text:
    Flint Wagon Works, Plaintiff in Error, v. Albert T. Dalton, Defendant in Error.
    Gen. No. 15,648.
    Appeals and errors—effect of failure to present all the evidence. If upon review all the evidence which was before the trial court is not presented the judgment will not be disturbed upon a question of the weight of the evidence. The presumption will prevail that the omitted evidence sustained the judgment rendered.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 29, 1911.
    Maurice W. Seitz, William E. Bryan and. Charles H. Wilber, for plaintiff in error.
    Gallagher & Messner, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff in error, hereinafter called plaintiff, brought suit against the defendant in error, hereinafter called defendant, for the purchase price of six buggies, less fifty dollars paid thereon. The issues were submitted to a jury, who found for the defendant and judgment was entered on the verdict.

The only defense presented was that the plaintiff was a foreign corporation doing business in this state without qualifying under “An Act to regulate the admission of foreign corporations for profit to do business in the State of Illinois,” in force July 1, 1905. It was admitted on the trial that the plaintiff was a Michigan corporation and that it had not qualified to do business in this State under the said Act. The controversy, therefore, was over the question whether or not the plaintiff was doing business in this state within the meaning of the Act. The evidence on this issue tended to show that the plaintiff did business'in this state through its agents, Brownell Bros., at Peoria, Ill.; and we are not inclined to hold that the verdict on this question, the only one in issue, was clearly and manifestly against the weight of the evidence. However that may be, we are precluded from any action other than affirming the case. On the issue in question certain stationery was produced at the trial, which was shown was furnished Brownell Bros. by the plaintiff; and testimony introduced pertaining to the wording and the use of the same in the conduct of said business. The stationery is not shown as an exhibit nor was it read into the record, and so we have not the evidence before us.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    The Spirella Company, Plaintiff in Error, v. William F. Pagels, Defendant in Error.
    Gen. No. 15,677.
    Foreign corporations—when defense of doing business contrary to statute not sustained. Held, that the trial court erred in refusing to hear this cause upon the merits, that there was no evidence showing that the plaintiff corporation had not complied with the statute and that it was doing business in this state in violation of the statute.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed June 29, 1911.
    Winkler, Baker & Holder, for plaintiff in error; G. Raymond Collins, of counsel.
    No appearance for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff in error, hereinafter called plaintiff, brought this action against the defendant in error, hereinafter called defendant, on an account stated for $45.95. The defendant by affidavit, under the rules of the Municipal Court, denied any account stated and denied that he had purchased any goods from the plaintiff; also defended on the ground the plaintiff was a foreign corporation doing business in this State without qualifying as provided under “An Act to regulate the admission of foreign corporations for profit to do business in the State of Illinois,” in force July 1, 1905.

The cause was tried by the court without a jury. The court required the parties to first try the issues that the plaintiff was a foreign corporation doing business in this State without qualifying under the said statute. On these issues the court found for the defendant and thereupon held “that the evidence offered by the plaintiff as to the merits of the case was incompetent, irrelevant and immaterial;” refused to hear the same and entered judgment for the defendant.

There was no evidence of any nature tending to show that the plaintiff had not qualified under the said statute. Moreover, we do not think the evidence showed that the plaintiff was doing business in this State in violation of the said Act. Havens & Geddes Co. v. Diamond, 93 Ill. App. 557; Black-Clawson Co. v. Carlyle Paper Co., 133 Ill. App. 61; Kirven v. V.-C. Chemical Co., 145 Fed. Rep. 288; Atlas Engine Works v. Parkinson, 161 Fed. Rep. 223; Rearick v. Pennsylvania, 203 U. S. 507, and the many authorities cited in each of said cases.

The court was in error in holding that under the evidence the plaintiff had no right to maintain its action, and as the court improperly refused to hear the case on its merits, it must be remanded.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Peter Van Schaack & Sons, Defendant in Error, v. John G. Craig et al., Plaintiffs in Error.
    Gen. No. 15,692.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. John H. ¡Newcomer, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 29, 1911.
    F. H. Trbude, for John G. Craig, plaintiff in error.
    Pierson & Pease, for K. A. Weydell, plaintiff in error.
    Elbert C. Ferguson, for defendant in error; Edward L. England, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error, hereinafter called plaintiff, brought this action against the plaintiffs in error, hereinafter called defendants, for goods sold and delivered to the defendants, copartners, conducting a drug store under the name and style of Crescent Pharmacy. The testimony tended to show a balance of $782.88 due plaintiff; the jury so found and judgment was entered on the verdict.

The defendant Craig insists on the cause being reversed on the grounds that the verdict was clearly and manifestly against the weight of the evidence; that the court erred in excluding certain checks offered by him in evidence, and that there was fraud on the part of the plaintiff and the defendant Weydell in the conduct of the said business and the credits not given the said copartnership by the plaintiff.

The defendants entered into said copartnership and began doing business as the Crescent Pharmacy January 6, 1908, and continued until December 14 or 15, 1908. The defendant Craig was a silent partner' in the business. The defendant Weydell conducted the business and also at the same time conducted two other drug stores of his own. It seems that he kept no separate bank accounts and paid the bills with his personal checks. A statement of the Crescent Pharmacy account was introduced in evidence showing that the account from January 6, 1908, to atid including September 26, 1908, was paid and balanced.- Prom September 28, 1908, to and including December 14, 1908, the account showed the defendants purchased from the plaintiff merchandise of the value of $634.39, and this amount, with two memorandum notes given by Weydell to plaintiff for.goods purchased for the copartnership prior to September 28, amounting to $148.49, made the total sum due $782.88. This statement the defendant Weydell testified was correct.

We are of the opinion that the preponderance of the evidence is clearly and manifestly with the plaintiff. The checks offered in evidence by the defendant Craig, showing payments prior to September 26, 1908, were properly excluded because the account in evidence showed the credit given for many of them and also the said account was balanced to that time, and nothing being claimed thereon,— except as to the amounts covered by the two memorandum notes mentioned—the checks offered were immaterial. The only check offered in evidence claimed to have been given after September 28th was the personal check of Weydell, dated October 5, for $153.35. The account mentioned shows that October 5 the sum of $77.82 was paid the plaintiff, which balanced same to and including September 26. As to the balance of this check, $75.53, there is no testimony whatever, except the statement of Weydell that the said account was correct and the payments that he made the plaintiff for the .Crescent Pharmacy appeared thereon. Under such circumstances we are not disposed to hold the exclusion of said check error. While it appears that the defendant Weydell kept his own and the accounts of the Orescent Pharmacy in a very loose and unbusinesslike manner, there is no reason why the plaintiff should be charged therewith. There is no testimony of any nature in the record that indicates any fraud, or collusion between the plaintiff and the defendant Weydell to defraud the defendant Craig. If the defendant Weydell improperly mingled the funds of his various concerns and converted the money of the copartnership to his own use for purposes other than the business of the Crescent Pharmacy, of course the defendant Craig has his remedy against him, but not against the plaintiff in this action without some proof that the plaintiff was a party to, or had knowledge of, such wrongful conversion, if any.

The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Brown

text:
    John D. Casey, Administrator, Defendant in Error, v. The Prudential Insurance Company of America, Plaintiff in Error.
    Gen. No. 15,534.
    1. Appeals and errors—when reversal ordered; when not. If the appeal is from the Superior Court and error appears reversal will be awarded unless absence of prejudice also appears. If the appeal is from the Municipal Court reversal will not be awarded unless the Appellate Court is satisfied that the error was prejudicial.
    2. Instructions—when as to effect of representations contained in application for insurance erroneous. In an action by a beneficiary under a life insurance policy where the defense is fraudulent representations contained in the application, it is error to instruct the jury that notwithstanding the admitted signature of the insured to the application (the answers to which were written by the agent of the company) the insured could not be regarded as giving the answers or making the representations contained in the application unless such insured had read the same or knew what they were.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed July 10, 1911.
    Statement by the Court. The plaintiff recovered against the defendant in the Municipal Court of Chicago on March 6, 1909, a judgment for $268.33 and costs. The judgment was upon a policy of life insurance issued in favor of the plaintiff’s intestate by the defendant for the sum of $500, with the provision that if the insured should die within six months from its date one-half only of that amount should be paid. The premium was a weekly one of twenty-six cents. The copy of the policy that appears in the record is not dated, hut it is conceded that it was applied for and issued in May, 1907. The insured died August 31, 1907. The judgment therefore represents the half benefit provided for in case of death within six months, with interest.
    The plaintiff’s intestate, Mary Jane Giblin, died of consumption. The defense was based on the provision in the policy that it should he void “if any of the representations upon which this policy is granted be not true.”
    It was contended that “the representations” thus alluded to were to he found in an application for the policy signed by the insured on May 2, 1907, which was introduced in evidence.
    This application contained, among others, the following questions and answers:

