text:
    The People ex rel. Harris F. Williams, Plaintiff in Error, v. Elton Lower et al., Defendants in Error.
    Gen. No. 16,389.

      Mandamus — when writ does not issue. Mandamus is never granted in anticipation of a supposed omission of duty, however strong the presumption may he that the persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives.
    Mandamus. Error to the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 12, 1912.
    Hiram T. Gilbert, for plaintiff in error.
    Edward J. Brundage and Clyde L. Day, for defendants in error.
   Mr. Justice Clark

delivered the opinion of the court.

The plaintiff in error has brought up for review a judgment entered in a mandamus proceeding, which judgment reads as follows:

“This day again come the parties, by their respective attorneys, and thereupon there coming on to be heard the amended demurrer of the defendants to the petition of the relator herein and the court having heard the arguments of counsel and being now duly advised in the premises, it is ordered by the court that the said demurrer be and the same is hereby overruled.

“Thereupon the said defendants having elected to stand by their said demurrer, it is ordered by the court that a writ of mandamus issue out of and under the seal of this court, commanding said defendants Elton Lower, M. L. McKinley and H. D. Fargo, as civil service commissioners of the City of Chicago, to hold or cause to be held within ninety days from the date hereof a promotional examination in said City of Chicago for the office of superintendent of streets, limited to assistant superintendents of streets of said City of Chicago, unless they shall be prevented from so doing by the fact that none or not more than one of said assistant superintendents of streets shall register for such promotional examination, and, in case such examination shall be successfully passed by one or more of said assistant superintendents of streets, to make an eligible list composed of such of said assistant superintendents of streets as shall have successfully passed said examination, to the end that from such eligible list there may be certified to the commissioner of public Works, in accordance with law, the names of persons eligible to appointment as superintendent of streets, and that thereafter said defendants proceed in the premises in accordance with law.

“It is further ordered by the court that nothing herein contained shall be construed as a determination by the court as to the steps to be taken by said defendants in case none or not more than one of said assistant superintendents of streets shall register for such promotional examination, or in case more than one of said assistant superintendents of streets register for such promotional examination and none of them shall pass the same, but that the course to be pursued by said defendants in such case shall be open to determination hereafter in any proper suit brought for that purpose in any court of competent jurisdiction, to the same extent as if this order had not been entered.”

In Ms petition the relator, plaintiff in error, in addition to the relief that was accorded in the judgment, asked the following:

“that in case none or not more than one of said assistant superintendents of streets shall register for such promotional examination, or in case more than one of said assistant superintendents of streets register for such promotional examination and none of them shall pass the same, said civil service commissioners hold or cause to be held a promotional examination in said City of Chicago for the office of superintendent of streets which shall be open to all ward superintendents of the City of Chicago who may apply to be examined thereat, and that, in case said examination shall be successfully passed by one or more of said ward superintendents, said civil service commissioners make an eligible list composed of such of said ward superintendents as shall have successfully passed said examination and from such eligible list certify names to the commissioner of public works for appointment of superintendent of streets according to law and also commanding said civil service commissioners, in case thereafter an original examination is held for the office or place of superintendent of streets, to admit no person to the same who has not been an actual resident of the City of Chicago for at least one year next preceding the date of the examination.”

From the judgment above set forth it will appear that the court declined to provide what course the civil service commissioners should pursue in case none or not more than one of the assistant superintendents of streets should register, or in case two or more of them registered and none passed, except to provide that they should comply with the law, which was of course unnecessary to be stated.

It is a well known principle that mandamus is never granted in anticipation of a supposed omission of duty, however strong the presumption may be that the persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives. High on Extraordinary Legal Remedies, Sec. 12.

It is apparent from the judgment that was entered in the case now under consideration that if the provisions thereof were carried into effect and the civil service commissioners held or caused to he held a promotional examination for the office of superintendent of. streets, and at such examination more than one of the assistant superintendants of streets registered for such promotional examination, and one of such assistant superintendents so registering passed the examination, then nothing more need have been done by the commissioners than to certify to the commissioner of public works the name of the successful candidate.

If thus a superintendent of streets were provided for the city (as probably was the result) no good purpose could be subserved by the rendering of an opinion by this court upon the other questions involved. Our opinion upon these hypothetical questions would not he controlling upon the commissioners who might happen to be in office at the time of its rendition nor upon their successors. The Supreme Court of the state, rendering its decision in a case properly before it, is the only tribunal which can establish an effective and controlling precedent.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    Frank L. Smith, et al., Defendants in Error, v. Alfred S. Mitchell, Plaintiff in Error.
    Gen. No. 16,443.
    1. Landlord and tenant — When execution of lease sufficient to bind latter. Where a lease contains mutual covenants and is executed by the lessor only, but is delivered to and accepted by the lessee, the latter is bound by its terms.
    2. Municipal Court — how form of action determined. The court having jurisdiction of the subject-matter and the parties, may, in an action of the 4th class, render such judgment as the justice of the case demands.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottbell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 12, 1912.
    Thurman, Stafford, Hume & Burras, for plaintiff in error. >
    No appearance for defendants in error.
   Mr. Justice Clark

delivered the opinion of the court.

Judgment was recovered in this case for $27.50, being for one month’s- rent of an apartment in the city of Chicago. The lease purported to be under seal, and was signed by the plaintiff in error, Mitchell, as lessee. On behalf of the lessors it was signed by Hopkins & Luther, as their agents.

Plaintiff in error insists the lease should not have been received in evidence, because as it purports to be under seal the authorization of the agents, also under seal, should appear, and there was no such authorization shown. Such has been held to be the rule in cases where lessees sought to be charged with the rent did not sign the leases themselves, but the leases sought to be introduced purported to be signed by some one whose authorization under seal had not been shown Ingraham v. Edwards, 64 Ill. 526; Walsh v. Murphy, 167 id. 228. It has been often held, however, that where a lease contains mutual covenants and is executed by the lessor only, but is delivered to and accepted by the lessee, the latter is bound by its terms. Henderson v. Virden Coal Co., 78 Ill. App. 437; Fields v. Brown, 90 Ill. App. 195.

The record shows that while the lessors in person did not sign the lease, it was delivered to and accepted by them; that they had given possession of the demised premises and accepted rent in accordance with the terms of the lease. The lessors, therefore, would not have been allowed to repudiate the contract. Fields v. Brown, supra. The plaintiff in error signed the lease as lessee and accepted benefit under it. He cannot now repudiate it. The contract need not necessarily have been under seal. Lake v. Campbell, 18 Ill. 106.

Counsel for the plaintiff in error say that the entire case of the defendants in error having rested upon the sealed instrument signed by the agents, and they having declared upon the same as a specialty, they were not entitled to recover. In this statement counsel lose sight of the fact that in the Municipal Court of Chicago in cases of the fourth class no written pleadings are required. The court having jurisdiction of the subject-matter and the parties, may render such judgment as the justice in the case demands. Edgerton v. C. R. I. & P. Ry. Co., 240 Ill. 311. Cases turning upon pleadings are therefore not in point.

The plaintiff in error alleges as a further ground for reversal that there was a practical eviction, because the premises had become uninhabitable, being infested with fleas. There is no proof in the record as to how the apartment became infested, — whether through the fault of the plaintiff in error or otherwise, — and we do not regard the defense thus interposed as conclusive. In any event it was a question of fact to be determined by the jury, and the jury decided it adversely to the plaintiff in error. This verdict has received the approval of the court below by its order overruling a motion for a new trial.

We find no reason for reversing the judgment, and the same is affirmed.

Affirmed.


text:
    Frederick Bergewisch et al., Appellants, v. United States Packing Company, Appellee.
    Gen. No. 16,447.
    1. Appeals and ebeors — when pro forma affirmance justified. If the abstract does not show any motion for a new trial or an arrest of judgment or any finding or judgment of the court below, and does not show any prayer for appeal, or any ruling of a court in respect to such matters or any exceptions to rulings or decisions, a pro forma affirmance may he ordered.
    2. Practice — effect of failure to present propositions of law. The failure of a party to present propositions of law to he passed upon by the court does not preclude the right of such court to enter judgment in favor of such party.
    Appeal from the Circuit Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 12, 1912.
    Henry W. Leman and Frank H. Culver, for appellants.
    Lackner, Bute & Miller, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This is a suit brought by the appellants against the appellee for an alleged breach of contract in failing to deliver a quantity of storage packed eggs. The record is in two parts, only one of which has been abstracted. The abstract of record does not show any motion for a new trial, or in arrest of judgment, nor any finding or judgment of the court below; neither does it show any prayer for appeal, nor any rulings of the court in respect to such matters, nor any exceptions to. rulings or decisions. We would be justified in affirming the judgment for this failure to comply with the rules. Thornton v. Muus, 120 Ill. App. 422; Thompson v. People, 192 Ill. 79.

The judgment must be affirmed on the merits of the case. It would seem that the minds of the parties never met. The contract is based upon certain letters which passed between the parties, and a telegram. The telegram received by the appellee reads differently from that claimed by the appellants to have been delivered to the telegraph company for transmission. The entire case of appellants seems to rest upon this telegram so claimed to have been delivered to the telegraph company for transmission, but which, as stated, was not in the form received by appellee.

