text:
    Jennie Sargent, Defendant in Error, v. McDonough & Company, Plaintiff in Error.
    Gen. No. 20,683.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed January 27, 1916.
    Statement of the Case.
    Action by Jennie Sargent, plaintiff, against Mc-Donough & Company, a corporation, defendant, in the Municipal Court of Chicago, to recover money loaned. To reverse a judgment for plaintiff for $200, defendant prosecutes this writ of error.
    Defendant is an Illinois corporation, having a capital stock of twenty-five shares, twenty-three of which were in the name of and owned by C. 0. Garmire, one in the name of Elizabeth Garmire, and one in the name of . one Young. In November, 1911, C. 0. Garmire went to Portland, Oregon. The defendant was engaged in the publication of professional directories, and in November, 1911, was particularly engaged in publishing an architects’ directory. It appears that Young was in charge of this work. It does not appear whether Young had a contract as to this publication, or, if so, what its terms were, save that in a letter by Garmire to his wife, dated March 4,1912, he stated that Young was to pay all bills in connection with the publication, then pay $1,000 to the company, and that thereafter Young would be entitled to the entire proceeds of said directory. In this letter Gar-mire also directed his wife to receive all collections and to take charge of the office in general. In this letter it was also stated that Young was president, Garmire secretary and treasurer, and Mrs. Gar-mire vice-president.

      On April 28th Garmire wrote his wife a letter, in the main directed to the publication of this architects’ directory and Young’s connection therewith. In this letter, Garmire said:
    “I want to know what Young is doing. If nothing you better use the money there and send out solicitors for advertising don’t pay over 25% and be careful of bad orders.”
    It further appeared that Mrs. Garmire continued in charge of the business and sent out solicitors as requested. She testified that she borrowed from plaintiff (her mother) the sum of $100 on October 8th, and a similar sum on November 26th which was used to pay the solicitors engaged in the interest of this architects’ publication.
    Plaintiff testified that she loaned this money to the defendant at the request of Mrs. Garmire, and that it was used for its benefit.
    It appeared that all money received for defendant, after the letter of March 4th was deposited in the name of Garmire, and that no entries were made on the books of the defendant of the money claimed to have been borrowed by Mrs. Garmire from plaintiff, for use of the defendant.
    Defendant, on its behalf, offered the deposition of Garmire taken in Portland, wherein Garmire stated that Mrs. Garmire was not authorized to borrow money for the company; and that the money borrowed from plaintiff was for his own benefit, and was deposited to meet checks drawn by him in Portland. He did, however, admit that this money was advanced by plaintiff to his wife; that he wrote Mrs. Garmire to look after the business and “get some solicitors and put them out on the Architects, one of the books published by this company. ’ ’
    D. G. Brennan testified for defendant that he was secretary and treasurer of defendant; that in May, 1913, Mrs. Garmire stated to him that she had a claim for $200 against Garmire personally but not a claim against the company, and inquired whether all money had been paid to Garmire, saying that she hoped that all money had not been paid to Garmire so she could attach.
    Abstract of the Decision.
    1. Trial, § 295

      —when erroneous refusal to hold propositions of law not available as error. The erroneous refusal to hold propositions of law cannot he availed of as error where it appears that the propositions refused were submitted after the entry of findings and judgment.
    2. Appeal and error, § 1065

      —when assignment of error raises question of sufficiency of evidence to sustain findings and judgment. An assignment of error that the court erred in finding for plaintiff in a case heard without a jury goes only to the question whether on the evidence the court was warranted in so finding the issues and in entering judgment thereon.
    3. Corporations, § 516

      —when evidence sufficient to sustain finding that money was borrowed by officer for corporation. In an action against a corporation to recover money borrowed for its use by one of its officers, where the defense was that the money was borrowed for the personal use of another officer thereof who was also its principal stockholder, a finding for plaintiff is warranted where there is evidence that such principal stockholder suggested to the officer borrowing the money that she borrow money to send out solicitors to secure advertising contracts for a publication published by defendant.
    Mrs. Garmire testified that she told Brennan the claim was against the defendant and asked payment of it.
    The case was tried by the court without a jury and the issues were found for plaintiff.
    Mills & Holly, for plaintiff in error.
    Brown, Brown & Brown, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Pam

delivered the opinion of the court.

4. Corporations, § 266 —when creditors' rights not affected by depositing of corporate funds in name of officer of corporation. The action of an officer of a corporation in closing out the corporation’s bank account and depositing corporation funds to the personal account of another officer thereof merely affects the internal management of the corporation and does not affect the rights of its creditors.

5. Corporations, § 516 —-what weight given to fact that officer made no entry of alleged loan on corporate books. In an action against a corporation to recover money borrowed by an officer thereof for its use, and where the defense is that such officer had no authority to borrow money for the corporation, the fact that such officer made no entry of the transaction on the, books of the corporation is a material but not a controlling fact which should be taken into consideration in determining the issues.

6. Corporations, § 369 —when liable for money borrowed by officer without authority. Where a corporation has had the use of money borrowed for the purpose of paying its expenses, it is liable for its repayment although borrowed by one having no authority to borrow it.

7. Corporations, § 516 —what weight given to affidavit by seller of stock regarding amount of indebtedness as against creditors. Where one buying a controlling interest in the stock of a corporation takes an affidavit from his vendor as to the amount of outstanding indebtedness of the corporation at the time of the sale of the stock, such affidavit is not available as against creditors unless such creditors had knowledge thereof, and then only as a material but not controlling circumstance affecting the issue.