    Beneath the questions and answers was the following text and signatures:
    “I hereby apply for insurance for the" amount herein named and I declare and warrant that the answers to the g,boyg questions are complete and true and were written opposite the respective questions by me or strictly in accordance with my directions. I agree that said answers with this declaration shall form the basis of a contract of insurance between me and the Prudential Insurance Company of America and that the policy which may be granted by the Company in pursuance of this application shall be accepted subject to the conditions and agreements contained in such policy.
    **-»•»*****
    Mary Jane Giblin.
    Witness P. Gallagher. Dated this 2d day of May, 1907.”
    The defendant claimed at the trial that the answers of the insured to the questions above set forth as they appeared in the application were untrue; that- under the provisions of the application and policy, taken together, they were warranties, and that their untruthfulness avoided the policy whether or not they were material; that even if they were not warranties, they were, as a matter of law, material representations, the falsity of which rendered the policy void.
    The questions of fact were submitted to a jury under written instructions from the court as to the law. The first instructions given at the request of the plaintiff set forth that the burden was on the defendant to show that the insured was not at the time of the application in sound health. The second so given was in full as follows:
    “2. If the jury believe from the evidence in this case that an agent of the defendant insurance company filled out the application for the jiolicy of insurance sued on in this case, and that the insured Mary Jane Giblin signed said application without reading it, and that the answers are false, you are instructed that the policy is not thereby made void unless the insured knew the answers of the agent were incorrect and the insured was a party to the fraud.”
    The third instruction tendered by the plaintiff and given by the court was this:
    “3. The jury are instructed that the answers in the application, for insurance in this case are to be treated as representations and not warranties, and that the burden of proof is on the defendant to prove that such representations are the representations of the insured, that they relate to a material matter and are not substantially true.”
    The fourth instruction given at the request of the plaintiff declared that a representation as to a condition of health “goes only to the extent of an honest and true statement of applicant’s belief.”
    In addition to these four instructions tendered by the plaintiff, the trial judge gave the jury, on behalf of the defendant, six instructions as tendered by the defendant, and four others after he had modified the form in which they were originally offered by it, as hereinafter stated. The last of the first six mentioned was merely one of general warning against sympathy and prejudice. Of the remaining five one was in these words:
    1. “If the jury believe from the evidence that the insured Mary Jane Giblin made the answer in the application for the policy sued on, that she had never been seriously sick, and if the jury further believe from the evidence that she was seriously sick before the making of the said application, the jury will find for the defendant.”
    In each of the other four a similar hypothesis was contained as to the jury’s belief in the making of an answer therein noted, and in its falsity. Each one referred to a different answer however. The first, as above set forth, referred to the answer “¡Never serious,” to the Question 14 ¡B.; the second to the answer “Good” to the question 14 A.; the third to the answer “¡None” to question 18, as applied to having suffered from “fits and convulsionsthe fourth to the same answer as applied to having suffered from “spitting of bloodand the fifth to that answer as applied to having ever “suffered from any accident of any kind.”
    The four instructions which were modified before they were given were offered in substantially the same form as those above set forth. The seventh related to the answer “None” to Question 14 0.; the eighth to the answer “No” to Question 14 D.; the ninth to the answer “None” to Question 18 as applied to having suffered from “consumption;” and the tenth to the answer “No” to Question 16.
    As to the answers to these questions respectively concerning what disease the insured had suffered from, the existence of a physical ailment or defect, the suffering from .consumption or the death of a parent or brother or sister from consumption, the trial judge by his modification of the instructions offered ruled that to require a verdict for the defendant the jury must believe from the evidence, not only that the insured made the answers and that they did not state the fact, but also that the insured knew what the fact was when she made the answers.
    A verdict having been rendered for the plaintiff and a motion for a new trial made and overruled, this writ of error was sued out. The defendant, plaintiff in error here, asks for a reversal because, as it alleges, the court should have given a peremptory instruction for the defendant, because the court admitted improper evidence for the plaintiff, because the judgment is against the weight of the evidence, and because of error in giving the instructions asked by the plaintiff, and modifying some of those asked by the defendant.
    Hoyne, O’Connor, Hoyne & Irwin, for plaintiff in error; John O’Connor and Carl J. Appell, of counsel.
    Rice & O’Neill, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

We think it well to note at the outset of this opinion— what we have heretofore frequently called attention to—that the rule we have to apply regarding reversal for error differs in cases coming to us from the Municipal Court of Chicago from that applicable to cases from other courts.

The following rule as to a case coming from the Superior Court was laid down in the opinion of the Supreme Court in Crane Co. v. Hogan, 228 Ill. 338:

“A judgment will not be reversed unless error is affirmatively made to appear, but whenever error is shown to exist it will compel a reversal unless the record affirmatively shows that the error was not prejudicial. The court said in Kirby v. People, 123 Ill. 436, that the rule is not that the court must see that the error worked injury to the party complaining, but that the Court will not affirm where error has intervened unless it shall appear from the whole record that such error could not reasonably have affected the result.”

This, however, cannot be the rule under the Municipal Court act, which as to cases of the fourth and fifth classes expressly provides that “Ho order or judgment sought to be reviewed shall be reversed unless the Supreme Court or Appellate Court, as the case may be, shall be satisfied from said statement or stenographic report or reports, signed by said Judge that such order or judgment is contrary to the law and the evidence, or that such order or judgment resulted from substantial errors of said Municipal Court directly affecting the matters at issue between the parties.”

On account of this distinction we regard it as unnecessary to pass on some of the questions elaborately argued by counsel in the extended briefs filed in this cause. We have given careful attention to them all, but a brief analysis of the controlling questions in the case alone will be sufficient to show our reasons for our decision.

We do not think it necessary to discuss some of the rulings on evidence or some of the questions of insurance law elaborately argued. Whether representations concerning the health of the insured are not, as a matter of law, material to the risk, so that it is erroneous to leave their materiality to the jury, is one of them. And so too, in the view we take of the case, is the question whether the answers complained of were warranties or merely representations, although we have no hesitation in expressing our opinion that the trial judge Was right in considering them as representations merely.

A consideration of some of the instructions given reveals, in our opinion, the controlling factor in the jury’s decision. One of the instructions, for example, as hereinbefore stated, told the jury that if they believed that Mary Jane Giblin made the answer in the application that she had never suffered from accident of any kind, and further believed that she had suffered from accident of any kind before the making of the application, they must find for the defendant.

This was equivalent to telling them that unless they found that Mary Jane Giblin did not make the answer in the application, they must find for the defendant, for that she had suffered from an accident was proven and admitted in the case. But substantially is the same thing true, so far as the proof is concerned at least, concerning the applicant’s having “a serious illness,” her suffering from “fits and convulsions,” and “the spitting of blood.” It inhered, therefore, in the verdict of the jury, in our opinion, that they found that the answers in question were not the answers of the applicant; in other words, that Mary Jane Giblin did not make them. That the question whether or not she did make them was intended to be left to the jury, is evident not only from the phrasing of the instructions on behalf of the defendant, but as well from the second and third instructions given on behalf of the plaintiff, and from the whole course of the trial. Therefore, unless we are “satisfied” that the judgment is contrary to the law and the evidence on this question, or “resulted” from errors which affected the decision of the jury on this question, we ought not to interfere with the verdict and judgment. The determination of the cause is much simplified for ns by this narrowing of the issue. If any one of the answers complained of was not Mary Jane Giblin’s, no one of them was. It is conceded that the signature at the foot of the application, witnessed by “P. Gallagher” is hers, but the contention of the plaintiff was and is that the answers being, as it is admitted, written by Gallagher, who was an agent of the Company, were written and presented to Mary J ane Giblin under such circumstances and in such a way as to prevent her signature to the application being properly held to make them hers. They were, it is contended, those of the company’s agent, and it is hound by them.

The first question, then, for our decision is whether we are satisfied that the finding of the jury, which, as we have said, inhered in their verdict that the answers were not hers, was clearly against the weight of the evidence under the instructions which were given by the court; and the second, whether we are satisfied that the law was so incorrctly stated by the court on this point as to have resulted in that verdict.

The instructions of the court which related to this question are the second and third tendered by the plaintiff, and have been set forth in the statement prefixed to this opinion.

Under them the jury were practically left to say whether, even if the answers were false, the defendant had proven by a preponderance of evidence that they were the representations of the insured, and were told that they were not her representations, although she signed the application, if the agent of the company filled out the application including them, and she signed it without reading it, and did not lmow that they were incorrect.

The jury evidently found that the application was so made out and so signed without the knowledge of the signer that the answers were incorrect. We are not “satisfied” that such a finding was clearly against the weight of the evidence. The testimony was directly conflicting. The agent of the company, Gallagher, testified no.t only that Mary Jane Giblin signed the application (which is conceded), but that she did it in his presence, and that previously he had asked her all the questions in the application and had taken down the answers that she gave.

If this testimony was all that bore on the subject there would be no doubt in our mind that the verdict should be set aside as against the evidence, for, as the court implied by some of the instructions given on behalf of the defendant, some of the answers were plainly material and plainly false, nor could the applicant in any proper use of language in such a case be said to have signed the application “without reading it.”

