author: Mr. Justice Clark Mr. Justice Baldwin

text:
    Sarah Ingram, Defendant in Error, v. The American Forwarding Company, Plaintiff in Error.
    Gen. No. 15,573.
    Common carriers—who liable as. An alleged forwarding agent who receives goods for transit, issues bills of lading, makes contracts in its own name with a railroad company for carriage, is, as to a person with whom it contracts for the deliveiy of goods, g¡ common carrier g,nd liable as such,

      Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed June 16, 1911.
    Rehearing denied June 27, 1911.
    Felix J. Streyokmans and Bryan J. Craig, for plaintiff in error.
    Bulkley, Gray & More, for defendant in error; C. Paul Tallmadge, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

This suit brings up for review proceedings in the Municipal Court of Chicago, which terminated in a judgment against the plaintiff in error for the value of a consignment of household goods shipped to Los Angeles, Cal. The relations between the parties are partly set forth in what is denominated an “inland bill of lading,” and which reads as follows:

“Inland Form I
Inland Bill of Lading No. 9405.
The American Forwarding and Mercantile Company.
General Office: Security Bldg., Cor.
Madison St. and 5th Ave., Chicago, Ill.
Fordwarders, Distributors, Domestic and Foreign Freight Contractors.
Oct. 4, 1906.
Apply for delivery to Pacific Coast Frt. Co., Los Angeles, Calif.
Bead the Mutual Conditions ok this Contract.
Beceived, in apparent good condition by The American Forwarding and Mercantile Company, except as otherwise noted herein, for account of Miss Florence Ingram, of Battle Creek, Mich., the property described herein to be forwarded to Mrs. Sarah Ingram, Los Angeles, Calif., subject, however, to the following conditions, agreements and stipulations :
1. The American Forwarding Company, hereinafter designated as the Company, and .................hereafter designated as the Shipper, agree that the said Company is hereby constituted the agent of the said Shipper for the purpose of forwarding the goods described herein to the distination given above.
2. The Company agrees to forward the goods herein mentioned to............or some other distributing point as soon as a car load has been accumulated, and is not to be held liable for any loss or damage arising from the detention of the goods for that purpose, nor for the neglect or refusal of any carrier to receive and forward the same.
3. It is expressly agreed and understood that in case of loss or damage to said property while not in the actual possession of said Company no action, suit or proceeding shall be instituted by said Shipper against said Company, but said Shipper shall proceed to collect the damages from the Carrier, Insurance Company, or other person at fault.
4. It is understood and agreed that the transit insurance covers only damages arising from fire, derailments of cars and collisions, any damage arising from other causes while the goods are in possession of the Company, Carriers or other Persons shall be settled on the basis of $5.00 per ewt. of goods so damaged.
5. The Company shall in no event be liable for loss by fire, floods, insurrections, riots, acts of God, civil or military authority or strikes, but only for damages as may arise from fraud or neglect of its servants, and then only when claim is presented within fifteen days from the arrival of the goods at their final destination.
And finally, in accepting this Bill of Lading, the Shipper, Owner and Consignee of the goods, or holder of this Bill of Lading agree to be bound by all of its stipulations, exceptions and conditions, whether written or printed herein, as fully as if they were all signed by such Shipper, Owner, Consignee or Holder.
Description of Articles.
No. 1 Box H. H. Goods.
This receipt is issued in exchange for a Bill of Lading of the G. T. Ry. Co., issued at B. Creek, the............day of 9-29, 1906.
This Company does not assume any responsibility for loss or damage before goods come into its actual possession, nor after they have been delivered to the Bailroad or other carrier transporting the goods to their destination, nor for loss by fire while in its actual possession.
Loaded in Car No.............Date............ Car No.............
Weight 370 pounds. Bate from Chicago, Ill., to Los Angeles, per cwt. $1.75, $6.48 (subject to correction.)
Other charges, viz.............
Total to collect for our account............
Marks: Mrs. Sarah Ingram No. inclusive.
From Miss Florence. Ingram. Consigned to Mrs. Sarah Ingram of Los Angeles, Calif., 471 E. 4th St., c/o Mrs. Geo. Melrose.
Place of origin, Battle Creek, Mich.
Bemarks ....................
The American Forwarding and Mercantile Company,
Per T. S. King.”

The shipment originated, as indicated in the foregoing “inland bill of lading,” at Battle Creek, Mich. The consignment there was made by Miss Florence Ingram, and the freight thereon prepaid to Chicago. The box was then delivered to the plaintiff in error, which issued the foregoing “inland bill of lading.” The freight was never delivered to the defendant in error, having, it would seem, been destroyed by fire. The business was solicited by Wingate and Bond, who, the evidence discloses, received a commission from the plaintiff in error on all business that they secured for it.

The decision of the case turns upon the question as to whether or not the American Forwarding Company in this transaction is liable as a common carrier or merely as a forwarding agent. At the outset it should be stated that in the case of Bare et al. v. American Forwarding Company, 146 Ill. App. 388, it was held to be, under somewhat similar circumstances, liable as a common carrier. This case was affirmed in the Supreme Court (242 Ill. 298), the latter court, however, basing its decision upon the proposition that whether or not the forwarding company was a common carrier was a question of fact, and that therefore the Supreme Court was concluded by the judgment of this court.

Our attention has been called by plaintiff in erorr to a decision of the Interstate Commerce Commission, Export Shipping Co. v. Wabash Ry., 14 I. C. C. Rep. 437, in which it was held that the Export Shipping Company, a concern doing business on somewhat the same basis as the plaintiff in error, was not a common carrier. In that case the question was whether a forwarder may assemble a quantity of freight owned by sundry persons for whom the forwarding company is acting, and ship the same in its own name as consignor in a carload lot, thus obtaining for its patrons the benefit of a lesser rate, uniformly given where goods are shipped in carload lots. The Commission held, two of its members dissenting, that railroad companies under such circumstances could be compelled to carry at the reduced rate.

In the present case it appears that the rate upon the freight in question, if shipped as an individual consignment, would have been $2.20 per 100 pounds, while the rate upon the property as shipped in a carload lot was $1.12. By reference to the foregoing “inland bill of lading” it will be seen that the rate charged the defendant in error was $1.75 per 100' pounds, so that the forwarding company received for services which it performed 63 cents per 100 pounds, over the amount paid the railroad companies.

Our attention is also called by plaintiff in error in its brief to the definition given in Bouvier’s Law Dictionary of what constitutes a forwarding agent:

“A forwarding agent is one who receives and forwards goods, taking upon himself the expenses of transportation, for which he receives a compensation from the owners, but who has no concern as an owner in the vessel, car or other conveyance by which the goods are transported and no interest in the freight. Such a one is not deemed a common carrier, but a mere warehouseman or agent. He is required to use only ordinary diligence in sending the property by responsible carriers. When he has placed the goods in course of transportation by proper conveyance his duties are at an end. He is not an insurer of the safe carriage of the goods.”

The scheme of the plaintiff in error, like that of other forwarders, is apparently to circumvent the Interstate Commerce Law by obtaining indirectly for a shipper a rate less than the published rate. If the plaintiff in error had, in pursuance of the duty usually placed upon a mere forwarder, delivered the freight to the carrier, to be carried as a single shipment, it would have been obliged to pay the $2.20 per 100 pounds rate instead of the rate of $1.12. It did not do that. It issued what it is pleased to call an “inland bill of lading.” How a bill of lading is defined as follows:

“A written acknowledgment of the receipt of certain goods and an agreement for a consideration to transport and deliver the same at a specified place to a person therein named or his order.”
“A memorandum or acknowledgment in writing, signed by the agent of a common carrier that it has received in good order, at the place therein mentioned, certain goods therein specified, which it promises to deliver in like good order * * * at the place therein appointed for the delivery of the same, to the consignee therein named, or to his assigns, he or they paying freight for the same.”
“It is considered to partake of the character of a written contract, and also of that of a receipt. In so far as it admits the character, quality or condition of the goods at the time they were received by the carrier, it is a mere receipt, and the carrier may explain or contradict it by parol; lout as respects the agreement to carry and deliver, it is a contract, and must be construed according to its terms.” Bouvier’s Law Diet.

Throughout the brief and argument of plaintiff in error, the contract between the parties is constantly referred to as “defendant’s bill of lading,” indicating that in the opinion of its attorney at least, it exercised some of the functions of a common carrier, although the statement is made and reiterated that it is not a common carrier but merely a forwarding agent.

If the plaintiff in error was acting as a mere forwarder, why was it necessary for it to incorporate in its so-called “inland bill of lading” such provisions as, “It is understood and agreed that the transit insurance covers only damages arising from fire, derailments of cars and collisions, any damages arising from other causes while the goods are in possession of the Company, Carriers or other Persons shall be settled on the basis of $5.00 per cwt. of goods so damaged;” and the provision in paragraph 5, providing among other things that a claim for damages must be presented “within fifteen days from the arrival of the goods at their final destination.” And, if plaintiff in error is a mere forwarder, why should it make a rate of transportation from Chicago to Los Angeles of “per cwt. $1.75”?

It would seem clear that defendant in error, having lost her property, should be entitled to payment for the same at some amount, either from the plaintiff in error or from the railroad company. If suit had been brought against the railroad company, it would necessarily have to be based upon a contract between the railroad company and defendant in error, under and by which the railroad company undertook to convey for the defendant in error household goods weighing 370 pounds. Did the defendant in error, or the forwarding company in her behalf, in the present case, make any such contract with the railroad company? We think not. In the first place, the railroad company was paid at the rate of $1.12 per 100 pounds. The published tariff rate for a shipment of this kind was $2.20 per 100 pounds in less than carload lots. If a contract had been made by the forwarding company in behalf of Mrs. Ingram with the railroad company to carry the goods at $1.12 per hundred, the officer or agent acting in behalf of the carrier would have been liable to a criminal prosecution under the statute. If such a contract had been made by the defendant in error herself direct with the railroad company, she would have rendered herself personally liable to a criminal prosecution.