On May 2, 1909, the appellee, which is a Chicago corporation, quoted to the appellants, a Cincinnati firm, No. 1 storage packed eggs at 15% cents per dozen. The appellants replied May 5th, asking for other eggs, namely Northern eggs, chips and rottens taken out, No. 1 packing, and stating in their letter that they wanted No. 1 stock. On May 6th the appellee replied to the letter of May 5th, stating in effect that it could not fill the order with the best of storage packed eggs and that it was not then candling any eggs. The letter then proceeds: “If you would be content to accept our best mark of storage packed eggs, candling waived, we would be glad to put in 300 cases for you within the next week or ten days * * *”

On May 8th appellee received the following telegram from appellant:

“Beceived letter. Will take 400 cases per your letter of the 6th, which includes our grade, waiving candling. Shipping directions by letter.”

The message as claimed to have been delivered to the telegraph company by appellants, reads as follows:

“Received letter. Will take 400 cases per yonr letter of the 6th, which includes our grade of 5th, waiving candling. Shipping directions by letter.”

After writing two letters asking for shipping directions, the appellee on May 23rd stored 397 cases of eggs in Western Warehouse M, at Chicago, notified appellants to that effect, enclosing invoice and insurance policy, and it also notified appellants that it was drawing upon appellants for the amount, with warehouse receipt attached. This draft was refused by the appellants and was protested. Later on this suit was brought for the difference between the market value of the eggs of the class claimed by appellants to have been bought of appellee, and the contract price.

In our opinion, after a careful examination of the record, the appellants failed to show that the eggs which had been delivered in pursuance of the order were not of the quality which appellants now claim were to be delivered. We think there was a total failure to prove the allegation of the declaration in this regard.

The appellants urge that the judgment should be reversed because' section 61 of the Practice Act, being chapter 110 of the Revised Statutes, was not complied with. This section reads as follows:

“61. Trial by court. — special finding. TJpon a trial by the court either party may, within such time as the court may require, submit to the court written propositions to be held as law in the decision of the case, upon which the court shall write ‘refused’ or ‘held’, as he shall be of opinion is the law, or modify the same, to which either party may except as to other opinions of the court. In any case so tried the court shall find specifically upon any material question or questions of fact, which shall be submitted in writing by either party before the commencement of the argument.”

Certain written propositions were offered by the appellants and were passed upon by the court and marked either “refused” or “held.” No objection is urged to the court’s action in this,respect.

The curious point is made that because appellee, who was the defendant below, did not tender any propositions of law, therefore judgment could not be rendered in its favor and against the plaintiff. It is quite true that if the plaintiff had been successful in the court below, and the defendant had not tendered any proposition of law, no questions of law would have been reserved for decision by the court except such as were raised by propositions submitted by the plaintiff, if any, or by demurrer to the evidence if one was interposed. Smith v. Billings, 169 Ill. 294. We know of no provision in the statutes requiring the successful party to submit propositions of law in order to maintain his judgment, when the correctness of it is challenged on appeal, and the appellants have cited to us no case establishing such a rule, — presumably because no such case is to be found. '

We find no error in the record, and the judgment will be affirmed.

Judgment affirmed.


text:
    Edward Oehler, Appellant, v. Charles Levy, Appellee.
    den. No. 16,461.
    1. Contempt — when sworn answer does not require discharge. If the contempt he civil in its nature the sworn answer of the respondent, though prima facie entitling him to a discharge, does not require that the court enter a discharge as is the case where the contempt is criminal in character.
    2. Contempt — when respondent not entitled to jury trial. In a proceeding for contempt for the violation of a remedial injunction, the defendant is not entitled as a matter of right to a trial by jury.
    3. Contempt — what essential to infliction of punishment. The court should not exercise its power and impose a fine or a sentence of imprisonment upon a respondent in a proceeding for violating a remedial injunction, unless satisfied by most convincing evidence, of the truth of the charge made.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. George A. Dtrpuv, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 12, 1912.
    Rehearing denied March 26, 1912.
    Samuel B. King and Jule F. Brower, for appellant.
    Fred Bernstein and Barker, Church & Shepard, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the appellant, as complainant, against the appellee, as defendant, for an injunction restraining the defendant from maintaining or permitting to be maintained on his property a stable for horses, of a character claimed to be prejudicial and harmful to the complainant. The character of the injunction finally granted was set forth in this court on a former appeal. Oehler v. Levy, 139 Ill. App. 294. The decision was affirmed by the Supreme Court in Oehler v. Levy, 234 Ill. 595.

. The decree enjoined the defendant “from maintaining or permitting to be maintained upon his property, a stable for horses in such numbers or in such a manner as to produce noise sufficient habitually to disturb the sleep or comfort of the dwellers in the building owned by the appellant which immediately adjoined appellee’s, building, or as to produce odors or gases deleterious to the health or comfort of the dwellers of his building or so to conduct business on defendant’s premises as to cause by the noise and loud talking incident thereto habitual disturbance to - the health, sleep or comfort of such dwellers.”

The order which we are asked to reverse was an order discharging the rule which had been entered upon the appellant’s (complainant’s) petition, requiring the appellee (defendant) to show cause why the defendant should not he punished for contempt of court for disobedience of the terms of the final decree or order heretofore referred to. There was a hearing before the chancellor upon affidavits, counter affidavits, and reply affidavits.

It is now insisted that the chancellor erred in determining that the injunctional order was not shown to have been violated by the proof submitted to him. It is unfortunate that the parties did not avail themselves of section 86 of the Practice Act (chapter 110 of the Revised Statutes), and move the court to exercise its discretion and require evidence to be presented by oral examination of the witnesses in open court or before a master in chancery.

The nature of the case is such that it is very difficult to determine the rights of the parties from affidavits. Affidavits are ordinarily prepared hy the solicitors, and the language used is their language adopted by the affiants. If the witnesses had been examined in open court, the court would have been better able to determine their truthfulness, or the lack of it, by their conduct and demeanor on the stand, by the cross-examination, etc.

It has been held that proceedings for contempt in cases like the one before us are civil in their nature, and not criminal (O’Brien v. People, 216 Ill. 354), and for that reason a sworn answer of the defendant is not sufficient to purge him of the alleged contempt, as is the rule in cases where the contempt charged is criminal in its nature. The case cited is authority upon the further proposition that the constitutional right of a trial by jury is not violated in such cases.

It will hardly be contended, however, that a proceeding which may result in imprisonment or the imposition of a fine upon the defendant is not in its nature at least quasi criminal. In our opinion the court should not exercise its power and impose a fine or a sentence of imprisonment upon the defendant unless satisfied by most convincing evidence of the truth of the charge. In Powers v. People, 114 Ill. App. 323, it was said: “Even in civil contempts there must be an intention to do wrong and a wilful refusal to comply with the order of the court.”

The court had before it the verified petition of the appellant together with affidavits from five individuals; also the verified answer of appellee, together with affidavits of sixteen other persons in support of his answer. The makers of the affidavits in support of the petition were all tenants of the apartment building in question, excepting one, and she was the wife of a tenant. Two at least, of the affidavits in support of the answer of appellee were made by persons who were or had been occupants of the appellant’s apartment house; the other affidavits were made by persons living near that building. Several of the affidavits merely relate to measurements. Taking the proof as a whole, we are unable to reach any other conclusion than did the learned chancellor before whom the matter was litigated.

The contention of the appellant is that the business itself is a nuisance, and that where such an injunction exists as that in the present ease, the conduct of such a business must be regarded as contempt of the cqurt which issued the injunction. So to hold would be, in our opinion, to enlarge the scope of the injunctional order. That order does not prohibit the defendant from maintaining a stable, but merely from maintaining a stable for horses in such numbers or in such a manner as to produce noise sufficient habitually to disturb the sleep or comfort of the dwellers in the building owned by appellant (complainant), or as to produce odors or gases deleterious to the health or comfort of such dwellers of the building, or to conduct the business in such a manner as by the noise and loud talking incident thereto to cause habitual disturbance to the health, sleep or comfort of such dwellers.

The affidavits filed by appellant tended very sürongly to show that the injunctional order had been disobeyed, On the other hand, the affidavits filed by the appellee, although in large part necessarily negative in character, to the effect that affiants had not been disturbed, etc., tended strongly to support the contention of appellee that he had remedied conditions in and about his stable,- — had caused a cessation of the noise and loud talking which had occurred prior to the filing of the bill, etc.

When the case was in the Supreme Court a cross-error was assigned to the effect that this court erred in not directing a decree enjoining Levy from keeping any horses in the building. After stating that while the direction to the Superior Court by this court, when incorporated in the decree, practically prohibited Levy from maintaining his stable upon the premises, theoretically it does not, the Supreme Court used this language: “The Appellate Court was not, as it states in its opinion, prepared to hold, as a matter of law,— and neither is this court, — that a stable may not be kept in a residence district of a large city in such manner that it would not be regarded as a nuisance, and for that reason it refused to direct the Superior Court to enter a decree enjoining the appellant from keeping any horses in his building or upon his premises. In this we think there was no error.”

The chancellor found upon the evidence before him that it was possible for the appellee to maintain a stable in a manner not inhibited by the injunction.

For the reasons stated the order entered by the Superior Court is affirmed.

