict, from which judgment this writ of error is prosecuted.

We are asked to reverse the judgment and enter a judgment here in favor of the plaintiff in error in the sum of $1,000. We have no such power; and if the power existed the circumstances of the case would not warrant the exercise of it by us. City of Spring Valley v. Spring Valley Coal Co., 173 Ill. 497.

• It was stipulated by the parties that from the time the alleged notice of the purported assignment was served upon the defendant in error to the time of the beginning of the suit the wages of Kern amounted to $1,000. It also appeared that this amount had been paid him. The record further discloses that the amount loaned by Ferguson to Kern was $50, and that in December, 1909, some months before the beginning of the suit, he offered to repay the same with interest, but payment was declined.

A material question in the case is whether or not notice of the assignment had been given to the defendant, because if no proper notice was given there can be no recovery. The jury in effect so found. We are unable to say that such finding was against the manifest weight of the evidence. That being so, it is unnecessary to consider many of the matters discussed in the briefs.

Nearly forty pages of the record have to do with proceedings with reference to the settling of issues between the parties. The learned trial judge set aside one or more improper orders that had been entered by others in the ease, and finally an issue was formed, as we believe, in strict conformity with the statutory provisions and rules governing the Municipal Court. Much of the argument of plaintiff in error is devoted to the proposition advanced that in the adoption of rule 8, providing for an oral charge, section 22 of article 4 and section 29 of article 6 of the Constitution have been violated. The Supreme Court has held otherwise. Morton v. Pusey, 237 Ill. 26. The same case is also authority for the proposition assailed by plaintiff in error in his brief that objections to the charge are waived unless made before the jury retires.

We find no error in the record which calls for a reversal of the judgment, and it is therefore affirmed.

Affirmed.


text:
    L. E. Cohn, Appellee, v. North British & Mercantile Insurance Company, Appellant.
    Gen. No. 17,848.
    Case governed by decision in Cohn v. Mechanics "& Traders Ins. Co., ante, p. 594.
    Appeal from the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 17, 1912.
    Charles B. Obermeyer, for appellant.
    Lipson & Levy, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This case is an action on a fire insurance policy, the case having been tried before the court without a jury. There was a finding and judgment for the plaintiff, from which judgment the insurance company has appealed. The case was submitted with No. 17590 (Cohn v. Mechanics & Traders Ins. Co., ante, p. 594) upon the same briefs and oral and printed arguments. In an opinion filed this day in that case we have expressed our views as to the law which should govern the decision in this case.

The judgment will be affirmed.

Affirmed.


author: Mr. Justice Barnes

text:
    A. Yuckman, Defendant in Error, v. J. J. Considine, Plaintiff in Error.
    Gen. No. 17,570.
    1. Municipal coubt—when amended affidavit of defense is waived. Where in an action by a broker for commissions the defendant asks leave to amend his affidavit of merits so as to include additional defenses developed by the evidence, and the court replies, “Never mind. The evidence on those points is in without objection and I presume it will stand,” the plaintiff not objecting is bound thereby and waives the formality of an amended affidavit.
    2. Argument of counsel—attorney cannot assail good faith of opponent ashing to amend affidavit of defense. Where the evidence developed another defense, that the sale was to be for “net cash,” and plaintiff waived the formality of amending the affidavit of defense so as to include it, it is error to permit plaintiff in his argument, to read the affidavit and comment on it as limiting the defense and to say that such defense had sprung out of the mind of clever counsel after they had come into court.
    3. Argument of counsel—defense predicated upon change of pleadings cannot he assailed. Whether a defense is presented in good faith may be questioned on proper evidence in a cause, but it is not subject to attack by counsel in argument to the jury merely because there has been a change in the pleadings.
    4. Brokers—instructions. A defendant is entitled to have an oral instruction given presenting his theory of defense that there could be no recovery for broker’s commissions if he was not the owner of the property nor authorized to offer it for sale and plaintiff so knew prior to his negotiations with a purchaser.
    Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 17, 1912.
    Rehearing denied December 31, 1912.
    Rogers & Mahoney, for plaintiff in error; J. Kent-nee Elliott, of counsel.
    Alter & Lederer, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

The statement of claim and affidavit of defense confined the issue between the parties hereto (whom we shall refer to by their titles in the court below), to whether defendant was liable for commissions claimed by plaintiff as a real estate broker. Defendant’s mother was the owner of the property and was made a party defendant, but at the close of the testimony the suit as to her was dismissed.

In the fruitless negotiations involved plaintiff claimed that he produced a customer ready, willing and able to purchase on defendant’s terms. Defendant denied that he had made any contract and claimed that in whatever he did he was acting solely as an agent for his mother. Plaintiff was informed that she was the owner of the property, but relied upon an alleged statement of defendant, which he denied making, that he had a power of attorney from her.