We have examined the case of Export Shipping Company v. Wabash Ry. Co., supra,, and are persuaded that in the dissenting opinion of the Chairman of the Interstate Commerce Commission, Mr. Knapp, the better reasoning is presented.

In making its contract with the railroad companies for a carload shipment, the plaintiff in error necessarily exercised dominion and control over the divers shipments made in the car, from the time that it received such shipments to the time that it delivered the same to the various owners at Los Angeles, through its distributing agent. This distribution, it seems, was to have been made by the Pacific Coast Freight Company. There is some evidence in the record that nothing was paid by the forwarding company to the Pacific Coast Freight Company, but we do not regard that as material. The “inland bill of lading” contains the words, “Apply for delivery to Pacific Coast Frt. Co., Los Angeles, Calif.” If the plaintiff in error had been acting as a mere forwarder, the goods naturally would have been consigned to Hrs. Ingram at Los Angeles, and would have been delivered to her by the carrier at that point, upon identification and upon payment of the charges. Instead of that, the “inland bill of lading” provided -that she must apply to the company in Los Angeles, which, in this transaction at least, must be regarded as the agent of the forwarding company.

The contract in this case required the defendant in error to pay at the rate of $1.75 per 100 pounds for the transportation of the goods in question from Chicago to Los Angeles. It was not signed by the defendant in error. We think it shows conclusively that the plaintiff in error undertook for the amount stated to cause the box of goo'ds in question to be transported from Chicago to Los Angeles; and it clearly appears from other evidence in the record that the plaintiff in error paid to the railroads for the services performed by them the sum of $1.12 per 100 pounds. The record shows that after the so-called “inland bill of lading” was signed by the plaintiff in error it was sent to the daughter of the defendant in error at Battle Creek. By it the defendant in error was not advised as to what route the shipment would go; she could not have known from any information that was furnished her what railroad company or other carrier or persons she would have been obliged to sue in case of loss—if the theory of the plaintiff in error is to prevail. The record does show that on October 10th, six days after the issuance of the “inland bill of lading,” the goods were destroyed by fire, on the C. R. I. & P. R’y near Joliet, Illinois.

As stated by Mr. Justice Baker in Bare v. American Forwarding Co., supra:

“The rule that express companies are common carriers does not depend on the fact that such companies have messengers to take charge of the freight. Dispatch companies which have no such messengers are also common carriers. Both use railroad cars in the performance of their respective contracts, and they have the same relation to the railroad companies whose cars they so use.
We are unable to perceive any difference between the relations of such companies to the railroad companies whose cars they use and the relations of the defendant to the railroad companies whose cars it uses in the performance of such contracts .as the one it entered into with the plaintiffs, or any ground on which it can be held that such companies are liable as common carriers and the defendant not.”

In the present case it is clear to us that it is immaterial under what name or style the plaintiff in error assumes to carry on its business; that it exercises the employment of receiving, carrying and delivering goods, wares and merchandise for hire, on behalf of all persons who may see fit to require its services; that in this capacity it took the property in question from the custody of the defendant in error, assumed entire possession and control of it, made the contract with the railroad company in its own name, and agreed to cause the property to he delivered to the defendant in error at Los Angeles, through an agent at that point authorized to receive the property, this agent being the consignee named in the hill of lading issued by the railroad company to the plaintiff in error. It follows, therefore, in our opinion, that in this proceeding, the relation as between the parties must be held to be that of common carrier and shipper, and not that of forwarder and principal.

The record discloses the further fact that a receipt was issued by the Grand Trunk Railway System to the daughter of the defendant in error, on which the defendant in error is named as consignee; the destination is given as Los Angeles, and upon the receipt appear the words, “Notify car© of The American Forwarding & Mercantile Company, at Chicago, State of Illinois.” The receipt further shows that there was a prepayment of the charges to Chicago. It is clear from the record that no contract was made or intended to he made with the Grand Trunk Railway System by which it agreed to transport the property to Los Angeles. On the contrary, it is undisputed that the possession of the property was taken by the plaintiff in error at Chicago. The receipt hears upon it, “Owners Risk—Released to valuation of $5.00 per cwt. in case of loss or damage,” and it is contended by the plaintiff in error that even if it is to he regarded as a common carrier, the amount of the recovery should he limited to $5 per cwt., and that the stipulation is valid in Michigan; that plaintiff in error should he regarded as a connecting carrier of the Grand Trunk Railway System. We do not agree with plaintiff in error in this contention. In the first place, no through rate was made from Battle Creek to Los Angeles. The consignment was practically to Chicago, to which point the freight was paid, and there the plaintiff in error made a new contract with the defendant in error, under which it undertook to take the custody of the goods and cause their transportation to Los Angeles at the rate of $1.75 per 100 pounds, This was done in Chicago, and therefore the law of Illinois in respect thereto must govern. In paragraph 4 of the receipt or “inland bill of lading” given the defendant in error it is provided that any damage arising, etc., should be settled on the basis of $5 per cwt. of goods so damaged.

Section 1 of Chapter 27 of the Revised Statutes reads:

“That whenever any property is received by a common carrier, to be transported from one place to another, within or without this state, it shall not be lawful for such carrier to limit his common law liability safely to deliver such property at the place to which the same is to be transported, by any stipulation or limitation expressed in the receipt given for such property.”

In the case before us no special contract was made with the defendant in error limiting the carriers’ liability.

Holding, as we do, that the plaintiff in error must be treated as a common carrier, it follows that it is liable as such under the common law.

Affirmed.

Mr. Justice Baldwin

concurring:

I concur in the conclusion that, under the evidence in the case, plaintiff in error was liable and, therefore, that the judgment should be affirmed, but do not concur in all the reasoning of the opinion.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    R. B. Robbins, Defendant in Error, v. L. P. Hammond, Plaintiff in Error.
    Gen. No. 15,604.
    Municipal Court—effect given to finding of court. The finding of a court who has tried a case without a jury is given the same effect as the verdict of a jury and such finding will not be set aside as against the weight of the evidence unless clearly and manifestly" so.
    Error to the Municipal Court of Chicago; the Hon, McKenzie; Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed June 16, 1911.
    Warren B. Wilson, for plaintiff in error.
    Ledbetter, Carpenter & Exter, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

The plaintiff in error was engaged in the real estate business under the name of L. P. Hammond & Co., and from the record was apparently devoting his attention largely to the sale of lands in Texas.

Hammond wrote to Bobbins under date of July 13, 1908, among other things as follows:

“We will guarantee you $100 per month, together with your legitimate "and necessary expenses, to appoint agents and solicit buyers for these lands, and in addition will allow you 25 cents per acre on the work accomplished through any agent you may appoint.”

The defendant in error began work the next day, and up to the time of beginning suit had received no compensation for his services excepting the sum of $25. He was discharged on January 19, 1909, after having been employed somewhat over six months.

The record shows that about thirty days after the defendant in error entered the employment of the plaintiff in error, the parties had a conversation resulting in an oral agreement, as claimed by Hammond, that he should continue to advance expenses but that Bobbins’ compensation should depend entirely upon the amount of sales he made, and that the guarantee of $100 per month should be eliminated. Bobbins denies that there was any agreement on his part to release Hammond from the payment of his monthly salary. He did not demand his salary each month, but he accounts for this by saying that he wanted to get it all at one time in order to continue his work as a college student.

Aside from the parties, the only witness beard was C. J. Wait, who was called by the defendant. He testified that at one time he saw Bobbins tap Hammond on the shoulder and heard him say, “I don’t want any of your money if I don’t do business and bring buyers.” He further testified that he did not hear any discussions about the terms of the employment or what was to be paid.

The case in the court below was tried without a jury. No question of law is raised in the brief and argument of the plaintiff in error, and we cannot say that the evidence is so manifestly or clearly with the plaintiff in error as to entitle him to a reversal. It has often been held that the finding of a trial court should have all the force and effect of a verdict of a jury. Giving it that effect, we must affirm the judgment.

Affirmed.


text:
    Bela Schwarz, by next friend, Defendant in Error, v. Boston Store of Chicago, Plaintiff in Error.
    Gen. No. 15,621.
    Master and servant—what not assumed risk. If an inexperienced servant is injured in obeying an order given him by one in authority over him the doctrine of assumed risk will not bar a recovery unless such servant was contributorily negligent.
    Smith, P. J. dissenting.
    Action in case for personal injuries. Error to the Municipal Court of .Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed June 16, 1911.
    Winston, Payne, Strawn & Shaw, for plaintiff in error; Ralph M. Shaw and Edward W. Everett, of counsel.
    D’Ancona & Pflaum, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

The defendant in error suffered an injury to his left hand while working at a meat chopping machine. He was upwards of nineteen years of age, and had been living in this country but a short time, his home previously having been in Hungary. A few days prior to the time of the accident he went into the employ of the plaintiff in error, as a wrapper boy in the meat department, at a salary of $7 per week. During the one week he worked prior to the accident he had been employed in wrapping meat, and also cleaning the tables and ice box. He had never before worked at the meat chopping machine.