But the applicant’s mother, Anna J. Giblin, testified to an entirely different state of facts. She swore that the agent Gallagher, who had had previous business with the family, called at her house, where her daughter resided with her, but that he had no conversation with the daughter nor even saw her, but after a conversation with the mother about the kind of a policy to be taken, sat down and filled in the answers in the application, asked only one question (which was as to the age of the applicant), gave the mother a pencil and the application, told her to take the application to her daughter, who was in the kitchen, and have her sign it at the bottom and it would “be all right.” Mrs. Giblin says that she took the application and pencil and carried it to her daughter, who signed her name immediately and gave it back to her (Mrs. Giblin), and she carried it back to the agent, who went away with it. The next time Mrs. Giblin saw the agent her daughter was dead, and this question of the answers in the application had been raised. She says that being at the house of a friend, one Mrs. Killeen, in ¡November, 1908, she met Gallagher, who came there and took the application of her friend for a policy, writing it up himself and asking her friend to sign her name. Thereupon Mrs. Giblin said, “That is the way you done in my house with my girl. When you filled out her application you asked no questions and made all this trouble for us,” and Gallagher neither admitted nor denied it.

Mr. Gallagher, on the other hand, testifying as to the same occurrence, says Mrs. Giblin said, “You have not asked the same questions as you asked Mary Jane. How is that?” To which he replied, “I have asked all that is necessary.”

Mrs. Killeen corroborated Mrs. Giblin as to this conversation and contradicted Gallagher, and added to her testimony that Gallagher “looked funny in his face” on account of it.

However this testimony might have impressed us had we been jurymen, we do not think that we should disturb a verdict because it was based on Mrs. Giblin’s version of what took place. And if her version was correct, we think the jury were justified in finding that the agent of the company filled out the application, and that the applicant signed it without reading it and without knowing what the answers were and, of course, therefore, without knowing that they were false. That they did so find we are “satisfied,” and are equally “satisfied” that their verdict was the result of the application to the testimony which they had heard of the instructions given to them by the court on this one question.

We are therefore brought to the ultimate question for our decision: Was the court right in instructing the jury in effect that notwithstanding her admitted signature to the application, the insured could not be regarded as giving the answers or making the representations therein contained unless she had read the same or knew what they were ?

We have carefully considered this question, and are unable to hold that it was. The implications of the instructions go too far.

It is undoubtedly true that under circumstances of fraudulent conduct on the part of the agent to secure the insurance and his commissions (such as writing down one answer when another was given, or securing a signature to a blank, and afterwards filling in the matter supposed to be signed by the applicant, or securing the mark of one who can not read, or through illiteracy can read but imperfectly, without full explanation of the contents of the paper to which the mark is put), the answers or representations to be found in the application will be treated entirely as to the utterances of the company, through its agent, and not those of the applicant at all. Such, for example, is the doctrine of cases like Insurance Company v. Wilkinson, 13 Wallace, 234, in the Supreme Court of the United States, Royal Neighbors of America v. Boman, 177 Ill. 27, in the Supreme Court of Illinois, and Maloney v. The North American Union, 143 Ill. App. 615, in this court. But in the Wilkinson case Mr. Justice Miller in his opinion says: “It is not denied that he” (the applicant) “signed the instrument, and that the representation is untrue. But the parol testimony makes it clear beyond question that this party did not intend to make that representation when he signed the paper and did not know he was doing so, and in fact had refused to make any statement on that subject.” In the Boman case the court found that the applicant made truthful answers, but that the agent of the company inserted untruthful ones, and the gist of the opinion is: “Where one makes true answers to the questions in an application for insurance, the validity of the insurance is not affected by the falsity of the answers inserted by the agent of the company.”

In the Maloney case the signature was obtained to a blank on the urging of the agent of the company, and the statements filled in by Mm days afterwards.

These cases and others like them fall short of holding that the signing by a person of fair education and intelligence, without reading and without actual knowledge of its contents, of a blank containing answers prepared by the agent of the company, but without urging or fraudulent representations on his part, and out of his presence, can be treated as nugatory because of the ignorance thus voluntarily accepted.

We think it a dangerous doctrine to give the formal signature to a contract as slight importance as this holding would imply. But we think that the instructions taken together involve that holding, and are “satisfied” that the verdict and judgment resulted therefrom. Therefore the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Ted Kallish et al., Appellees, v. Samuel Polakow, Appellant.
    Gen. No. 17,629.

      Injunctions—propriety to maintain status quo. Held, that it was within the discretion of the chancellor to grant the preliminary injunction in this case to maintain the status quo, and that the exercise of such discretion would not be interfered with.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed July 10, 1911.
    Max M. Grossman and Peter Sissman, for appellant.
    Whitman & Horner, for appellees; Lloyd C. Whitman, of counsel.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

In the matter of the interlocutory injunction herein appealed from, we have given careful attention to the record and the arguments of counsel made thereon, orally and in writing. But we do not think it.a case in which this court should at its present stage discuss either the facts as they are made to appear in the pleadings and affidavits on which the master’s report and the order of the court were based or the law applicable thereto.

The injunction granted was a temporary one pendente lite. We think it was a proper use of the chancellor’s discretion to grant the injunction to preserve the status quo until the final disposition of the cause. The complainant’s bill, in our opinion, states a suitable case for relief, and the affidavits an interference with complainant’s rights under the construction we place on the lease.

We deem it best to affirm this order in the terms in which it now stands. A final disposition of the cause will supersede it in accordance with the chancellor’s views of the equities on a full hearing, and our decision goes no farther than to approve his order as a proper one in this stage of the case.

Affirmed.


text:
    Harry L. Vaughan et al., Appellees, v. Leslie A. Gilmore et al., Appellants.
    Gen. No. 17,472.

      Chancery—when has jurisdiction of cause involving patent. If there are no questions of validity or infringement involved a court of equity may take jurisdiction of a cause involving a patent if it otherwise has jurisdiction.
    Bill in chancery. Appeal from Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed July 10, 1911.
    Rehearing denied July 20, 1911.
    Samuel Friedlander, for appellants.
    Burks & Lahgenecker, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

The appellees filed a bill in chancery against the appellants to enjoin them from selling or manufacturing an article patented by the appellee Vaughan called a “crown bottle opener,” and owned jointly by said Vaughan and one Court. The bill sets up that Gilmore is a lawyer and induced Vaughan to sign a certain contract; and then follows a recital of a series of transactions and business dealings not necessary to detail here; that finally said Vaughan purchased from said Gilmore all his right, title and interest in and to the said patent, and thereafter said Gilmore, with the other appellants, began the manufacture and sale of said crown bottle opener under an alleged contract or assignment from the' said Court; that by reason of the facts and circumstances set out in the bill, it is claimed the said Gilmore and associates are estopped from manufacturing and selling said article. The appellants filed a general and a special demurrer; the grounds of the special demurrer being that the court had no jurisdiction. The court overruled the demurrers and entered an order temporarily enjoining the appellants as prayed; and from such interlocutory order this appeal is prosecuted.

In our consideration of the case on the record before us, we must of course consider that all the facts alleged in the bill are true. In our opinion the bill stated facts sufficient to warrant the chancellor issuing the restraining order pendente lite.

As to the jurisdiction of the court: if the question is one of the validity or an infringement of the patent, exclusive jurisdiction is in the Federal Courts. It appears from the allegations of the bill the patent was valid, and by the demurrer its validity is admitted; it is further alleged, and by the demurrer admitted, that the appellants, or one of them, have, a contract or an assignment from the said Court of á one-half interest in said patent. It would therefore appear there can be no question presented here of an infringement of the patent or the validity thereof. The question presented by the bill, as we view it, is whether or not, under the facts and circumstances detailed in the bill, the appellants are estopped from manufacturing and selling the said patented article, when they have a contract or an assignment of a one-half interest in said patent. The questions thus presented are questions for a court of equity to hear and determine; and on such issues, there being no questions of the validity or infringement of the patent, the State court has jurisdiction. Hartell v. Tilghman, 99 U. S. 547; Albright v. Teas, 106 U. S. 613; Wood v. Skinner, 139 U. S. 293; Marsh v. Nichols, 140 U. S. 344; The Havana Press Drill Co. v. Ashurst, 148 Ill. 115; Pratt v. Paris Gras Light & Coke Co., 155 Ill. 531; Illinois Watch Co. v. Ecaubert, 177 Ill. 587; Rich v. Atwater, 16 Conn. 409.

The interlocutory order entered by the Superior Court is affirmed.

Affirmed.


text:
    William J. Schroth, Appellee, v. John C. Siegfried, Appellant.
    Gen. No. 17,669.
    1. Injunctions—when verification will not support. An injunction will not be sustained where the pleading upon which its granting is predicated is not properly verified.
    2. Chancery—to what extent will exercise jurisdiction. If a court of chancery acquires jurisdiction of the parties and of the subject-matter of a controversy for one purpose it will retain it for all purposes arid will adjudicate the entire controversy and may by injunction prevent the determination thereof part at law and part in equity.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed.
    Opinion filed July 10, 1911.
    Hiram T. Gilbert and C. LeRoy Brown, for appellant.
    Alfred Barstow and Herbert A. Schryver, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellant was in the tea business under the firm name and style of John O. Siegfried & Company in Chicago, San Francisco and Kobe, Japan. In 1894 he entered into a contract with appellee, whereby it was agreed that appellee was to take charge of the business at Kobe, Japan. The parties here agree that by the terms of the contract appellee was to he paid a salary and in addition thereto receive five per cent, of the profits; that in 1897 the contract was modified and appellee was to receive seven and one-half per cent, of the profits, and in 1903 the contract was again changed and appellee was to receive fifteen per cent, of the profits. Whether before 1897 this percentage agreed upon was limited to the business done at Kobe, Japan, or to he allowed upon the business done at Chicago and San Francisco, is, with other questions pertaining to the contract, in dispute. In 1907 the appellant discharged appellee and by agreement in December, 1908, their differences pertaining to the business done in Kobe, Japan, were submitted to arbitration. In January, 1909, the arbitrators made an award, finding that the appellee was indebted to the appellant in the conduct of said business at Kobe in the sum of 60,456 yen and 49 sen in the money of Japan, or about $30,225 in the money of the United States.