Other issues were brought into the trial. The terms on which the property was submitted were disputed, defendant claiming that the sale was to be for “net cash, ’ ’ and plaintiff that it was to be for commissions and part cash. It also came out in the trial that the persons negotiating for the purchase proposed to make it by way of investment for a corporation that they controlled, and upon evidence of that character defendant, in view of the statutory limitations upon the right of corporations to buy and hold real estate, questioned whether plaintiff had produced a customer “able” to make the purchase.

After the testimony was in defendant asked leave to amend his affidavit of merits so as to include the other defenses developed by the evidence. The court replied: “Never mind. The evidence on those points is in without objection, and I presume it will stand.”

In effect this ruling treated such matters as part of the defense and plaintiff not objecting was bound thereby and waived the formality of an amended affidavit. His argument before the jury, therefore, should have been in harmony with such ruling. But he was permitted to read the affidavit of defense and comment on it as limiting the defense and saying nothing about the terms of sale being for “all cash” or “net cash,” and was allowed to say that such defense had sprung out of the mind of clever counsel after they had come into court. To these remarks defendant excepted, but the court took no notice thereof.

Such an argument unrebuked was calculated to lead the jury to disregard the effect of the court’s ruling, a'nd either to regard the issues as limited to what was contained in such affidavit, or to question on improper grounds the good faith of other defenses thus presented. If the mere fact that one amends his pleading after trial and before judgment, which often becomes necessary either through surprise during the trial or' through counsel’s misapprehension of the law or the facts when drawing the original pleading, lays his good faith in so doing open to an assault before the jury, the benefit from the right to amend in many instances would be lost, and the value of it seriously impaired. Taft v. Fiske, 140 Mass. 250. Whether a defense is presented in good faith may be questioned on proper evidence in the case, but it is not subject to attack merely because there has been a change in the pleadings. The reason for the change may not become known or apparent to the jury and would not then be a proper subject for their consideration. Inferences drawn from the argument in question under the circumstances in this case may have been palpably wrong and unjust and productive of much harm. We think it was error, therefore, for the court to permit the exception taken to pass unnoticed. '

The "question of defendant’s agency and whether plaintiff had knowledge of it was also important. Inasmuch as plaintiff knew that Mrs. Considine was the owner of the property, if defendant did not say that he had a power of attorney to negotiate for her, then the record fails to disclose any ground of action against him. It is important, therefore, that the jury should have been properly charged on that question.

The charge, given orally, included instructions based on the theory of defendant’s liability in case the jury found that he made a contract with plaintiff without authority and without the latter’s knowledge of his lack of authority; and also in case they found among other things that the name of the owner was not disclosed by him, which, in view of plaintiff’s admission to the contrary, should not have been given. After the delivery of the charge, defendant’s counsel asked that the court instruct the jury orally in substance that if the jury believed from the evidence that defendant was not the owner of the property, nor authorized to sell or offer it for sale, and the plaintiff so knew prior to his negotiations with a prospective purchaser, then he could not recover. The court refused to comply with the request. As the instruction asked for correctly presented the theory of his defense and related to a vital fact in controversy, we think the refusal was error. “Each side was entitled to have instructions given that should fairly present to the jury the law applicable to the evidence that tended to support its theory.” Fessenden v. Doane, 188 Ill. 228. This was none the less true because they were oral. We do not find that any other instruction contained in the charge justified refusing the one requested.

The evidence was very conflicting on essential matters and a serious question is raised as to where the preponderance lay. But the view we have taken of the case dispenses with any need of its consideration.

The judgment will be reversed and the case remanded for a new trial.

Reversed and remanded.


text:
    Alice Guinee, Defendant in Error, v. J. R. Prouty, Plaintiff in Error.
    Gen. No. 17,611.
    1. Landlord and tenant—evidence in trespass against lessor. In an action by a tenant against her landlord for trespass where there is no evidence that she had the exclusive right to a lot between her building and that of the landlord, evidence that defendant allowed scavengers to use the lot in pumping filth from a closet on adjoining premises should not go to the jury, especially where the assessing of punitive damages is permitted.
    2. Damages—when proof of damage to household goods is improper. It is improper to permit damage to furniture to be shown by what the owner paid for it and what she thought it was worth, or without proof of what it cost to repair the damage to it.
    3. Damages—excessive. A verdict of eight hundred dollars in an action by a tenant against her landlord for carelessly and wilfully damaging her chattels will not be sustained where there is legal evidence of less than one hundred dollars damages.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 17, 1912.
    John J. Poulton, for plaintiff in error.
    Graham & Rowan, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

The statement of claim alleged that defendant carelessly, wilfully and maliciously took off the roof and sides of plaintiff’s residence and hoarding house, and left them off for seven weeks, that he trespassed upon her property, and harassed and annoyed her. She recovered a judgment for $800. We are asked to reverse it on the grounds that the verdict is excessive and not warranted by the evidence, and we think the complaint is well founded.