Affirmed.


author: Mr. Justice F. A. Smith

text:
    Joseph Lesicki, Plaintiff in Error, v. J. Burton Company, Defendant in Error.
    Gen. No. 16,403.
    1. Master and servant — what essential to recover where injury followed obedience of order. Lack of knowledge of the danger to be encountered which resulted in the injury complained of is essential to recover where the servant was injured while acting in obedience to an order of his- master.
    2. Master and servant — what does not render servant vice-principal. The mere fact that a servant was accustomed to give orders to the men with whom he labored does not make him a vice-principal in respect to the common labor which he and the plaintiff at the time were engaged upon.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 12, 1912.
    David K. Tone and H. M. Ashton, for plaintiff in error.
    Bulkley, Gray & More, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Plaintiff in error, an employe of defendant in error, brought an action on the case for personal injury caused by an accident on a cotton carding machine, which accident resulted in the loss of plaintiff in error ’s hand. The declaration consisted of but one count, and averred that the defendant in error was operating in its factory a certain carding machine used for cleaning and combing cotton; that the machine consisted of a large number of iron rollers with nails placed close to each other upon said rollers, and projecting above the surface of the rollers; that the rollers were so placed and so caused to revolve toward each other that the cotton would he pulled in between the rollers and cleaned and carded; that the power was applied by means of a belt that was caused to revolve around a pulley; that there were two pulleys close to each other, one a fast pulley, which was firmly attached to the rollers and the belt, when placed upon it, caused the rollers to revolve, and the other pulley a loose one upon which the belt was shifted when defendant in error desired to stop the machine. When the machine was to be started again the belt would be shifted from the loose pulley to the fast pulley. The power was communicated from the shaft upon which the fast pulley was attached, by means of cog-wheels placed on several of the rollers. The declaration further alleged that on the 11th of November, 1907, a quantity of cotton had become bunched between two of the rollers so that the machine did not work properly; that defendant in error shifted the belt from the fast to the loose pulley, and in that manner stopped the machine; that the foreman of the defendant in error directed the plaintiff in error to remove the cotton from the rollers with his hands, and while plaintiff in error was engaged in removing the cotton the defendant in error, through its foreman, carelessly and negligently shifted the belt from the loose pulley to the fast pulley without the knowledge of, and without warning to, the plaintiff in error, and that by means thereof, plaintiff In error’s hand was caught between the rollers of the machine, and cut off.

To this declaration the defendant in error filed a plea of the general issue. A trial was had before a jury, resulting in a verdict and judgment for defendant in error, and this writ of error is prosecuted for the purpose of reversing the judgment.

Plaintiff in error contends that the instructions given by the trial court numbered 8, 10, 11, 12 and 13, on behalf or at the request of defendant in error, were each erroneously given, and were responsible for the verdict of not guilty rendered by the jury.

Instruction No. 8 was as follows:

“The court instructs the jury that the negligence charged by the plaintiff against the defendant in his declaration is that the defendant’s foreman, not being a fellow servant, directed the plaintiff to remove cotton ■from between the rollers of the machine, said machine having been stopped; and that while plaintiff was in the act of removing the cotton, the machine was started by the defendant, and plaintiff’s hand was pulled between tbe rollers. As a matter of law you are instructed that in order to recover any damages in this case whatsoever the plaintiff must have proved by a preponderance of all the evidence in the case, and under the instructions of the court:

First, that defendant by its foreman who was not a fellow servant directed plaintiff to remove cotton from between the rollers;

Second, that at the time of giving such directions, the machine was stopped;

Third, that while plaintiff was removing the cotton the machine was suddenly and without warning started by the defendant;

Fourth, that plaintiff was ignorant of the danger and was at the time and just prior thereto in the exercise of ordinary care for his own safety,

And unless the plaintiff has so proven all of the foregoing propositions, or, if the plaintiff has failed to prove any one of them, he cannot recover in this case, and your verdict should be ‘Not Guilty.’ ”

The objection urged to the above instruction is that the fourth clause of the instruction was erroneous in that it required proof that the plaintiff was ignorant of the danger at the' time. It is urged that where a servant was acting under the imperative order of a inaster, he was not compelled to show that he was ignorant of the danger. It is argued that on the contrary the rule is well settled that where a servant is directed by his master to do a piece of work that is attended with danger, the servant may recover, even though he knows that the work is dangerous, unless the danger is so imminent that no man of ordinary prudence would incur it.

In Baier v. Selke, 211 Ill. 512, Selke was working in the cellar of Baier and others’ brewery, and was directed by the foreman of Baier to clean out a rice tub. The clutch connecting the rice tub shaft with the main shaft was not disconnected as it ought to have been to make the work safe. While Selke was working at the rice tub Weber, the foreman, threw in a clutch which connected the main shaft with the engine, and the shaft in the rice tub not being disconnected from the main shaft, it began to revolve and Selke was injured. The evidence in that case showed that Selke went to the tub and commenced to clean it outside the door and Weber, who was present, said, “Don’t make hocus pocus outside; go right in, everything is ready;” the plaintiff looked in, and Weber said, “Just go in, that don’t bite you, the machinery, don’t start up there;” that Weber said everything is all right in the rice tub and the plaintiff went in and commenced to clean inside of the tub, and the machinery was after-wards started. At page 515 of the opinion the court, through Mr. Justice Cartwright, said, “If Weber (foreman) ordered the plaintiff into the rice tub with assurance of safety, when the shaft was not disconnected and the machinery was liable to be started with a certainty of injuring the plaintiff, the defendants would be responsible for the consequence, provided the plaintiff was ignorant of the danger and was himself in the exercise of ordinary care.” See also Republic Iron & S. Co. v. Lee, 227 Ill. 246; E. J. & E. Ry. Co. v. Myers, 226 id. 358.

Under the authority of these cases we think the objections urged to the instructions are not well founded. The facts in that case are not distinguishable in point of principle from the facts shown in evidence in this case, and the rule of law applied to the facts.in Baier v. Selke, we think was properly applied to the facts in the case under consideration.

Instructions 10, 11, 12 and 13 relate to the law of fellow servants, and what facts and circumstances are to be considered in determining that question. The criticism of these instructions made by the plaintiff in error is that they should not have been given because the question of fellow servant was not in the case. They urge in their brief, “to sum up the situation no question of fellow servant was involved in this case.” Bef erring to • the declaration we find there alleged, “that plaintiff was directed by a foreman of the defendant, said foreman being a vice-principal of the defendant, and not a fellow servant of the plaintiff, to remove the cotton,” etc. The evidence tended to show, and may be said to be undisputed, that the person for whose act the defendant in error was sought to be held liable in the action was one of four workmen who labored for the same employer in the same room around the same machines, and at the same kind of work. There was abundant evidence in the case that the plaintiff in error, at the time of the accident, and Code, the alleged foreman, were engaged in the common labor of putting the machine in which the plaintiff in error was injured, and which he was operating, in running order. A wheel had fallen off the machine and plaintiff in error had stopped and re-started the machine several times in attempting to replace the wheel upon the axle, and while doing so he was joined by Code, who then took a hand in the work. This appears to be the evidence of the plaintiff in error. It appears from the evidence that both of the two elements which enter into the fellow servant question, namely, habitual association and the direct co-operation in the particular business in hand, existed. The mere fact that Code was accustomed to give orders to the men with whom he labored, as shown by the evidence, would not make him vice-principal in respect to the common labor which he and the plaintiff in error at the time were engaged upon. Chenoweth v. Burr, 242 Ill. 312; Baier v. Selke, supra.

It appears, therefore, both from the averments in the declaration and the evidence offered on the trial that the question of fellow servant was involved in the case, and instructions relating to that question were not objectionable provided they stated the law correctly. We do not find in the errors assigned and in the brief of plaintiff in error any specific objections to the instructions given on the fellow servant question, or that they stated incorrectly the law which they assumed to state. The objections made relate to the application of the law given in these instructions to the allegations of the declaration and the facts in issue in the case.

We think there was evidence in the record tending to show that Code at. the time the injury was inflicted was acting as the fellow servant of plaintiff in error, engaged in work upon the same machine.

It is also urged that the weight of the evidence in this case was clearly with the plaintiff in error, and that the judgment of the court below should be reversed as manifestly contrary to the weight of the evidence. Upon a careful consideration of the evidence we are of the opinion that it supports the verdict, and we cannot interfere with or set it aside upon the ground that it is manifestly against the weight of the evidence.

We think the trial court did not err in its instructions, and that the judgment should be affirmed. It is accordingly affirmed.

Affirmed.


text:
    Mary Schweer, Appellee, v. City of Chicago Heights, Appellant.
    Gen. No. 16,467.

      Notices — when of injuries received upon sidewalk sufficient. Such a notice if signed hy the attorney of the party claiming to have been injured is sufficient to satisfy the statute. Held, further in this case, that the notice in question otherwise complied with the provisions of the statute.
    Trespass on the case. Appeal from the City Court of Chicago Heights; the Hon. Home» Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 12, 1912.
    George A. Brinkman, for appellant.
    Lindhout & Lindhout, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This appeal is prosecuted from a judgment for $750, recovered by Mary Schweer against the City of Chicago Heights, in the City Court of Chicago Heights. The action is trespass on the case for injuries which Mrs. Schweer sustained because of the negligence of the City of Chicago Heights, in maintaining a defective sidewalk on the east side of Union street, about fifty feet south of 15th street in that city.