In March, 1909, the appellee filed a bill in the Circuit Court of Cook county, and subsequently an amended bill was filed, appellee claiming that the said contract provided, among other things, that appellee was from 1894 to receive a share of the said business of appellant wherever transacted; that separate books and accounts were to be kept for the business transacted in Japan, and for that which was transacted in the United States from the offices at Chicago and San Francisco; that the said contract provided that said books and accounts were to be closed, inventory taken and trial balances made every six months, and thereupon the net profits were then to be divided according to the percentages agreed upon, etc. The appellee further alleged that during said time and since, he made frequent demands upon said appellant that the said books be closed and a statement rendered and a settlement made with him of the business in the United States, as provided by the terms of said contract, but the appellant refused, etc.; that the appellant has made large profits, etc., in said business transacted in the United States, and only paid the appellee the sum of $2,000 thereof, and on an accounting appellee would be found entitled to a large sum, etc. The defendant answered; the cause was placed at issue and referred to a master in chancery. On the hearing before the master the appellant introduced in evidence the said award, showing the appellee owed the appellant about $30,225 on account of the Kobe business. In the original bill appellee stated, “the question of an accounting of the business in Japan has been adjusted to your orator’s satisfaction by arbitration in that country.” The proofs were closed by the master, and pending the master’s report the appellant began an action at law on March 24, 1911, in the Municipal Court of Chicago on said award for the sum of $40,000.

The appellee filed a petition in the said suit in chancery, reciting among other things the foregoing and praying the court to restrain the appellant from prosecuting said suit at law. The chancellor, without hearing any evidence and according to the record without a hearing of any kind, in the language of the order: “On motion of solicitor for complainant and this cause coming before the Court upon the petition or supplemental bill,” restrained the appellant from prosecuting said suit at law “until the master’s report is filed herein,” upon filing bond, etc. From such interlocutory injunction this appeal is prosecuted.

The allegations in the petition are verified on information and belief. The appellant insists in a learned and exhaustive argument that on the record before us, because the affidavit does not assert possitively the truth of any of the allegations in the petition, the order must be reversed. The affidavit is similar to that appearing in Werner Co. v. First National Bank, 55 Ill. App. 321, and there held insufficient. It has been repeatedly held by this court that such an affidavit is one upon information and belief, and an injunction order entered upon a bill or petition thus verified cannot be sustained. Siegmund v. Ascher, 37 Ill. App. 122; Chicago Exhibition Co. v. Illinois State Board, 77 Ill. App. 339; Neil v. Oldach, 86 Ill. App. 354; Board of Trade v. Riordan, 94 Ill. App. 298; Crawford-Adsit Co. v. Bell, 95 Ill. App. 427; Pepper Distributing Co. v. McLeod, 121 Ill. App. 592; The Christian Hospital v. The People, 223 Ill. 244; 2 High on Injunctions, sec. 1567. In view of these authorities the order must be reversed.

The counsel for both parties urged the court, in case of a reversal on the insufficiency of the affidavit, to pass upon the merits presented by the allegations of the petition. We think it, under the circumstances, proper to so do, and shall state in a general way and very briefly the decision of the court on the merits as requested.

The appellee claims that a court of chancery having jurisdiction of the parties and the subject-matter will retain jurisdiction. While it is true that the bill prayed for an accounting only of the Chicago business, that did not necessarily limit the jurisdiction of the court on the subject-matter to an accounting of the Chicago business where the bill was based on the same contract under which the Japan business was conducted and the award made, and further, when the appellant himself made the said award a part of the case by introducing the same in evidence before the master. In Kelly v. Galbraith, 186 Ill. 593, the court said, 608: “The rule is well established that, when a court of equity has jurisdiction of a cause for one purpose, it will retain such jurisdiction for all purposes. Where the controversy requires any purely equitable relief, such as will give a court of equity the right to act, the court will proceed to a final determination of all the matters at issue, and in doing so, it may establish purely legal rights and grant legal remedies, which would otherwise be beyond its power.”

Pomeroy’s Equity Jurisprudence, vol. 1, 3rd. ed., sec. 231 in part: “The rule has already been stated, as one of the foundations of the concurrent jurisdiction, that where a court of equity has obtained jurisdiction over some portion or. feature of a controversy, it may, and will in general, proceed to decide the whole issues, and to award complete relief, although the rights of the parties are strictly legal and the final remedy granted is of the kind which might be conferred by a court of law.”

The appellant claims that it is a well settled general rule that an employee or agent who has been guilty of fraud upon his employer or principal in the transaction of his employment or agency is not entitled to compensation for his services, and for the purpose of showing that the appellee was guilty of fraudulently converting funds to his own use and embezzlement in his conduct of the agency at Kobe, and for that purpose only, the said award was introduced in evidence. The reason so given in argument has no foundation in the record. The award is not before us, and it only appears from the record that said award found that the appellee was indebted to appellant in the sum of about $30,225 as heretofore mentioned. The allegations of the petition, the bill and amended bill in no way can be construed to warrant such charges. The answer of the appellant to the amended bill makes general allegations of fraud, stating no facts, but does set out in detail what he claims was the contract as to salary, house rent, expenses, etc., to be allowed appellee, and also that the said appellee was to receive under the contract certain percentages of the profits and also to bear the same percentages of losses, if any. In other words, the answer sets up facts that would establish a copartnership, and, if such a relation existed, then of course there could be no embezzlement.

It is therefore apparent from the petition that the court has jurisdiction of the matters in evidence before it pertaining to the controversy; and we are of the opinion that the transactions in question arising out of the same contract and properly submitted in evidence to the court, were not, as shown by the petition, distinct transactions of the nature that a court of equity would refuse to consider. “When the rights of the parties are doubtful the Court will, on an application for interlocutory injunction, consider the comparative injury which will result from granting or withholding the injunction, as well as the justice of the case as it appears on the evidence.” 2 Daniel’s Ch. Pl. & Pr., 1664. We therefore conclude that the court, on the merits of the allegations of the petition, properly entered said order.

Under the circumstances a petition was the proper method of presenting the question of an injunction to the court. High on Injunctions, vol. 2, sec. 1566.

The interlocutory injunction is reversed on the ground of the insufficiency of the verification of the petition.

Reversed.


author: Mr. Presiding Justice Baldwin

text:
    H. S. Judd Manufacturing Company, Defendant in Error, v. Paris Dyeing & Cleaning Company, Plaintiff in Error.
    Gen. No. 15,633.
    Municipal, Court—when judgment not disturbed. A judgment of the Municipal Court will not be reversed unless the Appellate Court “shall be satisfied that the judgment is contrary to the law and the evidence, or that the judgment resulted from substantial errors directly affecting the matters at issue between the parties.”
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Charles Daniels and Sumner C. Palmer, for plaintiff in error.
    Lester E. Lee, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Defendant in error recovered a verdict and judgment for $325 in an action of the fourth class in the Municipal Court of Chicago, brought to recover the selling price of a washer machine which it claimed to have sold and delivered plaintiff in error. We are asked to reverse this judgment upon the contentions that (1) the court permitted the admission of improper evidence; (2) that the court made improper comments upon the testimony of a witness for plaintiff in error; and (3) that the verdict and judgment were manifestly against the weight of the evidence.

The Judd Company claims to have sold and delivered a washing machine to the Paris Dyeing & Cleaning Company, which company denies its liability and asserts that the machine was purchased, if at all, not by it, but by one Arnold Arn, then its president, and also owner of the plant of the American Dyeing & Cleaning Company, at which place thy machine was delivered and set up; further contending that it was so delivered and set up upon the understanding that, if Arn should rent the plant he should purchase the machine, or if he sold the plant, he would try and sell the washer with it.

Plaintiff in error further contends that the court below erred in allowing counsel for the other side to ask leading questions, and also in admitting testimony as to the actions of Am and Koenig, then respectively president and vice president of the Paris Company, without showing affirmatively that, at the time specified, they were acting on behalf of the company.

During the first three months of 1908 the Paris Dyeing & Cleaning Company was conducting its business at 31st street and Wentworth avenue, Chicago, and the American Dyeing & Cleaning Company plant was located a few blocks away; some time about Harch, 1908, the plant of the American Dyeing & Cleaning Company, upon which Koenig had a chattel mortgage, was bought in by Arnold Arn, and for about two months was kept open and conducted by one Arnold Gilbert, an employee of the Paris Dyeing & Cleaning Company, whose salary while thus conducting the plant of the American Dyeing & Cleaning Company was paid as usual by the Paris Company.

