author: Mr. Presiding Justice Chytraus

text:
    Mound City Distilling Company, Defendant in Error, v. Consolidated Adjustment Company, Plaintiff in Error.
    Gen. No. 14,695.
    1. Contracts—when right of rescission waived. Failure promptly to exercise the right of rescission operates as a waiver of such right.
    2. Contracts—failure to perform treated as rescission. If one has undertaken to perform an act and has been paid the consideration and then refuses or fails, the promisee may treat the refusal or a degree of neglect equivalent to a refusal as a rescission and recover back the price paid.
    3. Definitions—“promptly.” A special agreement to prosecute a claim “promptly” means that there shall be less than the ordinary and reasonable delay in the prosecution, that is, that there shall be more than ordinary diligence and dispatch.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed December 21, 1909.
    Delavan B. Cole, for plaintiff in error.
    Wolfner, Healy & Young, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

The Mound City Distilling Company, plaintiff below, recovered a judgment for $354.19 against the Consolidated Adjustment Company, defendant below, and the Adjustment Company prosecutes this writ of error to reverse that judgment.

The Adjustment Company, a collection agency, agreed to give its services to the Distilling Company for a fixed period of three years continuously and, contingently, to give its services thereafter until a certain mentioned sum should be recovered according to the provisions of the contract. The Distilling Company paid the Adjustment Company for the services to be rendered $354.19, cash in advance, which sum this suit was brought to recover, and a written contract was entered into between the parties, dated April 29, 1903. That contract, so far as now material, is as follows:

“This certifies that Mound City Distilling Company of St. Louis, Mo., paid the Consolidated Adjustment Co. $354.19 for a three year service from'this date, with all benefits and privileges of its business system in its various departments, and the Consolidated Adjustment Co. agrees to promptly and faithfully prosecute any and all claims listed with it for adjustment under terms of this contract.

G'TJASAUTEE.

This Company agrees to recover in cash or secured net settlement from the claims of the above client at least $798.37 within and under the terms of the above contract; or to refund the full initial fee paid, reserving the right to cancel the contract, refund the initial fee and surrender the claims of the above client, at any time after six months from this date; or to continue such service beyond the term first in this instrument mentioned, and until said last mentioned sum shall have been so recovered, without additional cost to the above client, except commissions on adjustments effected, on said claims or any additional claims in favor of said client, which may be forwarded. ******

Judgm’ts......Bonds.....Claims in

Acc’ts. .... .Notes.....Controversy

Total $____

Lost Debtor Bankrupt and

Claims ..........Outlawed Claims

......Total $____

(No guarantee issued on this class of claims.)

Cost of Contract, $354.19.

Claims forwarded, $5,648.55.

irn’t Contracted for, $5,648.55.

Service Credit on, $............

Guarantees exceeding 50 per cent, issued only to Executors, Administrators, Beceivers and Assignees.

Guarantees on Bank, Corporation, Manufacturing and Wholesale Lines, 10 to 30 per cent.

Guarantees on Newspaper and Publication lines, 10 to 40 per cent.

Guarantees on all Betail Merchants’ lines, 5 to 33% per cent.

Guarantees on Professional and Personal Service lines, 20 to 50 per cent.

Beceived of Mound City Distilling Co. ($354.19) Three hundred and fifty-four 19/100 Dollars as payment in full on a three year $5,648.55 contract and guarantee from April 29th, 1903, to April 29th, 1906.

Consolidated Adjustment Co.

By Danl. G. Alexander.

Dated April 29th, 1903.”

On or about the date of the contract the Distilling Company gave the Adjustment Company a memorandum of claims against Altmayer & Plateau, of Macon, Georgia, aggregating $5,648.55, for collection. The claims consisted of some eighteen acceptances for various amounts and bearing various dates, prior to September 4, 1906, and were payable in from thirty days to four months from their dates, respectively. The evidence shows that, under the laws of Georgia, where it is reasonable to assume they were accepted by Altmayer & Plateau, these acceptances were all outlawed before the Adjustment Company was engaged to collect them. Nothing was ever realized, upon these claims. No other claims were placed with defendant for collection so far as the record discloses.

The option given by the contract to the defendant, to continue its service beyond the fixed period of three years, could undoubtedly be exercised by defendant without any notice to the plaintiff, to take advantage thereof.

Lost debtor claims and also bankrupt and outlawed claims are, by the express language of the contract “(No guarantee issued on this class of claims)” excluded from such guaranty to the plaintiff as the contract contains. As the claims here involved were outlawed when given to defendant, there can be no recovery under the guaranty clause in the contract.

The doctrine of rescission is advanced by plaintiff as a ground upon which recovery may be had; because, it is contended, defendant totally failed to perform the services it agreed to perform by the contract. We do not regard Lord v. Board of Trade, 163 Ill. 45, as in point to the effect that money paid one, under a contract, to perform services may be recovered on the theory of rescission, where he fails to perform any services, because in that case a recovery was sustained on the ground that the contract provided for recovery in the event of failure to do the things agreed to be done. Yet it is the law that “If one, having received money in payment of his undertaking to perform an act, refuse to perform it, the other party has the right to treat such refusal, or any degree of neglect that shall be equivalent to a refusal, as a rescission of the contract, and bring his action to recover back the price he has paid.” King v. Hutchins, 28 N. H. 561, 574; Williston’s Wald’s Pollock on Contracts, 334, 341-2. There are, however, difficulties which prevent a recovery by this plaintiff on the theory of a rescission. There is some question whether the degree of neglect on the part of defendant was such as to authorize plaintiff to regard it that defendant had abandoned the performance of the contract. Plaintiff allowed the matter of rescinding to rest and took no steps in that direction until this suit was started, January 6, 1908— certainly not prior to December 12, 1907. A letter seems to have been sent by plaintiff to defendant on that date, wherein it was claimed the contract had expired or lapsed. By the plaintiff thus allowing the matter to rest for a long time a question has arisen whether plaintiff has not waived the right to rescind on account of defendant’s negligence. Defendant contracted to prosecute plaintiff’s claims “promptly.” Defendant undertook thereby to prosecute these claims without delay. This meant that defendant agreed there should be less than the ordinary and reasonable delay in the prosecution of these claims; that is, the diligence and dispatch should be more than ordinary. The meaning of “promptly” has been judicially defined. See Metropolitan Land Co. v. Manning, 98 Mo. App. 248; Denver v. Moewes, 95 Col. App. 28, 60 Pac. 986; McKnight v. Whipple, 25 Col. 469. Thus, while by adverting to the contract defendant’s negligence is made clear, plaintiff’s delay in exercising the right of rescission, if it at any time accrued, is, at the same time, made clearer.

The rule is that one who has a right to rescind must act with reasonable promptness in rescinding, otherwise he will have waived his right to rescind. Willis-ton’s Wald’s Pollock on Contracts, 345-6. At the time of starting this suit plaintiff undoubtedly had these difficulties in mind.

The cause of action in this case, as appears by the bill of particulars, is for money due from defendant under the contract. Thereby plaintiff asserts the existence of the contract and claims upon the contract and, consequently, cannot recover in this suit on the theory that the contract had been rescinded and did not exist when the suit was begun. It must not be overlooked that in a suit based on rescission “The plaintiff does not sue on the contracts, but on a promise of the defendant implied by law to refund to him, the plaintiff, money which he paid to the defendant by virtue of contracts which have been rescinded and abandoned by mutual consent, and which the defendant in equity and good conscience should not retain. He sues as if the contract had never existed.” Vider v. Ferguson, 88 Ill. App. 136, 150.

But one other theory of recovery is contended for, namely, a breach by the defendant of the contract to promptly and faithfully prosecute any and all claims listed with it. There is not much doubt, upon this record, but what defendant failed to prosecute these claims “promptly and faithfully” or even with ordinary diligence. But then the questions become pertinent: What is the measure of damage for such breach? and What damage has been proven in that respect? Surely no one will contend the measure of damage in such case is the amount paid defendant by plaintiff for services to be rendered in the prosecution of the claims. The damage is what plaintiff lost by the breach and that depends entirely upon what defendant could have accomplished by promptness and faithfulness. The claims against Altmayer & Plateau being outlawed when they reached defendant and there being, consequently, no legal obligation on the part of Altmayer & Plateau to pay, there was probably no damage sustained by plaintiff by defendant’s breach of the contract. Certainly the evidence in this record establishes no damage. The judgment of the Municipal Court must be reversed and the case will not be remanded.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Bessie Lynch, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 14,731.
    1. Tort actions—joinder or non-joinder of toi t-feasors. A plaintiff may, at his option, join or not join as defendants joint tort-feasors, but when he dees join several as defendants in a tort action he charges a joint liability in legal contemplation and when the pleadings are written he must expressly state his cause of- action against the defendant as a joint one.
    ' 2. Judgments—seveial tort-feasors. In a suit against several' tort-feasors the damages cannot be assessed severally; there can be only one assessment of damages.