source: Caselaw Access Project

author: Mr. Justice Goodwin

license: Public Domain

text:
    Elizabeth Garmire, Defendant in Error, v. McDonough & Company, Plaintiff in Error.
    Gen. No. 20,682.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed.
    Opinion filed January 27, 1916.
    Statement of the Case.
    Action by Elizabeth Garmire, plaintiff, against McDonough & Company, a corporation, defendant, in the Municipal Court of Chicago, to recover for services alleged to have been performed in its behalf. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    This action arose out of the same transaction as Sargent v. McDonough & Co., ante, p. 523, where the facts are more fully stated.
    It appeared that plaintiff was the wife of C. 0. Gar-mire, former secretary and treasurer of the defendant company, and owner of twenty-four of the twenty-five shares of its stock. One share seems to have been in the name of the plaintiff, but it appeared to have been the property of her husband. Garmire had undertaken to publish an architects’ directory, and up to the time when plaintiff’s services are alleged to have begun, the work was being carried on by or through the defendant.' The president, Mr. Young, was at that time in charge of the proposed directory, and all moneys collected were deposited to the credit of the defendant. Garmire, who was in Portland, Oregon, wrote the plaintiff in March, 1912, instructing her to take charge of the directory, receive all mail, attend to all correspondence, receive all money and pay it out, and to discharge Young if he objected. Garmire assured plaintiff that she could do this by calling a, meeting of the company and voting his twenty-four shares of stock. Plaintiff thereupon took charge of the directory, closed out the defendant’s bank account, deposited all moneys received to the private account of Garmire, from March 4, 1912, to December 24, 1912. She also testified that all moneys received were used either by her husband or herself, and that while she had charge of whatever books there were, she never made entries indicating that she was employed by the company. The plaintiff acted under the authority of Garmire alone. The evidence did not disclose any authority in him to employ any one on behalf of the company. The record further disclosed that the plaintiff at all times acted as agent for Garmire personally, and alone.
    Abstract of the Decision.
    1. Corporations, § 173

      —when owner of majority of stock may not hire employees. In an action against a corporation to recover for services rendered to it, where it appeared that plaintiff was engaged to perform the services sued for by one owning all but one share of defendant’s stock, but had no other authority, held that plaintiff was not hired by any one having legal authority to represent defendant.
    2. Corporations, § 471

      —when recovery only on implied contract of employment. A recovery for services rendered to a corporation without being hired to perform such services by a person having legal authority to represent the corporation can only be had on an implied contract for work done for its benefit.
    In March, 1913, the stock of the defendant owned by plaintiff’s husband was purchased by a third party, who did not know and could not have known that plaintiff had any claims against defendant.
    Mills & Holly, for plaintiff in error.
    Brown, Brown & Brown, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic ana section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.

3. Corporations, § 363 -—when third person affected by acts done in management of corporation without authority. The rule that third persons dealing with a corporation without knowledge of its internal management are not affected by acts done in such management, although without authority, has no application to a case where the action is for services alleged to have been rendered to the corporation by a plaintiff who was engaged to perform such services by one owning all but one share of the stock of the corporation, plaintiff having no other authority, and who, in rendering such services, conducts the business of the corporation as the private business of such stockholder.

4. Assumpsit, § 1 —what is nature of action of. In actions of indebitatus assumpsit the law invokes the fiction of an implied promise on equitable grounds to promote the ends of justice.

5. Assumpsit, § 6 —when does not lie against corporation. No promise by a corporation can be implied to pay for services as a basis for an action of indebitatus assumpsit rendered to it by a plaintiff who was employed to render such services by one owning all but one share of the stock of such corporation, plaintiff having no other authority, where in rendering such services plaintiff conducted the business of such corporation as the private business of such stockholder.

6. Corporations, § 363 —when not liable on unauthorized contract by stockholder. No legal or equitable grounds exist on which to support a judgment against a corporation for services rendered to it by a plaintiff who was engaged to perform such services by one owning all but one share of the stock of such corporation, plaintiff having no other authority, where in performing such services plaintiff conducted the business of such corporation as the private business of such stockholder.


author: Mr. Presiding Justice Pam

text:
    Rose Martin Pratt, Appellee, v. John Pratt, Jr., Appellant.
    Gen. No. 20,917.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed January 27, 1916.
    Statement of the Case.
    Bill for separate maintenance by Bose Martin Pratt, complainant, against John Pratt, Jr., defendant, in the Superior Court of Cook county. From a decree granting the relief sought, defendant appeals.
    The parties to this suit were married on the 26th day of October, 1912, and lived together until the 23rd day of February, 1913.
    The amended bill upon which the decree is based was filed October 2, 1913, and alleged that complainant at all times, while living with her husband, faithfully discharged her duties as wife and treated defendant with kindness and consideration; that defendant at no time provided for complainant a proper home, but soon suggested that they live apart, and provided a room in the home of defendant’s parents; that while living there, defendant treated her with disrespect and without the consideration due a wife, and at all times completely ignored her, refusing to speak to her; that defendant’s acts while complainant was living with him as his wife were unendurable and a menace to her health, compelling her to leave him on the 23rd of February, 1913, and that up to the filing of this bill she has lived separate and apart from him; that when she informed defendant she intended to leave him he stated that he was satisfied she should go at once; that thereafter she endeavored to work, but owing to poor health could not continue; that she repeatedly went to the home of defendant and requested him to permit- her to return and live with him and to provide her with a home, but defendant refused. Then followed allegations that complainant was physically unable to continue work, that she was without funds or means of support.
    Abstract of the Decision.
    1. Husband and wife, § 217

      —what proof necessary to maintain Mil for separate maintenance. In order to maintain a bill for separate maintenance, it is necessary to show that complainant was living separate and apart from her husband at the time the bill was filed, without fault on her part.
    2. Husband and wife—what rules of evidence inapplicable to proceeding under Separate Maintenance Act. The rules as to the evidence necessary in order to obtain a divorce do not apply to a proceeding under the Separate Maintenance Act (J. & A. If 6159 et seq.).

    3. Husband and wife, § 268

      —•when wife not required to live with husband. While a wife is not permitted to leave her husband because of incompatibility or trivial difficulties, she is not required to live with him if guilty of conduct endangering her health or making married life miserable or unendurable. '
    4. Husband and wife, § 216*—how word “fault” in Separate Maintenance Act construed. The word “fault” as used in section 1 of the Separate Maintenance Act (J. & A. If 6159) means a voluntary consenting to the separation of the husband and wife, or such failure of duty or misconduct on the part of the wife as “materially contributes to the disruption of the marital relation.”
    Defendant in his answer categorically denied all the charges. On a final hearing a decree was entered finding that complainant was entitled to the relief sought, with thirty dollars per month alimony and fifty dollars solicitor’s fees.
    Charles S Wharton, for appellant.
    Erwin McDowell, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Pam

delivered the opinion of the court.