The evidence, shows that the plaintiff below, appellee, stepped into a hole in the sidewalk and broke both bones, the tibia and fibia, in the lower third of her right leg. The particular sidewalk where the accident happened was and had been for sometime in a state of disrepair, and for the purpose of making a cement sidewalk in place of the board sidewalk on which the plaintiff was injured, some portions of the walk had been torn up and taken away. In some places the cemeat sidewalk was already in place, in other places there was a cinder walk, and in still other places a mud walk.

The principal ground urged for a reversal of the judgment is based upon the notice set forth in the plaintiff’s declaration and offered in evidence in the case. That notice was addressed to the city attorney by name, and to the city clerk by name of the City of Chicago Heights, and read as follows:

“You are hereby notified that on April 9, 1909, at about 10 o’clock a. m., Mrs. Mary Schweer of 1419 Parnell avenue in the City of Chicago Heights received a broken limb and other injuries through getting caught in a defective sidewalk on the east side of Union street, and at a point about 50 feet south from the intersection of 15th street and Union street, in the City of Chicago Heights, Cook County, in the State of Illinois.

The name of the attending physician is Dr. F. A. Walls, with offices above Bradley’s drug store on the corner of Illinois street and West End avenue, in the City of Chicago Heights, Illinois.”

The notice was signed by the attorneys for Mrs. Mary Schweer and was endorsed as received and filed on the 16th day of June, 1909, by George A. Brink-man, city attorney, and by W. E. Lennertz, city clerk.

The objections to the notice urged are, “first, that the notice does not show to whom the cause of action accrued; second, from the notice it cannot be ascertained who contemplates bringing the suit; and, third, it not appearing to whom the cause of action accrued, and who contemplates bringing the suit, therefore the notice should not be signed by attorneys for Mary Schweer; fourth, the notice cannot be sustained except by extrinsic evidence to establish the fact whether Mary Schweer was living, and if she were not living the notice could not be signed by her attorneys, at any rate, it could only be held good' after construction; fifth, the address of the attending physician is not given; sixth, the notice does not state that Dr. F. A. Walls was her attending’ physician, nor does it state that said doctor attended her for the injury she claims to have received; and, seventh, the notice was not properly proven, nor admitted in evidence, so far as the record is concerned.”

In our opinion, none of the objections to the notice is well taken. The notice was sufficient and was properly admitted in evidence.

It was urged that the plaintiff was guilty of contributory negligence in taking the route which she did in going to her home; that instead of going down Union street she should have gone east on 16th street to Wallace street, where the sidewalks were in a good state of repair; and that in choosing the route that she took she was guilty of contributory negligence. The jury found against the appellant on the question of contributory negligence, and we think properly under the evidence.

It is urged that the court below erroneously refused three, instructions offered on behalf of the defendant on the question of whether there was or was not a better route. We think the court did not err in refusing the instructions.

Error is also urged in that the court refused several instructions requested by the appellant. We have carefully examined the instructions given as well as the instructions refused, and in each case we think that the refused instructions were sufficiently covered by the instructions given by the court.

There is no substantial controversy in the evidence as to the condition of the walk at and prior to the time of the injury, at the place where the plaintiff was injured, or, as to the injury received. The evidence tends to show without substantial dispute that the sidewalk had been defective for a long time, and that the appellant had notice of the defect, and that the appellant was guilty of negligence in maintaining the sidewalk in the condition that the proof showed.

We find no substantial or reversible error in the record, and the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Baume

text:
    Bart Horan, Defendant in Error, v. Cooke Brewing Company et al. Cooke Brewing Company, Plaintiff in Error.
    Gen. No. 16,254.
    Writs of error — when dismissal will be ordered. Where one defendant sues out a writ of error and makes the plaintiff below the only defendant in error and takes no steps whatever to summon or sever his co-defendants in the cause, a dismissal of the writ will be ordered.
    Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Dismissed.
    Opinion filed March 13, 1912.
    E. F. Masterson, for plaintiff in error.
    Carl A. Ross, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Bart Horan, a minor, by Katherine Horan, his next friend, in an action to recover for injury to his means of support, brought under section 9 of the act entitled Dram-Shops, recovered a verdict and judgment for $1,000 in the Municipal Court against John Flynn, William Duggan, Michael'P. Duggan and the Cooke Brewing Company, a corporation. The Cooke Brewing Company alone sues out this writ of error wherein it makes the plaintiff below the only defendant in error, and no steps whatever have been taken to summons and sever the other defendants in the court below. In such state of the record this writ of error must be, and accordingly is, dismissed. McIntyre v. Sholty, 139 Ill. 171; Bellinger v. Barnes, 221 Ill. 240; Wuerzburger v. Wuerzburger, 221 Ill. 277.

Writ of error dismissed.


author: Mr. Justice Duncan

text:
    Trout Auto Livery Company, Defendant in Error, v. The People’s Gas Light & Coke Company, Plaintiff in Error.
    Gen. No. 16,270.
    1. Automobiles — what not essential to exercise of ordinary care. In order that the driver of an automobile shall be in the exercise of ordinary care it is not essential that he anticipate that the driver of another automobile with whom he comes in collision will violate the law of the road by driving on the wrong side of the street. .
    2. Automobiles — who liable for acts of driver. A person put in charge of an automobile to try it out for another who is subject to the direction and control of such other, is his agent and servant no matter how many other employments he may then have had with others.
    3. Damages — when loss of profits may be shown. In the case of injury to an automobile, where no rental value can be definitely established it is proper to award loss of profits where they can be clearly and certainly established.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Aifirmed.
    Opinion filed March 13, 1912.
    Sears, Meagher & Whitney, for plaintiffs in error;. James F. Meagher, Edwin Hedrick, Jr., and Frederick A. Freeark, of counsel.
    Walter J. Miller, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

In a trial without a jury Trout Auto Livery Company recovered judgment in the sum of $385 against The Peoples G-as Light & Coke Company, plaintiff in error. Defendant in error’s claim is for damages sustained, January 20, 1909, to its automobile, and for loss of sixteen days’ use of the same, by reason of a collision with plaintiff in error’s automobile at the crossing of Jackson boulevard and Homan avenue, Chicago.

It is strenuously insisted by plaintiff in error that the evidence does not support the judgment. The testimony for the defendant in error tended to show that its automobile, which will be referred to in this opinion as the taxicab, while being driven southward on the west or right side of Homan avenue and across Jackson boulevard by its chauffeur, Robert A. Forrester, at from ten to fifteen miles per hour, was violently struck and damaged by plaintiff in error’s machine, hereinafter designated as the automobile, while being driven westerly over the same crossing on the south or left side of Jackson Boulevard at a speed of about twenty miles per hour, and that the collision occurred within about ten feet of the line of the south curb of Jackson boulevard. The testimony for the plaintiff in error tended to prove that the automobile was being driven westward on the north or right side of Jackson boulevard about five feet south of the north curb and collided with the taxicab on a line about five feet south of the north curb of the boulevard and about ten feet east of the line of the west curb of Homan avenue; that at the time of the collision the automobile was running at a speed of less than eight miles an hour, while the taxicab was running fifteen or twenty miles an hour, and had not sounded a horn or other signal while approaching the boulevard; and that the driver of the automobile threw out the clutch and pnt on the brakes and did everything he eonld to avoid a collision after he saw the taxicab. Mr. Ely, the driver of the automobile, testified that when he first saw the taxicab he was abont ten 'feet east of the east line of the avenue and driving at the rate of eight or nine miles ah hour, and that at that time the taxicab was about as far north of the boulevard as he could see up the avenue from his position, running about twenty miles an hour. He also testified that at the moment of the collision his car was traveling about two miles per hour, and that his machine stopped dead still when it struck the taxicab, and that after waiting a short time he moved his machine forty to sixty feet westerly off the crossing and then stopped to see what had happened to the taxicab. He is corroborated by the testimony of two witnesses riding in his car at that time, the superintendent of the purchasing department, and a clerk, of the plaintiff in error. They were contradicted in thesé matters by Mr. Forrester and a policeman who testified that the automobile was driven by its own momentum twenty-five to forty feet after colliding with the taxicab. The physical facts also seem to corroborate plaintiff in error’s witnesses. The taxicab was very much battered up generally, the rear axle was broken, the rear left wheel dished, and the running board, one rear light, and the rear fender were so badly damaged that it required an expense of. $225 to repair the machine. All the witnesses agree that the taxicab skidded to the curb stone at the southwest corner of the crossing sidewise and turned over with its right side on the curb there. It is also undisputed that the left front side of the automobile struck the left rear wheel of the taxicab, just touching the taxicab as some of the witnesses put it. It is almost inconceivable that such a collision, as described by plaintiff fin error’s witnesses, could have taken place on the north.side of Jackson boulevard, said to be about eighty feet wide, and have driven the taxicab so far and have done so nruch damage, with the automobile traveling at the rate of only two miles an hour. The expert evidence shows that an automobile of the kind in question, when moving at a speed of eight or nine miles an hour, can be stopped within the distance of eight or ten feet. The court was warranted in finding that plaintiff in error’s witnesses were mistaken as to their position and speed at and after the time when they first discovered the taxicab, and that they must have been traveling on the left or south side of the boulevard at a high rate of speed. These are the most important facts to be determined in the case in solving the question of the contributory negligence of the respective chauffeurs. To be in the exercise of ordinary care the law did not require Forrester to anticipate that Ely, the chauffeur on the automobile, would violate the law of the road by driving his machine on the left side of the street. This may account in a great degree for the failure of Forrester to see the automobile, when he looked to see if the way was clear, as he claimed. Seeing no automobile or other vehicle on the right side of the boulevard coming in his direction he was warranted in assuming that there would be none on the other side, for the law of the road, “keep to the right,” is one of the oldest and best known laws of the road or the street. "While the evidence bearing on the question of the contributory negligence of the chauffeur of the taxicab was a close question, yet, we do not think we are warranted in reversing the finding of the court on that ground, and certainly not on the question of plaintiff in error’s negligence.