There is conflict in the testimony as to who was his immediate superior. He was hired by a Mr. Sullivan, who, he says, never gave him any instructions but told him that his duties would be to wrap meat. A butcher, called Herman, is stated by a floorman, who was a witness for the plaintiff in error, to have had charge of the defendant in error, and there is other testimony to the same effect.

Defendant in error testified that Herman brought in a box of meat in a wooden case and told him to put the meat in the machine and when ready to call him; that after he had put the meat in the machine and it had gone through the-first time, which took about an hour, he called Herman and asked what he should do next, and Herman ordered him to put it through a second time, as it was not chopped fine enough; that he was not given a stick or appliance of any kind with which to push the meat into the funnel; that he pushed it in or down with his fingers, as he had seen others do; that he had not been instructed by anyone. The funnel into which he put the meat was about one foot and a half below his eyes. While pressing the meat with his hands, his left hand in some way was caught, either by the worms of the machine or the knives. He was unable to extricate it, but succeeded in stopping the machine by turning off the electric power by which the machine was operated. The evidence showed that when the meat was placed in the funnel the first time, the meat being in large chunks, the machine fed itself, but when the meat was put in the second time it had to be pressed down. The result of the accident was the loss of the first, second and third fingers of the hand; which were amputated after the accident. The wheels, blades and moving parts of the meat chopping machine were enclosed in an iron case and were concealed from view, with the exception of a portion of the worms or knives, which could he seen through the funnel, the funnel being at one end of the machine, into which the meat to be chopped was placed.

The trial resulted in a verdict for $500 for the defendant in error, upon which judgment was rendered.

We are asked to reverse this judgment on the ground that the trial judge should have directed a verdict for the defendant. The record discloses that the jury was fully instructed orally by the court, who included in his charge sixteen instructions tendered by the plaintiff in error. ISTo complaint is made of the admission or rejection of testimony, or of the action of the court in charging the jury, except the failure to instruct them to find a verdict, as heretofore stated.

It is urged upon us that the plaintiff in error assumed the risk; that because the uncontroverted testimony is that one by looking into the funnel could see the worms revolving, he must know, however inexperienced he might be, that if his hand came in contact with the worms he would be injured.

In the statement of claim it is charged that the plaintiff in error negligently ordered the defendant in error to operate the meat chopping machine; that at that time he was nineteen years of age and was unfamiliar with the operation and use of the machine; that he had not prior to that time used or operated the machine, and that the plaintiff in error negligently failed to explain its operation and use; that it was dangerous, unsafe and unguarded, which fact plaintiff in error knew, or ought to have known, and defendant in error did not know; that defendant in error was in the exercise of reasonable care for his own safety, and was operating and using the machine in obedience to orders. It further charged that the plaintiff in error negligently permitted the machine to remain in an unsafe, dangerous and unguarded condition.

We think, from the record, that this case comes within the class of cages to which the doctrine of assumed risk does not apply—unless it is assumed that “Herman,” so-called, was not the superior of the defendant in error and had no authority to give him the order which he did give. This question of fact-as to Herman’s authority was properly submitted to the jury under full instructions. In order, therefore, that a reversal be had in the case, this court must find that the defendant in error was guilt of contributory negligence. In the case of Springfield Boiler Co. v. Parks, 222 Ill. 355, it is stated:

“Negligence and contributory negligence are questions of fact, and unless the facts are uncontroverted and all reasonable minds would readily agree as to the conclusion to be drawn from the admitted facts, those questions are questions to be submitted to the jury as questions of fact, and not to be decided as questions of law by the court. In view of all the facts proven in this case we think the question whether the appellee was guilty of such contributory negligence as should defeat his right to recover was properly submitted to the jury as a question of fact.”

It is of course our duty to examine the record and ascertain whether the verdict is against the clear weight of the evidence. We have performed that duty, and are unable to say that it is so. The jury and judge in the court below saw the defendant in error, and were better able to judge of his capacity and intelligence. It is true he was upwards of nineteen years of age and had had some experience as a stenographer in an office in which he was employed in Hungary. He testified that he left school when about fourteen years of age. He was employed to wrap meats, and not to handle machinery. Whether or not the plaintiff in error was guilty of negligence in directing him to do the new work he was called upon to perform, without giving him any instructions, and in allowing him to do the work with the little experience that he had gained by seeing other young men operate the machine during the few days he was employed prior to the accident, and whether or not the danger of doing what he did do was so obvious and apparent that a young man of his age and experience ought to have been able to protect himself against it, were, in our opinion, questions which ought properly to be submitted to the jury. We are unable to say that all reasonable minds would readily agree as to the conclusions to be drawn from the admitted facts.

In ordering a servant to perform work with which he is not familiar, it is the foreman’s duty to take reasonable precautions for the safety of the servant; and whether the risk attendant upon obedience to the foreman’s command was so great that an ordinarily prudent person, under the facts shown by the evidence, would have disobeyed the order, is a question of fact for the jury. The Cobb Chocolate Co. v. Knudson, 207 Ill. 452.

Affirmed.

Mr. Presiding Justice Smith dissents.


text:
    Page Woven Wire Fence Company, Defendant in Error, v. Illinois Smelting & Refining Company, Plaintiff in Error.
    Gen. No. 15,636.

      Evidence—when letter competent. If a part of a letter is competent it is not error to admit the whole letter in evidence.
    Error to the Municipal Court of Chicago; the Hon Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed June 16, 1911.
    Louis S. Gibson, for plaintiff in error.
    Defrees, Buckingham, Ritter & Campbell, for defendant in error; Marquis Eaton, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

The controversy in this case arose out of the sale of a carload of lead oxide made by the defendant in error to the plaintiff in error. On June 22, 1908, the fence company wrote to the smelting and refining company, stating that it had accumulated a carload of lead oxide mixed with coke, and asked if the smelting and refining company would be interested in the purchase of the material, stating, “we can, if necessary, furnish a sample, but would not, under any circumstances guarantee the sample to he representative of the carload. We would, however, use our best efforts to obtain a fair sample.” On the next day the smelting and refining company wrote to the fence company offering $45.50 per net ton “F. O. B. shipping point.” The terms were “cash against documents this month’s shipment.” On the following day the fence company accepted the offer by telegram, and confirmed the telegram by letter, changing the terms, however, to “sight draft for bill of lading.” The smelting and refining company telegraphed its acceptance of the amendment of the terms. On the same day it wrote the fence company asking for a sample of the material in question, and that the car be not shipped until the following Monday. On June 27th the fence company wrote to the smelting and refining company stating that they were loading the car on that day but had no objections to holding it until the following Monday. Several days later, on July 2nd, the smelting and refining company wrote stating that the sample was not satisfactory in that it did not contain the lead it should, and stating that it would not pay more than $30 per ton F. O. B. shipping point for the material. Meantime the car had been shipped and a draft made upon the plaintiff in error on the basis of $45.50 per ton. Payment of the draft was refused, and thereupon the defendant in error sold the material to another concern doing business in Chicago.

There was a trial before the court and jury, which resulted in a verdict of $301.01, a reduction from the plaintiff’s demand of $254.20. Upon this verdict judgment was entered.

We are asked to reverse the judgment on the ground that the verdict is not supported by the evidence. The only error based on the admission of testimony which is suggested is as to a part of the letter of July 2nd, above referred to. The letter itself was not objected to, but so much of it as contained the offer of compromise, as it is termed by the plaintiff in error. We do not think any error was committed in this regard. Portions of the letter were admissible, and in order that they should be received the whole letter must necessarily have been admitted' in evidence. The only effect of the so-called offer of compromise seems to have been in favor of the plaintiff in error. The amount received by the defendant in error on the resale of the lead oxide mixed with coke was $328.40; the amount deducted by the jury was $528.60. We have carefully considered the record, briefs and arguments in the case, and cannot see that the result reached by the jury as shown by its verdict was against the manifest weight of the evidence.

Complaint is made that the fence company in reselling the material did not use the care, diligence and honesty that it should have used. The number of concerns which use this material in Chicago seems to be very limited, and in the letter of July 2nd heretofore referred to, the smelting and refining company authorized the defendant in error to “dispose of it to other smelters in this city.” There is m> testimony to the effect that the full market value on the resale was not allowed in the verdict. The jury in its verdict allowed the plaintiff in error all that it claimed the material was worth, and we think it has no right to complain on that score.

Affirmed.


text:
    J. Erb, Defendant in Error, v. The Western Union Telegraph Company, Plaintiff in Error.
    Gen. No. 15,642.

      Damages'—what may be recovered for failure to deliver cablegram. In an action to recover for failure to deliver a cablegram, only such damages as may reasonably be expected to have been in the contemplation of both parties at the time the contract was made, may be recovered.

      Error to the Municipal Court of Chicago; the Hon. Arthur W. Beseem:, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with findings of fact.
    Opinion filed June 16, 1911.
    West, Eckhart & Taylor, for plaintiff in error.
    J. Erb and John P. Klein, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

In the 1900 issue of the International Cable Directory Company’s book, known as “Western Union Telegraphic Code,” the address of the defendant in error was inserted as “Erb.” Subsequent editions did not contain it. The record does not disclose what the relation between the Western Union Telegraph Company and the directory company is. It seems, however, that cablegrams were sent at different times to Mr. Erb, and received by him. In 1908 Mr. Erb, who is an attorney, was in Paris, and desiring to communicate with the gentleman in charge of his office in Chicago, did so by a cablegram, which was written in cipher, and addressed to “Erb,” Chicago. It appears that at that time “Erb” was also the cable address of another attorney well known in Chicago, and the cablegram was delivered at his office instead of that of Mr. Erb.

