text:
    Adolph J. Lichtstern, Appellee, v. J. Rosenbaum Grain Company et al., Appellants.
    Gen. No. 18,796.
    1. Injunctions—interlocutory order not appealable, when. Where it is ordered that a temporary injunction issue against defendants upon complainant’s filing a specified bond, and the time within which to file the bond is not fixed, and on appeal the record does not show that any bond was filed or injunction issued, such an order is erroneous in not limiting the time for filing bond, and considered in connection with Practice Act, § 123, is not appeal-able.
    2. Injunctions—when order has no restraining influence. An order that a temporary injunction issue against defendants upon complainant’s filing a specified bond, the time within which to file the bond not being fixed, has no force or effect as an injunction until the prescribed condition is performed.
    3. Waeuhousembn—duties. The owners of a warehouse are public trustees charged with a duty to the public which does not permit them to own, directly or indirectly, any of the grain stored in their own warehouses.
    4. Injunctions — when complaint must show special injury. Where the holder of warehouse receipts seeks to enjoin defendants, owners of the warehouse, from storing any of their own grain in it, or from cleaning grain and mixing it for the purpose of storing it in such warehouse, he must show actual damage or special injury to his rights beyond the fact that defendants are indulging in a general practice affecting all holders of warehouse receipts in the same manner, which is contrary to their duty as public trustees.

      Appeal from the Circuit Court of .Cook county; the Hon. Fbedebick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed.
    Opinion filed January 9, 1913.
    Statement by the Court. This is an appeal from an interlocutory injunctional order, entered upon the motion of complainant (appellee) for a preliminary injunction, based upon the verified bill of complaint, treated as an affidavit, and upon oral evidence heard by the court, the hearing of which consumed nearly two weeks’ time, and is contained in a record of nearly two thousand pages.
    The bill alleges that the defendants (appellants) are engaged in the business of conducting grain elevators in Chicago, some of which are public warehouses and some are private warehouses and grain cleaning houses; that they are also engaged in buying and selling grain in Chicago and elsewhere; that the public warehouses are conducted under the name of Joseph Eosenbaum, while the grain business is conducted under the name of J. Eosenbaum Grain Company, an Illinois corporation, the stock of which is all owned by said Joseph-Eosenbaum and his sons and relatives; that they are all interested in the public warehouse business “to the same proportionate extent as they are stockholders” in the Grain Company; that the public warehouse business and the private grain business are all one business, and that the sole reason which defendants have for conducting it under two names is to enable them to “unlawfully and without detection store their own grain in their own public elevators and there mix it with the grain of their depositors;” that defendants are conducting in this manner six public grain elevators, having an aggregate capacity of 6,500,000 bushels; that complainant is a member of the Chicago Board of Trade, and is engaged in buying grain “in the pits for future delivery,” and carrying the same with a view of subsequently, selling it at a profit; and that he is the owner of warehouse receipts issued by J. Rosenbaum, covering over 500,000 bushels of wheat stored in defendants’ elevators. It is further alleged that for the purpose of evading the decisions of the supreme court holding that the operators of “Class A” public warehouses are public trustees and cannot, therefore, have any interest, other than as warehousemen, in grain stored in their own public warehouses, defendants have resorted to the following device or subterfuge, to-wit: Whenever the Grain Company buys any grain in the country or in the cars, it makes a sale of the same quantity for future delivery on the Board of Trade, and uses this sale as a “hedge” until the grain so purchased by it shall arrive; if upon arrival the grain thus purchased is not of the required contract grade, it is made into contract grade, and made available for delivery upon said “hedge” sale; that when ready to go to store the Grain Company makes a pretended sale thereof to one of certain selected brokers at an arbitrary price, with the understanding that the grain thus sold shall at once go to store in one of defendant’s warehouses, which being done, the warehouse receipts therefor are issued to such broker, who, immediately and as a part of the same transaction, makes an agreement with the Grain Company to sell and deliver to it the same quantity of the same grade of grain at a certain future time at a price one-quarter or one-eighth of a cent per bushel higher, plus the carrying charges, it being understood, also, that the same warehouse receipts shall then be delivered to the Grain Company by the broker; that by this artifice defendants, while apparently having no interest in the grain thus stored, are in fact the real owners of large quantities of grain stored in their own elevators, and that they threaten to continue this practice and in this manner to continue to mix their own grain with that represented by complainant’s warehouse receipts. It is further averred that one of defendants’ elevators, known as “Irondale A,” consists of eighty-four steel tanks, numbered consecutively 1 to 84 inclusive, so connected with each other by chutes, conveyors and other means of transferring grain from one tank to another as to form one warehouse; that defendants own and operate a structure adjacent to said “Irondale A,” so built as to enable them to dry and clean grain of inferior grade and mix it with grain of better quality, and that the latter building is so connected by tunnels, conveyors and belts with said eighty-four steel tanks that grain may be transferred from one to the other at will; that on May 26, 1911, defendants secured from the Railroad and Warehouse Commission a license to operate tanks numbered 43 to 84 inclusive in said “Irondale A” elevator as a public warehouse of “Class A,” and that they have been using the same as such, while at the same time they have been using tanks numbered 1 to 42 inclusive of the same structure as a house for drying and cleaning and mixing grain “with a view to raising the quality of the united mass sufficiently to pass inspection as one of the standard grades, contrary to the statute;” that the J. Rosenbaum Grain Company is constantly transferring grain which has been cleaned by it into said public warehouse, whereby the quality of the grain covered by complainant’s warehouse receipts is constantly being depreciated; that this conduct is a violation of its duty as trustee for the complainant and others who own warehouse receipts for grain in defendants’ warehouses; that by these means, defendants are in a position to receive into their public elevators wheat which “is near the bottom of the grade and just sufficient in quality to pass for a particular grade,” and when complainant shall call for the grain covered by Ms warehouse receipts, to deliver to him grain of the lowest quality of the specified grade and retain for their own use the grain of better quality to meet the receipts issued to their own brokers, and hence, are in a position where their personal interests may induce them to discriminate against the complainant.

      The hill prays that defendants may be enjoined: (1) from storing in their public “Class A” elevators any of their own grain, and from resorting to any device or subterfuge to accomplish that result; (2) from “concurrently making” any contract of sale for immediate delivery of any grain of the G-rain Company to go to store in one of defendants ’ public warehouses, and a contract of sale with the purchaser, for future delivery, of grain of the same quantity and quality at a difference in price equal to a fraction of a cent a bushel, in addition to carrying charges; and from making such contracts when it is understood that the same warehouse receipts shall be used in both transactions; (3) from using any of the tanks in the Iron-dale elevator for drying and cleaning or improving the condition or value of any grain stored therein, except upon the request of depositors (other than defendants) whose grain is stored in a private bin thereof; (4) from exacting from complainant any charges for the storage of any grain covered by his warehouse receipts; (5) from permitting any of defendants’ public warehouses to become irregular under the rules of the Board of Trade; (6) from receiving into their public warehouses any grain coming from any cleaning house owned or operated by them.
    Complainant’s oral evidence tends prima facie, to establish the essential allegations of the bill of complaint, except those relating to the alleged actual present connection between the different parts of the Iron-dale elevator, and except that there was no oral proof of any actual discrimination in the storing of grain, and appellee’s counsel stated upon the hearing that in his view of the case, such proof of actual discrimina,tion was unnecessary. The main facts regarding the customary business methods and practices of the defendants, as alleged in the bill, were not disputed, except as above stated, but the defendants denied that they ever in fact owned any grain in their own public warehouses, and denied that there was anything illegal or contrary to law in their business methods, and claimed that their concurrent sales and purchases are bona fide transactions, such as are in common use on the Board of Trade as a protection against fluctuations in the market price of grain. They sought also to prove that the object of complainant in seeking an injunction was to assist him in “cornering” the wheat market but the chancellor ruled that such evidence was inadmissible.
    Upon the evidence thus heard, complainants moved the court to grant a preliminary injunction as prayed for in the first, third and sixth paragraphs of the prayer of the bill. The chancellor denied the motion as to the third paragraph, but allowed the motion as to the first and sixth paragraphs, and it was thereupon ordered that upon complainant’s filing a bond in the sum of $100,000, with surety to be approved by the clerk of the court, a temporary injunction issue against the defendants and their agents and servants, restraining them until the further order of the court, from directly or indirectly, or by “any device or subterfuge, including the practice of selling for cash for present delivery and simultaneously buying back for future delivery the same kind of wheat,” or by any other means, storing in any of their public elevators any wheat in which they have any interest other than as warehousemen, and from mixing together anywhere any wheat of different grades for the purpose of storing the same in any of their public warehouses. The defendants appeal from this order.
    Mayer, Meyer, Austrian & Platt, for appellants.
    Henry S. Robbins and Francis G. Hanchett, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