5. Husband and wife, § 217 —when wife living separate and apart from husband without fault on her part. Even though a wife leaves her husband without being warranted in doing so, yet if afterwards she requests to be permitted to return and live with him, and he refuses, the wife is thereafter considered as living separate and apart without fault on her part, within the meaning of section 1 of the Separate Maintenance Act (J. & A. K 6159).

6. Husband and wife, § 264 —when evidence sufficient to sustain finding that conduct of husband calculated to force wife to leave. In a bill for separate maintenance, where the evidence was conflicting, but where there was evidence that the home provided by defendant was inadequate and the environment disturbing and unpleasant to complainant, evidence held to warrant an inference that the conduct of defendant was calculated to force complainant to leave him, it also appearing that after leaving defendant complainant frequently requested defendant to permit her to return to his home, but defendant refused.

7. Evidence, § 476 —when weight not determined by number of witnesses. The number of witnesses testifying on each side of the case is not alone determinative of the question of the preponderance of the evidence.

8. Appeal and error, § 1395 —when finding in chancery case not reversed on appeal. The rule applicable to trials by jury, that reversals on the ground that the verdict is against the weight of the evidence are only authorized where the error is clear and palpable, applies equally to findings in cases in chancery where the evidence is conflicting and the witnesses have been examined orally in court.

9. Appeal and error, § 1395 -—when finding in chancery case not reversed on appeal. The rule that a finding in a chancery case, where the evidence is conflicting and the witnesses are examined orally in court, will not be reversed unless clearly and palpably against the weight of the evidence is just, where the evidence believed warrants the decree, since the chancellor has opportunity of observing the witnesses while testifying, and thus has facilities of great importance in determining the weight and credibility of the evidence which are not possessed by a reviewing court.

10. Appeal and error, § 1387 -—how court of review may determine whether finding against weight of evidence. A court of review in determining whether a finding is clearly and manifestly against the weight of the evidence can only follow the words of the witnesses as transcribed in the record, knowing that some of the evidence is always lost in transcription.

11. Husband and wife, § 264 —when evidence sufficient to sus tain finding that wife living apart from husband without fault of her own. In a bill for separate maintenance, where the evidence was conflicting, a decree finding that complainant at the time the bill was filed was living separate and apart without fault of her own, held not clearly and manifestly against the weight of the evidence.


text:
    Leopold Nathan, Appellant, v. Harry M. Brown, Appellee.
    Gen. No. 20,969.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed January 27, 1916.
    Statement of the Case.
    Bill by Leopold Nathan, complainant, against Harry M. Brown, defendant, in the Superior Court of Cook county, praying for the construction and reformation of a written agreement, for an injunction against the prosecution of certain suits at law, and for other relief. From a decree in favor of defendant, complainant appeals.
    The bill alleged that the complainant had been engaged in the real estate business for many years and that in connection therewith he had been conducting a real estate business under the name of Local Improvement and Taxpayers Association (not incorporated); that he had known the defendant prior to July 1, 1908; that on July 23, 1908, complainant and defendant entered into a written partnership agreement, in part as follows, namely:
    “The parties have hereby further agreed to engage in the real estate business.

      “On any business done, in real estate transactions and in any other business said firm shall agree to engage in under contracts signed after this date the profits shall be divided by .the parties hereto share and share alike.
    “All expenses and losses shall be paid by both parties hereto share and share alike.
    “The said L. Nathan is to pay- any and all debts heretofore contracted by the said Local Improvement Tax Payers Ass ’n. The said Harry M. Brown having this day paid to the said L. Nathan the sum of Two Hundred Fifty ($250.00) Dollars, the receipt of which is hereby acknowledged for an undivided one-half (V2) interest in and to the office fixtures now in said office and owned by the said L. Nathan, and the good will of said business.
    “This contract to be in force for a term of three (3) years from this date, unless dissolved by mutual consent.”
    That afterwards the business was conducted as a copartnership; that the partnership continued until about May-25, 1910, during which time all profits were divided according to agreement; that on May 25, 1910, they agreed in writing to dissolve partnership, as follows :
    “Dissolution op Co-partnership.
    “Whereas articles of co-partnership was entered into on the 23rd day of July, 1908, by and between Leopold Nathan and Harry M. Brown; and
    “Whereas the said Nathan and Brown have mutually agreed to dissolve this co-partnership by mutual consent:
    “It is hereby stipulated and agreed that all the assets of any kind and nature, all outstanding accounts, office fixtures, etc., and the good will of said business shall be the property of said L. Nathan for his own use and behoof forever;
    “The said Leopold Nathan agreed to assume and to pay all liabilities of said firm, and for and in consideration of all interests in said firm heretofore owned by the said Harry M. Brown the said L. Nathan hereby agrees to pay to said Harry M. Brown Twenty-five ($25) Dollars per week commencing on the 28th day of May, 1910, until the Thirty-first day of December, 1910; the said Harry Brown in lieu of this agreement to give such services as he may be able to give until said last named date.
    “Dated at Chicago this 25th day of May, 1910.
    Leopold Nathan,
    Harry M. Brown.”
    The bill further alleged that the defendant, in accordance with the dissolution agreement, was to enter and continue in complainant’s employ until December 31, 1910, at a salary of $25 per week, devoting all his time and energy to the promotion of said business; that the defendant continued in complainant’s employ until July 1, 1910, when he was injured, up to which time he was paid a salary of $25 per week; that thereafter the defendant rendered no service.
    The bill further sets forth that in October the defendant brought suit against the complainant in the Municipal Court for the sum of $350, being the amount alleged to be due from July 1st to October 10th under the dissolution agreement; that on November 9, 1.910, the defendant sued out. an attachment in aid of his suit at law which he caused to be levied upon the real estate of the complainant, and that the defendant had otherwise attempted to harass and injure complainant in his business and threatened to file additional suits from time to time until complainant should pay him the sum of $350, and continued to pay him at the further rate of $25 per week from said October 27th to December 31st, although he had been well able to attend to business had he been so inclined, and that defendant had informed complainant that he did not intend to return or to perform any further service for complainant.
    The bill further alleged that the dissolution agreement was ambiguous and capable of more than one construction.
    Then followed the prayer that the dissolution agreement be construed so as to express the actual understanding of the parties, and that any and all liabilities of complainant, if any, be adjusted and adjudicated, and asking for any injunction restraining the defendant from further prosecuting the suit brought by him in the Municipal Court of Chicago, and to enjoin him from instituting or prosecuting any further proceedings.
    On December 5, 1910, an injunction was issued as prayed. On December 12, 1910, the appearance of the defendant, by his solicitors, was filed and on December 13, 1910, on motion of defendant’s solicitors the injunction was dissolved and defendant allowed to file suggestion of damages within five days.
    On December 19, 1910, suggestion of damages was filed by the defendant.
    On November 1, 1911, defendant filed his answer, by which defendant denied all the allegations in the complaint, save those as to entering into the partnership agreement and also the agreement of the dissolution of said partnership. He admitted further the beginning of the suit in the Municipal Court against complainant and the attachment suit in aid thereof.
    To this answer the complainant filed a general replication on October 16, 1913.
    On November 22,1913, a stipulation was entered into that the hearing on the suggestion of damages in said cause be placed on the contested motion calendar for December 13, 1913.
    On May 29, 1914, the court entered the following decree:
    “This cause having come on to be heard, upon the bill of complaint herein and the answer thereto of the defendant and the stipulation of the parties by their respective solicitors in open court, and the court having heard the evidence, both'oral and documentary and the same having been argued by counsel for the respective parties and the court being fully advised in the premises doth find that it has jurisdiction both of the subject-matter and of the parties, that the said parties had entered into a contract of dissolution as set out in complainant’s bill of complaint and that as a result of said contract there is due to the defendant the sum of Three Hundred' Fifty ($350.00) Dollars which includes not only the amount accrued at the date of the filing of the bill herein but all amounts accrued and to accrue thereafter under said contract.
    Abstract of the Decision.
    1. Appeal and error, § 1347