Suit was brought by the defendant in error for damages'on account of the non-delivéry. The measure of damages claimed is best stated in the colloquy between Mr. Erb and the court below, as it appears in the record:

“Mr. Erb. I testified that for 30 days I spent five or six dollars a day more than I would have if I had been with Mrs. Erb in Paris.
“The Court. But that is not certain enough. How much are you claiming oh that item %
“Mr. Erb. Five or six dollars a day for thirty days.
“The Court. That would be about $150 to $180. Well I will allow you $50. There will be a finding for the plaintiff for $50.”

Judgment was entered for the plaintiff for $50, which we are asked to reverse on two grounds: First, that when telegrams or cablegrams are sent in cipher there can be recovery only for a nominal amount, not to exceed the amount paid for sending the message. The second ground for reversal is stated to be that there is no testimony in the record which justifies the judgment, so far as the amount is concerned, even if it is held that there is no merit in the first ground urged; the plaintiff in error insisting that the judgment should have been for the amount paid for the message, to wit, $2.40.

The case must be reversed. We prefer to place the reason for reversal upon the second ground, although it would seem to be warranted on the first ground suggested. Primrose v. Western Union Telegraph Co., 154 U. S. 1.

Practically the only evidence in the record as to the extent of damages is what is quoted above. It is true Mr. Erb testified that he waited in Paris some time for an answer to his message, that his return by himself put him to an extra expense of somewhere in the neighborhood of $150 or $200. He accounts for his extra expense by the statement that in Paris “with the room at the hotel, it is practically the same for two as for one; it is in that way, being obliged to leave there and come back here and incur separate expenses on my own account from here, that this element of damage intervenes.”

In our opinion, these damages are not such as may reasonably be supposed to have been in the contemplation of both parties at the time the contract was made, as the probable result of the breach of it. They are therefore not recoverable. (Hadley v. Baxendale, 9 Exch. 341). We think the amount recovered should have been limited to the sum paid by the defendant in error for the transmission of the despatch. The case therefore will be reversed and a judgment entered in this court in favor of the defendant in error, J. Erb, and against the plaintiff in error, The Western Union Telegraph Company, for the sum of $2.40, on a finding of fact.

Reversed with finding of fact and judgment entered.


text:
    Bekins Household Shipping Company, Defendant in Error, v. Grand Trunk Railway System, Plaintiff in Error.
    Gen. No. 15,656.
    1. Municipal Court—when insufficiency of statement of claim will not reverse. In the absence of a motion for a more specific statement of claim having been made and in the absence likewise of any objection to testimony based upon the insufficiency of such statement, a reversal will not be awarded.
    2. Common carriers—liability for freight marked to particular destination. A carrier by accepting freight marked to a particular destination impliedly agrees to deliver it at that place whether on its own line or beyond, and is prima facie bound to do so.
    3. Common carriers—when restriction upon liability not enforced. Where a contract limiting the liability of a carrier is contained in a bill of lading constituting both a receipt and the contract, the burden is upon the carrier to show that the shipper assented to the terms and conditions of the contract.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed June 16, 1911.
    Kretzinger, Rooney & Kretzinger, for plaintiff in error.
    Thomas M. Heaben, for defendant in error; Emory D. Frazer, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

Defendant in error undertook to cause to be transported for one Arthur W. Young a quantity of household goods from Los Angeles, Cal., tó Hingham, Mass. The goods were consigned to. the defendant in error, at Chicago, to which point it paid the freight charges of the railroads transporting the same. On April 7, 1906, it delivered the goods to the plaintiff in error at Chicago and took a receipt on a printed form of defendant in error, which in part reads as follows:

“Received from Bekins Household Shipping Co., in apparent good order, the articles named helow, to be delivered in like good order without unnecessary delay. To order of Bekins Shipping Co. Notify A. W. Young, Hingham, Mass.”

The record discloses that the freight charges from' Chicago to Hingham, Mass., were prepaid by the shipping company and amounted to $57.73. No bill of lading on the railway’s form was issued, the parties evidently regarding the receipt with the addition made by plaintiff in error as taking the place of such a bill of lading. This receipt had various words stamped upon it by the railway agent, among others these: “Not responsible beyond terminal station.” On the back of the receipt are the words: “Deliver to A. W. Young. Be-ekkins Household Shipping Co., E. Zwiers, Mgr.” The receipt so marked and endorsed was attached to a draft made upon Young for $214.33. This draft was not paid, but the goods were delivered to Young without an order from the shipping company and without surrender of the receipt or bill of lading.

Suit was brought for the sum of $114.33. The record discloses the fact that $100 of the amount covered by the draft had been paid by Young to the defendant in error, and its claim is that it had a lien on the goods for the balance owing it by him. There was a finding of the court in favor of the defendant in error and against the plaintiff in error for the sum of $114.33, and judgment rendered thereon.

Several reasons are assigned foi\the reversal of the judgment. It is said that there should have been no recovery because the statement of claim made by the defendant in error itself does not show a cause of action. It is true that this statement does not express accurately the basis of the suit. A copy of the receipt or bill of lading however was attached. No motion for a more specific statement appears to have been made, and no objection was interposed to testimony based upon the alleged insufficiency of the statement. The case should therefore not be reversed on this ground.

It is asserted by the plaintiff in error that the language stamped upon the receipt or bill of lading—“Hot responsible beyond terminal station”—limited the liability of the plaintiff in error to losses on its own line. We do not understand such to be the law. The freight charges were paid in advance to Hingham, Mass. There is nothing upon the receipt or bill of lading to indicate that Hingham was not a station on the line of road of the plaintiff in error. It has been held, too, that a carrier by accepting freight marked to a particular destination impliedly agrees to deliver at that place whether on its own line or beyond, and is prima, facie bound to do so; and also that where a contract limiting the liability of a carrier is contained in a bill of lading constituting both a receipt and a contract, the burden is upon the carrier to show that the shipper assented to the terms and conditions of the contract. Wabash R. R. Co. v. Thomas, 222 Ill. 337. We find nothing in the record tending to indicate that the shipping company understood, or had reason to understand, that the liability of the plaintiff in error was to be limited to its own line of railroad.

It is claimed by the plaintiff in error that there is no competent testimony in the record to show either the value of the goods or the lien, if any, which the defendant in error had upon them. While the evidence as to the value of the goods was very slight and unsatisfactory, it was not contradicted by any testimony offered on behalf of the plaintiff in error. It is claimed by the defendant in error that it applied part of the $100 paid by Young to the liquidation of its storage and other charges exclusive of the amount advanced by it for freight to the railroad lines west of Chicago, and that the balance of the $100 was applied on such freight charges. There was evidence tending to show that the charges west of Chicago paid by the defendant in error were much more than $56.60. The defendant in error paid to the plaintiff in error $57.73 for transporting the freight from Chicago to Hingham, Mass., for which amount it certainly would have a lien upon the goods, in addition to the amount paid by it for freight to the lines west of Chicago. These two items aggregate the amount of the judgment.

Our conclusion is that justice between the parties was done in the rendition of this judgment, and it will therefore be affirmed.

Affirmed.


author: Per curiam.

text:
    Chicago Copy Company, Defendant in Error, v. The Original Manufacturing Company, Plaintiff in Error.
    Gen. No. 15,641.
    1. Service of process—when upon corporation sufficient. A return as to the president of a corporation “not found” justifies service upon an agent.
    2. Abatement—when appearance not special. Held, that even though a special appearance may be entered, such appearance becomes general by the interposition of a motion predicated upon the merits to set aside a default.
    3. Municipal Court—what essential to reverse judgment. Before a judgment of the Municipal Court will be reversed the Appellate Court must be “satisfied that the judgment is contrary to the law and the evidence.”
    Error to the Municipal Court of Chicago; the Hon. W. N. Gemmill, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 19, 1911.
    J. H. Perkinson, for plaintiff in error.
    Byron O. Thorpe, for defendant in error.
   Per curiam.

A judgment of the Municipal Court of Chicago for $162 and costs in favor of the Chicago Copy Co., against The Original Manufacturing Co., is attacked by this writ of'error, on the ground of defective service of the original writ of summons in the Municipal Conrt, and on the ground that the evidence did not sustain the finding of the court on which the judgment was entered. The service of the writ was as follows: “Served this writ on the within named The Original Manufacturing Company, a corporation, by delivering a copy thereof with a Receipt and Statement tif Claim attached thereto to W. M. Walters, Agent of said corporation, this 16th day of Feb’y, 1909. The President of said corporation not found in the city of Chicago.” We have in Ho. 15,670, Burr v. Co-operative Construction Co., held that the return of “not found in the city of Chicago” as to the president of a corporation, allows valid service to be made on an “agent!” The defendant, however, claims that there is evidence in the record that the person served was not an “agent” of the defendant corporation. The evidence alluded to was not offered by the defendant, The Original Manufacturing Company, but by Walters himself, who had been named as a co-defendant with the Manufacturing Company and one Steudell, who seems never to have been found in the jurisdiction.

He swore on the trial of the case as against him, that he was not the agent of The Original Manufacturing Co. and had no relations with ife, except that he was a sub-tenant of the Company in an office of which it had a lease in the Masonic Temple. The office had the name of the “Original Manufacturing Company” on the door and it would appear that another sub-tenant (Steudell) had ordered the- goods—pictures of such furniture as “The Original Manufacturing Company” were making—and had signed an order for them with the name of Original Mfg. Co., and when the first instalment of the pictures were delivered at the office in the Masonic Temple, leased by and marked with the name of The Original Manufacturing Company, C. O.D.,had resentfully through the telephone declared that as a reputable concern The Original Manufacturing Company should not have had its goods sent C. O. D., whereupon the said first instalment was left with Steudell and receipted for by him. After that three other instalments of the goods were left at the same place and receipted for by Walters in the name of The Original Manufacturing Co. Walters swore that he signed the receipts in that name merely to accommodate The Original Manufacturing Company, thinking that it had purchased the goods.