While counsel have presented and discussed at length a number of interesting legal questions which undoubtedly it would be necessary for us to decide if this were an appeal from a final decree, we have reached the conclusion that but two of them are of controlling importance upon this appeal from an interlocutory order. These two questions may be stated as follows: First, is the order appealable; or if appealable, is it erroneous, in view of the fact that it directs an injunction to issue upon the condition that the complainant file a bond of $100,000 without fixing or limiting any time when or within which it must be filed; second, is the right of appellee to maintain this bill sufficiently free from doubt as to justify the issuance of a preliminary injunction in the absence of any affirmative showing of irreparable injury to him?

The order does not, in terms, enjoin or restrain the defendants from doing anything, nor does it, in terms, expressly require the complainant to file the specified bond, nor fix any time within which he may file it. It is, therefore, entirely optional with him when, if ever, the injunction shall “issue.” The record does not show that any injunction bond was ever filed, nor any injunction actually “issued.” Appellant’s counsel state in their brief, and appellee’s counsel conceded, on the oral arguments, that in fact no bond has even yet been filed. It is an elementary principle in the law of injunctions, that “the utmost care should be observed in the granting of preliminary injunctions,” and that such an injunction “should only be allowed upon a clear necessity being shown of affording immediate protection to some right or interest of the party complaining which would otherwise be seriously injured or impaired.” 1 High on Injunctions, sec. 10. By the terms of this order, however, the court in effect delegated to the complainant the power of deciding for himself whether his need was urgent or otherwise, and placed in his hands the right to use or not to use, in his discretion, the “strong arm of the court.” Until the complainant shall decide whether he needs an injunction and whether his need is sufficiently urgent to induce him to file a bond for $100,000, no injunction can “issue” under the order of the court. Until then, the order, in itself, has no restraining force or effect, for there is nothing elsewhere in the order which either expressly or by implication, enjoins or restrains the defendants from continuing the practice complained of. They could not be punished for contempt for so doing, for the reason that such an order has no force or effect as an injunction until the prescribed condition is performed. Winslow v. Nayson, 113 Mass. 411; Clarke v. Hoomes’ Ex’rs, 2 Hen. & M. (Va.) 23; State v. Irwin, 30 W. Va. 404 ; 2 High on Injunctions, secs. 1429, 1620, 1621. While it is true that whatever the defendants may do, or may have done, since the court below acquired jurisdiction, has been and will be done at the risk of being compelled to restore the conditions then existing, yet this was true as well before the interlocutory order was entered as since it was entered. Hence the order, in itself, imposed no additional restraint, if it can be called such, in this respect.

Section 123 of the Practice Act, which governs appeals from interlocutory orders, requires an appeal to be “taken” within thirty days from the “entry” of the order, and to be “perfected” in this court within sixty days, whereupon the hearing of such an appeal takes precedence of all other causes in this court. The statute further provides that “the force and effect of such interlocutory order * * * shall not be stayed during the pendency of such appeal.” While it would seem clear from the language of this section of the statute, that the right of appeal would be lost if not exercised within the statutory thirty days from the date when the order is entered by the lower court, whether such order is in force during such thirty days or not, yet it by no means follows that the lower court may properly enter an order purporting to grant an injunction, in such form as to have no restraining force or effect “during the pendency of such appeal.” The contrary would seem to be clearly implied from the provision above quoted to the effect that the appeal shall not operate to stay the force and effect of the order appealed from. Evidently the legislature assumed, when it enacted this provision of the statute, that no order would be entered granting an interlocutory injunction, until after it has been made to appear that the necessity for such action is urgent, and that such order, when entered, would be immediately effective, or at least, would be made effective within thirty days. If, however, an order is entered which, does not expressly enjoin the doing of the acts complained of, but merely provides that a temporary injunction may issue at any time thereafter that the complainant shall see fit to file a bond of a specified amount, or shall see fit to perform some other specified condition, the fact that the order is so entered is, of itself, strong evidence that no such urgency exists as to warrant the issuance of a writ of injunction pendente lite. In our opinion, the order is erroneous in not fixing a short time, not exceeding thirty days, within which the specified condition must be performed, so that if the condition be performed, the interlocutory injunction order will be in force and effect when an appeal is taken therefrom, and this court will have before it for decision a live question; or, on the other hand, if the condition be not performed within the time limited by the order, then there will be no occasion for an appeal. We think the language above quoted from the Practice Act is entirely inconsistent with the theory that the legislature intended to require this court to hear and determine questions regarding the validity and propriety of interlocutory injunetional orders which are not in force at the time they are brought before us for review, especially in view of the provision requiring us to give such appeals precedence over all other causes.

As to the second question above stated, counsel for appellee took the position, both in the court below and in this court, that it was unnecessary for the complainant to either allege or prove any actual damage or injury to complainant’s rights beyond the mere fact that defendants are indulging in a practice which is contrary to their duty as trustees for the holders of warehouse receipts. It will be noted that the order as entered does not purport to authorize the issuance of any injunction restraining defendants from doing anything to the prejudice of the complainant alone, but from indulging in the practice of storing any of their own wheat in their own warehouses and of cleaning wheat anywhere for such purpose. The argument was and is, that an equitable principle, viz.: a trust, is involved; that while defendants are public trustees and charged with a duty towards the public which will not permit them to own, directly or indirectly, any of the grain stored in their own warehouses, or to mix grain for the purpose of sending it to store in such warehouses, as was held in Central Elevator Co. v. People, 174 Ill. 203, and Hannah v. People, 198 Ill. 77, yet there is a special trust in favor of the holders of their warehouse receipts; and that on this principle, the complainant as one of the cesiuis que trust, may maintain a bill to enjoin any violation of duty by defendants as such trustees. To this argument, appellants’ counsel reply that for any violation Of the defendants’ duty as public trustees, the public, only, can complain, through its authorized, representative, the attorney-general; that no private individual can maintain an action based upon any alleged breach of a public duty unless he avers and proves some special injury, different in kind, and not merely in dégree, from that of the public generally.

Without undertaking to analyze the numerous authorities cited by counsel in support of their respective contentions, it will suffice to say that from our examination of these, and other authorities, it is apparent to us that the right of the complainant to bring this suit, in the absence of any showing of special injury and particularly his right, as an individual receipt holder, to an injunction which restrains the defendants from continuing an alleged general practice affecting all present and future holders of warehouse receipts in precisely the same manner that it affects him, is so very doubtful that no preliminary injunction should have been issued. The right to a preliminary injunction under similar circumstances was denied in Weed v. Roberts, 49 N. Y. Supp. 366; Fritz v. Erie City Pass. Ry., 155 Pa. St. 472; Ryan v. Williams, 100 Fed. 177.

For the reasons indicated, the order of the circuit court will he reversed.