      3. Practice—taking of judgment. In a tort action the taking of a judgment by the plaintiff against one of several defendants operates as a discontinuance of the case as to all other defendants.
    Action in case for personal injuries. Error to Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed December 21, 1909.
    Statement by the Court. Bessie Lynch, plaintiff below, brought this action against the City of Chicago in the Municipal Court on May 31,1907. The action is one of the fourth class. In her bill of particulars plaintiff stated her claim to be $1,000 for personal injuries sustained by being tripped and violently thrown, while walking along a sidewalk, by an obstruction or barrier negligently, placed and maintained or permitted by the defendants.
    On June 13, 1907, plaintiff made the Panock Sidewalk Construction Company party defendant. The City and the Construction Company entered their appearances. On October 12, 1907, a trial by jury was had and a verdict was returned finding the defendants guilty and assessing the plaintiff’s damages at $1,000. Thereafter, on November 2, 1907, a new trial was granted the defendants. On December 20, 1907, upon motion of plaintiff, this order granting a new trial was amended so as to be effective only in favor of the City. At the same time plaintiff moved for judgment against the Panock Construction Company and, on December 21, 1907, this motion was allowed and a judgment for $1,000 was then rendered against that company upon the verdict. It was, also, then ordered “that the further trial and consideration of this canse be, and the same is, hereby postponed as to the defendant the City of Chicago.” When the judgment against the Construction Company was rendered and the order of postponement as to the City of Chicago was entered, the City moved the court for a dismissal of the suit as to it, but the court overruled the motion and to this ruling the City preserved an exception.

      On February 25, 1908, the ease was placed on trial before a jury, as to the City, and on February 27,1908, a verdict was returned finding the City guilty and assessing the plaintiff’s damages at $800. The City entered a motion for a new trial which was overruled and a judgment rendered against the City for $800, on March 14, 1908. The record shows that the City objected to the procedure and at all times subsequent to the rendition of the judgment against the Panock Construction Company the City objected to the further prosecution of the suit.
    Edward J. Brundage and John R. Caverly, for plaintiff in error; Edward C. Fitch and Joseph J. Sullivan, of counsel.
    Howard N. Ogden and Aaron Heims, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

The attorneys for plaintiff insist that in an action of tort against two defendants sued jointly there may properly be separate trials and judgments as to the two defendants and that verdicts and judgments in favor of the plaintiff may even be for different amounts as to the two defendants. The attorneys for the City contend that a judgment rendered in such action against one defendant operates as a discontinuance of the suit as against the other defendant.

Where several persons jointly commit a tort the person injured has his election to sue all or some of the persons jointly or one of them separately; because a-tort is in its nature a separate act of each individual. If such action be brought against one only for a tort committed by himself and others he cannot plead the non-joinder of the others in abatement or in bar, or give it in evidence under the general issue. There are some torts which in legal consideration may be committed by several and for which a joint action may, consequently, be supported against all the parties. There are other torts of such nature as not to be capable of being jointly committed by several. If in legal consideration an act complained of could not have been committed by several persons, and can only be considered the tort of the actual aggressor, or the distinct tort of each, a separate action against the wrongdoer only, or against each, must be brought. As, for instance, a joint action against two will not lie for verbal slander. If several persons be joined as defendants where the tort could not in point of law be joint, they may demur. 1 Chitty Plead., 85-6; Yeazel v. Alexander, 58 Ill. 254; Callaghan v. Myers, 89 Ill. 566. If several persons be sued in the same action, however, they cannot be charged in the declaration otherwise than jointly. Winslow v. Newlan, 45 Ill. 145, 148.

When a plaintiff joins several persons as defendants in one action he, in legal contemplation, charges a joint liability against all whom he makes defendants and when written pleadings are used he expressly states his cause of action against the defendants as a joint one. In Teazel v. Alexander, ibid., which was an action where several tort-feasors were joined as defendants who were not jointly liable, the court said (p. 263): “None of the cases cited by plaintiff controvert the principle that, in actions ex delicto, the act charged must be the joint act of all the defendants, in fact or in legal intendment, to justify a joint recovery. If there were such, in our view of the law, we should not follow them as authority. ’ ’ In reality the plaintiff in the case at bar is endeavoring to recover separately against the defendants upon a several liability of each, where she has, previously, exercised a privilege, which the law gave her, and elected to hold them jointly liable. Our Supreme Court expressed itself contrary to such procedure in Teazel v. Alexander, ibid. It is there said (pp. 263-4): “We are strongly urged to establish the rule, allowing damages to be assessed severally against defendants in actions for torts. To do so would violate ancient and well settled practice. The cases cited in support are not in point; the opposite rule is a familiar one, and has been sanctioned by time and approved by the courts. In suits for torts against several, the damages cannot be severally assessed; there can be only one assessment of damages.”

In St. L. A. & T. H. R. R. Co. v. South, 43 Ill. 176, 182, it was held to be erroneous to assess damages severally against the defendants in an action of tort. In that case, however, the error was cured by the entry of a nolle prosequi before judgment against two of the defendants. “Those of the wrongdoers who are sued together and found guilty in an action of tort are liable for the whole injury to the plaintiff, without examining the different degrees of culpability.” Washington Gas Light Co. v. Lansden, 172 U. S. 534, 552. This court said in McDonald v. Judson, 97 Ill. App. 414, 417, “Two several judgments in the one action could not be had at the common law.” There is in this state no statute changing that rule. In those actions wherein the common law permits judgments to be taken against a part only, of the defendants, as in tort actions, the taking of such judgment by the plaintiff operates to discontinue the suit as to all other defendants. McDonald v. Judson, ibid. That rule has frequently been announced by the courts of review of this state. In Davis v. Taylor, 41 Ill. 405, 408, the Supreme Court expressed itself, in a tort action, by saying, “Taking a judgment against a portion of the defendants amounts to a dismissal of the case as to the residue, and, in actions ex delicto, this may be done.” The rule is reiterated in I. C. R. R. Co. v. Foulks, 191 Ill. 57, 71; Postal Telegraph-Cable Co. v. Likes, 225 Ill. 269, and in Vieths v. Skinner, 47 Ill. App. 325, 328.

Plaintiff’s attorneys quote and apparently have great confidence that authorities make their way which hold that “The court may, after the verdict, grant a new trial to one or more of several defendants if satisfied that they were wrongly convicted and may render judgment on the verdict against the remainder.” Cases announcing this rule do not go to the extent óf authorizing the rendition of separate judgments against different tort-feasors in one suit. They merely indicate that in actions ex delicto, different from the rule in actions ex contractu, the judgment need not follow the declaration so that it must be rendered against all or none of those sued jointly. In assumpsit it is sufficient ground for arresting the judgment if the verdict varies from the count in respect to parties. In actions ex delicto, owing to the nature of the action, the judgment need not follow the count in that respect. By granting a new trial to a joint tort-feasor wrongly convicted the court relieves him of the injustice. No case has been cited to us and we venture to say none can be found, unless it be under some statute, where different judgments have been rendered against different tort-feasors in a common law action. Of course, where a jury has found one guilty and another not guilty a judgment may, pursuant to the verdict, be rendered which is against one defendant and in favor of the other, and, in a sense, it may be considered as two judgments. That was the extent of the holding in Griffin v. Parmelee, 232 Ill. 503, which is cited to us in behalf of plaintiff as an authority permitting the rendering of different judgments against different tort-feasors in one action. Albright v. McTighe, 49 Fed. 817, is also cited as authorizing the rendition of several judgments in one action in tort. There is some loose language used in the opinion in that case to that effect; but that language is mere dictum. The defendants there were all granted a new trial.

The taking of judgment against the Panock Construction Company worked a discontinuance as against the City. The judgment will be reversed but the cause will not be remanded.

Reversed.


text:
    Roger Sherman, Defendant in Error, v. Donald Green and Charles Riley, Plaintiffs in Error.
    Gen. No. 14,742.