      —when presumed that no certificate of evidence was filed. Where on appeal the prwcipe of the record shows that the clerk was asked to prepare a complete transcript of the record in the cause appealed, and where the clerk certifies that the record presented is as requested in the prwcipe, it will be presumed that no certificate of evidence was ever filed in the cause, none appearing in such record.
    2. Equity, § 553

      —when decree sustained. A decree not supported by findings of fact set forth therein or by a certificate of evidence is none the less properly made if the bill and answer set forth sufficient facts to warrant such decree.
    3. Partnership,- § 74

      —when agreement for dissolution of partnership construed as agreement to pay stipulated sums for interest in business. An agreement for the dissolution of a partnership providing that all partnership assets were to belong to complainant and all partnership liabilities paid by him and “for and in consideration of all interests in said firm owned by” defendant, complainant “agrees to pay to” defendant “twenty-five ($25.00) dollars per week” between named dates, defendant to “give such services as he may be able to give until such last named date,” held to be construed as an agreement to pay the amounts named in consideration of defendant’s interest in the partnership, and not as obligating defendant to render services for which he was to be paid $25 a week.

      “The court further finds that there is due to defendant for wrongful issuance of writ of injunction herein the further sum of $100.
    “It is therefore ordered, adjudged and decreed that the said defendant do have and recover from the said complainant the sum of $450 together with all costs which said defendant has paid on account of said cause.”
    Morton T. Culver, for appellant.
    Bauer & Donoghue, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Pam

delivered the opinion of the court.

4. Reformation of instruments, § 2 —when agreement not ambiguous so as to require reformation. In a bill to reform a written agreement on the ground that it did not express the true intent of the parties, agreement examined and held not to require reformation, on the ground of ambiguity.

5. Partnership, § 425 —when finding sustained by record. In a bill praying inter alia that all liabilities of complainant to defendant as partners be adjusted, where the record showed that complainant made a valid agreement to pay defendant $25 each week from May 28th to December 31st of a certain year, which agreement was not performed, a finding for defendant for $350 held warranted by the record.

6. Appeal and error, § 1258 —when error in finding not available to complainant. A complainant in a chancery suit cannot complain that the court erroneously found against him in a less sum than warranted by the record, as such action was favorable to his interest.

7. Appeal and error, § 1079 —-when error in finding not available to defendant. A defendant in a chancery suit in whose favor the court has found in a less sum than warranted by the record cannot complain of the error where such party has not assigned a cross-error.

8. Injunction, § 262 —when temporary injunction properly dissolved. A temporary injunction restraining defendant from prosecuting an action at law is properly dissolved where it appears that such action was based on a sufficient cause of action.

9. Injunction, § 386 —when finding sufficient as basis for decree for damages. A finding in a final decree that a certain sum was due defendant for the wrongful issuance of an injunction is a sufficient" finding of fact on which to base a decree, adding the amount to the amount of defendant’s damages, although the record does not show any evidence on which such finding was based, it appearing from the record that the injunction was issued and dissolved and that a suggestion of damages was filed.


text:
    James A. Hickey, Appellee, v. Edwin L. Reed & Company, Appellant.
    Gen. No. 20,254.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy. Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed January 27, 1916.
    Statement of the Case..
    Action by James A. Hickey, plaintiff, against Edwin L. Reed & Company, defendant, in the Municipal Court, of Chicago, to recover on a written contract whereby defendant hired plaintiff to go to Indianapolis to work for a street car company during the continuance of a strike there. To reverse a judgment for plaintiff, defendant prosecutes this writ or error.
    The contract provided that he was to receive three dollars sa day, board, lodging and transportation. Apparently the men taken to Indianapolis merely reported for work and were ready to take out ears when ordered. • It was admitted that plaintiff reported Saturday and Sunday after arriving in Indianapolis. The defendant’s assistant superintendent testified that he discharged plaintiff next day, and is corroborated by other employees of the defendant. Plaintiff testified that he reported every day during the strike, and was regularly checked, and is corroborated by one fellow-employee. Defendant’s superintendent testified that beginning with Monday, no check mark appeared after plaintiff’s name; that a cross was then placed after plaintiff’s name, and the notation “open number.” The timekeeper testified that an employee was checked when he presented his card; that the sheets offered in evidence were carbons of the originals; that the checks were not put on the sheets before the parties came to the barn; and that where a man did not report, a cross was placed after his name. Examination of the carbon sheets showed that plaintiff was regularly checked each day in identically the same manner as other employees. A vertical mark appeared through these check marks, and the notation “open number” appeared in lead pencil. The vertical marks did not appear to be made by an impression through the carbon paper, but to have been made some time after the original entry.
    Abstract of the Decision.
    1. Contracts, § 387