Much irrelevant and incompetent testimony, calculated to arouse the feelings of the jury and to induce them to add exemplary damages to the actual damages proven, was admitted over objections.

• Plaintiff was defendant’s tenant from month to month. She occupied a building in the front, and he one in the rear of the same lot. No lease nor any other evidence was introduced to show the extent of her right, if any, or restrictions to defendant’s right, to use that portion of the lot between the buildings. Yet one of the most aggravating acts by way of a trespass relied on by plaintiff was that defendant allowed scavengers to use that portion of the lot in pumping filth from a closet on adjoining premises. The stench caused much annoyance, some injury and much ill feeling. In the absence of proof that plaintiff had the exclusive use of that part of the lot, it was error to let this episode go before the jury, especially in a case where they were told they could assess punitive damages.

Other very unsatisfactory evidence was admitted.Plaintiff was permitted, over objection of defendant, to prove damages to certain articles of household furniture, by telling what she had paid for them, and what she thought they were then worth. She was permitted to give the cost of a stove bought six years before, but did not prove what it cost to repair the damage to it. Other instances of improper testimony might be recited.

It appears that her property was damaged while certain changes and repairs in the building were being made under an arrangement therefor between her and her landlord. But assuming that he was liable therefor, there was legal evidence of less than $100 damages, and yet the jury assessed them at $800, manifestly influenced by' many matters of the proverbial ' “clothes-line” variety which came out in the trial, and which, if material, in no event authorized the assessment of such an amount.

We are reluctant to reverse a case in which there were two previous trials with verdicts for $500 and $750 in plaintiff’s favor, but if the evidence then adduced was of the same character as that shown in this record, the action of the court in setting aside the verdicts may be easily understood.

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

Reversed and remanded.


text:
    Albert J. Rupp, Defendant in Error, v. Gilbert E. Keebler, Jr., Plaintiff in Error.
    Gen. No. 17,821.
    1. Automobiles—law of the road. The law of the road does not require that wagons should he stopped merely because they are slower vehicles to let automobiles pass with undiminished speed.
    2. Highways—law of the road at crossings. The first vehicle to reach a crossing in the exercise of ordinary care should have the right of way, and others should approach with sufficient care to avoid danger of collision.
    3. Automobiles—when driver negligent in entering upon a crossing. The driver of a wagon struck by an automobile was not guilty of contributory negligence where he continued over a crossing he had fairly entered upon before the automobile driver in plain view of him reached it, but the collision under such circumstances was properly attributed to the negligence of the automobile driver.
    4. Damages—when testimony speculative. Testimony of a physician that pain from injuries may last for years is speculative and inadmissible.
    5. Damages—when not excessive. A verdict for two hundred dollars is not excessive where plaintiff was unable to work for eight days and suffered pain in his bruised back, hip and ankles for a considerable time.
    Error to the Municipal Court of Chicago; the Hon. Fbeemah K. Blake, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 17, 1912.

      Charles B. Stafford, for plaintiff in error.
    Channing L. Sentz, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

At the intersection of two streets plaintiff in error, Keebler, while going west ran his automobile into a loaded express wagon which defendant in error, Bupp, was driving south, causing the latter to be thrown to the ground and bruised. The points argued are that the verdict was against the weight of the evidence and that the sum of $200 assessed as damages was excessive.

From the facts disclosed by the evidence, we think plaintiff in error failed to recognize that wagons and other vehicles have an equal right of way over public crossings with automobiles. He was driving at the rate of fifteen miles an hour with an unobstructed view of the approaching wagon, and but for continuing his speed up to the point of collision could have stopped his automobile as easily and quickly as the driver could his horse drawing a loaded wagon. Before reaching the crossing he could plainly see that the horse had already entered upon it and was continuing over it in a trot, keeping to the west and proper side of the street, and thus on the opposite side from him. Under such circumstances he should have kept his automobile under control. He was as much bound to look out for those crossing the street he was on as they were bound to look out for him, and the law of the road does not require that wagons simply because they are slower vehicles shall be stopped to let automobiles pass with undiminished speed. The first to reach the crossing in the exercise of ordinary care should have the right of way, and the others should approach with sufficient care to permit the exercise of such right without danger of collision. The driver of the wagon in thus continuing over the crossing he had fairly entered upon before plaintiff in error, approaching in plain view of him, had reached it was not guilty of contributory negligence, and the collision ensuing under such circumstances was properly attributed to the negligent driving of the automobile.

As to the basis for damages, it appears that Eupp was unable to work for eight days, and suffered pains in his bruised back, hip and ankles for a considerable time. His physician was permitted to testify, “that the pain may last for years.” That was speculative evidence and inadmissible. But unless we can say that $200 is too large an amount to compensate defendant in error for his loss of time and the pain actually suffered, we should not for such error reverse the judgment. We cannot say so. The judgment will be affirmed.

Affirmed.