    1. Mtoíioipai. Court—how service of summons must he made. Substituted service in forcible entry and detainer cases instituted in the Municipal Court cannot be employed; summons must be served in that court in all actions in manner as required by the Municipal Court Act.
    2. Jurisdiction—what essential to entry of nunc pro tunc order. A nunc pro tunc order is valid only when made to supply an omission to enter of record an order really made, but omitted from the record by the clerk. When, by expiration of the term or lapse of time, the court has lost jurisdiction, such order should show, and thus preserve in the record, the basis or ground of the jurisdiction for making the particular nunc pro tunc order.
    Forcible detainer. Error to Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 21, 1909.
    W. M. Farmer, for plaintiffs in error.
    William M. and William S. Johnston, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

This is a forcible detainer suit, brought by Roger Sherman against Donald Green and Charles Riley, wherein the Municipal Court found “the defendants guilty of unlawfully withholding from the plaintiff the possession of the premises,” and rendered judgment that “the plaintiff have and recover of the said defendants the possession” and “that the plaintiff have and recover of the defendants his costs and charges” taxed at a certain sum, and ordered execution to issue.

A writ of error to procure the reversal of that judgment was sued out of this court by Donald Green, on May 29,1908, and by an order of this court, entered the next day, Charles Eiley was made party plaintiff in error.

The record shows no personal service of summons upon Donald Green hut does show a return of service of summons as follows: “Served the within summons by leaving a copy thereof at the usual place of abode of the within named defendant Donald Green, with Mrs. L. A. McGinnis, a member of his family upwards of the age of twelve years and informing her of the contents thereof (the said defendant not being found) this twenty-fifth day of May, 1908. ’ ’ On May 28, 1908, an order of default as to Green was entered, for want of appearance, and the judgment above shown was rendered on the same day. At the beginning of the trial the attorney for Riley stated to the court that he desired to enter a special appearance for Green, for the purpose of objecting to the return and service. The attorney, at the same time, stated that Green was not in the city and knew nothing about the suit, but that if the trial were postponed for a few days Green would return and then he, the attorney, as he stated, would be at liberty to enter his appearance for Green. The court, however, refused the request for postponement and proceeded with the trial. No appearance was entered for Green.

It is clear that there was no service of summons upon Green according to the requirement of the statute and hence the judgment herein is invalid.

The Forcible Entry and Detainer Act, chapter 57 Revised Statutes, in section 9 provides that in a forcible detainer suit summons may be served by leaving a copy of the summons at the defendant’s usual place of abode with some person of the family, of the age of twelve years or upwards, and informing such person of the contents thereof. This enactment is and has been the general law since long prior to the establishment of the Municipal Court of Chicago. In the year 1905 the Municipal Court was established. In section 48 of the act establishing that court it is 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 the Municipal Court. In section 42 of the same act it is provided that every summons “issued out of the Municipal Court shall be served, if the defendant be 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. The practice and procedure in the Municipal Court is governed and controlled by the act establishing that court. According to that act substituted service, as made upon Creen here, is no service at all. The judgment herein having been rendered against Creen without service of summons upon him, the judgment must be reversed. Townsend v. Townsend, 21 Ill. 540; Grace v. Casey-Grimshaw Co., 62 Ill. App. 149; Williams v. Chalfant, 82 Ill. 218; Supreme Lodge v. Goldberger, 175 Ill. 19; Forsyth v. Barnes, 228 Ill. 326.

A nunc pro tunc order is valid only when made to supply an omission to enter of record an order really made, but omitted from the record by the clerk. Lindauer v. Pease, 192 Ill. 456, 459. When, by expiration of the term or lapse of time, the court has lost jurisdiction such order should show, and thus preserve in the record, the basis or ground of the jurisdiction for making the particular nunc pro tunc order. McKay v. People, 145 Ill. App. 277.

The judgment is reversed and the case is remanded.

Reversed and remanded.


text:
    Charles F. Lorenzen & Co., Defendant in Error, v. John W. Strackbein, Plaintiff in Error.
    Gen. No. 14,748.

      Verdicts—when set aside as against the evidence. A verdict manifestly against the weight of the evidence will be set aside on review.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Jujlge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 21, 1909.
    M. D. Dolan and F. M. Williams, for plaintiff in error.
    A. M. Schwarz and Charles Herman, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

This suit is for a balance of $143 for tile furnished Strackbein, the defendant, for bath rooms, hall, floors and for mantels and hearths in a building he was having put up. The defense is that part of the tile furnished, which was to be used in connection with six mantels and hearths, was to be tile of the Rookwood Pottery Company according to certain samples, and that the tile furnished for the mantels and hearths was much below the samples in quality and appearance, whereby defendant was damaged to a much greater extent than the unpaid balance of $143. The samples by which defendant contracted and also samples of the tile furnished have been brought before this court. The parol evidence preponderates in favor of defendant. In addition the physical appearance of the exhibits demonstrates that the furnished tile was not of the quality of the samples. When one contracts for smooth tile he is not obliged to pay for rough and pitted tile furnished. There was no acceptance as defendant was away during the period the tile was furnished and did not return until it was practically all set. Upon his return he objected to the tile that had been furnished. The damages shown amount to more than the unpaid balance. Upon this record we are obliged to reverse the judgment of the Municipal Court and to remand the cause.

Reversed and remanded.


author: Mr. Justice Mack

text:
    Samuel Kunstadter, Defendant in Error, v. Chicago & Northwestern Railway Company, Plaintiff in Error.
    Gen. No. 14,688.

      Verdicts—when reversed on final judgment. Where the evidence is such as would not sustain a judgment hy the plaintiff, final judgment with finding of facts will he entered in the Appellate Court.
    Tort. Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed December 21, 1909.
    Statement hy the Court. Plaintiff bought a round trip ticket to Yellowstone Park from defendant. It was a coupon ticket issued by defendant partly on account of connecting roads. Defendant’s line ends at Omaha. There it connects with the Union Pacific. A branch line of the latter was in process of construction and at the end of the track, stages met the trains and continued the. journey.
    Plaintiff checked his trunk to Big Springs, Idaho, which was pointed out to him on the map and was represented by the defendant’s agent as the end of the railroad line. The baggage check read “via U. P. & O. S. L.”
    Plaintiff testified that he did not reach Big Springs but reached the end of the line; that his baggage was not put off the train with him and that he had to proceed by stage without it. He received it, however, just as he started on the return trip on the railroad. He was damaged $34.69 by reason of not having had the baggage in time.
    S. A. Lynde and Frederic Burnham, for plaintiff in error.
    Adler, Lederer & Schoenbrun, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

While the plaintiff in error discusses the interesting question of the liability of the first carrier for the negligence of the connecting carriers in the case of baggage and the effect of the signed contract waiving such liability, this question is not properly before us because this action was begun not on any such theory of liability but in tort for carelessly misrepresenting that defendant’s road ran its trains to Big Springs, Idaho, wherefore plaintiff bought tickets upon this representation, was taken to the end of defendant’s road and was then informed that no such station existed on defendant’s line as Big Springs and that defendant carelessly left plaintiff at the end of its line without his baggage.

The evidence, however, does not sustain this claim.

First. There is no testimony of any representation that Big Springs, Idaho, was on defendant’s line, but only that the train used to go to Monida and that the termination of the new line was Big Springs.

Second. Plaintiff says that he did not reach Big Springs but was taken to the end of the line, some mile post, a place having no name at all, at which a construction gang was building a continuation of the line. But though there may not have been a town there called Big Springs, this end of the line was evidently regarded as Big Springs by the railroads inasmuch as the baggage, though delayed, was shipped there.

Third. In any event, even if there was a misrepresentation, no damage was thereby caused to the plaintiff. He wanted his baggage at the end of the railway line so as to take it with him on the stage; no matter by what name the end of the line was called, there is no evidence that it would have reached there in time. There is no evidence in the record that shipping the baggage to Big Springs, Idaho, instead of to a nameless end of the line caused the delay inasmuch as there is no evidence that there is such a place as Big Springs in Idaho, unless this be the name used to designate the end of the line.

The judgment of the lower court will be reversed with a finding of facts.

Reversed with finding of facts.


text:
    William B. Scott, Defendant in Error, v. George G. Caldwell and George J. Gilbert, Plaintiffs in Error.
    Gen. No. 14,639.

      Evidence—effect of general objection. Only questions of materiality are raised by a general objection.
    Action of debt. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 21, 1909.
    John J. Weilman, for plaintiff in error.
    Pringle, Northup & Terwilliger, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

After judgment in favor of Landon, the defendant in replevin suit, and the awarding of the writ of retorno habendo this suit' was begun on the replevin bond, because of the failure of the plaintiff in the replevin action to return the property.

No specific objection was made to the evidence offered of the bond and judgment in replevin. A general objection raises only the question of materiality.