      —when'evidence sufficient to sustain .finding as to performance of contract for personal services. In an action to recover under a written contract whereby defendant employed plaintiff to go to Indianapolis to work for a street car company during a strike, defendant claimed plaintiff was discharged .two days after arriving at Indianapolis, but plaintiff "claimed that he reported for work every day during the continuance of the strike and was checked by defendant’s timekeeper, and defendant introduced carbon copies of its time sheets which showed that plaintiff was checked each day, as were other employees, but a vertical mark appeared through the check marks on the time sheets and the notation “open number” appeared opposite plaintiff’s name in pencil, and examination of the sheets showed that the vertical marks were not made by an impression through the carbon paper but were made some time afterwards, held that the sheets tended to corroborate plaintiff’s claim.
    2. Contracts, § 384

      —when evidence sufficient to sustain judgment for expenses incurred, under contract. In an action to recover on a written contract whereby defendant employed plaintiff to go to a distant city to work for a street car company during a strike, such contract providing that plaintiff should receive board, lodging and transportation in addition to his wages, a judgment for plaintiff for the expense incurred in furnishing his own board and lodging while working under the contract held not manifestly against the weight of the evidence, which was conflicting as to whether defendant furnished suitable board and lodging as required by the contract.

      Gardner, Foote & Burns, for appellant; Orville J. Taylor, Jr., of counsel.
    Thomas F. Dow, for appellee.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, game topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.

3. Evidence, § 139*—when parol evidence admissible to show terms of written contract not produced. It is not error to admit parol evidence of the terms of a written contract in the possession of defendant where proper notice was served to produce it at the trial, and where at the time of the admission of the'parol evidence such notice had not been complied with.


text:
    Albert Lang, Individually and as Trustee, Appellee, v. Jane A. Pettis et al., on appeal of William Pettis, Appellant.
    Gen. No. 21,849.
    1. Appeal and error, § 1751

      —when copies of record of judgment must be filed to prevent affirmance of judgment or dismissal of appeal. Section 100 of the Practice Act (J. & A. If 8637), providing that where on appeal copies of the record of judgment are not filed as required by the section the judgment appealed from shall be affirmed or the appeal dismissed on the filing by appellee of the certificate of the clerk, applies exclusively to appeals from final judgments and has no application or reference to appeals from interlocutory orders or decrees.
    2. Appeal and error, § 270

      —how appeals from interlocutory orders or decrees governed. Appeals from interlocutory orders or decrees are exclusively governed by section 123 of the Practice Act (J. & A. H 8661).
    3. Appeal and error—when short record filed by appellee as basis for motion to dismiss appeal will be stricken. A short record filed by appellee in the Appellate Court for the purpose of moving to dismiss the appeal will be stricken, whether the decree appealed from be interlocutory or final, where it appears that the short record was filed before the expiration of the time allowed for perfecting an appeal from a final judgment.

      Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1915.
    Appellee’s short record stricken from the docket.
    Opinion filed January 27, 1916.
    William Pettis and Charles A. Fitch, for appellant.
    Ellis & Lewis, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.

This matter comes up on the motion of appellee to dismiss this appeal for failure to file a complete record in apt time. It appears from the short record filed that an order was entered in the Circuit Court of Cook county on the chancery side in a cause entitled, “Albert Long, Individually and as Trustee, vs. Jane A. Pettis, et al.'’ by which it was decreed that the defendant, William Pettis, vacate a portion of the premises involved in the cause, and that a writ of assistance be entered forthwith directed to the sheriff, commanding him to oust said Pettis, and place the receiver in possession thereof, from which order said William Pettis appealed to this court; that on the 24th day of March, said Pettis filed his appeal bond. October 1, 1915, this short record was filed by the appellee for the purpose of moving the dismissal of the appeal on the ground that it was an interlocutory appeal, and no complete record had been filed in this court within the sixty days allowed by the statute. There is a fatal objection to appellee’s motion. There is no provision in the statute which permits the filing of a short record for the purpose of dismissing an appeal, except in case of failure to file copies of records of judgments, orders and decrees' appealed from within the time prescribed by section 100 of the Practice Act (J. & A. 8637), which relates exclusively to appeals from final judgments. The language of the provision is very explicit: “If copies of the record of judgments, orders and decrees appealed from shall not be filed within the time above allowed” (i. e. by the second day of the appropriate term), “and appellees shall thereafter file in said Supreme or Appellate Court, as the case may be, the certificate of the clerk, *. * * the court shall affirm the judgment or dismiss the appeal as for want of prosecution.”

This provision by its terms refers exclusively to appeals from final judgments and decrees, and has no application or reference to appeals from interlocutory orders or decrees which are governed by section 123 (J. & A. 1J 8661). There is, moreover, a very sound reason for the distinction which the Legislature has made. Appeals from final judgments stay the enforcement of the judgment; appeals from interlocutory orders do not. It therefore follows that if an appeal from an interlocutory order is not perfected, the appellee is in no way harmed. If appellee is correct in concluding that the order appealed from was an interlocutory order, there was nothing in the statute which authorized him to file a short record and move the dismissal of the appeal. If, on the other hand, the order appealed from was a final order, appellees ’ action in filing such short record October 1, 1915, was not justified, because appellant’s time to file his record had not then expired. Appellant did, moreover, file his short record on or before the second day of the term, and that cause, No. 21,903, is still undisposed of. The court will, therefore, on' its own motion, strike from the docket the short record filed by appellee as No. 21,-849.