Order reversed.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    John O. Weisse, Defendant in Error, v. Frank L. Fowler, Plaintiff in Error.
    Gen. No. 17,483.
    1. Contracts—consideration. The compromise of a claim is sufficient consideration for a promise to pay it, even if the claim is doubtful.
    2. Mechanics’ liens—waiver of lien a consideration. A promise by an owner to pay the claim of a subcontractor rather than have such contractor place a mechanic’s lien upon the property is based upon a good consideration.
    3. Mechanics’ liens—when agreement to forbear is consideration for promise to pay. Where an owner promises to pay a subcontractor for material furnished and the subcontractor agrees to do nothing until a certain day, and permits the time within which he should have filed notice of a mechanic’s lien to elapse without filing the same, there is a forbearance or an agreement to forbear that is a sufficient consideration for the promise to pay, and it was not necessary that the subcontractor should agree upon a fixed and definite time to which the forbearance should go.
    4. Contracts—when forbearance is sufficient consideration. An understanding that a debtor shall be indulged for a reasonable time, or indulged generally, and an actual forbearance for a reasonable time, is sufficient consideration for a promise to pay.

      Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 9, 1913.
    Rehearing denied January 23, 1913.
    Fowler, McDonnell & Rosenberg, for plaintiff in error.
    Frederick A. Brown and William R. T. Ewen, Jr., for defendant in error; R. C. Sercomb, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

We are asked to reverse a judgment obtained by John 0. Weisse against Frank L. Fowler in a suit in the municipal court. In brief, the facts are that on April 1, 1909, Fowler entered into a contract with one Peterson to make certain alterations in and additions to his house in Wilmette, Illinois. Pursuant to said contract Peterson employed Weisse to furnish certain mill work to be used in the house, for which Peterson agreed to pay plaintiff the sum of four hundred dollars. Additional material was ordered to the value of $9.50. Delivery of this material was commenced on April 14, 1909, and the last delivery was made on November 16, 1909, and all of such material was used in the work in the Fowler house. Peterson gave Fowler a sworn statement of the amounts to become due, showing the amount due Weisse for said material in the sum of $409.50. A question arose as to whether Peterson could complete his work within the figure named in his contract, and some letters passed and interviews took place between Weisse and Fowler concerning the payment of the Weisse claim. About a month after the last shipment Weisse called at Fowler’s office and left word with his clerk (Fowler being out of the city) to tell him that he, Weisse, would have to protect himself and that they should come to some settlement. This was communicated to Fowler, who wrote Weisse under date of January 8, 1910, as follows:

“My Chicago office advise me that you called in my absence. I am entirely willing to pay for all material delivered to my building at what it is worth, provided the same has been used therein and is accepted. I have not been able to get Mr. Turnock, the architect, to check up this material yet, but I am trying to get him there the forepart of next week and I will advise you as soon as he does so.”

Weisse relied upon this letter as containing the promise of Fowler to pay for the materials, and brought suit. The trial court held that this constituted a personal obligation upon Fowler, and rendered judgment for Weisse. To avoid the effect of this promise, it is urged by the plaintiff in error, Fowler, that it was given without consideration; to which the defendant in error replies that on the date of the letter Weisse had a valid claim against Fowler’s property for a mechanic’s lien, which he agreed to waive. Without discussing the opposing arguments made by counsel, it is sufficient to say that the compromise of a claim is sufficient consideration for a promise, and this is true even if the claim is doubtful. McKinley v. Watkins, 13 Ill. 140. That a promise by an owner to pay the claim of a subcontractor rather than have a lien placed on the property is based upon a good consideration is held in St. Clair v. Perrine, 75 Ill. 366; Cornell v. Central Electric Co., 61 Ill. App. 325; Allmendinger v. McDonald Lumber Co., 82 Ill. App. 166. Many other cases might be cited in support of this proposition.

It is further argued by plaintiff in error that forbearance without an agreement on the part of the creditor to forbear is not a sufficient consideration. This contention is answered by reference to the evidence, in which it appears that Weisse in writing acknowledged the receipt of the letter of January 8th, and because of its promise agreed to do nothing until February 1st. It also appears that Weisse permitted the time within which he should have filed notice, under the statute, of his claim for a lien, to go by without filing the same; so that there was in effect a definite forbearance. But even if this were not the case, we do not think that it was necessary to show that Weisse agreed upon a fixed and definite time to which the forbearance should go. The rule seems to be that an understanding that a debtor shall be indulged for a reasonable time, or indulged generally, and an actual forbearance for a reasonable time, will be sufficient. McMicken v. Safford, 197 Ill. 540.

Claim is made by plaintiff in error that in any event the promise to pay was conditioned upon the material furnished by Weisse being used in Fowler’s building and accepted, and it is said that there is evidence showing that some of the material was not used. An examination of the record leads us to the opinion that the .contract was substantially complied with, and there being no objection of any moment to the materials furnished, Fowler must be held to have accepted the same.

For the reasons indicated the judgment of the lower court is affirmed.

Affirmed.


text:
    Illinois Malleable Iron Company, Defendant in Error, v. James Tompary and Thomas L. Reeve, Trading as Model Plumbing Company, Plaintiffs in Error.
    Gen. No. 17,574.
    1. Mechanics’ liens—rules of municipal court. Where a subcontractor files a statement of claim in the Municipal Court of Chicago against an owner and a contractor for a mechanic’s lien under section 28 of the act which provides that the owner is liable for no more than the pro rata share that the subcontractor would be entitled to with other subcontractors, and that a right to a lien must be established and that a judgment shall be enforced against the owner only to the extent that he is liable under his contract, a judgment by default for want of an affidavit of defense for the amount claimed is contrary to the statutes and is improper, and it cannot be contended that the rules of the Municipal Court dispensing with precision in statements of claim and allowing default judgments on failure to file an affidavit,of defense permit the lien characteristics of the suit to be abandoned and a personal judgment to be obtained under such rules rather than a judgment for a mechanic’s lien.
    2. Mechanics’ hens—when personal judgment against the owner is improper. In an action by a subcontractor against an owner and a contractor to establish a mechanic’s lien under section 28 of the act, a personal judgment cannot be obtained against the owner where the only evidence before the court is a claim for a mechanic’s lien.
    3. Municipal coubts—sufficiency of affidavit of defense in mechanic’s lien action. In an action in the Municipal Court of Chicago by a subcontractor against an owner and a contractor to establish a mechanic’s lien under section 28 of the act, an affidavit of merits of defense by the owner in proper form alleging that there was nothing due to the contractor from the owner under the contract between them, is sufficient.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed January 9, 1913.
    Rehearing denied January 23, 1913.
    Caswell & Healy, for plaintiff in error, James Tompary.
    Eastman & White, for defendant in error; Ralph R. Hawxhurst, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

The Illinois Malleable Iron Company, hereinafter called plaintiff, obtained a judgment against James Tompary and Thomas L. Reeve in the municipal court, which is brought by Tompary to this court by writ of error for review.

The plaintiff filed its statement of claim in the municipal court against James Tompary, Warren L. Peck and Thomas L. Reeve, stating that its claim was for a mechanic’s lien on property described, for goods, wares and merchandise sold by plaintiff to defendant Thomas L. Reeve, who had a contract with James Tompary, the owner of said premises, for the improvement of same, which goods, wares and merchandise (specifically described) were delivered by plaintiff to said premises. Plaintiff said it was employed by said Thomas L. Eeeve to furnish this material, being plumbing fixtures, to said premises for the improvement thereof, and accordingly did deliver the same for the benefit of said premises. To this was attached an affidavit to the effect that the nature of plaintiff’s demand was for a mechanic’s lien against said premises in the amount of $109.21. Summons was issued and served on all defendants. Tompary and Peck filed appearances, but Eeeve was defaulted for failure to appear. Plaintiff amended its statement of claim by adding that the statutory notice was duly served by plaintiff through its agent upon the said James Tompary on October 14, 1910, and that the last delivery of goods on the premises was made on October 15, 1910. Peck was subsequently .dismissed by stipulation. Tompary filed his affidavit of merits, stating that he “is not indebted to the defendant, Thomas L. Eeeve.” The trial court struck this affidavit of merits from the files and entered judgment by default against Eeeve and Tompary for want of an affidavit, in the sum of $109.21, and ordered that execution issue therefor.