Two questions of fact were involved; (1) whether the Paris Company was responsible because of the alleged purchase of the machine,—its contention being that if the machine was purchased at all, it was by Arn, either acting alone or with Koenig individually, not on behalf of it; (2) whether the machine was sold at all or simply placed upon the premises and connected up, with the understanding that Arn should pay for it, if he continued to conduct the business, or that, if he sold the business, he would endeavor to sell the machine with it.

Dpon the evidence and instructions it was clearly a question for the jury to determine whether an absolute sale of the machine was made, and, if made, then to whom. The jury were specifically instructed that, in order to recover, they must believe from the evidence that the sale was made to the Paris Dyeing & Cleaning Company, and the machine delivered to it, or to the place designated by it, and accepted by it.

This case is governed by section 23 of the Municipal Court Act, which provides that this court shall not reverse the action of the court below, unless it “shall be satisfied that the judgment is contrary to the law and the evidence, or that the judgment resulted from substantial errors directly affecting the matters at issue between the parties.

The evidence was conflicting. There was evidence in the case, upon which the theory of the plaintiff, as well as that of the defendant, could have been reasonably predicated.

After a careful examination of the record, we are unable to say that the verdict and judgment of the court below were wrong. Upon the evidence heard by the jury, we might have reached a different conclusion, and yet the fact remains that here was a very heavy machine, weighing about 2,600 pounds, delivered and set up and connected with pipes to other machinery in the building, involving several days’ labor, and the consequent difficulty in removing the machine without injury, and the fact that Gilbert was in charge of the plant, and was all the time being paid by the Paris Company, and the further fact that the Judd Company sent a bill for the machine with a letter to the Paris Company, to which no reply was made for more than a month, all tend to justify the verdict of the jury.

We do not think there is any substantial ground for complaint against the action of the court in the matter of admitting evidence, nor do we think the comment which the court made upon the testimony of the witness sufficient to authorize a reversal of the judgment.

The judgment will, therefore, be affirmed.

Affirmed.


text:
    Nettie Spero, Defendant in Error, v. H. O. Shapiro, Plaintiff in Error.
    Gen. No. 15,652.
    Forcible entry and detainer—who may maintain. A vendee who has become the equitable owner of the premises may maintain forcible entry and detainer even though the legal title has not been conveyed to him.
    Forcible detainer. Error to the Municipal Court of Chicago;the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Isaac Landsberg, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Defendant in error, Nettie. Spero, brought an action in the Municipal Court of Chicago in forcible detainer to recover possession of certain described premises then occupied by Shapiro, and to recover $20 rent from him. A trial was had by the court without a jury, and it resulted in a finding and judgment in favor of defendant in error for possession of the property and for the $20 sued for. Shapiro, plaintiff in error, seeks a reversal of this judgment in this court, apparently upon the general ground that the finding and judgment are against the law and the evidence, though the brief filed in his behalf does not clearly state the points upon which a reversal is asked.

From the record it appears that in October, 1908, one Louis Papenberg, being then the owner of the premises in question, leased them to Shapiro for one year at a monthly rental of $20, and Shapiro went into possession. During the term of this lease, and on the 26th of March, 1909, Papenberg (Ms wife joining), and defendant in errox, Nettie Spero, entered into a written contract by which she agreed to buy, and he to sell and convey the premises to hex*, upon terms in said contract xnentioxied, it being provided that, when $800 had been paid in conformity with the terxns of the contract, Papenberg was to execute and deliver to her a warranty deed and take back a trust deed to secure the remaining payments. Upon this contract, and at its date, Nettie Spero paid $400 in cash. Five days later and on the 31st of March, Papenberg (by Krane & Sons, his agents), wrote to plaintiff in error, Shapiro, as follows:

“Dear Sir:
This is to notify you that Mrs. Nettie Spero is entitled to collect the rents of you for the month of April, 1909, and thereafter.” $20.”

Upon the trial, it appeared from the testimoxxy of Papenberg that he had sold the premises as above mentioned, and that Mrs. Spero was to have possession axxd all rents from April 1st, and that he authorized Krane & Sons, as his agents, to wx-ite the letter above referred to; that he saw Shapiro in the early part of April, and told him that he had sold the premises to Mrs. Spero, and that the rents would have to be paid to her.

Papenberg’s wife testified also that she was present at the conversation, and heard her husband inform Shapiro that all rents due and to become due were to be paid to Mrs. Spero.

On the 7th of April, 1909, Nettie Spex*o served a five days’ notice upon Shapiro, demandixxg possession of the property for non-paymexxt of the $20 rexxt due for April, and on the 13th began the suit. At the trial Shapiro testified that he owed and had not paid the April rent, and he admitted that Mrs. Spero had been at his house demanding the rent. He also testified that he knew she had purchased the premises and had been infoxmed by Papenberg that all rents were payable to her.

The only testimony on the part of Shapiro was that of his lawyer, Landsberg, who testified that he had practiced for two or three years in New York, and was acquainted with the records in the recorder’s office, and had examined them with a view of ascertaining the ownership of the property in question, and, upon such examination, he found that the record title to the property was in Papenberg, and that Mrs. Spero held title to that property by a contract for a warranty deed.

Though it is not altogether clear, yet it seems to be the contention of plaintiff in error, that Mrs. Spero, under the evidence shown, was not entitled to the right of possession of the property, and, therefore, could not maintain the action.

Aside from the other testimony in the case bearing upon the right of ¡Nettie Spero to the possession of the property, it should be noted that the written contract between herself and Papenberg made express provision that the deferred payments therein set out should bear “interest from April 1, 1909,” and the contract further provided that in the event of her failure to make the payments therein referred to, Papenberg and wife “shall have the right to re-enter and take possession of the premises,” and of this Shapiro, through his attorney, had notice.

The foregoing statement of facts has been "made very full, in order clearly to show why in our judgment the action bf the court below was proper. Under the circumstances disclosed in this case we think it clear that the defendant in error, ¡Nettie Spero, had such title and right to possession as to sustain her contention as plaintiff in the Municipal Court. It has been held that, where land is sold upon credit, the vendor may execute and deliver a contract for a conveyance upon the payment of the purchase money, and if this is done, the vendor holds the land as security for the payment of the purchase money, and that where real estate was thus sold by contract and the vendee let into possession, the premises become, in fact, the property of the vendee, subject to the lien of the vendor for the unpaid balance of the purchase money.

In this case, on or after April 1, 1909, the relation of Nettie Spero to the property in question was that of a vendee who, by the vendor, is let into possession, and she was, therefore, the equitable owner of the premises (subject only to the lien of the vendor for the unpaid purchase money), and entitled to the possession and rents of the property. Wright v. Troutman, 81 Ill. 374; Smith v. Price, 42 Ill. 399,

Finding no reversible error in the action of the court below, the judgment will be affirmed.

Affirmed.


text:
    John E. Barry, Appellant, v. City of Chicago, Appellee.
    Gen. No. 15,671.
    Municipal Court—wehen ordinance not presented for consideration. It it is desired that the Appellate Court shall consider ordinances of the city of Chicago they should be preserved in the stenographic report or statement of the case.
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Michael D. Dolan, for appellant.
    Edward J. Brundage, for appellee; George M. Eaglet, of counsel
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

John E. Barry, appellant, brought suit against the city of Chicago in the Municipal Court to recover $2272.20, which he claimed the city owed him for work done by him. 'He entered the employ of the city on May 24, 1898, as a day laborer and watchman in the water pipe extension department, and continued until December 10, 1901. He contends that his employment was for an eight-hour day, and that he was to receive one and one-half time for all overtime worked by him. To support this contention, he testified that, when he commenced to work for the city he talked with one Ryan, who was then superintendent and foreman of the water pipe extension department for that district, and Ryan said eight hours was a day’s work in the city, and Barry should try and keep track of any extra time, and that Ryan then said, “I will make it right with you.”

As against this contention, it appeared on the trial that, during all this time, he received and cashed vouchers for his pay twice each month, and at the trial it was also stipulated between counsel for the city and for Barry, respectively, that the payroll sheets, of the city, during the entire period, would show that he was a watchman at a fixed salary of $60 per month, and that the several installments of salary were receipted for by him upon the payroll, which showed the number of days being paid for, and “Rate: $60 per month.”

It was and is the contention of the city that Barry must fail in this action, not only because, by receipting upon the payroll from time to time, he acknowledged full payment of his salary, but, also, because, there being no evidence in the record that a previous appropriation had been made for extra time worked, there could be no liability or recovery against the city; and that, even if Barry’s foreman had told him that he should be paid for overtime, such a statement would not bind the city.

In the brief and argument submitted on behalf of appellant, a portion of the Municipal Code of Chicago, which relates to the number of hours of labor constituting a legal day’s work, is set out, as is also the section of the Municipal Court Act, which provides that the Municipal Court shall take judicial notice of all general ordinances of the city of Chicago', etc., and it is claimed in the argument that an inspection of the general ordinances of the city of Chicago for the years in question will disclose the fact that appropriations were made by the city council for the work at which appellant was engaged. Inferentially, this court is asked to assume, therefore, as if proven (because the Municipal Court was authorized to take judicial notice of the fact), that the city council made the necessary appropriations.