The judgment on the merits in replevin established Landon’s right to possession as lienor. The fact that he was conducting a warehouse of class “C” and had failed to issue a warehouse receipt is totally immaterial here, even if it could, in any way, have been material in the replevin suit.

The proof of damages sustains the finding and judgment of the court, which is therefore affirmed.

Affirmed.


text:
    Bridget Sweeney, Defendant in Error, v. Life Association of America, Plaintiff in Error.
    Gen. No. 14,699.
    1. Insurance—what not false statement as to occupation. To state in an application for insurance that the applicant has no interest in or connection with the sale or manufacture of beer, is not false, though the applicant is connected with the real estate department of a brewing corporation.
    2. Insurance—phrase “this year” construed. “This year,” in the question “Has your weight changed this year?” contained in an application for insurance, means one year past and not the preceding months of the then calendar year.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908,
    Affirmed.
    Opinion filed December 21, 1909.

      Samuel A. Harper and Thomas E. D. Bradley, for plaintiff in error.
    McArdle & MoArdle, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

This was an action on a policy of life insurance for $1,000 issued on the life of the plaintiff’s husband.

The defense was based first on an alleged breach of warranty in a misstatement (a) as to the occupation of the insured; (b) as to his recent loss of weight; and (c) as to his being postponed or declined by any other life insurance company; second, on a rescission of the contract after the death of the insured, because of such misrepresentation.

The facts in support of the defense were as follows: The application for the policy was made on March 25, 1907. The insured died July 1, 1907, having paid two quarterly premiums.

On March 14, 1907, the insured made application in the Prudential Insurance Company for a policy. In the application for the policy on which this suit was brought he gave his occupation as “agent and collector and attends to the real estate,” and stated “I have not been declined or postponed by any life company.” He further answered the medical examiner as follows:

“Q. Are you now or have you been engaged in or connected with the sale or manufacture of beer, wine or other intoxicating liquors? A. Tes, owned half interest in brewery in 1894 and 1895.

“Q. If so, state full particulars thereof.

“A. Also owned two saloons, but did not run them, during same period. * * *

“Q. Have you ever made an application for life insurance upon which a policy was not issued, or, if issued, upon a different plan than the one applied for? A. Ho.”

At the conclusion of the questions and answers was contained the following statement:

“All the statements made to the medical examiner as well as those contained in my application are the basis and form a part of the proposed contract for insurance, subject to the charter and by-laws of the association and the laws of the State 'of New York. I hereby agree that all the foregoing statements and answers and all those that I made to the medical examiner in continuation of this application are by me warranted to be true, and are offered to the association as a consideration of the contract which I hereby agree to accept and which shall' not take effect until the first premium shall have been paid. * * *

I certify that my answers to the foregoing questions and my statements are correctly recorded.”

All of which was signed by the insured.

This latter document was not attached to or referred to in the policy itself, and no copy thereof was annexed thereto.

The defendant further introduced a report made by its examiner to it in which occur the following questions and answers:

“1. Name? John Sweeney. Occupation? Agent and collector. * * * 2. Has the applicant’s weight recently increased? No. Or diminished? No. If so, how much and within what period?................”

This report is not signed by the insured.' The medical examiner testified that he guessed that he had written down the substance of what the applicant had said.

An objection to an offer to prove that the insured had made statements contained in the medical examiner’s report to the company was sustained, but the witness said, in relation to this report, that he wrote down his conclusions and the results of his examination immediately after he had examined the insured and that he based his conclusion stated in the medical examiner’s report on his examination.

The defendant proved that in an application dated March 4, 1907, to the Prudential Insurance Company, the insured had stated his occupation to he'“Collector for the Fortune Brewing Company,” and that in the medical examination on March 17, 1907, in answer to the question, “Has your weight changed this year?” he had said that he had lost twenty-five pounds from dieting and more exercise. He had further, in connection with said examination, stated his business as collector and manager of Fortune Brewing Company’s real estate.

On the question of occupation, defendant introduced as a witness the agent of the Prudential Insurance Company, who testified as follows:

“Q. Mr. Shaw, do you know in what business Mr. Sweeney was at the time he signed this application? A. He was business agent for the Brewers’ Association of Chicago, real estate agent.

“Q. Brewers’ Association? A. I think so, their real estate agent.”

We regret to say that this testimony as abstracted omits all reference to the real estate and represents the witness as saying that Sweeney was “business agent of the Brewers’ Association.” Moreover, at page 5 of the brief of counsel it is stated that Shaw testified that Sweeney’s position was that of “Business Agent of the Brewers’ Association of Chicago,” the words in quotation being italicized in the brief.

Inasmuch as the entire point of occupation was the connection with the sale or manufacture of beer, this method of abstracting and referring to the testimony, avoiding the essential point that bears against the contention of counsel, is highly improper.

We cannot, however, find either breach of warranty or misrepresentation in the statements made by the ’deceased. There is no proof whatsoever that at the time of the application or prior thereto, the insured had any interest in or connection with the sale or manufacture of beer, except as therein 'stated by him.

The fact that he was connected with the real estate department of a brewing corporation in no sense contradicts his statements as to his occupation.

The only proof of loss of weight against Sweeney is his statement to the medical examiner of the Prudential Company that he had lost twenty-five pounds from dieting and exercise this year. Even if the confidential statement of a medical examiner to his company could be regarded in any sense as based upon the statements of Sweeney and as amounting to a warranty, there is nothing contradictory in the statement that his weight has not recently diminished and the statement that it diminished twenty-five pounds this year.

Counsel urges that the phrase “this year” in the question, “Has your weight changed this year?” asked by the Prudential Company on March 17, 1907, means the calendar year, that is, since January 1, 1907. We cannot agree with this interpretation of a printed form. “This year” means one year past, and not the few months of the then calendar year.

At the time that he signed the application for this policy, he had not been postponed or declined by the other company; in fact, he received no notice of a declination until after the policy in suit had been issued.

Inasmuch as the court might well in this case have directed a verdict for the plaintiff, it is unnecessary to consider the instructions. Judgment will be affirmed.

Affirmed.


text:
    Bridget Sweeney, Defendant in Error, v. Life Association of America, Plaintiff in Error.
    Gen. No. 14,700.

      Instructions—when proper peremptorily to instruct for the plaintiff. If the plaintiffs evidence entitles him to a verdict, and such evidence is not rebutted by the defendant, a peremptory instruction for the plaintiff is proper.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 21, 1909.
    Samuel A. Harper and Thomas E. D. Bradley, for plaintiff in error.
    McArdle & McArdle, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

This suit is between the same parties as the case just decided, 14699, ante, p. 173.

It arises upon a policy issued on a second application dated April 11, 1907. The policy issued under the first application was delivered on April 13, 1907.

We need not consider whether or not the medical examination made under the first application was deemed by the parties to be the basis for the policy issued under the second application, so as to make the warranties and representations therein contained applicable to the second policy, for, under our decision in the former case, there was no breach of warranty or misrepresentation.

The only additional argument in this case that requires notice is that based upon the statement that he had not been rejected in any other company. The defendant urges that the failure of the Prudential to issue a policy prior to April 11, on an application dated March 4, was equivalent to a postponement or declination.

We cannot assent to this argument. There is no proof of any kind that the applicant knew what, if any, action had been taken by the Prudential Company prior to April 20, on which date he was informed for the first time that the policy would not be issued. A rejection notice dated March 21 had never been delivered to him or called to his attention. The statement in an application that the applicant had not been postponed or declined by any other company must fairly be interpreted as meaning that no postponement or declination had come to his knowledge. He had stated in his first application that he had just applied for a policy in the Prudential Company.

The action of the court in directing a verdict for the plaintiff was proper and the judgment will be affirmed.

Affirmed.


text:
    Samuel Kelly, Defendant in Error, v. Metropolitan Life Ins. Co., Plaintiff in Error.
    Gen. No. 14,722.

      Insurance—when application part of contract. Where the intent to make the application a part of a policy clearly appears, the court, no matter what the phraseology may be, will read the application into the contract of insurance and construe the contract of insurance and the application together.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Albert E. Bergland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 21, 1909.
    Rehearing denied January 4, 1910.
    Hoyne, O’Connor & Irwin, for plaintiff in error.

      James Maher, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

Judgment was rendered in favor of plaintiff, defendant in error, in the Municipal Court of Chicago for $110, the amount of a policy issued by the plaintiff in error to plaintiff’s wife for his benefit. The plaintiff offered in evidence the face of the policy and that part of the back showing the amount and the name of beneficiary.

The material parts of the face of the policy are as follows:

‘ ‘ Metropolitan Life Insurance Company.