Defendant Tompary urges that this judgment is improper for the reason that it is contrary to section 28 of the Mechanic’s Lien Act, under which suit was commenced. This section provides in substance that a subcontractor may sue the owner and contractor jointly for the amount due him, in any court having jurisdiction of the amount claimed to be due, and a personal judgment may be rendered; but, as in suits to enforce the lien, the owner shall be liable for no more than the pro rata share that such person would be entitled to with other subcontractors out of the funds due to the contractor from the owner under the contract between them, and such action at law shall be maintained against the owner only in case the plaintiff establishes his right to the lien. All such judgments where the lien is established shall be against both jointly, but shall be enforced against the owner only to the extent that he is liable under his contract, and shall recite the date from which the lien attached.

That this is the law is conceded by plaintiff, which replies that although the origin of the suit was to establish a mechanic’s lien, the lien characteristics were abandoned and the suit ripened into a personal judgment under the rules of court, and not a judgment for a mechanic’s lien. It is claimed that this practice is justified by the rules of the municipal court dispensing with precision in the allegations of the statement of claim, and also providing that upon failure of a defendant to file a proper affidavit of merits, the plaintiff shall be entitled to judgment, as in case of default. It is manifest that if the contention of the plaintiff is correct, then the rules of the municipal court have enlarged the provisions of the Mechanic’s Lien Act by giving to a subcontractor greater rights than the statute has given him, and also by imposing upon the owner a larger measure of liability. We cannot assent to this contention. If plaintiff was entitled to a judgment as in the case of default, it was entitled only to the judgment permitted by the Mechanic’s Lien Act. We also are unable to understand by what rule such, a personal judgment could be rendered against the defendant Tompary, where the only evidence before the court is a claim for a mechanic’s lien.

We do not understand from anything said in the briefs that we are called upon to pass upon the sufficiency of the affidavit of merits, although from what we have above said it must follow that an affidavit in proper form alleging that there was nothing due to the contractor from the owner under the contract between them would be sufficient.

For the reasons above indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Lizzie Davis, Defendant in Error, v. Taylor A. Snow, Plaintiff in Error.
    Gen. No. 17,600.
    Appeals and errors—when judgment based on credibility of witness will not be reversed. Where, on an issue of fact whether a note was delivered or stolen, the contradictory testimony was irreconcilable and the evidence resolved itself into an issue as to the credibility of two witnesses, held, a judgment on a non-jury trial for the holder of the note was not so manifestly against the weight of the evidence as to warrant setting it aside.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 9, 1913.
    Mather & Hutson, for plaintiff in error.
    George W. Hess, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Lizzie Davis, hereinafter called plaintiff, recovered a judgment in the municipal court against Taylor A. Snow, hereinafter called defendant, on a trial by the court. We are asked to reverse this judgment, and the principal point urged upon this court is that the finding of the trial court is contrary to the weight of the evidence.

The suit was brought by plaintiff upon a promissory note executed by defendant, dated July 27, 1909, payable six months after date to the order of “himself,” for $450, with interest at six per cent, per annum. The note was endorsed, “Pay to the order of ---Taylor A. Snow.” Plaintiff claims that this note was delivered to her on September 25, 1909, by a Mr, Fay, who was acting for a Mr. Commons; that she paid four hundred dollars for it. The defendant admits the making of the note, but claims that it was never delivered to anyone but remained in his possession until after maturity, and that it was then stolen from his vault, presumably by Commons, his former partner.

A considerable amount of testimony by many witnesses was presented upon the trial, and it would serve no useful purpose to restate the same in this opinion. If Commons’ story is to be believed, the defendant and he had a settlement of a partnership account on about the date of the note, and shortly thereafter, in the early part of August, 1909, the defendant delivered the note in question to Commons in settlement of this account. This story is not necessarily inconsistent with the statements of the witnesses for defendant, who testify as to what they saw take place on July 27th, at the time the note was drawn up and signed. Furthermore, if the defendant subsequently made a duplicate of this note and kept it in his possession among the papers of the so-called “Indiana mortgage,” the testimony of the witnesses who say they saw the note with these papers in Snow’s possession in December, 1909, and again in March, 1910, is explicable and is not necessarily inconsistent with the story of plaintiff’s witnesses. On the other hand, if the defendant’s story is to be believed, there is no escape from the conclusion that Commons stole the note, and that both he and the other witnesses for the plaintiff are unworthy of belief. The contradictory testimony of Commons and of the defendant cannot be reconciled upon any reasonable hypothesis.

These considerations are suggested, not as indicating any opinion of this court upon the facts, but solely for the purpose of showing that all of the evidence resolves into the ultimate issue as to the respective credibility of Commons and the defendant. This was the fundamental question before the trial court. In a case like this the trial court has the opportunity of seeing the witnesses, of considering their manner of testifying, and observing 'many other things which lead to a conclusion as to the credibility of the parties testifying. This court is deprived of these aids, and therefore must place great reliance upon the judgment in this regard of the trial court. In this case apparently greater weight was given by the trial court to the testimony of Commons, and we should not disturb this conclusion unless we can say that the finding of the court was manifestly against the weight of the evidence. After extended consideration of the entire record before us, we cannot say that the conclusion of the trial court was so manifestly against the weight of the evidence as to warrant us setting it aside, and therefore it should be allowed to stand.

Other points suggested we deem to be without merit.

The judgment is affirmed.

Affirmed.


text:
    E. J. Magerstadt, Executor, Defendant in Error, v. White Lumber Company, Plaintiff in Error.
    Gen. No. 17,640.
    Landlord and tenant—when attempt to malee repairs is not eviction. Where the lessee of a lumber yard and dock has removed most of its lumber, intends to move in a short time, and has not unloaded vessels at the dock for some time, the placing of a pile driver on the dock, which is removed within two hours after objection made, to make necessary repairs, is not an eviction, particularly where the lease permits the lessor to enter to make repairs or improvements.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 9, 1913.
    Harvey Strickler, for plaintiff in error.
    Adler, & Lederer, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

The defendant in error, B. J. Magerstadt, as executor of the estate of Louis Hutt, deceased, hereinafter called plaintiff, caused judgment by confession to be entered in the municipal court against plaintiff in error, the White Lumber Company, hereinafter called defendant, upon a written lease of a lumber yard occupied by defendant as lessee. The judgment was for the rent for April, 1911, the last month of the term of -the lease. Defendant made a motion to vacate the judgment, and supported the motion by an affidavit made by the president of defendant. IJpon hearing of said motion the president and vice president of defendant testified on its behalf. Thereupon the court overruled the motion to vacate, and the judgment was permitted to stand. Defendant in this court seeks to have this judgment reversed.

The facts before the trial court, briefly stated, were that defendant was engaged in the lumber business, with yards on the premises leased from plaintiff. These premises were located upon a slip from the south branch of the Chicago River, along which there was a dock 475 feet in length. That on March 16,1911, a pile-driver was placed on the edge of the yard to fix the dock and that repairing of the dock then proceeded at that point; that plaintiff upon hearing that defendant objected to the pile-driver on its dock had the pile-driver removed within two hours; that the dock in. question had a number of its piles and capping rotted away and needed repairing; that the defendant had removed most of its lumber to a new yard, and intended removing all of its lumber to this new yard about May 1, 1911, and had placed no new lumber on the premises in question for months prior to the acts referred to. No vessels had been unloaded at said dock for some time.