This testimony was heard on March 22, 1909. After its conclusion the plaintiff dismissed its suit against Walters, whereupon the attorney who had been representing him “moved for leave to enter a special appearance for The Original Manufacturing Company and to plead to the jurisdiction of the Court and for leave to contest the service of process on said defendant, saying that he did not know that the files showed service on The Original Manufacturing Company, and that said Company had no knowledge of such service, which motion was denied by the court.”

The court then, on motion of the plaintiff, ruled The Original Manufacturing Co. to appear instanter and had it called. It was defaulted, and thereupon it would appear from the bill of exceptions that same attorney moved “for an arrest of judgment,” which must mean an arrest of judgment against the “Original Manufacturing Company.” This motion was denied by the court.

Thereupon, reciting in its judgment order that the defendant, The Original Manufacturing Co., had been duly served and had defaulted in appearance, the court gave judgment against it for the amount of the claim as computed by the order given in the name of The Original Manufacturing Co. by Steudell. The goods were then, so far as appears, in the office of The Original Manufacturing Company in the Masonic Temple. On the 29th of March an affidavit was filed in the Municipal Court by one Anton Eollert, merely alleging that he and his sons were copartners doing business as The Original Manufacturing Company at Evanston, and that said Company is not a corporation, and that neither he nor (on information and belief) his partners were served in this case, nor ever ordered or authorized any one to order any goods from the Chicago Copy Co., and that “he had not received said goods and had no knowledge as to who ordered the same.” It must be noted that this affidavit by itself could not be held to deny the existence of a corporation by the name of The Original Manufacturing Company, who might have ordered the goods.

April 10, 1909, the same attorney who had represented Walters and made the motions before set forth, entered an appearance as follows:

“I hereby enter the appearance of Original Mfg. Company, defendant, and myself as their attorney in the above entitled cause specially for the purpose of pleading in abatement to the jurisdiction of the court of the defendant and to contest the service of the summons. J. H. Perkinson, Defendant’s Attorney.”

On the same day the defendant, The Original Manufacturing Company, by its attorney, J. H. Perkinson, moved the court in writing to vacate the default and judgment against it, and besides reasons relating to the service set forth that the verdict was against the evidence and the law in the case. This motion being denied, The Original Manufacturing Company, by said attorney, asked leave to enter its general appearance on condition that it be granted a new trial and have “its day in court.” This motion also was denied. The court fixd the amount of the bond for a stay of execution at $27 5, whereupon a bond was filed, the principal of which was “The Original Manufacturing Company (a corporation),” (which signed the bond, “The Original Mfg. Co. By A. J. Rollert, President”), and the surety in which was A. J. Rollert. The writ of error was sued out by “The Original Manufacturing Company, a corporation.”

The whole transaction has a strange look. We think that under the circumstances disclosed by the record the appearance of the plaintiff in error, which certainly had actual notice through its attorney all the time of the proceedings, must be held to have been a general one when it raised the question of the merits of the finding by its motion to vacate the default. Gilchrist Transportation Co. v. Northern Grain Co., 107 Ill. App. 531, and 204 Ill. 510; Ryan v. Driscoll, 83 Ill. 415,

When the court had jurisdiction after the appearance, if the defendant, The Original Manufacturing Company, wished to vacate the default and contest the case on the merits, it should have at least offered some proof of a prima facie defense by affidavit or such other means as are admissible in the Municipal Court practice. The testimony taken before it appeared, against and in favor of another defendant, and the affidavit of Bollert, before recited, filed some days before, do not seem to us sufficient to require such a vacation.

The goods seem to have been received for The Original Manufacturing Company, and to have remained on its premises up to the time of the trial, and defendant in error is right in saying that there is no showing that it ever offered to return them or notified the plaintiff that it could take them away.

We are not “satisfied that the judgment is contrary to the law and the evidence,”—section 23 of the Municipal Court Act,—and shall decline to interfere with it. It will be affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    George G. Greenburg, Defendant in Error, v. Nyberg Automobile Works, Plaintiff in Error.
    Gen. No. 15,647.

      Assumpsit—when absence of Ueense mil not preclude recovery of commissions. If there is an ordinance regulating an occupation and requiring those engaged therein to be licensed, a recovery of commissions may be had by one not regularly engaged in such occupation who merely made an isolated sale.
    Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 19, 1911.
    William A. Jennings, for plaintiff in error.
    Joseph Cummins, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The only substantial point urged in objection to the judgment of the Municipal Court in this case is that although the suit was for a balance due for commissions for the sale of two automobiles to customers who were brought to the defendant by the plaintiff, the plaintiff had no broker’s license under the Municipal Code of Chicago. Therefore, it is maintained by the defendant, the transaction was unlawful, and no claim for commissions could be upheld.

Incidentally the defendant insists that the court improperly sustained an objection to the question put on cross-examination to the plaintiff—“How many automobiles have you sold in the city of Chicago ?”

This last point would be of more force if almost immediately afterward the question had not been repeated and answered without objection.

The answer to it and to connected interrogatories disclosed the fact that the transactions involved in the suit were the only ones of the kind the plaintiff had ever been connected with in Chicago.

The ordinance relied on by the plaintiff is a regulatory and revenue measure, referring to an occupation, not to isolated transactions like those at bar. O’Neill v. Sinclair, 153 Ill. 525.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Ella Anson, Defendant in Error, v. New York Life Insurance Company, Plaintiff in Error.
    Gen. No. 15,658.
    1. Insurance—how policy to be construed. If a policy is not ambiguous it is to be construed most favorably to the beneficiary.
    2. Insurance—provision as to deduction of indebtedness construed. Held, that a provision in a life insurance policy having loan values authorizing the company to deduct “any indebtedness to the company” was not applicable to 'an indebtedness which arose with respect to matters outside of the policy.
    3. Accord and satisfaction—what constitutes. When a party entertaining an honest belief that he is indebted in a smaller sum than is claimed by his creditors, offers to pay such smaller sum on condition that it must be taken if at all in full satisfaction of the claim, in dispute, and the creditor receives and receipts for the money, he takes it subject to the condition attached to it, and it will operate as an accord and satisfaction.
    4. Accord and satisfaction—when not established. Held, under the evidence in this case, that an accord and satisfaction was not established.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 19, 1911.
    O’Bryan & Marshall, for plaintiff in error.
    Anderson & Anderson, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error to the Municipal Court of Chicago sued out to reverse a judgment of that court, in a case of the fourth class, in favor of the plaintiff, Ella Anson, against the defendant, the Mew York Life Insurance Company, for $225 and costs. The Mew York Life Insurance Company, the defendant below, is the plaintiff in error here.

The judgment is for an amount which was alleged to be due on a policy of life insurance issued by the defendant Company on the life of Charles W. Anson and made payable to his wife, the plaintiff, Anna E. Anson, as beneficiary. The policy was an ordinary life policy for $1,000, and was taken out by Charles W. Anson, who was at that time an agent of the Company, August 11, 1904. Mo question was made as to the due payment of premiums, nor as to the death of the insured in the year 1907, and the presentation of proper proofs of the same to the Company thereafter.

The defense made was that of payment on Movember 22, 1907, to the plaintiff (the beneficiary under the policy) of everything due to her under the policy, and the supplementary proposition that if the entire amount was not then paid, there was an accord and satisfaction between the plaintiff and defendant on that date, which formed a bar to the recovery by the plaintiff of any additional sum to that then received by her.

It is admitted that on that date the plaintiff received from the Mew York Life Insurance Company on the policy in question a check for $774.99, which she duly endorsed and collected on December 4th, 1907. On receiving the check she surrendered the policy to the Company’s agent in Chicago, who was the cashier of the Company’s Chicago office, and who delivered her the check. Contemporaneously she signed and delivered to the said cashier, Ernest M. Bodson, who was a witness in the suit in the Municipal Court, a receipt reading as follows:

“New York, 11/22 1907.
Received from the Mew York Lire Insurance Company $1000 One Thousand Dollars as shown by statement below in full payment and satisfaction of all claims and demands under Policy Mo. 3,631,343 on the life of Chas. W. Anson, deceased, which is hereby surrendered to the Company.
Statement.
Amount of Insurance, $1000. Anna E, Anson.
Pr. Chicago Agy. Met Payment----$774.99
Balance ......... 225.01 -
- Total.........$774.99
Total.........$774.99

The plaintiff, however, claims that $774.99 did not measure the amount due her; that as beneficiary under the policy she was entitled to the full $1000 for which she receipted, and that her receipt and surrender of the policy and reception and collection of the check for $774.99 did not, as claimed by the defendant Company, constitute an accord and satisfaction.

The Municipal Court (which tried the cause without a jury) also took this view of the questions involved, as is shown by its judgment and by its refusal to hold certain propositions of law tendered by the defendant. Hence this writ of error.