In consideration of the statements in the printed and written application for this policy, a copy of which is hereto annexed, all of which are hereby made warranties and part of this contract, and of the payment of the premium mentioned in the schedule on the back hereof, on or before each Monday, hereby agrees, subject to the conditions herein, to pay, etc., * * * the amount stipulated in said schedule.”

On the back of the policy is printed the following: “Schedule referred to on face of policy.” Then follows a statement of weekly premium, amount of policy, name of plaintiff as beneficiary and date of policy, September 3, 1906. Following this there is printed:

“Copy of Application for this Policy.

I hereby apply to the Metropolitan Life Insurance Company for insurance. To induce the said Company to issue a Policy, and as consideration therefor, I warrant and agree, on behalf of myself and of any other person who shall have or claim interest in any Policy issued under this application, as follows:”

followed by a series of printed statements including:

“2. I have never had any of the following complaints or diseases: * * * consumption * * * except

5. I have never been under the care of any physician within two years except

I agree that as to each and every one of the foregoing paragraphs, where nothing is written after the word ‘except/ I warrant the statement therein contained without exception. * * *

And I further declare, warrant and agree that the representations and answers made above are strictly correct and wholly true, that they shall form the basis and become part of the contract of insurance, if one be issued, and that any untrue answers will render the Policy null and void, * * At the end is the date, August 24, 1906, and the name of the insured, typewritten.

The defendant offered this “copy of application” on the back of the policy in evidence, but the court excluded it on the ground that the original application had not been accounted for. The testimony clearly established that the insured had-been treated by a physician on and off for eight years, and as late as August 24, 1906, the date of the application as it appears on the b'ack of the policy, for consumption; again on September 23, 1906; that she had chronic consumption from the time she first came under the notice of her physician, at least seven years. In 1904 she was advised by him to go to Denver, and in 1906 she was gradually getting worse. All of this testimony was subsequently stricken out over defendant’s objection.

Plaintiff claims that the copy of the application and therefore the testimony of the physician based thereon was rightfully excluded and that in its absence the policy is an unconditional promise to pay the amount at death. His argument is that the words in the beginning of the policy make the statements contained in the original application, but neither the application nor the copy thereof, a part of the contract; moreover that no copy is annexed but, at the best, only printed on the back of the policy.

¡We cannot follow this reasoning. As the Supreme Court has said in Treat v. Merchants’ Life Association, 198 Ill. 431: “Where the intent to make the application a part of the policy clearly appears, the court, no matter what the phraseology may be, will read the application into the contract of insurance and construe the contract of insurance and the application together.”

In our opinion the language following the words on the back of the policy, “Copy of application for this policy” is the copy referred to on the face of the policy, as annexed, and the statements therein contained accepted by both parties as a copy of the original written and printed statements subject to the power of a court of equity to correct any mistakes in transcribing them, form an essential part of the contract and of the policy. Comer v. Comer, 120 Ill. 420.

The court erred therefore not only in excluding the statements on the back of the policy when offered by defendant and the physician’s testimony to show the falsity thereof, but also in permitting plaintiff to offer a part only of a written contract over defendant’s objections that the entire document must be introduced in evidence. Rogers v. Cedar Rapids Ins. Co., 72 Ia. 448; Col. Exp. Salv. Co. v. Surety Co., 123 Ill. App. 245.

For these errors the judgment of the lower court must be reversed and the cause remanded.

Reversed and remanded.


text:
    Jennie J. Kelly, Plaintiff in Error, v. Protected Home Circle, Defendant in Error.
    Gen. No. 14,733.
    1. Accobd and satisfaction—when compromise sufficiently supported. The compromise of a claim for a less sum than its face will he sustained if there was a Iona fide dispute as to the validity of such claim.
    2. Releases—what sufficient as to sealed instrument. The surrender and cancellation of a sealed instrument is equivalent to a release thereof under seal.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 21, 1909.
    Robert D. Melick and John S. Reynolds, for plaintiff in error.
    George W. Carr, for defendant in error; J. W. Merriam, of counsel.
   Mr. Justice Mack

delivered the opinion of the court.

This is a suit commenced by plaintiff in error to recover an alleged balance of $500 claimed to be due from the defendant upon a benefit certificate for $1,000 issued upon the life of her stepson.

Some time after proof of death the plaintiff was told that the company would pay her $500 and no more. She accepted a check for that sum, surrendered the benefit certificate and signed the blank receipt on the back of it. She now contends that she is entitled to recover the balance.

Under the defendant’s charter, introduced in evidence, “the benefit fund is to be used only and exclusively in paying benefits to the heirs or legal representatives of deceased members.”

The plaintiff, as stepmother, was neither heir nor legal representative. Moreover, the company alleged that a number of warranties or material representations made by the deceased at the time of his application were false. They had reference to his occupation and to his family history.

Under these circumstances there can be no question but that there was a bona fide dispute as to the validity of the claim, and that the payment of a part given and received as a compromise, in settlement of the entire claim, satisfied the claim. Jackson v. Security M. L. I. Co., 233 Ill. 161.

The fact, if it be a fact, that this benefit certificate was an instrument under seal is totally immaterial. The claim thereon was not merely receipted for, but the document itself, on which the claim was based, was surrendered and cancelled with the consent of the beneficiary. In the absence of fraud or mistake such a surrender of an instrument under seal is equivalent to a release under seal of the claim thereunder. The only distinction between such a surrender and a release under seal, established by the Jackson case (supra) and Farmers and Mechanics Life Assn. v. Caine, 224 Ill. 599, is that while a release under seal can be avoided for fraud or mistake only in equity, a surrender so induced can be avoided at law.

Inasmuch as the judgment is to be affirmed on the merits of the case, the motion of defendant in error to strike the record, briefs and abstracts from the files will be denied.

Affirmed.


text:
    Frederick Espert, Appellee, v. Carmichael Range Company, Appellant.
    Gen. No. 14,738.
    LANDLORD AIqD xsm&ici-'when~ former can',iot hold latter as tenamn,t from year to year by virtue of hold-over. It the landlord has exerci sed his election to hold his tenant for damages on account of his hold-over, he cannot subsequently seek to recover rent upon the theory that he became his tenant for another year under the terms of the old lease. In this case the exercise of the election was set up by certain pleas, to which the replications filed were held improper.
    Assumpait. Appeal from the Municipal Court of Chicago; the Hon. JoHn H. HuMR, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 21, 1909.
    Rehearing denied January 4, 1910.
    JOHN P. AHItENS, for appellant.
    GENTZEL & CRANE, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

Appellee recovered judgment against appellant in the Municipal Court of Chicago for one year's rent based on a holding-over after the expiration of a written lease for three years. The term under the written lease expired April 30, 1906. The appellant had held over for from five to nine days.

The declaration consisted of the common counts and a special count alleging the lease, the failure to yield up the possession of the premises at the expiration thereof, the demand for the first month's rent under the alleged new tenancy and refusal to pay the same; the acceptance by the plaintiff of the defendant as such new tenant for a year and the resulting indebtedness for the year's rent.

The defendant pleaded, among other pleas, that on June 13, 1906 (long prior to the present proceedings), the plaintiff had sued the defendant before a justice of the peace for damages and not for rent, for the wrongful withholding of the possession of the very-same premises, after the termination of the very same lease for the very same time of withholding alleged in the special count, and that on July 10, 1906, the plaintiff recovered in said proceeding the sum of $25, which judgment remained in full force. Thereupon the plaintiff filed a replication to all of the pleas as follows:

“Plaintiff, saving and reserving to himself now and at all times hereafter, and all manner and benefit and advantage of exception which may be had or taken to the manifold insufficiencies of the several pleas of said defendant for replication thereunto says: That he will aver, maintain and prove his said cause of action set out in his declaration heretofore filed to be true, certain and sufficient in the law, and that the several pleas filed by the defendant are uncertain, untrue and insufficient to be replied unto by the plaintiff, without this: That any other matter or thing whatever in said several pleas maintained, material or effectual in the law to be replied unto, and not herein and hereby well and sufficiently replied unto, confessed and avoided, traversed or denied, is true. All which matters and things this repliant is ready to aver, maintain and prove, and as to all these matters and things the plaintiff prays may be enquired of by the country,” etc.; and specifically to this plea as follows:

“And plaintiff, as to the eighth plea of defendant, says preoludi non, because he says that the said promises and undertakings in said declaration mentioned were not, nor was any or either of them made of, or any of those in said plea mentioned, and for and in respect whereof the said supposed judgment in said plea mentioned was recovered in manner and form as the defendant has above in its said plea alleged, and this the plaintiff prays may be inquired of by the country,” etc.