• It is claimed that this conduct of the plaintiff in causing the placing of the pile-driver upon the dock and in making repairs constituted an eviction of the defendant from the premises which would relieve it from liability for rent.' We canot give assent to this claim. The attempt to make repairs upon the dock cannot be said to amount to an eviction. It has been said that “whether there is an eviction in any case depends on the intention of the landlord as shown by the evidence.” McCormick v. Potter-Herrick Wall Paper Mills, 147 Ill. App. 487, and cases there cited. And the rule has been stated to be, and approved many times, that eviction is “not a mere trespass and nothing more, but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises. ’ ’ (Hayner v. Smith, 63 Ill. 430; Lynch v. Baldwin, 69 Ill. 210; Walker v. Tucker, 70 Ill. 528.) In the light of these authorities, the evidence before the court did not justify a finding of an eviction. Furthermore, the lease contained provisions which permitted plaintiff to enter the premises for the purpose of making repairs. For instance: “The said first party shall have the right to enter said premises at any and all times by himself or his employees for the purpose of making any alterations, additions or improvements he may deem desirable, and the second party shall not be entitled to, or claim from the party of the first part, any damages or rebate resulting from the making of any alterations, additions or enlargements to said building.” And again the lessee covenants to allow the lessor free access to the premises for the purpose of making “any needful repairs or alterations in said premises which said first party may see fit to make.”

Finding, as we do, that the trial court correctly overruled the motion to vacate the judgment, it will be affirmed.

Affirmed.


author: Per Curiam.

text:
    Rose Cohn, Plaintiff in Error, v. M. J. Lewis et al., Defendants in Error.
    Gen. No. 18,586.
    Municipal court—certificate of trial court. The appellate court may on motion-strike from the transcript of the record an instrument designated “a correct statement of facts of the proceedings on the trial and of such other proceedings in the case to be reviewed,” where there is no certificate of the trial judge that it is a correct statement of facts appearing on the trial and of the questions of law involved and of the decisions of the court thereon as required by the Municipal Court Act.
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Writ of error dismissed.
    Opinion filed January 8, 1913.
    Joseph Kohn, for plaintiff in error.
    Sabbath, Levinson & Stafford, for defendant in error.
   Per Curiam.

A motion has been made in this case to strike from the transcript of the record an instrument designated “a correct statement of facts of the proceedings had on the trial of said cause and a correct statement of such other proceedings in the case to be reviewed.”

An examination of the document shows it does not conform to the statute. There is no certificate of the trial judge that it is a correct statement of facts appearing upon the trial and of the questions of law involved and of the decisions of the court thereon. We find in the record an order extending the time in which to file a stenographic report, hut none was filed. The motion is granted. Seehausen Wehrs & Co. v. Interstate S. & I. Co., 150 Ill. App. 179; Levy v. Frohlich & Co., 172 Ill. App. 170; Allen v. Roughan, 175 Ill. App. 380.

A further motion is made that the writ of error be dismissed. We find no assignment of error which can be considered in the absence of a “stenographic report of the proceedings had at the trial,” or a “correct statement of the facts,” etc., as required by paragraph 6 of section 23 of the Municipal Court Act. The writ of error will therefore be dismissed.

Writ of error dismissed.


author: Mr. Presiding Justice Clark

text:
    Robert Quait, Plaintiff in Error, v. Wortham Brothers Company et al., Defendants in Error.
    Gen. No. 17,750.
    1. Chancery—when hill properly dismissed for want of equity. A bill is properly dismissed for want of equity where no relief is asked by complainant for himself, but an accounting by the receiver in bankruptcy of defendant company is prayed, and certain of his actions and a composition settlement are complained of, and it is not stated that the proceedings are terminated and the receiver discharged; and where it is further prayed that certain amounts collected from certain defendants be distributed among the creditors of defendant company, but complainant is a stockholder and not injured by alleged fraudulent acts of the officers of defendant company, it not being claimed that the assets of the company were sufficient to pay creditors when it ceased to do business.
    2. Bankruptcy—actions of receiver, how attacked. Actions of a receiver in bankruptcy may not be attacked in the state courts, but the United States courts must be resorted to for relief as to his acts.
    3. Corporations—when hill to wind up demurrable. A bill to wind up a corporation under Corporation Act, section 25, is demurrable where all the stockholders are not made parties.
    Error to the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed January 14, 1913.
    Edwy Logan Reeves, for plaintiff in error.
    Hiner, Bunch & Latimer and R. K. Welsh, for defendants in error; Moses, Rosenthal & Kennedy, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This is a writ of error taken from a decree entered in the Circuit Court of Cook County dismissing an amended hill of complaint for want of equity.

From the bill it would appear that the defendant, Wortham Brothers Company, was a corporation organized under the laws of Illinois, with a capital stock of $100,000, of which complainant was the owner to the extent of $3,000; that after having carried on its business elsewhere it moved to Rockford, Illinois,- on January 15, 1906, and thereafter carried on business in that city until August 21st of the same year, when, upon the petition of creditors, it was thrown into bankruptcy. The bill then alleges that one Stevens was appointed receiver; that the inventory, of the receiver showed that he found assets of upwards of $86,000; that claims of creditors were proved against the corporation of upwards of $60,000; that the receiver carried on said business for a period of four months; that his receipts exceeded his disbursements and his report showed cash on hand at the end of the receivership of $10,351, “which said sum of money,” the bill alleges, “should have been turned over to the corporation by the receiver, and by the corporation paid to its creditors, but instead of so doing, the receiver, confederating with three of said creditors, wrongfully diverted the said money to the payment of the claims of three certain favored creditors;” that there was a composition made with the creditors on the .basis of 37% cents on the dollar; that the money necessary to pay the same was deposited with the clerk of the United States District Court for the Northern District of Illinois; that said composition was not fairly effected; that the defendants composing the firm of Carson Pirie Scott & Company, the Rockford National Bank and H. B. Claflin & Company had claims of various amounts; that they signed the agreement to accept 37% cents on the dollar in payment of the claims, as an inducement to other creditors to consent thereto; that they had a secret arrangement with the receiver whereby the receiver was to pay them the full amount of their claims to the damage of the other creditors. The bill further alleges that the said receiver delivered to the Wortham Brothers Company after the composition, merchandise and fixtures not disposed of to the value of upwards of $26,000, but did not pay over any part of the $10,351, but diverted the same in fraud of the general creditors and divided the same amongst the three certain favored creditors heretofore mentioned ; that the corporation continued in business until about February 1, 1907, when a pretended sale of the merchandise was made by it to one W. S. Martin; that the goods were shortly thereafter damaged by fire, and the said Martin received from the insurance company nearly $22,000 in settlement of the damages sustained to the stock of goods; that Martin was a relative of the Wortham Brothers and a man of no financial means or business experience; that the sale was not a bona fide sale of the assets of the Wortham Brothers Company; that said Wortham Brothers Company after making the said sale ceased doing business under its charter, leaving large amounts due to its creditors and unprovided for; that on July 28, 1909, the defendant W. S. Martin Company was incorporated, with a capital stock of $15,000, the stock being issued to Martin and two of his daughters; that the incorporators were the three persons mentioned, together with W. C. Stevens, who previously had been receiver of the Wortham Brothers Company; that Horace Wortham, the manager of the business, was the husband of N. C. Wortham, one of the daughters of Martin referred to, and that Martin was secretary and treasurer of the company, and had no capital or credit. After other allegations not necessary to be stated the bill sets forth that part of the assets or proceeds thereof held by the Martin Company rightfully belonged to the Wortham Brothers Company.