The first question involved—whether or not the defendant was before the “Settlement” of Hovember 22, 1907, liable to the plaintiff for the full amount of $1,000, gives us little trouble. The contention of the Company to the contrary is founded on this clause, among the general provisions of the policy: “(6) Any indebtedness to the Company will be deducted in any settlement of this Policy or of any benefit thereunder

The Company maintains that there is no ambiguity. in this language, but that it is a clear, definite and positive provision, and gives to the Company the right to deduct from the amount which otherwise would be due on the. policy in the beneficiary thereunder, the amount of any indebtedness of the insured to the Company at the time of his death. It is admitted that in this ease, through the transactions between the Company and the insured, while he was agent for it, there had accrued from him to the Company an indebtedness of $225.01, which existed at his death. Therefore this amount was deducted from the $1,000 indemnity provided by the policy for the beneficiary.

We find ourselves unable to agree with the counsel for plaintiff in error that the language in question is unambiguous.

The object of the insurance was indemnity for and provision for the beneficiary named. There were elaborate provisions in the policy preceding the “General Provisions,” of which the clause involved is one, which provide for “Cash Loans” to the insured on the pledge and security of the policy, and it is suggested by counsel for defendant in error that the term “any indebtedness” may well refer only to the loans obtained under said provision and pledge of the policy, or indeed may well be read to refer only to any indebtedness to the Company of that person to whom the amount of the policy becomes payable when due. In this case, this was the beneficiary, the plaintiff, Anna E. (or, as she is named in this suit and writ of error, Ella) Anson.

These suggestions do not seem to us without force, although we are mindful of the bearing on the possible meaning of the words “any indebtedness in the Company,” of the fact that although the policy was made payable to the beneficiary “Anna E., wife,” in case of death, the insured, Charles W. Anson, had the right to change the beneficiary at any time, and at the end of twenty years had the right at his option to receive in cash the cash value of the policy and accumulated profits.

We do not, however, consider the question for us to be whether it is more or less probable that the intended meaning of the words involved the deduction of any indebtedness due from the estate of the insured to the Company, although on his death the policy became due, not to his estate, but to the plaintiff. It is merely whether the language is or is not unambiguous- If it is not unambiguous, the Municipal Court was right in giving to it the construction most favorable to the beneficiary. Niagara Fire Ins. Co. v. Scammon, 100 Ill. 644.

We hold the meaning not clear or unambiguous, and confirm the holding of the trial judge in relation thereto. We decide, therefore, that before the payment of November 22, 1901, the defendant Company was indebted to the plaintiff in the sum of $1,000.

The question whether by that payment its liability was terminated by an “accord and satisfaction” seems to us more serious. It is undoubtedly the law of Illinois, which, as we said in Northwestern Traveling Men’s Ass’n v. Crawford, 126 Ill. App. 468, goes farther in this direction than that of many other jurisdictions; that when a party entertaining an honest belief that he is indebted in a smaller sum than is claimed by his creditors, offers to pay such smaller sum on •condition that it must be taken if at all in full satisfaction of the claim in dispute, and the creditor receives and receipts for the money, he talces it subject to the condition attached to it, and it will operate as an accord and satisfaction.

But as is said in the comparatively late case cited by the plaintiff in error, Canton Coal Co. v. Parlin, 215 Ill. 244: “To constitute an accord and satisfaction it is'necessary that the money or check or whatever is offered should be offered in full satisfaction of the demand and should he offered in such a manner or accompanied hy such acts or declarations as amount to a condition that if the party to whom it is offered takes it he does so in satisfaction of his demand

The question which we find difficult of decision in the case at bar, is whether the testimony of the Chicago cashier of the Company, together with the fact of the signature by the plaintiff of the receipt of $1,000, and her surrender of the policy show “such acts or declarations as amount to a condition,” that if the plaintiff took the check it must be in satisfaction of her demand on the policy.

The testimony is very meagre. We do not doubt that the Company in good faith claimed the right to the set off, but although the cashier, Bodson, swore on cross-examination that his authority and instructions from the Company would not have allowed him to settle the claim any other way, we do not find that there was any condition expressly made that the payment was to be in full and could not be received except on that condition, or even that the signature to the receipt in full actually given was a necessary condition of the plaintiff’s getting the check offered. The receipt was for $1,000, and not under seal, and may be explained. There appears to have been no dispute or discussion between the parties when the payment was made. Unwilling to extend the doctrine of “accord and satisfaction” as applied to the payment of a less sum than is really due, farther than we are obliged to do by the adjudications of the Supreme Court, we are not, after full consideration, prepared to say that the mere giving of this receipt, with its item of “Or. Chicago Agy. $225.01,” was an admission that the “Uet payment of $774.99” was in full of the $1,000 claim, and coupled with the acceptance of a condition that the check should not be used unless so received and considered. With some hesiration, therefore, we have determined to affirm the judgment of the Municipal Court, and it is so ordered.

Affirmed.


text:
    Hugh G. Adair, Appellee, v. The H. G. Adair Printing Company, Appellant.
    Gen. No. 15,665.

      Evidence—when entries in books competent as admissions. Although entries in book may not have been so made as to have been competent to furnish presumptions of delivery, yet when offered against the keeper they may be competent as admissions.
    Appeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 19, 1911.
    Michael F. Sullivan; and Albert M. Cross, for appellant.
    Hiner, Bunch & Latimer, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from the Municipal Court of Chicago in a case of the first class in that Court.

The plaintiff there, Hugh Gr. Adair, who is appellee here, recovered a judgment against the defendant January 30, 1909, for $1,1Y4.82 and costs.

The contentions are made in this appeal that the verdict of the jury on which the judgment was rendered was against the weight of the evidence, and that improper evidence was admitted by the court in behalf of the plaintiff.

The evidence which defendant maintains was improperly admitted were entries in books of account kept by its bookkeeper, and was competent as admissions of the defendant. Its competency does not depend on the same conditions as does that of entries in hooks of account of a plaintiff presented to furnish presumption of delivery of goods and merchandise sold.

It is maintained, however, that the admissions are worthless because the entries relied on were made at the direction of the plaintiff himself. Whether this may be considered the effect of the evidence or not as to some or all of the entries, is immaterial in view of the fact that there was also evidence that the bookkeeper had personal knowledge of their accuracy, and that other officers of the company knew of them.

The weight of the evidence was for the jury and was left to them by the oral charge of the trial judge. The whole matter indeed turns on the weight of the evidence on the disputed points, and was fairly left to the jury. There is no reason for us to interfere with the verdict. A point strenuously contested was whether the plaintiff had agreed to receive a portion at least of the amount due him from the company in stock of the company at par. This question was expressly and succinctly called to the attention of the jury by the instructions of the court, and they evidently believed the plaintiff’s denial that there was any such agreement as was testified to by the witnesses for the defendant. The question of credibility in a conflict of testimony is for the jury.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Shelton C. Burr et al., Defendants in Error, v. Co-operative Construction Company, Plaintiff in Error.
    Gen. No. 15,670.
    1. Municipal Court—when statement of facts stricken. A statement of facts must be filed within thirty days of the judgment date or within such time thereafter as may be fixed by an order of extension granted within such thirty days.
    2. Municipal Court—what merits may he considered without statement of case. Those affidavits and those proceedings which are substituted in the Municipal Court for pleadings are preserved for purposes of review without the aid of a statement of the case.
    3. Municipal Court—when return of service upon corporation sufficient. Service upon the treasurer of a defendant corporation is proper if it is certified that the president of such corporation was not found “in the city of Chicago;” certification need not include the county of Cook.
    4. Municipal Court—effect given to substitutes for formal pleadings. The substitutes 'in lieu of the formal pleadings authorized in the Municipal Court are to be construed most strongly against those employing them, and a plea attacking a writ should give a better one.
    5. Attachment-—who not non-resident. A foreign corporation doing business in this state pursuant to license, it having complied with the statutes of this state relative to its doing business here, is not a non-resident whose property is subject to attachment' upon the grounds of non-residency.
    Attachment. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed in part and reversed in part.
    Opinion filed June 19, 1911.
    Charles W. Chase, for plaintiff in error.
    Seitz, Bryan & Wilber, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This writ of error presents some interesting questions of law and of the practice in the Municipal Court of Chicago. The plaintiff in error, the Co-operative Construction Company, is a corporation organized under the laws of the State of Maine, but for some years duly authorized and licensed to do business as a foreign corporation within the State of Illinois. Since that license on December 26, 1905, it has continuously done business in this State and has continuously maintained a principal office and place of business in the city of Chicago. Its general offices are located in Chicago and its general officers and board of directors there meet and transact the business of the company. There is, and was at the time of the bringing in the Municipal Court of the suit against it which is involved in this writ of error, on file with the Secretary of State of Illinois a proper affidavit showing this location of its principal office and the name of a person who could be found at that office for the purpose of accepting service upon said corporation in all suits that might be commenced against it. Since the granting of said license the person so named has been at all times located at the principal place of business of the corporation in Chicago for the purpose of accepting service in all such suits.

February 26, 1909, Shelton C. Burr, acting in behalf of himself and Eugene H. Burr, copartners as Burr Brothers, filed his affidavit in the Municipal Court of Chicago for the purpose of beginning a suit in attachment for the said Burr Brothers against the Co-operative Construction Company, in which he stated that the said Co-operative Construction Company was indebted to the said Burr Brothers in the sum of $400 upon a contract for the payment of money in stated instalments, according to the terms of a written agreement between the said Burr Brothers and the Co-operative Construction Company, and that the said Co-operative Construction Company was not a resident of Illinois and'was a foreign corporation, to wit, a corporation under the laws of Maine.