Appellees’ short record stricken from the docket.


author: Mr. Justice O’Connor

text:
    A. M. Todd, Defendant in Error, v. Chicago City Railway Company, Defendant in Error. Auto Taxicab Company, Plaintiff in Error.
    Gen. No. 20,440.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed January 27, 1916.
    Rehearing denied February 9, 1916.
    Statement of the Case.
    Action by A. M. Todd, plaintiff, against the Chicago City Railway Company and the Auto Taxicab Company, defendants, in the Circuit Court of Cook county, to recover for personal injuries. To reverse a judgment for plaintiff, defendant Auto Taxicab Company prosecutes this writ of error.
    About midnight, September 11,1911, plaintiff entered a taxicab of the defendant Auto Taxicab Company at the Illinois Athletic Club in Chicago, and instructed the driver to take him to the Lake Shore station. The driver proceeded south on Michigan avenue, and then turned west on Jackson boulevard. While crossing State street, two blocks west of Michigan avenue, the taxicab collided with a southbound street car. The plaintiff was cut about the head, severing an artery in the region of the temple. He was taken back to the Athletic Club, where he received medical attention. He stayed at the club that night, the next day and night, and the next day, against the advice of his physician, he went to Atlantic City, and later came back to Chicago. He was a traveling salesman earning more than $10,000 per year. He was unable to work for more than three months after the accident.
    The action was tried by jury which found the Chicago City Railway Company not guilty, and returned a verdict' against the other defendant. In the Appellate Court the death of plaintiff was suggested and his administrator was there substituted on motion.
    Abstract of the Decision.
    1. Automobiles and gabages, § 3

      —when instruction on case to be exercised by taxicab company in conveyance of passengers erroneous. In an action to recover for personal injuries sustained while riding in defendant’s taxicab as a result of the collision between it and a street car, an instruction that the driver of the taxicab is not required to anticipate anything not reasonably to be anticipated by him is properly refused, the driver being required in such case, with reference to his passenger, to exercise a high degree of care in safeguarding such passenger, and it is not enough that at the time of the collision the driver was in the exercise of ordinary care.
    2. Negligence, § 218

      —when instruction properly refused as assuming facts. In an action to recover for personal injuries it is proper to refuse an instruction that plaintiff could not recover for injury or disability resulting from want of proper care after his injury which aggravated his condition by failing to observe the instructions of his physician, such instruction being bad as assuming that plaintiff had done something aggravating his condition, thereby invading the province of the jury.
    3. Automobiles and garages, § 3

      —when instruction as to right of driver of taxicab to assume that street car would stop erroneous. In an action to recover for personal injuries sustained while riding in defendant’s taxicab as a result of a collision between the taxicab and a street car, it is proper to refuse an instruction that the driver had a right to assume that'the street car would stop as required by an ordinance but not.adding "in the absence of some warning or evidence to the contrary,” such qualification being necessary to correctness of the instruction.
    LeBosky & Gladstone, for plaintiff in error.
    Henry M. Hagan, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."

   Mr. Justice O’Connor

delivered the opinion of the court.

4. Trial, § 91 —when objection to evidence limited to grounds specified. A question to a medical expert objected to in the trial court on the ground that it was not a proper hypothetical question cannot be objected to on the review as calling for an answer invading the province of the jury, an objection to evidence being limited to the grounds specified and not covering other grounds not specified.

5. Appeal and error, § 384*—when objection cannot be made on review. An objection cannot be made for the first time on review.

6. Evidence, § 410 —when expert may give opinion whether injured person’s condition result of injury. Where there is no dispute as to the manner in which plaintiff was injured, and the question is whether plaintiff’s ’condition at a subsequent time was the result of the injury, a question to a medical expert calling for an opinion on such question and an answer giving such opinion are properly permitted.

7. Automobiles and garages, § 3 —when evidence as to observance of ordinance by taxicab driven prior to injury inadmissible. In an action to recover for personal injuries sustained while riding in defendant’s taxicab as a result of a collision between the taxicab and a street car, evidence of the practice of the driver of the taxicab prior to the accident as to observance of an ordinance is properly excluded, the only proper inquiry in such case being what the driver did at the time and place of the accident, and it being immaterial what he did at other times.

8. Statute of limitations, § 108 -—when must be pleaded to be available as defense. A defendant who does not plead the statute of limitations to additional counts filed by plaintiff by leave of court cannot complain that such counts set up causes of action differing from that alleged in the original declaration, and that such causes of action are barred by the statute, the only way to raise such question in such case being by a plea of the statute.

9. Judgment, § 216 —when motion in arrest of judgment not proper to reach defects in declaration. In an action to recover for personal injuries, a motion in arrest of judgment on the ground that the declaration alleged a higher degree of care to rest on defendant than that required by law is properly denied where defendant requested no instructions embodying its view of the law, the proper method to raise such question being by special demurrer.

10. Pleading, § 466 —when declaration sufficient after verdict. After verdict all that is required is that the declaration be sufficient to sustain a judgment for plaintiff.

11. Damages, § 115 —when damages for personal injuries not excessive. In an action to recover for personal injuries, where it appeared that prior to the accident plaintiff’s earnings averaged nearly $1,000 a month, a verdict for plaintiff for $2,500 held not excessive, it also appearing that plaintiff was unable to work for more than three months after the accident and suffered great pain.


text:
    Dravo Doyle Company, Defendant in Error, v. Sulzberger & Sons Company, Plaintiff in Error.
    Gen. No. 20,655.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed January 27, 1916.
    Statement of the Case.
    Action by the Dravo Doyle Company, a corporation, against Sulzberger & Sons Company, a corporation, defendant, in the Municipal Court of Chicago, to recover a balance due on the purchase price for turbine gears sold and delivered to defendant. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    For some time prior to June, 1912, the defendant operated a steam turbine at its plant in the Chicago stockyards, and purchased from the plaintiff certain gears to be used with the turbine.
    It appeared that the gears were ordered in June, 1912, deliveréd in July, 1912, and installed in defendant’s plant. After the gears were in operation from four to six weeks, some of the teeth broke. They were then taken to defendant’s machine ship, turned down on a lathe, the broken parts removed and then replaced and used at intervals thereafter. After the break, defendant took the matter up with the plaintiff, the defendant claiming that the g*ears were, inherently defective, causing the break, and that the gears should be replaced without cost. The plaintiff contended that the trouble was caused by reason of a faulty foundation on which the turbine was placed. After some controversy, the plaintiff, on August 14, 1912, wrote the defendant a letter in which plaintiff reiterated its belief that the break in the teeth of the gears was due to the foundation on which the turbine rested, and suggested that defendant send the gears to the manufacturer’s laboratory for testing, and intimating that if found defective such manufacturer would probably replace them.
    Abstract of the Decision.
    1. Sales, § 243