The prayer of the bill is as follows:

‘ ‘ That the defendant may be decreed to account for all assets, cash and credits received by them from Wortham Brothers Company, or William L. Wortham, Horace L. Wortham and Jesse L. Wortham, between August 20, 1906, and January 1, 1909, and that William L. Wortham, Horace L. Wortham and Jesse L. Wortham may be decreed to account for all assets, cash and credits received by them or either of them between the date of August 26, 1906, and January 1. 1909, and that said Wortham Brothers Company may be decreed to account for all assets, cash and credits received by it from the receiver in bankruptcy, and that Webb C. Stevens may be decreed to account for $10,351, and that the Rockford National Bank may be decreed to account for all payments received by it in excess of thirty-seven and one-half cents on its claim of $10,000, and that Carson Pirie Scott & Company, a copartnership, may be decreed to account for all payments received by them in excess of thirty-seven and one-half cents on the dollar in their claim of $5,254.11, and that H. B. Claflin & Company may be decreed to account for' all payments received by it in excess of thirty-seven and one-half cents on the dollar on its claim of $1,768.57, and that a receiver be appointed for the Wortham Brothers Company, a corporation, with the usual powers to collect and distribute the same according to the respective rights of the creditors, and that the said composition settlement as aforesaid be set aside and held for naught as aforesaid.”

General and special demurrers were filed and sustained. The complainant did not desire to amend the bill, and a decree thereupon was entered dismissing it for want of equity. The action of the court seems to have been justified for various reasons. It will be noticed from the prayer of the bill that no relief is asked by the complainant so far as he himself is concerned. It is asked that certain of the defendants be decreed to account for certain assets, cash and credits received by them, not on behalf of the complainant, but on behalf of the creditors of the defendant Wortham Brothers Company. .

We are not advised by the bill whether or not the proceedings in the United States District Court were terminated, nor whether the receiver was discharged by that court. The bankruptcy proceedings appear to have been brought August 21, 1906, and the composition was probably effected some time thereafter. We might presume that the proceedings in bankruptcy were terminated, as the bill alleges that “said corporation continued in business until on or about January 1, 1907,” when the sale of its merchandise was made to Martin.

There is no way by which the actions of a receiver in bankruptcy may be attacked in the state court. The United States Court is the tribunal to be resorted to for relief as to any of his acts of which complaint is made. The composition settlement is attacked, but that too is a matter entirely within the jurisdiction of the Federal Court.

The prayer of the bill is that the amounts collected from the various defendants be distributed according to the relative rights of the creditors. The complainant is not a creditor, but a stockholder, and if, as would appear from the bill, it is not claimed by the complainant that the assets of the defendant, Wortham Brothers Company, were sufficient at the time it ceased to do business to pay the creditors, it must follow that the complainant was not injured by the actions of the corporation through its officers, as set forth in the bin.

It is insisted by the complainant that the purpose of the bill is to wind up the corporation, under section 25 of the Corporation Act. If that is its purpose it is demurrable, because ah of the stockholders are not made parties.

We find it unnecessary to consider other objections which are made to the bill and discussed in the briefs. For the reasons given the decree will be affirmed.

Decree affirmed.


text:
    State Bank of Chicago, Administrator, Plaintiff in Error, v. Mandel Brothers, Defendant in Error.
    Gen. No. 17,768.
    1. Master and servant—injury in line of duty. At the time when it was the custom for elevator conductors, to clean their cars, a conductor was found in a compartment adjoining his elevator with his head crushed and in contact with a moving counterweight of another car. There was no open space along the side of decedent’s elevator car, which contained a window, other than such compartment, the doors of which had been seen to be open two or three times. The purpose of the compartment was to prevent contact with the machinery of the elevators and at the same time permit it to be easily oiled and cared for. Held, no inference could be drawn that the deceased, in the line of his duty, 'was cleaning the outside window of his elevator, and a peremptory instruction was properly granted.
    2. Master and servant—when doctrine of attractive nuisances does not apply. Where a nineteen-year-old elevator conductor is found dead in a compartment that contained elevator machinery, adjoining his car, the doctrine of attractive nuisances has no application.
    3. Appeals and errors—saving questions. Where an elevator conductor was found with his head crushed and in contact with a moving counterweight of another car, on objection sustained to a question to a witness who discovered the body as to what the other elevator boy said when he came there two or three minutes later, such elevator boy not being a witness and it not being shown that the witness heard him make any statement and the record not showing what plaintiff claims the answer would be or any offer of counsel, it cannot be determined whether the alleged statement was admissible as part of the res gestae.

    Error to the Circuit Court of Cook county; the Hon. William M. Scholpield, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 14, 1913.
    Newman, Northrup, Levinson & Becker, for plaintiff in error.
    Lackner, Butz & Miller and W. G. Shockey, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This is an action brought for damages on account of the death of plaintiff’s intestate, alleged to have been caused by the wrongful act of the defendant. There was a trial before the court and a jury, and at the close of all of the evidence the court, on motion of the defendant, directed a verdict in its favor. From the judgment entered on the verdict this writ of error has been prosecuted.

The evidence tended to show that deceased was employed by the defendant as an elevator conductor in defendant’s department store in Chicago; that he ran the west of two elevators located in the northeast corner of the building; known as the employees’ elevators ; that he usually reported for work at 7:20 in the morning, and that it was the practice for him, as well as other elevator men, to spend twenty or twenty-five minutes in cleaning the cars; that just west of the elevator upon which the deceased was employed there was a compartment about two and one-half or three feet wide, ten feet high, and as long as the elevators were wide; that in the extreme west of this compartment were sliding doors; that in the side of the elevator car nearest this compartment was a window about two and one-half or three feet square; that the counterweights of both elevators moved up and down in this compartment. It further appears that about 7:45 on the morning of the accident one Wieland, a witness for the plaintiff, was passing the compartment and found the body of deceased, his head crushed and in contact with the south counterweight, which was moving upward. The body fell away from the counterweight back in the compartment.

The record further shows that there was no guard or enclosure immediately around these counterweights; that there was no other open space alongside the west side of the west elevator, which was the one operated by the deceased; that the- doors of the compartment had been seen to be open two or three times by one of the witnesses. It was further shown that the plaintiff’s intestate was a punctual young man of good habits, careful and prudent, about nineteen years old; that he had worked for defendant two weeks before the accident.

It is the contention of the plaintiff that the facts as shown fairly warranted an inference by the jury that plaintiff’s intestate, in the line of his duty, was cleaning the outside window of the elevator, and that defendant was negligent in failing to box or guard the elevator counterweights, and in failing to provide means of warning when the machinery of the east elevator was to be set in motion, as alleged in plaintiff’s declaration; and further, that the evidence was sufficient to establish that plaintiff was in the exercise of ordinary care, and to negative the assumption of risk.

In the first count of the declaration negligence is predicated upon the alleged fact that defendant permitted the elevator (attached to which was the weight referred to) to be operated before the regular time for operating. The accident happened about 7:45 in the morning, and it appears uncontradicted in the record that the custom was to operate the elevators at any time after 7:20 in the morning. They were used by the elevator operators themselves to go to the top floor for the purpose of getting cleaning material, etc. There is nothing in the record to indicate that the defendant knew or had reason to know that the deceased was in the compartment. The compartment was used solely for the machinery which ran the elevators.

We agree with counsel for plaintiff on the proposition that if the evidence introduced on behalf of the plaintiff, when taken to be true, together with all its legitimate inferences, tended to support a cause of action, it should properly have been submitted to the jury. Libby, McNeill & Libby v. Cook, 222 Ill. 206. But we are unable to draw the inference from the record in this case that the plaintiff’s intestate had any work which called him into the compartment, or which made his presence there necessary. The evident purpose of building the compartment around the machinery was to prevent any one from being injured by coming in contact with the machinery, and at the same time permit the machinery to be reached so that it could be oiled and otherwise cared for. The deceased was not a child, and cases bearing upon the question of attractive nuisance, such as Stollery v. Cicero & P. St. Ry. Co., 243 Ill. 290, referred to in the brief, have no application. The same observation might be made as to the case of Waschow v. Kelly Coal Co., 245 Ill. 516. The charge in that case was that the defendant had failed to comply with the provisions of the Mines and Miners Act, and the court found from the evidence that it could not be seriously contended that the mine was not in an unsafe and dangerous condition, substantially as alleged in the declaration.