A writ of attachment in a case of the fourth class was issued by the Municipal Court, directing the Bailiff of the Municipal Court of Chicago to attach so much of the estate, real or personal, of the Co-operative Construction Company “to be found in your city” as shall be of value sufficient “to satisfy the said debt and costs,” etc., and to “summon the Co-operative Construction Co. to appear and answer the complaint of the said Shelton C. Burr and Eugene H. Burr,” etc., at the place of holding the Municipal Court of Chicago on the 8th day of March, 1909.

The bailiff returned the writ as executed by the attachment of certain office furniture, certifying, however, that by virtue of a forthcoming bond executed by said Construction Company with surety, he had returned the property to the defendants. He further certified that he had “served this writ on the within named Co-operative Construction Company, a corporation, by delivering a copy thereof to Frederick ¡H. Wood, Treasurer and Agent of said corporation, this 26th day of February, 1909, the President of said corporation not found in the City of Chicago

On March 6, 1909, the following appearance was entered in said cause:

“And now comes Charles W. Chase, and enters the special appearance of the Co-operative Construction Company in the above entitled cause for the sole and special purpose of objecting to the jurisdiction of the Court herein and the said attorney shows unto this Honorable Court that this Court has not jurisdiction of the person of the said Co-operative Construction Company by reason of the failure to serve the said Co-operative Construction Company with summons herein in the maner and form required by law.
Charles W. Chase,
Attorney for said Co-operative Construction Company.”

March 8, 1909, a motion was made by the defendant under this appearance “to quash the Bailiff’s return of service.” This motion was denied by the court on March 20th.

By recital in the orders of the court we are informed that on or before March 29th a motion to quash “the writ of attachment” had been made by the defendant, which, after postponement, came on to be heard May 1, 1909. On April 10th, apparently in furtherance and support of said motion, the defendant filed a written plea—sworn to—traversing “the affidavit for attachment filed” in the cause and “objecting to the attachment bond filed” in said cause. This document —presumably under the construction adopted by the Municipal Court of rule 12 of said court, which is that “In fourth class cases the defendant shall, by motion to dismiss supported by affidavit, set up such matters in abatement as would be set up in the Circuit Court by plea in abatement supported by affidavit”—is called in the record an affidavit. It is in the form of a plea in abatement of the attachment writ, and sets up the license of the defendant corporation to do business in this State, its compliance with the statutes in relation to foreign corporations so doing business here and the location of a person named in a report filed with the Secretary of State at the principal place of business of the defendant, “at number 77 Monroe Street in the City of Chicago, Illinois, for the purpose of accepting service in all suits,” and the matters concerning the location of its officers and business, as we have hereinbefore stated them. The plea or affidavit begins with a recital of a special appearance of the corporation for the sole purpose of traversing the affidavit for attachment and of objecting to the attachment bond, proceeds with a denial of non-residence and closes with a prayer for “judgment if the said plaintiffs shall further maintain their action against it.”

No evidence appears to have been heard on the issues raised, but on the. face of the record as it then stood the Municipal Court on May 1, 1909, entered this order:

“This day come the parties by their attorneys, respectively, for hearing on the defendant’s motion heretofore entered herein to quash writ of attachment herein, whereupon the Court after hearing argument of counsel and being fully advised in the premises denies said motion.”

In the same order, but succeeding the portion above quoted, are recited the calling of the defendant, its default, although it appeared “to the court that it had been duly served with summons,” and then an assessment of damages at $400 and costs, “the court having heard the evidence and being fully advised in the premises.” Then follows a judgment order in these words: . , i

“It is therefore considered by the Court that the plaintiff have and recover of the defendant the said sum of four hundred dollars for their damages, and also their costs and charges by them herein expended, taxed at seven dollars, and that they have a special execution therefor against the property levied upon under the writ of attachment herein.”

The amount of stay of execution bond was fixed in the order and a proper bond was approved and filed on May 10th. In the meanwhile, on May 5th, this writ of error had been sued out of this court.

On June 1, 1909, appears this order:

“This day came the parties by their attorneys, respectively, and thereupon on motion of the defendant it is ordered by the court that the defendant’s time in which to file its certificate of evidence herein be and the same hereby is (extended) to June 15, A. D. 1909.”

“A Statement of Facts,” reciting the findings of the court substantially as they are hereinbefore stated, naming “Questions of Law Involved” and giving the “Findings of the Court” thereon, certified by the Judge, appears by the record before us to have been filed on June 15, 1909.

The plaintiff in error (defendant below) has assigned for error the denial of the motion to quash the bailiff’s return, the denial to quash the writ of attachment, the defaulting of the defendant, the assessment of damages, and “ordering special execution therefor issue,” and the entry of judgment against the defendant and the various findings on the questions of law set forth in the Statement of Facts.

The first question we are called on to consider is raised by the defendants in error by an objection to our considering the Statement of Facts found in the transcript before us. This objection, they claim, is “fatal to the jurisdiction of the court to review the finding of the lower Court.”

The objection to the Statement of Facts is based on the provision of the Municipal Court Act that the application to the judge to sign and file such a Statement and the presentation of the Statement must be made within thirty days of the judgment, or within a further time allowed by him, on motion made within said thirty days; and that the action of the court in signing and filing a statement presented after that time is void and without jurisdiction, and makes the statement no part of the record. This is the construction given to the statute by the Supreme Court in Lassers vs. North German Steamship Co., 244 Ill. 570, Fo motion to strike the Statement of Facts from the transcript of the record was made herein, but it was not necessary. On the objection now made we must refuse to consider it as a part of the record. The judgment was entered May 1, 1909; the thirty days expired May 31, 1909; the application to extend the time to file “its certificate of evidence,” which means, of course, its “Statement of Facts,” was on June 1, 1909.

But we do not agree with the defendants in error that without this Statement of Facts we have “no jurisdiction to review the finding of the lower court.”

We think the- assignments of error, if sustainable at all, can be sustained on the record as it appears, without this Statement of Facts as well as though it contained it. It was to make this apparent that we have quoted so much in extenso from that record.

The case is of the fourth class, and requires no written pleadings. The 12th rule of the Municipal Court makes a motion to dismiss, supported by an affidavit, equivalent to a plea in abatement. In this case the motion heard on May 1st was a “motion to quash the writ of attachment,” but it was evidently treated also as a motion to dismiss. The affidavit by which it was supported was equivalent to a plea in abatement. The opposition to it by the plaintiff was in the nature of a demurrer ore tenus, and admitted the allegations of the “affidavit” or plea. This construction of the proceedings is in furtherance of a hearing of this case on the merits. It dispenses with the findings of the Statement of Facts so far as the allegations of the “affidavit” are concerned. Considering those allegations as admitted by the pleadings, we are of the opinion that the defendant corporation was a resident and not a non-resident of the State of Illinois under the meaning of the Attachment Act. The language of the Attachment Act makes non-“residence,” not non-“citizenship,” the ground of attachment, and the Federal cases cited by counsel turning on diversity of citizenship do not apply. An alien residing in Chicago is not a citzen, but his property is not liable to attachment on that account.

It is true, however, that in cases in the Federal courts involving questions of diversity of citizenship and locality of jurisdiction, expressions concerning the “residence” of corporations are found which would seem to hear out the contention of defendants in error. But they are dicta, and even if they were not would not be binding on us except so far as they approve themselves to our reason.

Queensberry vs. People’s Building Loan and Savings Association, 44 West Virginia, 512, and Savage vs. the same Association, 45 West Virginia, 275, decided by the Supreme Court of Appeals of West Virginia, are more in point, but even they, as can be seen more clearly when they are read in connection with the opinion in Humphreys vs. Newport News and M. V. Co. 33 West Virginia, 135, on the authority of which they largely rest, fall short of holding a corporation continuously maintaining a principal office and continuously doing business in the State, as well as having an agent for service therein, a non-resident. But in any event, we are not inclined to follow them if they are held to decide that under the circumstances shown in this record a corporation is a non-resident under the meaning of an attachment act like ours.

We agree rather with the Supreme Court of New Jersey, that “the word resident as used in the attachment laws has a peculiar meaning,” and that “the writ of attachment is an extraordinary mode of procuring the appearance of defendant and is not to be resorted to when the ordinary process of the law can be used, though the legal domicile of defendant may be out of the State.” Hackettstown Bank vs. Mitchell, 28 N. J. Law, 516.

We are therefore of the opinion that the attachment in this cause should have been quashed, and that the part of the judgment that orders a special execution against the property levied on it is erroneous.

But thereupon another question arises. If the service of the summons included in the writ of attachment was a valid service on the corporation, the suit, under the 27th section of our Attachment Act and the 48th section of the Municipal Court Act, should have proceeded, as it did, “to final judgment as though commenced by summons.”

The return of the bailiff as to such service has been shown in our statement of the case included in this opinion. The plaintiff in error maintains that because the bailiff does not therein certify that the president of said corporation was not found in the county of Cook, but only that he. was not found "in the city of Chicago” the service on the “treasurer and agent of said corporation” did not secure for the Municipal Court jurisdiction as by personal service of the corporation. We are not of the opinion that the question thus raised is one of practice, as to which no assignment of error can be allowed in this court. It may, however, properly be called one of jurisdiction as to which the provisions of the Municipal Court Act are valid, under section 34 of article 4 of the Constitution, despite section 29 of article 6. Lassers vs. North. German Steamship Company, 244 Ill. 570-574.

We do not think the case of Michigan State Ins. Co. vs. Abens, 3 Ill. App. 488, cited by defendant, throws much light on the question for us, in view of the Municipal Court Act. Even if it did, it is not of course of authority.