The evidence in this case clearly established the fact that plaintiff in error was the owner of the automobile, and this is not disputed. Ely, the driver of the automobile, testified: “The Peoples Gas Light and Coke Company turned this automobile over to me. Mr. Mayer, the purchasing agent for the Gas Company, is the one who turned the car over. I think he thought it -would be a good way to try it out and see whether it was a good thing. I had been operating the ear for them since the middle of the summer and had run about six thousand miles before this time.” Mr. Mayer and another employe of plaintiff in error and Mr. Ely were the only occupants of the automobile when the collision occurred. This evidence is sufficient to prove that Ely was running the car by authority of the plaintiff in error, and for the purpose of trying or testing it. It makes a prima facie case, which was not rebutted. Hiroux v. Baum, 19 L. R. A. (N. S.) 332. The fact that Ely was employed by some other person to erect a building for plaintiff in error does not rebut the prima facie case. The real question is for whom was he running the machine and who had the control of the machine and the chauffeur as to the running of the machine. If he was put in charge of the machine to try it out for plaintiff in error, and was subject to their direction and control in the use thereof, he was their agent and servant as to the machine, no matter how many other employments he then had with others.

On the -question of damages it is conceded that if the defendant in error can recover at all, that it should be allowed $225 for damages to the machine, the actual cost of repairing it. The item of $160 for loss of the use of the machine is the item of damages of which plaintiff in error complains. The objection to this amount is urged upon the ground that the value of its use was established by proving the average earnings of such a machine per day, less the expenses of running the same. Both parties and the court were of one mind that the reasonable rental value of. the taxicab was the proper measure of damages for loss of its use. But it was proved on the trial that there were no taxicabs in Chicago for sale or rent and that only one other firm at that time in Chicago had them for use, and it was a competitor of defendant in error. In other words, no taxicabs were being rented, and there were none for rent. The method adopted was one way of proving what the probable rental value would be, if taxicabs were put upon the market for rent. The evidence was proper evidence bearing on the worth of the taxicab’s use, and it was proper to consider it. In such case where no rental value can be definitely established it is proper to award loss of profits of the business in question, where they can be clearly and certainly established. St. L., etc., Ry. Co. v. Capps, 72 Ill. 188; Shelbyville, etc., Ry. Co. v. Lewark, 4 Ind. 471.

The defendant in error lost the use of its machine for sixteen days, and the evidence tended to establish that the average of the net earnings of a taxicab per day at that time was about twelve to fifteen dollars, and that defendant in error was receiving about four or five applications per day for taxicabs that it could not supply. In the absence of evidence to rebut this showing, the damages are not excessive.

The judgment is affirmed.

Judgment affirmed.


text:
    Abraham Rosin, Defendant in Error, v. Sam Freed, Plaintiff in Error.
    Gen. No. 16,283.
    Appeals and errors — when erroneous exclusion of evidence will not reverse. The sustaining of objections to proper questions will not reverse if the evidence sought to be adduced was fully brought out in response to other questions which were fully answered.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 13, 1912.
    P. F. Murray, for plaintiff in error.

      Brown & Navigato, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

Abraham Eosin, defendant in error, alleged in his statement of claim in the Municipal Court that Sam Freed agreed to pay him the sum of eighteen dollars per week to work for him as a jeweler for a time extending to and beyond May 1, 1909, and on December 26, 1908, wrongfully discharged him from said employment, and that thereafter until this suit was brought plaintiff remained out of employment. He claims $150 as damages therefor and $50 for extra time employed the week immediately preceding Christmas, 1908. The judgment in the court below in this, the second jury trial, was in favor of Eosin for $160, and Freed prosecutes this writ of error to review the record thereof.

The only errors complained of by the plaintiff in error are two rulings of the court in excluding certain evidence offered by him in the trial court.

Plaintiff in error, after being cross-examined by defendant in error under Section 33 of the Municipal Court Act, was asked by his own counsel to state why he discharged defendant in error from his employment. The same question was asked plaintiff in error by his counsel when examined in chief in his own behalf, but at each time the court ruled that the evidence was improper. "What Freed would have stated, or what his counsel expected him to state, in answer to those questions, was not explained to the court. It does appear, however, very clearly from the evidence that the defense, and the only defense, offered by plaintiff in error as the ground for such discharge, was that Freed was missing goods from his store, and that Eosin, in his judgment, was* the thief. He had Eosin arrested upon a state’s warrant upon his own complaint, and the evidence bearing upon the charge of theft was fully gone into in this case, and the jury was thereby fully and completely informed of the reason for the discharge. The jury would not have been any more informed of the reason for the discharge had Freed been allowed to so state in positive words, unless he should have given a different ground therefor than stealing, the only one upon which evidence was offered. Eosin was also asked in cross-examination what took place at the time he was discharged, and the court ruled it improper as cross-examination. This was error, because it was proper on the question of whether or not he was discharged at all. However, everything that took place, that is, all that was said and done by both parties at that time, was fully brought out in the other evidence, and there is no dispute as to what did take place at that time. Freed positively admitted that he discharged defendant in error, and sought to justify his act by proving that Eosin was stealing his goods. Plaintiff in error was not prejudiced by the rulings against him, and if it be conceded that both rulings of the court are erroneous, he was not prejudiced thereby, as the rulings were on evidence bearing upon facts that were well proved by the other evidence and not contested. It is not urged that the verdict is not supported by the evidence, and an examination of the evidence shows that the verdict is so supported.

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

Judgment affirmed.


text:
    The Neville Illuminating Sign Company, Defendant in Error, v. A. A. Campbell et al. A. A. Campbell, Plaintiff in Error.
    Gen. No. 16,288.

      Contracts — when full performance excused. Held, in this case, that the failure of the defendant to perform its obligation to pay city inspection fees, put it out of the plaintiff’s power to connect an electric sign which it had agreed to construct and put in operation without violating an ordinance and incurring a penalty and that the plaintiff notwithstanding its failure fully to perform was entitled to recover the contract price.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleeand, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 13, 1912.
    Bobert D. Melick, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

This writ of error is prosecuted by A. A. Campbell to reverse a judgment of the Municipal Court against him of sixty dollars for an alleged breach of his contract with defendant in error for the erection of an electric sign at 10 Sherman street, Chicago. The trial was had before the court without a jury.

The contract price of the sign was seventy dollars, ten dollars to be paid when the sign was hung in working order and the balance to be paid in six monthly payments, beginning with June 6, 1909. The contract further provided that in default of any payment that all of the remaining installments should at once become due and payable. It was further agreed that in case of default or failure to pay the full purchase price or any payments thereon, that plaintiff in error would pay for the use of the sign while in his possession ten dollars per month, and that the written contract signed by the parties contained all agreements between them.

The evidence showed that defendant in error hung the sign and connected the same with the electric current in May or June, 1909, and that the first installment of ten dollars was paid by plaintiff in error, May 22, 1909, and that the remainder of the contract price was due under the contract by reason of his default in further payments as they came due. The ordinances of the city of Chicago, introduced in evidence, provide that the owner of such a sign shall pay for the use of the city an annual inspection fee, and that after a permit to erect such a sign has been issued and the sign erected under such permit, the applicant shall forthwith notify the city electrician, who shall cause an inspection of the same, and if found erected in accordance with the ordinance, such applicant shall be authorized in writing to operate and maintain the sign for one year. The ordinance also provides heavy penalties against any person or corporation who shall erect or maintain an electric sign or use any electric current in any sign in violation of the ordinance. Defendant in error caused such permit to erect said sign to be issued May 10, 1909, to plaintiff in error and guaranteed the payment of the fees therefor. The Edison Company disconnected the sign of plaintiff in error from the electric current, presumably because the inspection fees were not paid and permit to operate the same obtained.

Plaintiff in error contends that the defendant in error failed to perform its contract with him because it failed to pay the inspection fees and to obtain a permit to plaintiif in error to maintain and operate the sign, and because the sign was not connected with his meter.

The answer to this contention is that the written contract does not obligate defendant in error to obtain tbe permit to operate the sign and to pay for the inspection fees. Guaranteeing’ to the city the payment of such fees did not create an obligation upon defendant in error to plaintiff in error to pay such fees. The contract only required the defendant in error to deliver and hang the sign in working order, and the implied duty of the plaintiff in error was to obtain the permit and pay the inspection fees and the contract price of the sign. The failure of the plaintiff in error to perform this obligation, put it out of the defendant in error’s power to connect the sign with the meter and the electric current without violating the ordinance and incurring the penalty. Therefore, the failure of plaintiff in error to pay the installments on the contract as they came due, gave the defendant in error the option and the right to sue for, and recover, the unpaid balance of the contract price, and the fact that the sign was disconnected by the Edison Company constituted no defense to this suit.