In O’Donnell v. MacVeagh, 205 Ill. 23, the court had before it a case arising out of the death of an employee who went upon an elevator where his duties did not require him to go, and it was there held that no recovery could be had. It is not claimed in the case before us that there is any positive evidence that the deceased was required to go into the compartment, but merely, as heretofore stated, that the facts warranted the inference that such was his duty.

Error is alleged in the exclusion of testimony. Wieland, the witness heretofore referred to as having discovered the body of the deceased, testified that two or three minutes later, the boy who ran the east elevator came down. The witness was asked the question: “What did he say when he came up there?” Objection to the question was sustained. It is contended that this was part of the res gestae. The record does not show what the plaintiff claims the answer would have been. No offer with regard to the matter was made by counsel. In a similar situation it was held that to overcome the presumption that the ruling of the trial court was right, the bill of exceptions must affirmatively show that error was committed, and that the party complaining must show what it is claimed the answer would be “before it can be determined that it was prejudicial error to exclude the answer.” Anthony Ittner Brick Co. v. Ashby, 198 Ill. 562. The other elevator operator was not a witness, nor is it shown that Wieland heard him make any statement. Under the circumstances we think the court did not err in sustaining the objection.

As in our opinion the record does not show that the defendant was guilty of any of the acts of negligence alleged in the declaration, it is unnecessary to consider the question as to whether or not there was any negligence on the part of plaintiff’s intestate which contributed to the accident. The judgment will be affirmed. '

Affirmed.


text:
    Kinney Rodier Company, Defendant in Error, v. National Parlor Furniture Company, Plaintiff in Error.
    Gen. No. 17,789.
    1. Witnesses—conversation with agent since deceased. In establishing the fact that a contract was made with a corporation, witnesses may be competent to testify to a conversation with an officer since deceased, if another officer was present at the time.
    2. Sales—evidence estahlishing contract. Where plaintiff had manufactured a large number of similar articles for defendant, contradicted evidence that plaintiff had a certain number made specially and defendant said he would take them, that he did take and pay for a part of them, and that for lack of room he refused to take the remainder, but stated he would take them as soon as he could find available room, establishes a liability to pay for such articles.

      Error to the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 14, 1913.
    McEwen, Weissenbach, Shrimski & Meloan, for plaintiff in error; Jerome J. Cermak, of counsel.
    Holt, Wheeler & Sidley, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This case was one of the fourth class upon contract, tried in the Municipal Court before the court without a jury. There was a finding for the plaintiff and judgment rendered thereon, from which judgment this writ of error is prosecuted. The claim of the plaintiff was for the value of forty springs for sofa beds, claimed to have been manufactured by the plaintiff for the defendant upon a contract theretofore made, the agreed price being three dollars each; also for the value of certain tools and dies necessary for the manufacture of the springs or couch bottoms, for which tools and dies it was claimed the defendant had agreed to pay.

It is not disputed that prior to the controversy the plaintiff had manufactured for the defendant, and the defendant accepted and paid for, several hundred of the bottoms, possibly as many as two thousand.

The contention of the defendant is that the contract was not sufficiently shown, in that two of the witnesses for the plaintiff, namely Kinney and Bingle, were allowed to testify, over the objection of defendant, to a conversation with one Joseph Deimel, acting for the defendant; that the said Deimel was dead, and therefore the testimony of these witnesses was not competent. It is not entirely clear whether or not another of the officers of the defendant, namely Eudolph Deimel, was present at this time. It would seem from the testimony of Mr. Eudolph Deimel, as it appears in the record, that he was present. If so the testimony of Kinney and Bingle was competent. He does not agree, however, with the witnesses for the plaintiff as to what was said either in relation to the bottoms or the tools and dies referred to. After careful examination of the record we are satisfied that it warranted the trial judge in the conclusion that a contract had been made for the purchase of the bottoms and for payment by defendant of the cost of the tools and dies.

Kinney testified that he notified Rudolph Deimel that the plaintiff “had approximately seventy-five couches made specially,” and that he asked Rudolph Deimel to take them; that the latter said he would; that he did take thirty-five and pay for them, but refused to take the other forty, claiming that the defendant did not have room for them; and that he at various times stated that defendant would take them as soon as he could find available room.

In our opinion it cannot be said that the finding and judgment were against the manifest weight of the evidence.

It is further urged by the defendant that the judgment should be reversed because the court refused to grant a new trial on the application of defendant. This application was based upon an assertion of newly-discovered evidence. We have examined with care the affidavits made in support of the motion, and are of the opinion that the court did not abuse its discretion in refusing to grant a rehearing of the case.

The judgment will be affirmed.

Affirmed.


text:
    Charles Koski, Appellee, v. Edward Finder et al., Appellants.
    Gen. No. 17,813.
    1. Mechanics’ liens—recovery upon a quantum meruit. On a bill by a contractor to foreclose an alleged mechanic’s lien, if the contract was not fully performed, recovery, if at all, must be upon a quantum meruit.

      2. Building and construction contracts—when improper performance is fault of contractor. Where the specifications and contract require that the basement of a building shall be of a certain height, habitable and conform to ordinances as to height and size of windows, and an experienced contractor, after the building is partly erected, lessens the height of the basement by filling in the basement excavations made by the owner so that the basement might be properly drained, and makes the windows of a certain size and height contrary to the ordinances, held under conflicting evidence, that the failure to fulfill the contract properly was the fault of the contractor.
    3. Building and construction contracts—delay caused by strike. A delay in the completion of a building is not excused by a strike where the contract does not so provide.
    4. Building and construction contracts—when contractor cannot recover surveying charge. A recovery by a building contractor against an owner for having the premises surveyed is not sustained where the name of the surveyor does not appear in the record and a receipted bill was not produced.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed January 14, 1913.
    Cheney & Evans and White & Wilson, for appellants.
    William A. Doyle, for appellee; Joseph J. Thompson, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This is an appeal from a decree entered upon a bill filed for the foreclosure of an alleged mechanic’s lien. The bill recites that a contract was entered into on July 8,1905, between the appellee, Charles Koski, and the appellants, Edward Finder and Sallie Finder, who were the then owners of the property, for the construction of a two-story frame building, at an agreed price of $5,100, the building to he finished on or before November 1, 1905; that on August 31, 1905, a supplemental agreement was entered into for .the furnishing of “extra labor and material consisting of sink and toilet, surveying said premises, plans, insurance, repairs, shingles, platform and stairs, molding, changes in bathtub and stand, etc., at an agreed price of $221.75;” that $4,900 had been paid, and that $421.75 remained due with interest. The answers admitted that the contract was entered into for the construction of the two-story building; stated that the contract was in writing; denied that the building was to be finished on or before November 1, 1905, but that by the terms of the contract it was to be completed on the last day of August, 1905; denied entering into the supplemental agreement; admitted that Koski constructed the building, but denied that he furnished all the- material; denied that the building was constructed in accordance with the specifications, and denied that anything was owing by the appellants or either of them to the appellee. A cross-bill was filed setting out that the contract was' in writing, the contract being attached as an exhibit and made part of the cross-bill. It alleges that the contract was not fulfilled, in that three crosswalls in the basement were not constructed as required; that the height of the basement was about six feet two inches, while the contract required that it should be eight feet clear; that the basement was not constructed so as to be convenient for two tenant apartments of four rooms each; that the building ordinances of the City of Chicago were not complied with in respect to the size of the windows in the basement; that the building was not completed on August 31, 1905, as required by the contract, but that Koski discontinued his-work on it in November, 1905; that appellants Sallie Finder and Edward Finder procured a loan of the King Sigmund First Building and Loan Association, of which the said appellee Koski was president; that the amount was to be paid in instalments, the last instalment of $1,600 to be paid when the whole building was completed; that the appellants refused to authorize the Building and Loan Association to make the last payment of $1,600 because the building had not been completed in conformity with the contract; but that the said Koski, acting as president of said association, caused the same to pay to him the said $1,600; that because the said building was not constructed to conform to the ordinances of the City of Chicago, as required by the contract, it was of much less value than it would have been had the contract been complied with; that the appellants have lost rents and profits which would have accrued had said building been completed at the time provided, and that • there was due to appellants in excess of the amount claimed by the said Koski the sum of $2,500. An answer was filed to the cross-bill.