To these replications defendant demurred generally and specially. A special ground of demurrer was, among others, that it did not properly take issue upon the statement of facts set out in the defendant’s last plea.

The court overruled the demurrer. The defendant at the trial offered no evidence of the judgment, on the theory that the demurrer to the replication having been erroneously overruled, the replication was improperly in the record and that no valid issue having been taken on the judgment, proof thereof was unnecessary.

We must therefore determine the correctness of the action of the court in overruling the demurrer to the replications. The first replication to all the pleas is not a common law replication at all, offers no answer to the plea of the judgment and the demurrer thereto should have been sustained.

The" evident purpose of the plea is to show a conclusive election by the landlord to treat the holding over as wrongful, inasmuch as only on this theory could he have sued for the stipulated damages. If he had so elected, he could not thereafter have held defendant as a tenant. If plaintiff wished to deny the existence of the judgment, he should have replied mil tiel record. If he wished to assert that the judgment had reference to other property, he should have framed his replication so as to have taken issue on that point.

But to deny that the judgment is based on the same promises as those alleged in the declaration—and this seems to be the issue attempted to be raised by the second replication—is to endeavor not only to take issue on a point not tendered by the plea but on one which could not have been so tendered. The substance of the defense interposed by the plea is not that the judgment operated as an adjudication of the claim made under the implied promise to pay one year’s rent, but that it operated as an election to treat defendant as a trespasser wrongfully withholding possession, and that such an election barred the present action. The demurrer to the replication should have been sustained.

Inasmuch as the cause must be retried, we shall not comment upon the facts and the proof; but on the legal propositions involved we concur in the holding of the trial court that if the plaintiff at any time after the expiration of the lease elected not to hold the defendant liable as a tenant under the lease, the plaintiff had no right in law thereafter to change his election and elect to hold the defendant liable as a tenant, as well as in the refusal of the court to hold that the provision in the lease for liquidated damages for withholding the premises prevented the defendant from being liable as a tenant for another year if he held over, or that the plaintiff must give notice of his election to hold the defendant as such tenant before he removed from the premises. Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Smith

text:
    Case & Martin Company, Appellant, v. Village of Forest Park, Appellee.
    Gen. No. 14,703.
    1. Ordinance—when requiring drivers to 6e licensed, does not discriminate. Held, that the ordinance in question in this case did not discriminate between the residents and non-residents of a village.
    2. Injunction—when does not lie to restrain trespass. Equity Will interfere to restrain trespasses, whether committed under the forms of law or otherwise; first, to prevent irreparable injury, and second, to prevent a multiplicity of suits. Before a court of equity will interfere to prevent trespass on the ground of irreparable injury, facts and circumstances must be alleged from which it may be seen that irreparable mischief will be the result of the act complained of and that the law can afford the party no adequate remedy.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Fabluí Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 21, 1909.
    Pringle & Fearing, for appellant.
    Parker & Righeimer, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

Appellant, Case & Martin Company, filed its bill of complaint in the Superior Court against the village of Forest Park, appellee, praying for an injunction restraining the village, its president, board of trustees, chief of police and other officers, from interfering or molesting or in any way interrupting the business of the complainant by reason of its failure to procure a license for any of its drivers in compliance with a certain ordinance of the village regulating peddlers, and peddling on the streets of the village; and that the ordinance be declared void as being in restraint of trade, and as discriminating between merchants in the village and others.

A preliminary injunction was ordered by the court as prayed in the bill. Several amendments were made to the bill, and finally the court sustained a demurrer to the amended bill of complaint as amended, and dissolved the injunction and dismissed the bill for want of equity. By this appeal the complainant seeks to reverse the decree.

The bill as amended avers that the Case & Martin Company was in the business of manufacturing pies at wholesale, with its principal place of business in the city of Chicago, and that it sells its pies at wholesale in the defendant village and other places; and that in the sale of its products it uses delivery wagons; that among the ordinances of the village is one providing as follows:

“Peddlers. Section 1. Every person who shall, by sample or otherwise, sell or offer for sale, barter or exchange at retail, any farm produce, butter, milk, poultry, fish or other goods, wares or merchandise, traveling from place to place, in, upon or along the streets of this village, shall be deemed a peddler, and shall before engaging in said business obtain a license as a peddler. But the provisions of this chapter shall not be construed to apply to any person selling vegetables, fruit, berries or other produce of his own farm or premises; nor to the peddling of newspapers; nor to the regular and ordinary trade of merchants or storekeepers occupying established and permanent places of business in said village; nor to the taking of orders and delivery of goods to their customers by established dealers in the regular course of their business. No person shall engage in the business of a peddler without a license, under the penalty of not less than five dollars nor more than two hundred dollars for each offense and each day any such person shall engage in said business without a license shall be deemed a separate offense.”

The bill alleges that on November 30, 1907, the officers of the said village were annoying and threatening complainant and demanding that it take out a license for its drivers, and on the same day arrested William Schmidt, one of its drivers, while in the actual performance of his duties of delivering pies in pursuance of an order theretofore given; that the cause was heard before Frank Lehman, justice of the peace, and on December 12th the defendant was found guilty under the ordinance, of peddling without a license, and fined $25, and that on another day another driver, John E. Maddox, was arrested in the same manner for selling pies without a license, and fined $25.

The bill of complaint also alleges that the authorities of said village have threatened and continue to threaten to make arrests of complainant’s drivers until the company shall take out a license, and that it is the avowed purpose and policy of the village and its officers to require such license for the purpose of protecting bakers and other business men in similar lines of business having permanent establishments within the limits of the village.

The bill of complaint shows that the complainant does not peddle pies at any time, within the meaning of said ordinance; that it sells its wares at wholesale to the retail dealers upon orders previously given.

The bill charges that the ordinance is invalid because it discriminates between merchants and storekeepers occupying established and permanent places of business in the village and non-residents of said village who do business within the village.

The bill alleges that it is filed for the purpose of avoiding a multiplicity of suits and appeals which will result if arrests are continually made under said ordinance, and also states that great and irreparable injury has been done at the present time and will be done in the future to the complainant, in that it cannot deliver and fill its orders for goods, wares and merchandise already given, and that if these prosecutions continue, complainant will lose its entire trade in the village of Forest Park, and also states that there is no adequate remedy at law and shows why such remedy is inadequate.

The bill further shows how the injury complained of will be irreparable, that the particular officers who made the arrests of these individuals are not financially able to respond in damages in actions at law against them for making the improper arrests and improperly interfering with the company’s business, and names the officers by name and states that they are mere police officers on a salary, as the complainant believes, and wholly unable to make good the loss to the company; also that there are other police officers in the said village who might also make such arrests, who are financially irresponsible; that the remedy at law, i. e., of bringing damage suits to recover for the loss entailed by reason of arrests, and interruption and loss of business is impracticable, owing to costs, attorney’s fees and the uncertainty and impossibility of accurately ascertaining the amount of such damages.

It is urged by complainant that the ordinance is invalid because it discriminates between those having established and permanent places of business within the village, and those without the village; and where an ordinance discriminates between residents of a municipality and non-resident persons and corporations it can have no force and effect.

We have examined the ordinance in question and we do not find that it makes a distinction or discrimination between residents and non-residents of the village. The language of the ordinance is simple and plain, and when given its plain and natural meaning as applied to the subject with regard to which it is used, we are unable to discover the discrimination claimed. The first part of section 1 defines who shall be deemed peddlers under its provisions and requires such persons to obtain a license. By its terms it applies to “every person.” The next sentence of the ordinance exempts from its provisions farmers and gardeners and newspaper circulators. It also exempts the ordinary and regular trade of merchants or storekeepers occupying established and permanent places of business in the village, and further, the taking of orders and the delivery of goods to their customers by established dealers in the regular course of their business. The clear intent and effect of these provisions is to declare that the provisions of the ordinance have no application to established dealers whether residents of the village or non-residents of it, and whether such dealers occupy permanent places of business in the village or elsewhere. We think there is a clear distinction between the ordinance with which we are here concerned, and the ordinances before the courts in Village of Braceville v. Doherty, 30 Ill. App. 645, and Peoria v. Gugenheim, 61 Ill. App. 374, and other eases cited by appellant.