The other contentions of plaintiff in error that the statement or pleading of the defendant in error was insufficient to support the judgment are without merit, and the judgment of the court is affirmed.

Judgment affirmed.


author: Me. Justice Duncan

text:
    J. J. Waxelbaum, Plaintiff in Error, v. Southern Railway Company, Defendant in Error.
    Gen. No. 16,297.
    1. Common carriers — burden to establish assent to limitations of liability. Under the law of Illinois the burden is upon the carrier to show assent of the shipper to the terms of a contract limiting its common law liability.
    2. Common carriers — when law of sister state governs contract of shipment. The law of the place of mating controls in the interpretation and effect to be given to a contract of shipment.
    3. Common cabriers> — when limitations of liability valid in sister state enforced. If a carrier is permitted by the laws of a sister state to limit its common law liability, such a limitation of liability will be recognized and enforced in the courts of this state even though the carrier fail to establish the assent of the shipper to the conditions of limitation imposed by the bill of lading.
    4. Comity — how law of sister state determined. If the reported decisions of the courts of a sister state are relied upon to establish the law thereof they should be read to the court and not to the jury, and the court should determine what the law of such sister state is. Held, further, in this case that the reading of the law to the court in the presence of the jury was a mere technical error which would not wort a reversal.
    Error to the Municipal Court of Chicago; the Hon. Oscab M. Tobeison, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 13, 1912.
    Charles A. Butler, for plaintiff in error.
    Pomeroy & Martin, for defendant in error.
   Me. Justice Duncan

delivered the opinion of the court.

J. J. Waxelbaum, trading as J. J. Waxelbaum & Company, sued Central of Georgia Railway and Southern Railway Company for $493 as damages to a carload of peaches shipped by the plaintiff in error from Goggins, Ga., July 18, 1906, to Seeseel & Ashner at Memphis, Tenn. The damages claimed are for the alleged negligence of the carriers in failing to properly re-ice and care for the peaches while en route. The suit was dismissed as to the Central of Georgia Bail-way, and in a jury trial judgment was rendered in favor of the Southern Bailway Company in bar of the action and for costs, and Waxelbaum prosecutes this writ of error.

The bill of lading issued to plaintiff in error at Gog-gins, Ga., contains the following provisions:

“No carrier shall be liable for loss or damage not occurring on its portion of the route, nor after said property is ready for delivery to consignee * # *; neither of the said carriers shall be responsible or liable for any act, omission or negligence of the other carriers over whose lines said propérty is, or is to be, transported.

‘‘ Claims for loss or damage shall be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than thirty days after the delivery of the property, * * *' no carrier hereunder shall be liable in any event.”

The evidence of the plaintiff in error is that no notice of his claim was presented to the defendant in error within thirty days after his shipment arrived at Memphis. The evidence for the defendant in error is to the effect that it did not receive such notice until in September following such shipment. It is claimed by counsel for plaintiff in error that Mr. Blount, salesman and manager for Aslmer-Brothers of Memphis, gave notice of the claim of plaintiff in error to defendant in error on arrival of the peaches at Memphis. This statement seems to be based on Blount’s testimony to the effect that he informed a Mr. Smith, who was working in the office of the defendant in error, of the bad condition of the peaches on their arrival in Memphis, and that he, Blount, immediately ordered the car re-iced by the Tennessee Ice Company. This testimony falls far short of giving any notice to defendant in error of this claim. He merely told the agent of the defendant in error that the peaches were in bad condition. There was no suggestion by him that defendant in error was responsible for that condition or that any one was claiming that it was, and it was not even suggested by Blount that any carrier had caused such damage or bad condition. Blount himself testified that his firm never filed a claim for damages to the fruit with the defendant in error within thirty days after delivery of the same. Notice to the Fruit Growers Express or to the Central of Georgia, if given within the thirty days, was not notice to the Southern. Neither would the suggestion or consent of the Central of Georgia to the filing of the claim with the Armour Car Lines, he the suggestion or consent of the Southern, as contended by plaintiff in error. The contract or bill of lading expressly provides that notice in writing shall be delivered to the agent at point of delivery promptly after arrival, etc., and no carrier shall be liable for any act of the other carrier, and the words of the contract must govern, if it is a binding contract.

Under the law of Illinois the burden is upon the carrier to show assent of the shipper to the terms of a contract limiting its common law liability. Tate v. Mo. Pac. Ry. Co., 157 Ill. App. 105.

But the contract in question was made in the state of Georgia for the shipment of the car in question to Memphis, Tenn., and the car while in transit or at destination was not delivered to any carrier in Illinois, and did not even pass through Illinois. Therefore, the law of the state of Georgia must control in the interpretation and .effect to be given to the contract, as it does not appear to have been made in view of the laws of any other state. Coats v. C., R. I. & P. Ry. Co., 239 Ill. 154.

In the case of Richmond & D. Ry. Co. v. Shomo, 90 Ga. 496, at page 498, in passing on a similar contract the Supreme Court of Georgia said:

“ £It is to be assumed that when the plaintiff signed this contract he knew its contents; it was his duty to know, and it is not denied that he did. If it ff'La to speak the whole contract it was incumbent upon him to see that it did so before he accepted and signed it.’ The rule is well settled that resort cannot be had to a prior parole agreement to add to or vary in behalf of the shipper the terms of a special contract and contained in the bill of lading accepted and signed by him before the goods are shipped where it does not appear that his signing was the result of fraud or mistake. * * * The contract as signed must, therefore, be taken as the final repository and sole evidence of the agreement between the parties and any limitations in it not inconsistent with tbe law are binding upon the shipper.”

In Southern Ry. Co. v. Tollerson, 129 Ga. at page 647, the same court said:

“Upon trial the plaintiff put in evidence a written contract entered into between himself and the Southern Ry. Co. * * * In this contract there was the following stipulation: ‘ That as a condition precedent to any right to recover any damages for loss or injury to said live stock notice in writing of the claims therefor shall be given to the agent of the carrier actually delivering said live stock wherever such delivery may be made and such notice shall be so given before said live stock is removed or is intermingled with other live stock.”

■ The court held such notice reasonable and then concluded, on page 649 of said opinion, by saying:

“It thus clearly appears from the evidence submitted by the plaintiff on the trial, that the stipulation as to giving the written notice of the claim for damages was not met within the time specified, in the contract and therefore a verdict was demanded in behalf of the defendant, and accordingly the court erred in not granting a new trial. ”

The foregoing opinions of the Supreme Court of Georgia were proved and read before the court and must be accepted as the law of the case.

There is no force in plaintiff in error’s contention that the court erred in allowing the reports read in the hearing of the jury and that therefore they are not to be considered by this court. It was necessary and proper to prove the law of Georgia, and the proof should have been made to the court and not to the jury, and the reports should not have been read in the presence of the jury. But the error was only a technical one that cannot prejudice the plaintiff in error in this case. The plaintiff in error stipulated with defendant in error that the provision above quoted in regard to giving notice of Ms claim was reasonable and binding on him, if the contract was entered into. The evidence shows that "Waxelbaum knew all about the contract or bill of lading issued by the Central of Georgia; that he had shipped for many years over the same road the same character of fruits and knew what bill of lading he would receive and its provisions. It made no difference therefore whether the bill of lading was delivered to him on the day of shipment or afterwards. Coats v. C., R. I. & P. Ry. Co., 239 Ill. 154.

"While the plaintiff in error did testify that he was forced to accept the bill of lading, it is very evident that he simply meant that the railroad company would issue no other bill of lading, and that he had to accept the one given him or not ship on the road. The company had the right under the laws of his own state to make the terms in the bill of lading, in question, the only terms upon which Ms fruit would be shipped.

It will not be necessary to discuss any of the other errors assigned, as it clearly appears from the foregoing that defendant in error was entitled to the judgment rendered. The judgment of the court is, therefore, affirmed.

Judgment affirmed.


text:
    Chicago Portland Cement Company, Plaintiff in Error, v. George Hofman, Jr., Defendant in Error.
    Gen. No. 16,299.
    1. Sales — how warranty cannot be established. The general rule is that preliminary negotiations for the purchase of existing merchandise are merged in the written contract of sale and if no warranty is provided for in the written contract" the purchaser is precluded from claiming one.
    2. Contracts — when local trade meaning of words may be established by parol. Where certain words used in a written contract have acquired a particular meaning by local or trade usage and such usage is shown to have been so general, uniform and frequent as to warrant the inference that the parties had knowledge of and contracted with reference to the usage, it is competent to show that meaning by parol.
    3. Contracts — when words employed in written, not subject to interpretation. When the contract is expressed in words well understood by the parties and that are not equivocal or uncertain in meaning the parties are bound by the terms used in the contract, but where the true meaning of the terms used is doubtful, then the court may legally take into consideration all that was said by the parties and all their acts that tend to shed light on the meaning of the words used, whether such statements and acts are contemporaneous or subsequent to the contract.
    4. Practice — effect of non-submission of propositions of law or fact. If no written propositions of law or fact are submitted to the court the Appellate Court will presume that the trial court did not consider any immaterial or improper evidence in reaching its decision, if there is proper evidence to justify the judgment.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 13, 1912.
    Buell & Abbey, for plaintiff in error.
    Samuel Friedlander, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

This is an action to recover from defendant in error a balance of $496.20, claimed to be due to plaintiff in error for cement delivered pursuant to a written contract between said parties, dated June 26, 1908. The cause was tried before the court without a jury, resulting in a judgment of $16.20 in favor of plaintiff in error. The cement company prosecutes this writ of error.