A careful consideration of the matter leaves us of the opinion that in view of the localized jurisdiction of the Municipal Court of Chicago and the provision in section 48 of the Municipal Court Act, that “the practice and proceedings * * * in cases of attachment * * * included within the cases of the fourth class * * * shall be the same as near as may he, as that which is now prescribed by law for similar cases in other courts of record * * * ;” the return of service on the “treasurer and agent” is sufficient on the further showing that the president is not found within the city of Chicago, the limits of which measure the extent of the jurisdiction of the court and of the authority of its officer.

There is another reason that may be of some force for so holding the service good. There can be no doubt, from the record of actual notice to the officers of the corporation, of .the pendency of the suit, and although it strove hard to confine its appearance to certain specified purposes, it did not in pleading, or doing what was equivalent to pleading, in abatement, give any better writ. Its representative and counsel swore that it had, under the statute, named a person who could be found at all times at its place of business in the city of Chicago, who was authorized to accept service. Section 3 of the Act of May 18, 1905, concerning Foreign Corporations, speaks of such a person as the attorney of the corporation “for receiving and accepting service.” Neither in the “plea” or “affidavit” in abatement, nor in the preceding appearance and motion to quash the bailiff’s return of service of the summons, is there any suggestion that the officer (“the treasurer and agent”) of the company, who was served, was not the identical “person,” “agent” or “attorney” whom the company had named as the person to receive or accept service.

In analogy to the rules of pleading where written pleadings are required, affidavits and motions in this matter perhaps should be construed most strongly against those making them. Under the circumstances it may well be assumed, in the absence of any showing to the contrary, that the proper “agent” was served.

We think that the motion to quash the return of service of the summons on the writ was properly denied, and that the court had jurisdiction of the person of the corporation.

Therefore when on being called the corporation made default, it was proper for the court to hear evidence, assess damages and give judgment as it did.

Our conclusions, therefore, lead us to the determination to reverse the judgment of the Municipal Court in so far, and only in so far, as it denies the motion to quash the attachment of the property levied on and orders a special execution on the judgment entered against the property levied upon under the said writ of attachment. In all other respects the said judgment is affirmed, with the provision that a general execution may issue on said judgment from the said Municipal Court. The costs in this court are to he taxed against the defendant in error.

Affirmed in part and reversed in part.


text:
    J. K. Pedersen, Defendant in Error, v. Peter Sorensen, Plaintiff in Error.
    Gen. No. 15,684.
    1. Constitutional law—when assessment of damages after default proper. After default damages may be assessed by virtue of statute by the court without the interposition of a jury and the assessment of damages in this way is not a taking of property without due process of law.
    2. Municipal Coukt—when statement of claim sufficient after default. A statement of claim as follows, held, sufficient after default: “Plaintiff claim is for money loaned $100. To Attorney fees $20. By cash $20.”
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed with damages.
    Opinion filed June 19, 1911.
    W. G. Anderson, for plaintiff in error.
    Frederick Peake, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

In the Municipal Court of Chicago, in a case of the fourth class, the plaintiff, Pedersen, recovered a judgment by default for $100 and costs against the defendant Sorensen (the damages being assessed by the court after said default). The defendant thereafter sued out a writ of error in this court and here maintains that the judgment effects the taking of property without due process of law, in violation of the Constitution of the State of Illinois.

Passing over the question whether this assignment of error does not involve “a construction of the Constitution,” and can therefore only be entertained, according to the Municipal Court Act, on a writ of error sued out of the Supreme Court, we will say that the point is not well taken. The basis of it is simply that the statement of claim provided for by the statute was insufficient and ambiguous. It certainly was not in elegant or particularly clarified English, but we cannot agree with the plaintiff in error that it was without meaning. It ran thus:

“Plaintiff claim is For Money Loaned $100 to attorney Fees $20.00. By cash $20.00.”

We find ourselves compelled to believe that the defendant gathered from it, especially in connection with the affidavit of plaintiff’s claim, which followed, a passable idea of what the cause of action was. He chose to default, although properly served, and he has not afterward, without question by motion to vacate, or otherwise, the assessment of damages in the Municipal Court on evidence heard, any standing here to attack the judgment unless jurisdiction was entirely wanting. There can be no serious pretense of that in this case, and it is the opinion of the court that the writ of error must have been prosecuted for delay. Therefore the judgment is affirmed with damages, in addition to the costs, of ten dollars.

Affirmed with damages.


text:
    Edward A. Ferguson, Defendant in Error, v. Lelia H. Hale, Plaintiff in Error.
    Gen. No. 15,690.
    1. Trial—when denial of continuance will not reverse. Held, that the denial of a continuance sought in this case was not improper where the grounds relied upon were as follows: (1) That a bill had been filed to restrain the collection of the judgment in suit (no injunction having been obtained); (2) that a formal amendment had been made.
    2. Municipal Court—when statement of claim sufficient. A statement of claim need only describe “the nature of the demand.” If the demand be predicated upon an appeal bond a copy thereof need not be attached or filed therewith.
    3. Practice act—section 52 construed. In the absence of a verified plea, a defendant cannot deny the execution of an instrument sued on, although no copy has been filed.
    Action in debt. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 19, 1911.
    Rehearing denied June 29, 1911.
    Edward J. Kelly, for plaintiff in error.
    Menz I. Rosenbaum and Louis M. Cahn, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error to the Municipal Court of Chicago to reverse a judgment in debt for $400, to he satisfied on payment of the damages assessed at $244.45 and the costs. The suit was on an appeal bond, in which the defendant, Lelia H. Hale, was a surety. The bond, in the penal sum of $400, was given by her - husband, John G. Hale, to the plaintiff Ferguson in an appeal to this court to reverse a judgment against him for $200, rendered by the Circuit Court of Cook county March 9, 1907. The bond was in the usual form of appeal bonds in such cases. The judgment of the Circuit Court was affirmed in this court June 30, 1908, and was with the costs wholly unpaid when the suit in the Municipal Court involved in this writ of error was begun, February 1, 1909.

Various points are made here in the assignments of error and in the argument of the plaintiff in error, which we do not think need or merit detailed discussion.

One of these points is that a continuance was wrongfully denied by the Municipal Court, because John G. Hale had filed a bill in the Circuit Court to restrain the collection of the judgment against him. Another is that the denial of the continuance was wrongful because a copy of the appeal bond sued on was not filed with the statement of claim. And a third, that the continuance should have been granted because an amendment of the defendant’s name had been made from Leolia H. Hale to Delia H. Hale. There is no merit in these contentions. Even if we consider (contrary to the fact) that the record shows any sufficient evidence that the described bill to restrain collection was on file, there had been no injunction granted on it, and it furnished no reason for delaying the suit at bar. The section of the Practice Act requiring a declaration, together with a copy of the instrument sued on, to be filed at least ten days before the term of court to which a suit is brought on pain of continuance, has no application to the Municipal Court, which has no terms and in which, in cases of the fourth class, no written pleadings are required. The amendment was a purely formal one and would not justify, much less require, a continuance.

Another point entirely without force is made, that the statement of claim was insufficient, in that no copy of the appeal bond was filed with it. It was not necessary to file a copy. The statement complied with the Municipal Court Act sufficiently in describing “the nature of the demand.” Counsel is mistaken in saying “the appeal bond is described as for $500 when in fact it was for $400.” The amount of claim is stated in the praecipe to be $500, but the “statement of claim” does not mention the amount, but says that the claim is “for money due on appeal bond signed by defendant as surety in the case of Ferguson vs. Hale, the judgment having been affirmed in the Appellate Court but not paid.” It was sufficient under the liberal practice provided for in the Municipal Court Act. •

The only remaining point made against the judgment, and the only one which we deem deserving serious consideration, is that the bond in question, purporting to be signed by defendant, was received in evidence over objection without further proof of her signature. It is argued that inasmuch as no copy had been theretofore filed in the suit, the original bond was inadmissible without proof of such execution, notwithstanding the provision in section 52 of the Practice Act, as follows:

“¡No person shall be permitted to deny on trial the execution or assignment of any instrument in writing, whether sealed or not, upon which any action may be brought, or which shall be pleaded or set up by way of defense or set off, or is admissible under the pleadings when a copy is filed, unless the person so denying the same shall, if defendant, verify his plea by affidavit, and if plaintiff, shall file his affidavit denying the execution or assignment of such instrument.”

¡No denial under oath or offer to deny under oath, by affidavit or otherwise, by the defendant was made, but it is maintained by the defendant that by the common law no signature proves itself, and that the statute quoted only dispenses with this proof and makes an instrument admissible without it when a copy has been filed.

We have given this point careful consideration. We do not construe the statute, however, in accordance with this contention.

By the “Act Concerning Practice in Courts of Law,” approved January 29, 1827, the provision in question was enacted exactly as it now stands in the present Practice Act, with the exception of the words underlined above—“or is admissible under the pleadings when a copy is filed.” It so stood (re-enacted in the subsequent revisions) until 1872, when in the revision of the Practice Act, approved February 22, 1872, the additional words quoted were inserted in the place they now occupy in the present Act. It is plain, we think, that the words “when a copy is filed” limit only the words “or is admissible under the pleadings,” and not all the preceding words of the section. This construction takes away all force from the argument of plaintiff in error in this regard. That it is the correct construction of the present Practice Act as to courts of record is further, we think, shown by the fact that in the Act in relation to practice before justices of the peace, where written pleading's are not required, the same provision concerning the denial of the execution of any written instrument upon which an action, defense or set-off is founded, occurs with no reference to the filing of any copy.

This construction also by fair inference must have been put on the statute by this court in Horner v. Boyden, 27 Ill. App. 573.

The judgment of the Municipal Court is affirmed.

Affirmed.