We do not doubt the general principles of equity jurisdiction stated in argument by complainant’s counsel, but we do not think that the facts set out in complainant’s bill of complaint make a case for equitable relief. The bill is based upon the theory that the ordinance is void and for that reason everything done under it, of which complaint is made, was without any color or authority of law. This we think is a theory founded upon a misapprehension of the. provisions of the ordinance. If the ordinance is valid, as we think it is, equity will not, and ought not to, interfere with its enforcement through the courts of law. If the ordinance is void, it is purely a question of law which the common law courts are competent to decide. If the complainant is not guilty of violating this ordinance, assuming it to be a valid ordinance, the determination of that fact is peculiarly within the province of common law courts. Upon either supposition, as stated in Poyer v. Village of Des Plaines, 123 Ill. 111, complainant has a full and complete remedy at law. In that case it is said: “When ordinances have been enacted by the proper authority, a court of equity will not interfere by injunction to restrain their enforcement in the proper courts on the ground that such ordinances are alleged to be illegal, or because of the alleged innocence of the party charged. Nor will courts enjoin such proceedings under the ordinance for the purpose of determining the validity of the ordinance, when, as in this case, the defendant has an adequate remedy at law."

Equity will interfere, however, to restrain trespasses whether committed under the forms of law or otherwise, first, to prevent irreparable injury, and second, to prevent a multiplicity of suits. The bill in this case must be sustained upon this ground if it can be sustained at all.

Before a court of equity will interfere to prevent trespass on the ground of irreparable injury, as held in Poyer v. Village of Des Plaines, supra, “facts and circumstances must be alleged from which it may be seen that irreparable mischief will be the result of the act complained of, and that the law can afford the party no adequate remedy.”

Testing complainant’s bill by this rule, it is not sufficient. The allegations are made in the most general terms, and the facts and circumstances which would enable the court to see that irreparable mischief or injury will result to complainant from the enforcement of the ordinance, are not alleged. The conclusions of the pleader that such injury will result is not sufficient. The facts must appear in order that the court may be satisfied as to the nature of the injury.

On the second ground of preventing a multiplicity of suits the bill must be held bad for the reasons given in Poyer v. Village of Des Plaines, supra.

The decree of the 'Superior Court is affirmed.

Affirmed.


text:
    Globe Brewing Company, Appellant, v. American Malting Company, Appellee.
    Gen. No. 14,719.
    1. Contracts—what waives time of performance. Where time of performance is of the essence of a contract, the party who does any act inconsistent with the supposition that he continues to hold the other party to his part of the agreement will be taken to have waived it altogether.
    2. Contracts—when time of the essence. Time is generally of the essence of mercantile contracts. Time may be of the essence of 8, contract if such is the general effect of the terms as a whole.

      3. Contracts'—how waiver of provisions may 6e shown. An extension or waiver need not be shown by an express agreement between the parties; it may be established by their acts and conduct with respect thereto. It may be inferred from facts and circumstances sufficiently indicating an intention to waive, and a new consideration is not essential.
    4. Contracts—when notice of cancellation essential. If a contract for the purchase and sale of merchandise provided for the purchase of a total amount by a specified time, the seller may, after the lapse of such time, waive the purchase of such amount and elect to terminate the contract; if, however, he continue to recognize and fill orders after such time, he cannot thereafter cancel without giving reasonable notice. o
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. McKenzie Clbland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed December 21, 1909.
    Statement by the Court. Appellant, Globe Brewing Company, sued appellee, American Malting Company, in assumpsit in the Municipal Court of Chicago for a breach of contract for the sale of malt. Plaintiff’s declaration consists of a special count on a written contract, and the common counts, and an additional special count based on the written contract, filed by leave of court.
    The defendant filed a plea of general issue and a notice of set-off stating that the plaintiff is indebted to the defendant in a sum named for malt sold and delivered. The plea and notice were ordered to stand as pleas to the additional count.
    The contract sued on is a memorandum of sale, as follows:
    “Americas' Maltirg 'Company.
    Memorandum of Sale.
    Bate Chicago, Feb. 19, 1905.
    Sold to Globe Brewing Co.
    P. P. Adress: 41st St, & Union Ave.
    Quantity: 15,000 bushels 34 lbs. screened
    Quality: Standard
    Price: 51 cents.
    F. O. B.: Brewery.

      Terms of Payment: 90 days net from date of bill, or 1 cent per bn. off for cash.
    When to be Shipped: as ordered during the season ending Dec. 31, 1906.
    In bags or Bulk: Bulk.
    The Bags when empty to be bundled and returned to the ................branch.
    Shipping Directions: Via Team.
    To .............................................
    Remarks: .......................................
    American- Malting Co.
    Per J. Temple.
    Seller.
    Correct:
    Globe Brewing Company, Purchaser,
    Philip R. Brand, Manager.
    No privilege, option or refusal on an additional quantity will be recognized unless special and definite mention thereof is made on this blank”.
    It is not controverted that there was a mistake in the date of the contract, the correct date being February 19, 1906.
    At the time of making the contract sued on the plaintiff was buying malt from the defendant under a prior contract dated March 15, 1905, similar iru terms, under which forty thousand bushels of malt was to be furnished at forty-nine cents a bushel, and all the malt was to be taken by March 15, 1906. The defendant continued delivering and the plaintiff continued taking malt under the prior contract until about August 31, 1906. Consequently, the plaintiff did not begin to order malt under the second contract prior to September 1906; and from that date to December 31, 1906, the date mentioned in the contract sued on as the close of the season within which all the malt was to be delivered and taken, the deliveries were all made under the contract sued on. During January, 1907, at various dates, seven loads were ordered and delivered. During February, 1907, five loads were ordered and delivered; and in March, 1907, five loads were ordered and delivered. All these deliveries were made by the defendant under the contract, at the price of fifty-one cents a bushel, although during the whole of the period between December 31, 1906, and March 15, 1907, the market price of malt of the same grade largely exceeded the contract price.
    On December 31,1906, only about 6,100 of the 15,000 bushels specified in the contract sued on had been ordered by the plaintiff.
    On March 14,1907, the defendant wrote to the plaintiff, from New York, the following letter:
    ‘ ‘ Gentlemen:—
    Your contract with this company, dated February 19, 1906, having expired by limitation on December 31, 1906, and having granted you two and one-half months additional time, we hereby notify you that the balance remaining undelivered has been canceled.
    Respectfully yours,
    American Malting Company.”
    At this date 3,974 bushels of the 15,000 still remained to be delivered under the contract. Plaintiff, about that date, made a new contract for that quantity of malt at eighty-three cents a bushel which was less than the market price.
    When this action was brought, there was due from the plaintiff to the defendant $1330.95 for malt furnished during February and March, 1907. The off-set claimed by the defendant is for this amount.
    The case was tried before the court without a jury. The court, at the close of the plaintiff’s evidence, found the issues for the defendant, and that the plaintiff was not entitled to recover for a breach of the contract. The court assessed the defendant’s damages at $1,330.95 and entered judgment on the finding.
    Lackner, Butz & Miller, for appellant.
    Edmund S. Cummings, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The correct solution of the controversy in this cause turns upon the question whether the defendant, appellee, waived the time fixed in the contract for ordering the malt by the plaintiff.

“A waiver is the intentional relinquishment of a known right, and there must be both knowledge of the existence of the right and an intention to relinquish it. Hoxie v. Ins. Co., 32 Conn., 40; Lewis v. Ins. Co., 44 Conn., 72; West v. Platt, 127 Mass., 372”. Perin v. Parker, 25 Ill. App. 465; affirmed in 126 Ill. 201. A waiver may be by such conduct as warrants an inference of the relinquishment of such right. Cole v. Dial, 12 Tex. 100; Findeisen v. Metropole Fire Ins. Co., 57 Vt. 520; Peninsular Land T. Co. v. Franklin Ins. Co., 35 W. Va. 666; Moline Malleable Iron Co. v. McDonald, 38 Ill. App. 589; Stow v. Russel, 36 Ill. 19; Vroman v. Darrow, 40 Ill. 171; Frost v. Thompson, 18 Ill. App. 410.

Where time of performance is of the essence of the contract, a party who does any act inconsistent with the supposition that he continues to hold the other party to his part of the agreement will be taken to have waived it altogether. King v. Wilson, 6 Beav. 124; Baker et al. v. The Bishop Hill Colony, 45 Ill. 264; and cases cited in 29 Am. & Eng. Ency. of Law, Vol. 29, p. 1104. When a specific time is fixed for the performance of a contract and is of the essence of the contract and it is not performed by that time, but the parties proceed with the performance of it after that time, the right to suddenly insist upon a forfeiture for failure to perform within the specified time will be deemed to have been waived and the time for performance will be deemed to have been extended for a reasonable time. King v. Radeke, 175 Ill. 72; Moline Malleable Iron Co. v. McDonald, supra. On the other hand a waiver will not be implied from slight circumstances, but must be evidenced by an unequivocal and decisive act clearly proven. If the act or acts relied on is not of such a character, or is not inconsistent with the enforcement of the right claimed to have been waived or an intention to rely upon it, no waiver is established.