It was stipulated by the parties in open court that the balance due to plaintiff in error for cement delivered to defendant in error under the contract was $496.20, subject to the right of the defendant in error to prove a counter-claim in recoupment after the introduction in evidence of the contract by the plaintiff in error. The counter-claim set up by defendant in error is for breach of warranty as to the quality of the cement and resulting damages to defendant in error by reason of expenditures caused thereby; and, also, for breach of an alleged contract by plaintiff in error, made after the delivery of the cement, to pay the expense of rectifying said defects caused by inferior cement.

The contentions of the parties in regard to the written contract grow out of the following clause thereof, to wit: “We agree to have every car tested as to its quality, and should any number of cars fail to come up to the Standard quality, we agree to furnish you new cement, and further agree that should the cement prove inferior after building is constructed, we will rectify same at our expense.”

Defendant in error was constructing a tower in the village of Lyons, and had already completed one story thereof with “Atlas Cement,” when the agent of plaintiff in error closed the said contract with him for “AA Portland Cement,” with which the tower was to be completed. The only complaint of defendant in error against the cement furnished by plaintiff in error was that it was much darter than the Atlas cement, and that byreason thereof defendant in error was put to great expense in whitening the work with the former cement to make it harmonize with the work done on the first story of the tower. On the trial the court permitted theMefendant in error to testify that the agent of the plaintiff in error by an oral agreement guaranteed to the defendant in error that the cement described in the written contract was as light or lighter in color as the Atlas cement, and assured defendant in error that the words “standard quality,” used in the contract meant that the cement must be equal to or better than the Atlas cement in quality and in color. These oral statements, as claimed by the defendant in error, were made at the time the written contract was being typewritten and just after the words, “standard quality,” bad been written, and before tbe contract was signed. Tbe court at first refused to allow, but did later permit, plaintiff in error to introduce evidence to prove that tbe words, “standard quality,” bad a well-known and fixed meaning to persons engaged in tbe sale and use of cement; that they bad tbe same signification as tbe words, tbe standard specifications, which have reference simply to tbe grinding strength of cement, and tbe soundness, specific gravity, and setting qualities thereof, etc., and that tbe question of color does not enter into such specifications; and that tbe words standard quality or standard specifications were adopted and defined by tbe American Society for Testing Materials, and were in general use and well known to tbe trade. These rulings of tbe court are assigned as error by the cement company. Tbe general rule is that preliminary negotiations for tbe purchase of existing merchandise are merged in tbe written contract of sale, and if no warranty of quality is provided for in tbe written contract tbe purchaser is precluded from claiming one. The T. P. T. Co. v. The Crane Co., 208 Ill. 218; The F. & L. Mfg. Co. v. K & Co., 146 Ill. App. 350.

"Where certain words used in a written instrument have acquired a particular meaning by local, or trade usage, and such usage is shown to have been so general, uniform and frequent, as to warrant tbe infer-, ence that tbe parties bad knowledge of and contracted with reference to tbe usage, it is competent to show that meaning by parol. Packard v. Van Schoick, 58 Ill. 79.

When tbe contract is expressed in words well understood by tbe parties and that are not equivocal or uncertain in meaning, tbe parties are bound by tbe terms used in tbe contract; but where tbe true meaning of tbe terms used is doubtful, then tbe court may legally take into consideration all that was said by tbe parties and all their acts that tend to shed light on the meaning of the words used, whether snch statements and acts are contemporaneous or subsequent to the contract. F. & L. Mfg. Co. v. Kittredge, 242 Ill. 88; Evans v. Ross Const. Co., 142 Ill. App. 375.

Defendant in error had been using cement in construction work for years, and admits that the words standard quality have a certain and definite meaning among cement men, and that the words had been used in many contracts by him for the purchase of cement. He did not undertake to dispute the evidence of plaintiff in error’s witnesses as to its meaning. We think, therefore, no evidence should have been considered by the court as to oral statements made previous to the signing of the contract. When parties adopt a contract containing trade words of well-known meaning to them, they should not be heard to say that there was an oral agreement that they were intended to mean an entirely different thing from their trade use. If the rule were otherwise, defendant in error could as consistently contend that he might show that there was an oral contract that the price of the cement was to be $1.25 per barrel of 380 pounds instead' of the contract price of $1.31.

Defendant in error testified that after he had used the cement in question and made his complaint to plaintiff in error that the upper stories of the tower finished in that cement were much darker than the first story; that the agent had Mr. Fraser, its president and others of the company to go out to the tower and view the work; that he, defendant in error, said to Mr. Fraser: “I don’t know what to do, but it is up to you people to do all there is to be done in order to get it (the first story) the same as the others, because it would look bad.” He further testified that Fraser replied: “The Cement Company will always stand back of their contract. I don’t know exactly what to do, but I will tell you — you start and do that work (sandstone the tower and get it the same color) —yon go over that and get the thing right and the Cement Company will stand back of you and pay for it;” that the defendant in error then said to his contractor, Mr. Sanber, in hearing of Mr. Fraser, “Now you have heard what Mr. Fraser said. Do this as economically as you can and get it right.” He further testified that he had it sandstoned twice or three times in accordance with Fraser’s suggestion at a cost of $180.

He is corroborated in this evidence by Mr. Sauber and a Mr. Westphal. Five witnesses for defendant in error testified that the upper stories of the tower were darker than the first story. About an equal number of witnesses for the plaintiff in error testified that the upper stories of the tower when they were finished in the cement in question and dried were the same in color as the first story; and three or four witnesses for plaintiff in error, including Mr. Fraser, testified that Mr. Fraser did not agree that the cement company would pay for the sandstoning of the tower to get the colors to harmonize. None of these witnesses, except Mr. Fraser, could or would testify that they heard all the conversations between Fraser and Hofmann. Upon these questions of fact we cannot say that the finding of the court against plaintiff in error is manifestly against the weight of the evidence, and we cannot, therefore, legally reverse the judgment upon those findings. Donelson v. E. St. L. Ry. Co., 235 Ill. 625.

No written propositions of law or of facts were submitted to the court to be held as law or as facts in this case. This court should, therefore, hold the presumption to be that the court did not consider any immaterial or improper evidence in reaching its decision, as there is proper evidence to justify the judgment. The Merchants’ Desp. Trans. Co. v. Joesting, 89 Ill. 153; Ellison v. C. T. & T. Co., 80 Ill. App. 399.

The promise of plaintiff in error to pay for the sand-stoning of the tower, if defendant in error would have his contractor do the same, if made, was binding on it, although made after the written contract was executed. This oral contract was supported by a new and valuable consideration, the promise of plaintiff in error to pay for the work, if defendant in error would have the same done; and the acceptance of the proposition and the incurring the expense therefor by defendant in error.

The judgment of the Municipal Court is affirmed.

Judgment affirmed.


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      I. Lurya Lumber Company, Defendant in Error v. Abraham Bernstein et al. Abraham Bernstein, Plaintiff in Error.
    Gen. No. 16,320.
    1. Mechanic’s liens — when subcontractor's notice sufficient. Retd, that the notice of the subcontractor given to the owner set forth in this opinion was sufficient to entitle him to enforce a lien against such owner.
    2. Mechanic’s liens — what contractors proper to be named in notice of subcontractor. A notice of a subcontractor properly names as contractors those who were contractors at the time of the service of the notice upon the owner.
    3. Mechanic’s liens — how act construed. While this act is in derogation of the common law and should he strictly construed yet the construction should be reasonable and such as will render it effectual.
    4. Mechanic’s liens — when subcontractor entitled to recover at law. A subcontractor who in an action in the Municipal Court against the owner and the contractors proves his right to a lien on the date when he commenced his suit he is entitled to recover the amount shown to be due him against such owner and contractors, and it is not incumbent upon him to prove that he has instituted a suit in equity to enforce his lien pursuant to the requirements of a notice served upon him by the owner.