Sitting as an Appellate Court, we can only pass upon the record presented to us, and, if it was desired to present for our consideration any of the ordinances of the city of Chicago, they should have been included in the bill of exceptions, or stenographic report of facts, properly certified, and transmitted to this court from the Municipal Court.

In this case there is no controversy as to the actual number of hours Barry worked, nor as to the rate per hour charged by him for overtime. The city insists that he was employed at a regular fixed salary of $60 per month, which was paid to him, and for which he duly receipted from time to time, and that there is nowhere shown any authority or power on the part of Barry’s foreman to bind the city by contracting with him for overtime. ¡Nor does the record show any appropriations made by the city for the purpose of paying for the alleged overtime.

Chapter 48 of the Revised Statutes of Illinois provides that eight hours of labor in all mechanical trades, arts and employments shall constitute a legal day’s work where there is no special contract or agreement to the contrary, but it declares that this provision shall not apply to or in any way affect labor or services rendered by the year, month or week; nor shall it prevent any person from working overtime or extra hours, as he may agree. Whether or not appellant was employed by the day, week or month was a question of fact for the jury. Two payroll sheets, one dated August 31, 1899, and the other dated October 31, 1900, were introduced in evidence on behalf of the city, which showed upon their face that Barry was employed at the rate of $60 per month; and Barry’s own written signature was on the payroll where he had receipted for the money. This evidence, thus tending to show that Barry was working by the month, has not been satisfactorily controverted by him, and the jury have found that he was so employed.

In view of this evidence, and the further fact that Barry made no claim for overtime during the entire term of his service, we think the jury was fully warranted in reaching the conclusion it did.

Being of the opinion that the court below was justified in entering judgment in favor of the defendant, its judgment will be affirmed.

Affirmed.


text:
    W. C. Phillips, Appellee, v. Arnold Holinger and Eugene Hildebrand, Appellants.
    Gen. No. 15,683.

      Verdicts—when set aside. A judgment for the plaintiff will be set aside on appeal and final judgment entered if the evidence fails to show any right of recovery on the part of the plaintiff.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of fact.
    Opinion filed October 3, 1911.
    Chester Firebaugh, for appellants.
    Benjamin Levering and Hans Von Reinskerg, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

In 1903, appellee brought suit in the Circuit Court of Cook County to recover from appellants the sum of $1,562.50, under an alleged agreement that they would pay to him, as compensation for procuring a purchaser of certain real estate then in their hands as agents for sale, a sum equal to one half of the regular commissions paid for procuring purchasers for real estate in A trial was had in February, 1907, which resulted in a verdict and judgment for $1,562.50 in favor of appellee. Appellants' brought the case to this court, where the judgment was reversed and the cause remanded for a new trial upon the grounds, (1) that the evidence failed to show that appellee found a purchaser for the property; and (2) that there was no competent evidence in the record; tending to show the consideration paid by the purchaser for the property. The case is reported as Holinger v. Phillips, 140 Ill. App. 317.

The cause being remanded to the Circuit Court, a second trial was had in February, 1909, upon the same pleadings, and the plaintiff recovered a verdict for $2,048.37. At the hearing of the motion for a new trial, plaintiff remitted $848.37 from the amount of the verdict, whereupon the court denied the application for a new trial and motion in arrest, and entered judgment for $1,200. The case again comes here upon the appeal of the defendants.

Appellants assign numerous alleged errors on the part of the court below, as to the admission of evidence and as to the giving and refusing of numerous instructions referred to, and, generally, that the verdict is against the weight of the evidence and contrary to the law and the evidence in the case.

The alleged cause of action declared upon, and sought to be proven, was that Holinger and Hildebrand, having for sale, as brokers, certain Chicago real estate belonging to Braun and Fitts, employed plaintiff to procure for them a purchaser for said premises, and agreed to pay him as compensation for procuring such purchaser one half of the two and one half per cent of the consideration paid for the real estate by the purchaser, and that he did procure such a purchaser who paid for the property a consideration of $125,000.

The verdict of the jury for $2,04-8.37 evidently included somewhat over six years’ interest at 5 per cent, upon the amount originally claimed, which an instruction of the court. authorized if the jury found that the money had been withheld from plaintiff by an unreasonable and vexatious delay.

As previously stated, the record shows that, upon the hearing of the motion for a new trial, plaintiff remitted $548.37, though it nowhere appears why this amount was remitted from the verdict.

Defendants contended that the arrangement between themselves and Phillips was that, if Phillips would find a purchaser for the property, they would allow him one-half of any commissions which they might receive from the sale.

Clearly, to entitle plaintiff to recover, even upon his own theory of the case, he must establish, by competent testimony, the fact that he procured a purchaser for the property, and must also show by like evidence the consideration paid. The testimony in the case is conflicting. Phillips testified that, in 1902, while he was engaged in the business of a go-between between real estate brokers, he called upon Holinger with reference to an advertisement in a Chicago paper that certain real estate on South Water street was for sale, and told Holinger he thought he could find a purchaser for it. The property was then owned by George P. Braun and Jane W. Fitts, who had placed it in the hands of appellants to be sold for $125,000 cash. Phillips claims that the property was in Holinger’s hands for sale at $125,000, while Holinger testifies that it was in his hands for sale at $110,000 cash. Appellee claims that he then asked Holinger, “How will you give me one half of two and one half per cent if I get you a purchaser,” and to this he says Holinger assented. Phillips afterward called upon Mr. E. C. Ware, another real estate broker, who made an offer for the property in question, which offer included, as part payment therefor, the trade of certain real estate located at Riverside. Phillips conveyed this offer to Holinger, who said he would submit it to the owners, but doubted if they would accept it as they wanted cash. These transactions were prior to June, 1902, at which time Ware went on a vacation and Braun went to Europe. The negotiations up to that time, had been unavailing, as the owners would not sell upon the basis of a trade.

About December of that year, Phillips claims to have seen a notice that the property had been sold, and that he went to Holinger and told him that Ware had bought the property. Holinger subsequently authorized Phillips to go and see Braun, where he was informed that Braun himself had sold the property. Upon cross-examination, Phillips stated that, when he reported to Holinger the offer of Ware, part cash and part in trade, Holinger told him that he had the property for sale only for cash, and this statement is confirmed hy Mr. Ware, who called upon Holinger with Mr. Phillips.

It further appears from the testimony that the witness Ware did not purchase the property in question and never had any interest in it, except that he got a broker’s commission upon its sale to a sister-in-law, and it further appeared that Holinger received no commission of any sort from anyone for the sale of the property and further that he did not think his firm was legally entitled to any commission. Phillips claims that the real reason Holinger would not sue for his commission was because he was doing all of Braun’s business, and if he sued for commission in this deal, he might lose the business, which he could not afford to- do. This, however, was denied by Holinger.

Holinger testifies that, when Phillips was present in his office, he communicated with Braun about the property, and Braun said, “I am leaving for Europe tonight, and I withdraw my property entirely,” which information Holinger says he conveyed at once to Mr. Phillips, who was standing right beside him at the time he held the conversation with Braun over the ’phone.

The testimony as to the sale of the property certainly lacks definiteness as to the amount actually received for it, for it clearly appears from the testimony- of Ware that the transaction was a trade, and that he did not know how much was in trade and how much was in cash, and Ware repeats the statement that he never bought the South Water street property at all.

'After a careful consideration of the record in this case, we have reached the conclusion that Phillips is not entitled to recover. If there was any collusion between Holinger and the owners of the property for the purpose of defeating Phillips’ right to commissions, he would have a remedy in an appropriate proceeding. In our opinion, the testimony fails to show that Phillips procured a purchaser, and also fails to show definitely the amount of consideration paid by the purchaser for the property. In fact, it appears that the sale of the property was made by Braun entirely independent of appellants, and a long time after any negotiations between them, in relation to the property, had been had, and after it had been taken out of their hands for sale.

Being of the opinion that Phillips has failed to show a right of recovery against appellants, it becomes our duty to reverse the judgment of the court below, and enter judgment here in favor of appellants upon a finding of facts.

Reversed and judgment here.


text:
    Barney Kokoshkey, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 15,689.
    1. Evidence—what not competent by 'way of impeachment, etc. tt is not competent to show that a witness before testifying had threatened to testify against a party unless certain money was given where such witness on cross-examination was not interrogated with respect to such threat; neither is proof of such threat competent as independent evidence unless the authority of such witness to represent the defendant is shown.
    2. Instructions—what proper to be given. A defendant in a causo is entitled to have the jury instructed as to its theory of the case.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    H. M. Pierce, for plaintiff in error.
    John E. Kehoe and Watsoe J. Ferry, for defendant ip. error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Barney Kokoshkey, plaintiff in error, brought an action on the case in the Superior Court of Cook county to recover damages for personal injuries received by him, as a result of being thrown from a north bound Clark street trolley car, while attempting to board it, for the purpose of becoming a passenger thereon, by the alleged negligence of the street car company. A jury trial resulted in a verdict and judgment in favor of the defendant, and plaintiff brings the cause here on a writ of error.