There was a reference of the cause to a master in chancery, who found: that the contract had been fully performed and that there was a balance due thereunder of two hundred dollars; also that there was a balance due for bath plumbing eighty-five dollars, plans thirty-five, dollars, surveying ten dollars, lowering platform fifty dollars, one sink back and pipe and drops eighteen dollars, repairing water closets eighteen dollars, total. $416. To this sum interest was added and a decree entered substantially in conformity with the master’s report, excepting that the master recommended that the cross-bill be dismissed for want of equity. This recommendation was not carried into the decree.

We have examined with great care the evidence contained in the record, and have come to the conclusion that the contract sued upon was not fully performed, and that therefore recovery by appellee, if at all, must be upon a quantum meruit. Taylor v. Renn, 79 Ill. 181. There is the distinct provision in the contract, “Basement to be eight feet clear with stone and brick.” It was further provided that the basement was to be divided into compartments of four rooms each and supplied with water sinks, white backs, water closets and sewer “according to City Ordinance.” The ordinance of the City of Chicago introduced in the record provides that the window opening in every habitable room shall be at least one-tenth of the floor area of the room, while the evidence shows that the window openings in no room of the basement exceeded two and one-half per cent, of the floor area of such room. The same section of the ordinance also provides that the top of at least one window in every habitable room shall be at least seven feet above the level of the floor, while the record in this case shows that no window in any of the rooms in the basement was seven feet above the level of the floor. At the highest point the basement was only six feet, one and three-fourths inches.

It is argued on behalf of the appellee that he did all that was necessary to make the basement “eight feet clear” by building in the excavation which was made by the owner and in which he was directed to build the foundation walls of the proper dimensions and material; that he did build a foundation wall of eight feet four inches in height, which would when finished leave a clear space of eight feet between the floor and the ceiling of the basement; that after the building was partly erected and the work so far advanced that both floors were plastered it was discovered that the outlet for sewerage was higher than (the bottom of) the excavation, and consequently there would be no fall for the purpose of drainage from the basement, and that when the discovery was made it was agreed between the contractor and the owner that cinders should be put in the bottom of the excavation, at the cost of the owner, sufficient to raise the floor of the basement so that it could be properly drained. We do not think that the record bears out the contention of the appellee in this regard. Appellee, who apparently was an experienced contractor, agreed to construct a basement that should be habitable. The location of the sewer was easily ascertainable, and under the contract the plumbing was to be put into the building by the contractor and a sewer was to be built “from the curb to the rear.” The upper stories of the building were of frame construction, and we agree with counsel for appellants that it was appellee’s duty to advise himself of the conditions before erecting these upper stories, and to build a wall high enough so that the basement when completed would be eight feet clear.

Appellee did not testify to any conversation which can be construed to be an agreement between the parties, made after the written contract was entered into, that the basement should be less than “eight feet clear,” as provided by the written contract. He was permitted to testify, over objection on rebuttal in response to a question as to the full height of that wall, as follows: “Eight feet and four inches; they put in cinders after it was built because it was too high. When the building was started and we had the second story plastered, we couldn’t fix the basement; the sewer was eight inches too high in the back of the building because the excavation of the building was too deep. The basement wasn’t too deep, but we got to raise the sewer; the sewer came high in the basement. The sewer outlet outside of the street was so high that there couldn’t be any drainage from the basement. Finder then bought some cinders and put in there to malee it level.”

The question when and by whom the cinders were ordered is a matter about which there is much conflict in the testimony. One McCarthy, a witness for the appellee, testified that the hauling of the cinders was done with his team; that it was done at two different times; that the second loads were hauled a month or two after the first, and that on the second occasion he was told by the appellee, Koski, to bring six or seven loads, which he did.

It is argued by the appellee “that the digging of the excavation was the act of the owner and if it caused a defect, that defect is attributable to the owner.” One Ezaski, a witness for the appellee, testified as follows: “I worked in the Finder building. When we started on the building all was excavated, seven feet deep. We dug down about a foot, something below the excavation of the building. I call it a footing. ’ ’ He further testified: “When I started to work the sewer was in. There was nothing in there then, just the excavation. I helped with these cinders. Koski was there directing us what to do.” The appellee also testified that the excavation he found on the premises was seven feet deep. The appellee and other witnesses on his behalf testified that the total height of the stone and brick wall was eight feet four inches. They further testified that two feet six inches of stone and three feet six inches of brick protruded above the surface of the ground. If they were correct in this particular it must follow that there was a very considerable filling in of the excavation; otherwise the total height of the brick and stone foundation must have been thirteen feet. If, as claimed by the appellants, the excavation was but four feet deep, and if it be assumed that the wall was eight feet four inches in height, it would still be required that two feet of the excavation be filled in, in order that the height of the wall, when completed, should be six feet above the ground. Whatever may be the fact in respect to the matter, it forms no basis, in our opinion, for the conclusion that there was an agreement between the parties whereby the basement in the completed building was to be less than eight feet in height.

It is apparent that the openings for the windows in the basement were not made of the proper height to conform to the ordinance and thus render the basement habitable for tenants, as required by the contract. These openings were made before the appellee discovered the height of the sewer, if his testimony is to be believed. It therefore follows that he did not at any time intend to construct the basement in such a manner as to comply with the terms of the contract.

We are unable to agree with the appellants that the contract was not complied with in respect to the cross-walls. The delay of more than two months in the completion of the building is claimed by appellee to have been caused by a strike of the building trades. The contract does not make a strike an excuse for delay, and we think there is merit in the contention of the appellants that the delay entailed a loss upon the owner of $102.

With respect to the allowance for extras, it is to be observed that in statements admitted by appellee to have been rendered to appellants, and which the appellee stated in his testimony he had prepared from his books of account, the claim was for but $167 for the items mentioned in the bill of complaint, and which were allowed by the decree in the sum of $216. The original statement also included an item of twenty-one dollars for court fines, which it would appear were assessed against Koski and two of the appellants for violation of the building ordinance with respect to the construction of a stairway. This claim, however, was abandoned. In the original statement the amount claimed for plans was twenty dollars; at the hearing it was thirty-five dollars, and this amount was allowed. No reference in the contract is made to plans, although the contract' includes specifications for the building. We do not think that the contention of the appellee that the appellants agreed to pay for these plans (if any were made) is sustained by the record. In the decree an allowance of fifty dollars was made upon the item for raising a platform. In the original statement the charge was forty-two dollars. The work appears to have been done more than a year after possession of the building was takén by the appellants, and we are of the opinion that an allowance should have been made for this item as an extra. The appellants admit that there was a proper charge for repairing two water closets. The amount allowed was eighteen dollars. The statement rendered fixed the value of this work at twelve dollars. The decree also included an item of ten dollars for surveyor’s charges. In our opinion the record does not show that .this charge was authorized by the appellants or that any agreement was made for the employment of a surveyor. The name of the surveyor does not appear in the record, nor was any receipted bill produced. We think this item should have been disallowed. The item for one sink back and end pipes and traps seems to be warranted as a proper charge of extra; and also an item for extra bathtub and washbowl, supplied with hot and cold water. The amount allowed was eighty-five dollars. In the original statement the item appeared as sixty-five dollars, but this the appellee testified was by mistake. The subcontractor who did the work and furnished the material testified that he was paid eighty-five dollars by appellee, and we think that this sum should properly be allowed as an extra.

As heretofore stated, the master recommended that the cross-bill be dismissed. The decree does not in terms dismiss the cross-bill, nor does it appear to have been disposed of in any way by order of court. After careful perusal of the record, we are of the opinion that there should be an accounting upon the cross-bill.

The decree of the circuit court will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.