      —when no implied warranty of quality of goods. There is no implied warranty of the quality of goods sold which are not manufactured by vendor.
    In accordance with the letter, the defendant sent the broken parts of the gears to Trenton, New Jersey, and on October 16, 1912, plaintiff wrote to the defendant advising it that after an examination of the broken parts of the gears, there was no evidence of inherent defects, and that therefore no credit or allowance could be made.
    The gears in question were manufactured at Trenton, New Jersey, by the DeLaval Steam Turbine Company. There was no express warranty of the gears.
    The action was tried by jury, and at the close of all the evidence the court instructed'the jury to find for plaintiff.
    William R. Brown, for plaintiff in error.
    Baker & Holder, for defendant in error; G. Raymond Collins, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Sales, § 252 —when implied warranty of fitness for purpose exists. Where an article is to be made or supplied to the order of a vendee, there is an implied warranty of the fitness of the article for the special purpose designated- by vendee if known to vendor.

3. Sales, § 387 —when buyer may keep property and sue for breach of warranty. Where there is a sale and delivery of personal property with an express or implied warranty, the purchaser may keep and use the property if found to be defective and bring an action for breach of warranty.

4. Sales, § 389 —when purchaser may recoup damages for defects in goods. In an action to recover for the purchase price of goods sold under an express or implied warranty the purchaser may recoup damages sustained by reason of defects in the goods.

5. Sales, § 98 —when buyer may not rescind contract without consent of vendor. In case of breach of warranty of goods sold under a contract containing no stipulation that the goods may be returned in case of such breach, vendee has no right, in the absence of fraud, to rescind the contract without the consent of vendor.

6. Sales, § 404 —what is measure of damages for breach of warranty. The measure of damages in an action for breach of warranty of goods sold is the difference between the value of the article as warranted and its actual value in its defective condition.

7. Sales, § 91 —when contract not annulled by seller. In an action by a vendor to recover the purchase price of goods not manufactured by it which were sold under a contract containing no express warranty or clause permitting the return of the goods in case they were found to he defective, a letter from plaintiff to defendant suggesting that the goods he sent to the manufacturer for testing and assuring defendant that such manufacturer would replace the goods if found defective does not amount to a request to return the goods nor amount to an annulment of the contract, especially where plaintiff later informed defendant that the goods had been tested and no defects found.

8. Sales, § 283 —when no question for jury regarding warranty. In an action to recover for goods sold and delivered, where the defense is a breach of warranty of the goods sold, there is nothing to submit to the jury in regard to the warranty where there is no evidence that the contract was effectively rescinded, or of defendant’s damages as a result of the alleged breach.


text:
    Marion H. Cazier, Appellee, v. William L. Mohr, Appellant.
    Gen. No. 20,812.
    1. Specific performance, § 93

      —when decree for simultaneous performance proper. In a bill for the specific performance of a contract for the exchange of shares of stock, where it appears that complainant has performed in part, and offers in his bill fully to perform on performance by defendant, a decree that both complainant and defendant simultaneously perform is not open to reasonable objection.
    2. ' Specific performance, § 46

      —when performance of contract for delivery of stock, not specifically decreed. Equity will not decree the specific performance of a contract for the delivery of stock which is easily obtainable in the market and where there appears to be no particular reason why vendee should have the particular stock contracted for, and will leave vendee to his action at law.
    3. Specific performance, § 46

      —when specific performance of contract for delivery of stock decreed. Equity will decree specific performance of a contract for the delivery of stock whose value is not easily ascertainable, or is not readily obtainable or the delivery of which is required by vendee for some particular and reasonable cause.
    4. Specific performance, § 4

      —when no adequate remedy at law exists for breach of contract to deliver stock. In a bill for specific performance of a contract for the delivery of stock, an objection that complainant has a complete remedy at law has no application where it appears that the stock contracted for is not obtainable in the market, and that no means exist for ascertaining its market or cash value.
    5. Specific performance, § 77

      —when inability of defendant to perform must be pleaded and proved. In a bill for specific performance, the inability of defendant to perform is a matter of affirmative defense, which must be both pleaded and proved.
    6. Specific performance, § 93

      —when decree requiring delivery of stock not objectionable. In a bill for specific performance of a contract to deliver stock, a decree requiring defendant to deliver certain shares of stock is not objectionable as requiring defendant to deliver stock which he does not own or control where defendant’s pleadings nowhere allege that he does not own or control such stock, and where defendant’s testimony does not show that he is unable to comply with the decree.

      7. Appeal and error, § 1396

      —when findings of chancellor not set aside on review. In a bill in equity where the evidence is conflicting, the findings of the chancellor will not be set aside on review unless clearly and manifestly against the weight of the evidence.
    8. Specific performance, § 91

      —when evidence sufficient to sustain finding. In a bill for the specific performance of a contract to deliver stock, where the evidence was conflicting, a finding in favor of complainant held not manifestly against the weight of the evidence.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed January 27, 1916.
    H. Clay Calhoun and Bunge & Harbour, for appellant.
    Mather & Hutson, for appellee; William A. Sheehan, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

The bill in this case was filed by appellee against appellant. It prayed that a contract entered into between them be specifically performed. A decree was entered in accordance with the prayer of the bill, from which this appeal is prosecuted. The parties will be designated complainant and defendant as in the court below.