Applying these principles to this case, we find that the contract which forms the basis of this action contains the following clause: “When to be shipped: as ordered during the season ending Dec. 31, 1906. ” The rights of the parties depend upon the legal effect of this provision, and the actions of the parties with reference to it.

This provision must, of course, be construed in connection with the balance of the contract, which is, we think, an executory contract for the sale of 15,000 bushels of malt, as the plaintiff should order it delivered during the season named. It was the clear intention of the parties that the buyer was to take, and that the seller was to deliver, that amount of malt. No option is given by the contract to the buyer to take less, or to the seller to deliver less than that amount. The buyer, under the first part of the clause above quoted, had the privilege to order the malt delivered at any time during the season, thus regulating the delivery to suit its convenience. The seller, on the other hand, had the right to compel the performance of the contract, on the part of the buyer, on or before December 31, 1906, for, although time is not made the essence of the contract by an express provision to that effect, in our opinion, time was of the essence of this contract. Time is generally of the essence in mercantile contracts. Williston on Sales, secs. 189, 453, 457.

The record shows that on December 31, 1906, only about sixty-one hundred bushels of the fifteen thousand had been ordered by the plaintiff. For this substantial breach of the contract, it is clear that the defendant could have refused to deliver malt on orders made after December 31, 1906; and we think it equally clear and well settled under the authorities cited supra, it could waive the breach and the time specified, and go on with the performance, the time limit being, as we have stated above, for its benefit only. Williston on Sales, sec. 192.

The question then resolves itself into this inquiry— did the defendant waive the time fixed in the contract for ordering the malt? If it did waive the time it is clearly in default for refusing to complete the delivery of the malt and treating the contract as canceled on March 14, 1907.

The evidence in the record shows, first, that prior to the execution of the contract in question the plaintiff purchased malt from the defendant under a former written contract, which by its terms expired on March 15, 1906; but, that under such former contract the plaintiff continued to order, and the defendant continued to deliver, malt until September 1, 1906, more than five months after the expiration of the contract, and for six months after the date of the contract sued on in this case. Second, after December 31, 1906, without comment by either party, the plaintiff continued to order and the defendant continued to accept the orders and to deliver malt in the same manner as before that date, and until March 14, 1907. There were many orders and many deliveries during that period of two months and a half. And from December 31, 1906, the market price of malt exceeded the contract price and was steadily going up. That the orders and the deliveries during January, February and March, 1907, were made under the contract sued on is made clear beyond any question by the bills for these deliveries sent by the defendant, and by its letter of March 14, 1907.

We think that the uncontroverted evidence of this continued course of conduct warrants the inference that the defendant intended to relinquish its known right to refuse to deliver malt, under the contract, on orders given after December 31, 1906, and to waive the time limit of the contract. Such an extension or waiver need not be shown by an express agreement between the parties; it may be shown by their acts and conduct in respect thereto. It may be shown by facts and circumstances sufficiently indicating an intention to waive. Frost et al. v. Thompson et al., supra, citing Vroman v. Darrow, 40 Ill. 171.

We think the authorities cited above are a sufficient answer, without further discussion, to the contention of the Malting Company that after the time of the performance of a contract has passed, any arrangement made between the parties for performance at a different time is not binding, unless supported by a new consideration, as applied to the facts of this case.

The position taken by the defendant apparently was that it could, at its option, continue the contract in force for such a period of time as it deemed advisable, and then, when it no longer deemed it expedient so to do, it could cancel the same, arbitrarily, without notice to, or consultation with, the plaintiff. This position is not tenable, in our opinion. The defendant had a right of election immediately after December 31, 1906, whether it would continue to deliver malt under the contract, or cease delivery, but having exercised that right by electing to consider the contract to deliver as still binding and in full force, it could not recall that election, and cancel the contract, as it attempted to do by its letter of March 14, 1907, without giving reasonable notice of its intention. King v. Radeke, supra. In refusing to deliver the remaining 3974 bushels called for by the contract, the defendant was guilty of a breach of its contract, and the plaintiff is entitled to recover damages measured by the difference between the contract price and the market price at the date of the breach. According to the evidence this difference was thirty-four cents a bushel, making the plaintiff’s damages $1,351.16. Deducting from this sum the amount of the defendant’s set-off for malt delivered under the contract and not paid for, $1,330.95, there is left a balance of $20.21, for which amount the defendant is indebted to the plaintiff, and the plaintiff is entitled to judgment therefor. The judgment of the Municipal Court is therefore reversed and judgment will be entered in this court in favor of the Globe Brewing Company and against the American Malting Company for $20.21.

Reversed and judgment here.


text:
    Clayton Haggerty, Defendant in Error, v. Sans Souci Skating Rink Company, Plaintiff in Error.
    Gen. No. 14,745.
    Municipal Court—when sufficiency of evidence saved for review. If the record shows that the motion for a new trial was made, the absence of such showing in the bill of exceptions is immaterial and the question of the sufficiency of the evidence is saved for review.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. A. E. Bergland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 21, 1909.
    Novak & Pollack, for plaintiff in error.
    Edward J. Greek and Charles C. Spencer, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

An action was brought in the Municipal Court of Chicago by the defendant in error, Clayton Haggerty, hereinafter called the plaintiff, against the plaintiff in error, Sans Souci Skating Bink Company, hereinafter called the defendant, to recover damages for an injury sustained by plaintiff on September 7, 1907.

It was charged by the plaintiff that while he was in the skating rink of the defendant, to which he had been admitted for a reward paid by him to defendant, a servant of defendant, while acting within the scope of his employment in the management and control of the skating rink, negligently ran and skated against the plaintiff, throwing him down and breaking his leg.

A trial by jury resulted in a verdict and judgment in favor of the plaintiff for $835.50, to reverse which this writ of error is prosecuted.

ISTumerous errors are assigned on the record, but counsel for defendant, as he states in his brief, relies especially on assignments of errors number one, which is that the court erred in admitting improper evidence offered on behalf of the plaintiff, and number seven, which is that the court below erred in overruling the motion in arrest of judgment interposed by the defendant.

The argument on behalf of the defendant below proceeds, however, mainly upon the question of the sufficiency of the evidence to sustain the verdict.

It is urged by the plaintiff’s counsel that this question is not properly before the court on this writ of error, inasmuch as the record does not show that the defendant made a motion for a new trial in the court below. We think, however, that the record shows that a motion for a new trial was made, and that it is sufficient, under the provisions of the Municipal Court Act, to bring before us the question of the sufficiency of the evidence, although it does not appear in the bill of exceptions in the case that such a motion was made.

The real question in the case, and upon which it must turn in this court, is the question of the sufficiency of the evidence to sustain the verdict.

The evidence shows that on September 7, 1907, the plaintiff went to the skating rink of defendant to skate upon roller skates, paid the defendant an entrance fee to the rink and also paid for the use of a pair of skates. The plaintiff at that time was an experienced skater, having used roller skates for about twelve years, and having skated at the rink of the defendant six or seven times in the two or three months immediately preceding the time of the accident.

The testimony upon the question of negligence is confined to that of Haggerty, the .plaintiff, and the witness Plain on behalf of the defendant. There is a sharp conflict in the evidence between these two witnesses. Haggerty testifies positively that he was skating slowly and with due care on that portion of the skating rink allotted to skaters, and that suddenly Plain, while in the discharge of his duties and while apparently executing some fancy skating, ran against him arid caused the injury for which the action was brought. On the other hand Plain testifies that he observed Haggerty skating in the rink on the evening in question, and that he was apparently staggering and uncertain in his movements, and that he observed him fall when Plain was several feet from him without any cause so far as Plain could discover. Plain admits that he was in the exercise of his duties on the occasion, and states that he performed his fancy skating in the center of the rink where there were no skaters.

The other testimony in the case throws no light upon the question of negligence.'

The jury upon hearing the testimony and arguments, and guided by the instructions of the court, found in favor of the plaintiff upon the issues in the case.

Where the evidence conflicts, as it does in this case, and where there is no clear and obvious ground recognized by law for reversing the judgment, we do not think we have any authority to substitute the judgment of this court for that of the jury. The evidence on the part of the plaintiff tends to support the issues in the case. That on the part of the defendant tends to show that the defendant was not guilty of the negligence charged. Upon this state of the record we cannot disturb the verdict.

The judgment of the court below is affirmed.

Affirmed.