The declaration consists of one count, in which it is alleged that the Chicago City Bailway Company owned a street railway extending north and south on South Clark street in Chicago, upon which it owned and operated as a common carrier certain street cars for the conveyance of passengers for hire, and that, when being operated northward, said cars were accustomed to stop on South Clark street at the north side of Harrison street; that plaintiff, being upon South Clark street at the north side of Harrison street, desired to become a passenger for hire upon a car which had stopped at that place for the purpose of receiving and discharging passengers ; that when said car was standing there, and while exercising ordinary care and caution, he attempted to board it, but when stepping upon it, the car was negligently started forward without warning to him, whereby he was thrown from the car and injured.

Plaintiff in error, in his brief urges this court to reverse the action of the court below, and discusses the following alleged errors on its part: (1) That one of the jurors sitting in the case was disqualified; (2) that the court erroneously refused to allow the wife of plaintiff to testify; (3) that the court erroneously gave the sixth instruction asked for by the defendant, and (4) that the verdict is against the weight of the evidence.

Counsel for plaintiff, evidently through inadvertence, has not preserved for consideration of this court the question as to the disqualification of the juror complained of, no error having been assigned with respect to the matter.

The wife of the plaintiff was called, and objection made to her competency under the statute. This objection the court sustained, whereupon counsel for plaintiff stated that he desired to show that a Mrs. Shulberg, called as a witness for defendant, came to the wife of plaintiff, and said that, if plaintiff did not give her $500, she would testify against him. We think the ruling of the court was proper, as there was no evidence in the case which rendered the testimony competent as that of an agent, and her proposed testimony was upon a collateral matter, Mrs. Shulberg not having been asked upon cross-examination concerning the matter.

The sixth instruction given for defendant, and of which complaint is made, is as follows:

“The jury are instructed that if they find from the evidence that the plaintiff attempted to board the car in question while it was in motion, then he cannot recover in this case and your verdict should be not guilty.”

Inasmuch as the declaration charged negligence against defendant only in that, after the car had stopped and while it was standing still, and while plaintiff was actually hoarding it, it was without warning suddenly and violently started; whereas the testimony on behalf of the defendant was to the effect that the car did not at all stop on the north side of Harrison street, the instruction was permissible, because the plaintiff could only recover by proving the specific act of negligence declared upon, and the defendant was entitled to have given an instruction which presented its theory of the case, there being evidence to support it.

That plaintiff was injured at the time and place alleged in the declaration is not disputed. The real controversy between the parties arose out of the manner in which the accident occurred, plaintiff contending that the car in question had stopped and was standing at the north side of Harrison street when he was boarding it, while the defendant contended, that the car did not stop at all after leaving the south side of Harrison street, until after the accident had occurred, and that it was actually in motion at the time plaintiff attempted to board it. Hpon this question the testimony was sharply conflicting. The witnesses for the plaintiff consisted of himself and Mrs. Case, Frank Berinski and Daniel Beavey. The testimony of the plaintiff was contradictory and somewhat unsatisfactory, and throughout his examination at the trial he does not seem to have had a very clear recollection of what actually did take place at the time of the accident. Mrs. Casé was a passenger sitting in the center of the car in question; Berinsky was standing on the southeast corner of South Clark and Harrison streets, and, therefore, on the further side of the crossing; while Beavey did not see the accident at all. It is apparent that neither Mrs. Case nor Berinsky was favorably situated for seeing exactly what did take place at the time of the accident, which occurred after 8 o’clock in the evening.

On the other hand, the motorman, James K. Peterson, and three passengers, Anna Kagel, Wm. McElligott and F. J. Daley, witnesses for defendant, who testified concerning the actual accident, were all standing on the front platform of the car at the time it occurred, and another witness for defendant, Louis Doerner, was standing on the curb on South Clark street at the north side of Harrison street just alongside of the car at the time of the accident. All these witnesses testified that the car did not stop at all after leaving the south side of Harrison street, until after the accident, and that it was actually in motion when plaintiff attempted to get on.

In addition, the defendant proved by one Dr. Charles A. DeLong, an interne in the Chicago Emergency Hospital, where plaintiff was taken immediately after the accident, that he talked with plaintiff within three days after the accident, and was told by plaintiff that “he signalled the car to stop and it did not come to a stop; he tried to board it, and in doing so he fell and his foot had got under.” Plaintiff, at the trial, denied having used this language, so that the jury had before it the direct contradiction between plaintiff and a disinterested witness, whose testimony really confirmed that of the several other witnesses for the defendant, who clearly were in a much better position to see what was taking place than were the witnesses for the plaintiff.

Considering the evidence as a whole, and after a careful examination, we have reached the conclusion that upon the evidence before it the jury reached a correct verdict. The evidence in the case was sharply conflicting. The jury had before it the several witnesses, and were in a far better position to judge of their credibility and of the proper weight to be given their testimony than we can. be.

Finding no reversible error in the record, the judgment will be affirmed.

Affirmed.


author: Mr. Presiding Justice Baldwin delivered

text:
    John Weinberg and Josephine Weinberg, Defendants in Error, v. Frank Oblak, Plaintiff in Error.
    Gen. No. 15,760.
    1. Judgment—when default should he set aside. A judgment entered by default, even though the service may have been technically in compliance with the statute (in this case it was not), should be set aside if the service did not in fact effect notice of the pendency of the action and a meritorious defense is set up by affidavit.
    2. Municipal Court—when has jurisdiction to set aside judgment. At ¿ny time within thirty days after a judgment in forcible detainer has been entered the Municipal Court has jurisdiction to set it aside even though proceedings have been had upon a writ of restitution and the time for appeal has passed.
    3. Forcible detainer—how summons must he served. In actions of forcible detainer commenced in the Municipal Court the summons must be served, “If the defendant be an individual, by delivering to him a copy thereof and informing him of its contents.”
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909,
    Reversed and remanded.
    Opinion filed October 3, 1911,

      John W. Bantz and Jonas O. Hoover, for plaintiff in error.
    Gentzel & Crane, for defendants in error.
   Mr. Presiding Justice Baldwin delivered

the opinion of the court.

Defendants in error, being then the owners of certain premises in Chicago, began an action in the Miuiicipal Court in forcible detainer against plaintiff in error on Hay 5, 1909. A summons was duly issued, returnable on the 10th of that month. The return made on the back of the summons reads as follows:

“Served the within summons by leaving a copy thereof at the usual place of abode of the within named defendant, Frank Oblak, with Mrs, Frank Oblak, a member of his family upwards of the age of twelve (12) years, and informing her of the contents thereof (the said defendant not being found) the sixth day of May, 1909.
Thomas M. Hunter, Bailiff.”

On the 10th of May the case was called for trial, and no one appearing for the defendant, he was defaulted, and the court entered judgment in favor of plaintiff for the possession of the property, and costs, and diréeted that a writ of restitution issue. On the 20th of that month the defendant entered his motion to vacate the judgment, which was continued by the court until June 4th. After a hearing on that date the court denied the motion to vacate, to reverse which action the case is here upon a writ of error for review.

From the bill of exceptions it appears that the notice of the motion to vacate judgment was served upon defendant in error on the 19th of May, and at the hearing numerous affidavits in support of the motion were heard. The affidavits were to the effect that Oblak’s wife, with whom the bailiff claims to have left the copy of the summons, could not understand the English language, and was not informed of the nature of the summons left with her, and did not give it to her husband, nor inform him concerning it, for she did not know what it was. Oblak himself swore that he never knew of the pendency of the cause until May 18, 1909, at which time he was served with the writ of restitution, and that he had paid all the rent due upon the premises. Upon this state of facts, we are asked to reverse the ruling of the court below.

We think that the affidavits presented to the court establish a meritorious defense to the action, and that it should have vacated the judgment and allowed the defense to be made. It is contended by the defendant in error that the Municipal Court had no power to set aside the judgment, the five days within which an appeal could be taken from the judgment having expired, and the writ of restitution thereon having actually issued and been served. Section 15 of chapter 1 of the Municipal Court Act provides that: “Every judgment, order or decree of said court, final in its nature, shall for the period of thirty (30) days after the entry thereof be subject to be vacated, set aside or modified in the same manner, and to the same extent as a judgment, decree, or order of a Circuit Court during the term at which the same was rendered.” Under this section we think the Municipal Court had power to vacate the judgment, notwithstanding the time for appeal had expired, and notwithstanding the proceedings had on the writ of restitution.

However, entirely aside from the showing of a good defense made by Oblak we think the judgment should have been set aside because summons was not properly served, and the court failed to acquire jurisdiction of the defendant.

The sufficiency of such a service of summons in a forcible detainer suit was before this branch of the court in the case of Sherman v. Green & Riley, 152 Ill. App. 166. In that case this court held that the summons was not served as required by the statute, and that the judgment rendered thereon was invalid. The court there pointed out the fact that section 48 of the Act establishing the Municipal Court, passed in 1905, provided that in forcible detainer suits “the writ of summons shall be made returnable, and shall be served in like manner, as the summons in other cases” of the fourth class in that court, and that in section 42 of the same act, it is provided that “every summons issued out of the Municipal Court shall he served, if the defendant he an individual, by delivering to him a copy thereof and informing him of its contents,” and also that there shall be attached to the copy of the summons thus served a copy of the plaintiff’s praecipe and statement of claim, and held that, according to the Municipal Court Act, substituted service was insufficient to confer jurisdiction upon the court.