      5. Contracts — when estoppel to deny arises. If tbe original contract introduced in evidence in an action by a subcontractor against tbe owner was attached to the plea interposed by such owner to the action, such owner is estopped to deny such contract and the fact that it was signed by the contractors, where his plea avers that such contract was entered into and was actually signed by the contractors.
    Error to the Municipal Court of Chicago; the Hon. John H. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 13, 1912.
    Rehearing denied March 28, 1912.
    Statement by tbe Court. This writ of error is prosecuted by Abraham Bernstein to review a record of the Municipal Court by which it appears that I. Lurya Lumber Company obtained a judgment at law in the sum of $312.42 against plaintiff in error, and Harry Stone, Max Hanoch and Barnet Luntz. The court also found that the defendant in error had proved that it had a lien upon the premises described as west half of lot 14, block 5, in Brainard & Evans Addition to Chicago.
    The statement of claim is for lumber delivered to said premises owned by plaintiff in error, under contract with Stone, Hanoch and Luntz, contractors with plaintiff in error to erect a building on said premises, the last lumber being delivered August 25, 1908. Plaintiff in error pleaded in abatement, that on October 21, 1908, he served notices in writing signed by himself, on said contractors and defendant in error, stating that he was owner of said premises and required each of said parties to commence a suit within thirty days to enforce any claim or lien he might have against said premises for work or material furnished, etc. Said plea further set forth that defendant in error is a subcontractor and performed certain work and furnished certain materials for said premises under a written contract which plaintiff in error had with Hanoch and Luntz, dated June 19, 1908; that said contract provided that said contractors should build up a second floor with brick walls, uniform in height and length with the front of the building which stood on said premises according to certain plans and specifications, etc.; that plaintiff in error agreed to pay said contractors therefor $1,800; that said contractors received therefor between $1,450 and $1,500; that the work was never completed and the balance due is insufficient to pay all claimants under the statute; that plaintiff cannot maintain this suit, but should have filed a bill or petition within thirty days after said notice. Prays that writ be quashed and suit abated, and plea is verified by affidavit, and a copy of the building contract is attached to the plea.
    Blum & Blum, for plaintiff in error.
    Harry M. Fisher, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

First. Plaintiff in error insists that defendant in error’s notice is insufficient to give him a subcontract- or’s lien under the statute. Omitting the description of the premises which is correctly given, the notice is as follows:

“To Abraham Bernstein:
You are hereby notified, that I. Lurya Lumber Co. have been employed by Hanoch & Stone to furnish lumber under his contract with you on your property de-' scribed as follows: * # * and that there was due the undersigned on the twenty-fifth day of August, 1908, therefor the sum of Two Hundred Ninety Four and 2/100 dollars, and that the undersigned will hold the buildings and your interest in the grounds liable for the amount that was due and unpaid the undersigned on account thereof. Dated at Chicago, Illinois, this Twentieth day of October, A. D. 1908.
I. Lurya Lumber Co., Per M. Joseph.”

The said notice was served on plaintiff in error the day of its date by said M. Joseph who was proved to be the secretary of defendant in error on that date. The notice complies substantially with all the requirements of Par. 38 of the Lien Act and is sufficient. Chap. 82, Hurd’s Stat., 1909.

The contractors originally were Hanoch and Luntz, who were partners, but the partnership was dissolved, Luntz paid off and Stone substituted in his stead by agreement of the contractors and the plaintiff in error, and Hanoch and Stone were the contractors when the notice was served and were the proper ones to be named therein as contractors. Par. 36, Sec. 22, Chap. 82 Hurd.

It was not necessary that the notice have the seal of the corporation attached, nor that the designation of secretary be added to Joseph’s name. Plaintiff in error was served with a written notice of the claim of defendant in error and the amount due it in the form prescribed by the statute, and the notice was sufficient to protect defendant in error to the extent of the amount named in the notice. "While the lien law is in derogation of the common law and should be strictly construed, yet, the construction should be reasonable, and such as will render it effectual. Culver v. Schroth, 153 Ill. 437; Cary-Lombard L. Co. v. Fullenwider, 150 Ill. 629.

Second. The contract between the owner and the contractors was amply proved. The original contract introduced in evidence was attached to plaintiff in error’s plea, and in that plea it is averred to be the contract entered into between the owners and said contractors, and the plea sets out the contract as actually signed by the contractors. They were thereby estopped to deny the contract or the fact that it was signed by the contractors. A verbal contract, however, was sufficient under the statute and the proof not only establishes the contract, but that it was performed by the contractors and money paid to them thereon by plaintiff in error.

Third. The evidence not only proves that the lumber for which the lien is claimed was delivered, but that it was all actually used in the building. Hanoch so testified, and there is no evidence in the record that the material was not delivered.

Fourth and Fifth. The fourth and fifth contentions of plaintiff in error have already been practically disposed of in this opinion. The trial was before the court without a jury. The competent evidence showed a substitution of Stone in the place of Luntz as a contractor, by agreement of plaintiff in error, and the question of whether or not the written evidence thereof was properly or improperly admitted in evidence is not material. It is sufficient to say that there is no evidence against the testimony that such substitution was made. The testimony also shows that the lumber in question was all delivered and used by the contractors, and that one of the three contractors made an order for it as delivered. An order by any one of the contractors was binding on all of them, whether partners or joint contractors, simply, and necessarily so when used by them in the building.

Sixth. It is finally insisted that the court had no jurisdiction of the subject-matter of the suit, and that the lien was forfeited by defendant in error for failure to bring suit within thirty days after notice to do so, as provided by Par. 48, Sec. 34 of the Mechanic’s Lien Act. The notice of plaintiff in error to defendant in error to bring suit was given Oct. 21, 1908, as averred in the plea in abatement. Defendant in error’s suit was begun in the Municipal Court, Nov. 19, 1908, by the filing of a praecipe and statement of its claim and the issuing of a summons. There is no evidence in the record that a suit in equity had not been brought to enforce defendant in error’s lien, within the thirty days after Oct. 21, 1908, and this court cannot presume that such is the fact. There is, therefore, no evidence, of a forfeiture of the lien in' the record. The defendant in error proved his right to a lien for his claim on the premises in question on the day this suit was brought, and the court properly so found, and also found that the lien dated from August 25, 1908, and gave judgment for the said sum of $294.02 and interest thereon from August 25, 1908, to day of trial, Dec. 8, 1909. The court had jurisdiction to render such a judgment in an action of assumpsit, and the judgment was properly rendered against the owner and Hanoch and Stone jointly. Chap. 82, Par. 42, Sec. 28, Hurd’s Statutes of 1909; Harty Bros. v. Polakow, 237 Ill. 559.

If it be conceded that the judgment should not have been entered against Luntz, it may be answered that the assignment of errors does not question the judgment in that particular, and Luntz is not contesting the judgment here.

The judgment is affirmed.

'Judgment affirmed.


text:
    Charles L. Gorman, Defendant in Error, v. George J. Cooke Company, Plaintiff in Error.
    Gen. No. 16,322.
    Appeals and errors — when finding by court not disturbed. A finding by tbe court will not be set aside as against the evidence unless clearly and manifestly so.
    Error to tbe Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 13, 1912.
    Alden, Latham & Young, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

This suit was brought to recover $200 deposited with George J. Cooke Company, April 28, 1909, to be accounted for as money received. Plaintiff in error, George J. Cooke Company, filed a claim for set-off in the sum of $450 for sis months’ rent of the premises at 70th street and Stony Island avenue, Chicago, for saloon purposes. On the trial this set-off was amended by making the claim for rent of the premises at 92nd and Exchange avenue instead of 70th street and Stony Island avenue, and by adding a claim for damages for breach of defendant in error’s contract for the rent of said premises.

In a trial by the court without a jury defendant in error recovered a judgment for the full amount of his claim, and this writ of error is prosecuted to reverse the judgment upon the sole ground that it is against the manifest weight of the evidence.

Gorman, defendant in error, testified, in substance, that a Mr. Weber, agent of the plaintiff in error, informed him previous to the time this money was deposited with plaintiff in error, that he would have the place at 70th and Stony Island avenue on his hands, and by tailing out a license and paying $75 a month rent he, Gorman, could have possession of it for a saloon six months from May 1, 1909; that Gorman then went to the place and examined it and liked it and wanted to rent it, but informed Weber that there was no chance to rent it, as the party in possession wanted too much for the stock, and for good will, etc.; that Weber then said he would have- several other places to rent on May 1st, and at Weber’s suggestion on April 28th he deposited the $200 as a forfeit that he would take a place satisfactory to him, May 1st; that after he put up the money Weber told him about the place at 92nd and Exchange avenue, and that he visited that place and one other, and told Weber they were no good and that he wonld not take either one of them; that on May 7th, being nnable to rent a suitable place from plaintiff in error, he demanded his $200 and plaintiff in error refused to pay it to him. The defendant in error contended that Gorman agreed to rent the place at 92nd and Exchange avenue at $75 per month for six months from May 1st and that he would pay the deposit on the rent thereof; that the tenant then in possession vacated said premises, May 1st, and that by reason of defendant in error’s refusal to perform his contract the place has been vacant ever since, and that plaintiff in error could not in that time rent it to any other person. Gorman is corroborated by the fact that the receipt recites merely the receipt of the money, “to be accounted for,” by Mrs. Keon, tenant of said premises at 92nd street, who testified that she never vacated the premises until May 13th, and that she first met Gorman April 29th, the day he went to look at the place, and that Gorman never tried to buy her stock and that he said he would not take the place; and by Mr. Bock, a witness for plaintiff in error, who testified that at the time the money was deposited, Gorman said he wanted to go into the saloon business at 7000 Stony Island avenue, and that Flanagan, secretary of plaintiff in error, told Gorman he would have to deposit $200 on the rent if he took that property, although he seems to testify on cross-examination that after this time Gorman agreed to take the other place. The testimony of Weber and Flanagan supported the contention of plaintiff in error.

It was the province of the court, in view of the conflict in the evidence above disclosed, to finally settle the questions of fact in this case. The judgment was not manifestly against the weight of the evidence and is affirmed.

Judgment affirmed.