Applying the law as thus announced by this court, the judgment in this case was rendered against Oblak without service of summons upon him, and the court below should have granted the motion to vacate the judgment. Williams v. Chalfant, 82 Ill. 218; Supreme Lodge v. Goldberger, 175 Ill. 19.

The order of the court, overruling the motion of plaintiff in error to vacate the judgment, is reversed, and the cause remanded to the Municipal Court.

Reversed and remanded.


text:
    Henry Zander, Plaintiff in Error, v. Oscar Metz, Defendant in Error.
    Gen. No. 15,776.
    1. Appeals and errors—what order not final. An order arresting a judgment is not final and appealable.
    2. Costs—when imposition erroneous. It is error to impose costs upon the plaintiff upon entering an order arresting a judgment. In such a case each party bears his own costs.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Dismissed.
    Opinion filed October 3, 1911,

      Charles M. Foell and Earl J. Walker, for plaintiff in error.
    William Slack, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Plaintiff in error brought an action in the Superior Court of Cook county to recover damages for personal injuries sustained by him while in the employ of the defendant in the city of Chicago. Upon a trial, the jury returned a verdict in his favor for $1500, whereupon defendant in error entered his motion for a new trial, which was subsequently overruled by the court. At the term of court succeeding that at which the verdict was rendered, but before any judgment was entered upon the verdict, the defendant in error made a motion in arrest of judgment, which, upon hearing, the court sustained. The final order, entered in the ease, was entered nunc pro tunc as of April 3, 1909, and recited that the cause had come on to be heard upon the defendant’s motion in arrest of judgment, and that, after argument of counsel and due deliberation by the court, “said motion is sustained and said judgment arrested,” to- which order the plaintiff excepted. The order further contained a judgment for costs against plaintiff and for execution, to which plaintiff excepted.

From the order it further appeared that the plaintiff prayed an appeal to the Appellate Court, which was allowed, and he was given time in which to file his bill of exceptions.

This order of April 3rd appears to have been entered “on the agreement of the parties to the suit.” Subsequently, plaintiff sued out a writ of error, upon which this hearing is now had.

The first question to be determined is whether the order of the court below arresting judgment is properly reviewable here. The proper procedure, when a court of record enters an order arresting judgment, is said to be:

“In the Superior Courts, when a judgment is arrested, there being no entry of judgment, ideo consideration est, etc. Consequently no writ of error lies; but if the decision be incorrect, the plaintiff can only proceed de novo.” 2 Chitty Pro., p. 593.

Or: “If a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, and that he take nothing by 'his plaint, writ or bill, plaintiff may commence a new action within one year.” 1 Tidd’s Pr., p. 15.

Indeed, the statutes of Illinois prescribe the procedure to be followed whenever a court of record arrests a judgment, for reasons such as are assigned in the motion which the court below sustained in this case. See Hurd’s Statutes, 1908, chapter 110, section 80.

Our statutes provide for assigning error on decisions which overrule motions in arrest,—motions for new trials, motions to amend, etc., but not on orders allowing such motions, such orders not being final. Hurd’s Statutes, 1908, chapter 110, sections 83-84. See also Puterbaugh, Common Law P., 7th edition, 738.

It appears that in two or three eases, the Supreme Court of Illinois has considered for review the action of the court below in arresting judgment,' but in two of these cases, the court below went beyond merely arresting judgment, and entered a judgment to some extent involving the merits of the case, and in the third case it does not appear that the question, as to the finality of -the order arresting judgment, was raised. Smith v. Curry, 16 Ill. 147; Fountainhead Drainage District v. Wright, 228 Ill. 208: Bragg v. City of Chicago, 73 Ill. 152.

We think the order appealed from was erroneous in so far as it contained a judgment for costs against plaintiff, and awarded execution therefor. “Our statute concerning costs, does not embrace the case of an arrest of judgment. In such case, by the rules of the common law, costs are not recoverable by either party, but each must pay his own costs. Costs are not allowed to the plaintiff, because he has no cause of action, and is not entitled to any judgment; and they are not allowed to the defendant, because he should have availed himself of the defect in the declaration by demurrer, and thus have prevented the delay and expense of a trial. Smith v. Curry et al., 16 Ill. 147; Gould’s Plead. Chap. X, Sec. 48; Cameron v. Reynolds, Cowper, 403; Pangburn v. Ramsay, 11 Johnson, 141.” However from the recitals contained in the order it appears to have been entered upon the agreement of the parties to the suit, and that being so, it clearly is not reviewable. Frank v. Bruck, 4 Ill. App. 627.

The conclusions wé have reached make it unnecessary for us to consider the arguments of counsel upon other branches of the case. For the reasons stated, the writ of error will be dismissed.

Writ of error dismissed.


text:
    City of Chicago, Defendant in Error, v. Minnie Everleigh, Plaintiff in Error.
    Gen. No. 15,787.
    1. Pleading—when defect in complaint cannot he urged. In a civil action for violation of ordinance prohibiting sale without a license of intoxicating liquors in less quantities than one gallon, a defect in the complaint cannot be first urged on review.
    2. Trial—when comment upon defendant’s failure to testify not improper. The statute which forbids comment upon the defendant’s failure to testify in his own behalf has no application to civil prosecutions for violation of ordinances.
    3. Dram-shops—what competent in prosecution for violation of ordinance. In determining the question of lioxv large a penalty should be imposed in a prosecution for the violation of an ordinance prohibiting the sale without a license of intoxicating liquors in less quantities than one gallon, it is proper for the court to consider evidence as to the circumstances under which and the place where the sale was made.
    4. Municipal Court—when errors in charge cannot he urged. If counsel for the complaining party was given the opportunity by the court below to point out errors in the instructions and he declined so to do, although then advised by the judge of the rule of the Municipal Court requiring such objections to be pointed out before the jury retires, he cannot upon review complain of the charge given.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Robert E. Cantwell, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This was a proceeding brought in the Municipal Court by a complaint and warrant against plaintiff in error for an alleged violation of section 1348 of the Municipal Code of 1905 of Chicago, prohibiting the sale, without a city license, of intoxicating liquors in less quantities than one gallon. A jury trial was had, resulting in a verdict and judgment against defendant for $100. The action of the court" below is brought before us for review upon a writ of error.

Plaintiff in error seeks a reversal here alleging that the complaint is insufficient, that the court gave erroneous instructions, that the court permitted counsel for the city to comment upon the failure of the defendant to testify, and that the prosecuting attorney referred to the house of the defendant as a “sporting house,” and the court used language conveying to the jury a like intimation.

At the outset, it should be understood that the proceeding was an action by the city to recover a penalty, and was a civil suit, only. City of Chicago v. Kenney, 35 Ill. App. 57; City of Chicago v. Knobel, 232 Ill. 112; Rev. Stat. of Ill. section 68, chapter 24. We are not prepared to hold that the complaint was not sufficient in form to justify the court in issuing the warrant complained of in a proceeding of this kind. It would, undoubtedly, have been more accurate had the complaint stated positively that, at the time and place mentioned, the offense was committed, and that affiant believed the defendant to have committed the offense. Even if such strictness might have been required in a criminal case, it cannot be complained of here, for, upon having pointed out to it the alleged defect in the complaint, and upon motion, it would have been the duty of the court to permit an amendment.

The .contention here that we should reverse the action of the court below, because it allowed the counsel for the city to comment upon the failure of the defendant to testify, is sufficiently answered by remarking that this proceeding, being but a civil suit to recover a penalty, is not governed by the strict rules of procedure in a criminal case. The statute which plaintiff in error invokes (Hurd’s R. S., p. 685, sec. 426), and which forbids such comment, has no application to civil cases. It appears that in his opening address the counsel for the city stated that he would show that the Everleigh Olub was a house of ill fame. To this statement no objection was noted by the defendant, nor was the court, in any way, asked to rule upon it. When, upon the trial, counsel for the city attempted to prove the statement, the judge remarked, “whether it is a sporting house or not, how is that material?” and refused to admit evidence upon that point.

It is further objected that the counsel for the city improperly remarked to the jury, in his closing address, that the place kept by the defendant was a sporting house. In disposing of the case, if the jury should find against the plaintiff in error, it would become its duty to fix the amount of the fine or penalty, and in determining the question of how much that penalty should be, they had the right to consider the circumstances under which, and the place where, the sale was made. Manifestly, the jury would have been justified in fixing a larger penalty, if the sale was made in a disorderly house, than if it had been made by one under different conditions. In any event, counsel for plaintiff in error himself brought out sufficient to indicate clearly the nature of the place kept by his client, so that she was in no way injured by the previous statement.

As to the objection that the court gave erroneous instructions, plaintiff in error is not in a position to. here raise that objection. It appears from the abstract that counsel for plaintiff in error was given the opportunity by the court below to point out the alleged errors in the instructions, and that he declined to do so, although then advised by the judge of the rule of the Municipal Court requiring such' objections to bo pointed out before the jury retire. This being so, plaintiff in error has no standing here, so far as this objection is concerned. Morton v. Pusey, 237 Ill. 26.

Upon consideration of the whole record, we do not find any reversible error in the action of the court below, and the judgment will, therefore, be affirmed.

Affirmed.