The bill sets up the contract in haec verba. The part of the contract involved in this case provides: That the complainant agrees to deliver to the defendant the entire capital stock (one hundred shares) of the Chicago Form Company, a corporation; that the defendant agrees to deliver to the complainant twenty shares of the capital stock of the Hincher Manufacturing Company of Indiana, and twenty shares of the capital stock of the W. L. Mohr Company; that each of said last mentioned corporations was then in the process of increasing its capital, stock, and that said forty shares of stock was to be a part of such increase; that the complainant agrees to deliver to the defendant ninety-five shares of the said one hundred shares of stock of the Chicago Form Company upon the payment of a certain sum of money, and the remaining five shares of such stock within ninety days; that defendant agrees to deliver to the complainant said forty shares of stock “as soon as practicable and within ninety days.” The bill further alleges that complainant assigned and delivered ninety-five shares of the capital stock of said Form Company to the defendant, and that he delivered the certificate representing the remaining five shares of said stock to the defendant, and was ready at all times to assign the same, requiring only that- the defendant turn over said forty shares of stock to him; that more than ninety days have elapsed and the defendant neglects and refuses to deliver said stock to the complainant. The defendant answered the bill admitting the execution of the contract, and averring that the complainant had not yet assigned to the defendant all of the capital stock of the Form Company; that at the time of the making of the contract, there was another agreement entered into between the parties by the terms of which complainant agreed to act as manager of the Form Company for a period of two years; that the complainant proceeded to so act, but before the expiration of said period, abandoned, without cause, said Form Company and refused to act as its manager, and that the complainant’s agreeing to so act was a part of the consideration of the contract mentioned and set forth in the bill. After replication filed, defendant, by leave of court, amended his answer, said amendment setting up that complainant had an adequate remedy at law. The complainant afterwards, by leave of court, amended his bill. The amendment averred that the stock of the Hincher and Mohr companies, which was owned and controlled by the defendant, had no market value and was not obtainable in the market; that both companies were close corporations; that no stock had been sold for cash; that there was no means of ascertaining the actual value of the stock; that the complainant was desirous of obtaining the specific stock; that prior to the expiration of the ninety days mentioned in- the contract, complainant offered to assign the certificate of the remaining five shares of stock of the Form Company to the defendant; that the defendant at that time told the complainant that the capital stock of the Hincher and Mohr companies had not been increased, and that it was therefore impossible to deliver to the complainant the forty shares of stock, and requested that the matter be held in abeyance; that after the expiration of said ninety days, the complainant on numerous occasions offered to assign the five shares of stock, but the defendant refused to deliver the forty shares of stock; that the defendant finally refused absolutely to deliver said forty shares of stock to the complainant, giving as a reason for such refusal that the complainant had severed his •employment with the Form Company. Complainant further set up in the amendment that he was ready to assign the five shares of stock in the Form Company, provided the defendant would deliver said forty shares to him. The answer traverses the allegations of the amendment and avers that the complainant at no time offered the remaining five shares of stock in the Form Company to the defendant, and that complainant said he would never transfer the same until the defendant transferred said forty shares of stock.

The cause was heard in open court and a decree entered finding the material allegations of the bill as amended true. The decree also specifically finds that the complainant delivered to the defendant ninety-five shares of the capital stock of the Form Company; that a certificate representing the remaining five shares was also delivered to the defendant, or left in the files of the Form Company, over which the defendant had control, but the complainant had not indorsed it; that stock in the Hincher and Mohr companies has no market value; that neither of said stock is obtainable in the market, and it cannot be ascertained what the cash value of either of said stock is; that within the period of ninety days mentioned in the contract, complainant offered to assign the remaining five shares of the capital stock of the Form Company; that the defendant was either unable or unwilling at that time to transfer to the complainant the stock in the Hincher and Mohr companies; that after the expiration of the said ninety days, the defendant refused to transfer such stock. It was decreed that the defendant delivered to the complainant the forty shares of stock; that, upon such delivery, complainant assign the certificate representing the remaining five shares of the capital stock of the Form Company. From, the decree the defendant prosecutes this appeal.

The defendant’s chief contention, and the burden of his argument, seems to be, as stated by him, that “one who seeks the aid of chancery to enforce the specific performance of a contract to which he is a party, must, before his becoming entitled to the relief sought, have done all that the contract involved imposes upon him; and for appellee to plead, or to say, as was done in the case at bar, that he would assign the remaining five shares of the capital stock of the Chicago Form Company to appellant, if appellant would assign to him, appellee, the forty shares of stock in the Hincher Manufacturing Company of Indiana and in the W. L. Mohr Company, is not doing equity. * * * Until appellee has assigned the remaining five shares of stock in the Chicago Form Company, how can he complain—how can he obtain the relief he seeks?”

The court decreed that the complainant assign the certificate of the remaining five shares of stock in the Form Company and that the defendant deliver the forty shares of stock in the Hincher and Mohr companies, and the assignment of the stock by the complainant and the delivery by the defendant of the forty shares to the complainant take place at one and the same time. No reasonable ground can be urged against this provision of the decree.

The defendant next contends that a court of equity will not specifically enforce a contract for the sale of personal property where there is a complete remedy at law for damages. While it is true that where stock contracted to be sold is easily obtained in the market and there is no particular reason why the vendee should have the particular stock contracted for, equity will not decree the specific performance of the contract, but will leave the party to his action at law for damages; yet where the value of the stock is not easily ascertainable, or the stock cannot be readily obtained elsewhere, or there is some particular and reasonable cause for the vendee’s requiring the stock contracted for to be delivered, a court of equity will decree a specific performance of the contract and compel the delivery of the stock. 1 Cook on Corporations (6th Ed.) secs. 337, 338; Hills v. McMunn, 232 Ill. 488; Ames v. Witbech, 179 Ill. 458. From the foregoing authorities, it clearly appears that the contention of the defendant is not applicable to the facts in the case at bar.

A further contention of the defendant is that the decree requires him to deliver to the complainant forty shares of stock which the evidence shows he does not own or control. If the defendant is unable to perform the contract which he entered into, such inability is a matter of defense which must be set up by the defendant in his pleadings and proved. Davenport v. Plano Implement Co., 70 V App. 161; Greenfield v. Carlton, 30 Ark. 547; Harrigan v. Dodge, 200 Mass. 357 ; Borden v. Curtis, 46 N. J. Eq. 468. Nowhere in the defendant’s pleadings does he aver that the reason for his failure to deliver the forty shares of stock to the complainant was the fact that he did not own or control such stock. He, however, did testify concerning his interest in the Hincher and Mohr companies, but his testimony, which was the only evidence offered on this proposition, was far from satisfactory. Neither by his pleadings nor by the evidence has the defendant shown that he is unable to deliver the stock as the decree provides.

The defendant contends also that on the other matters in issue the evidence does not sustain the decree. There is some conflict in the testimony. The chancellor saw and heard the witnesses in open court, and found in favor of the complainant and against the defendant. Such finding will not be set aside in a court of review unless it is clearly and manifestly against the weight of the evidence. (Hess v. Killebrew, 209 Ill. 200; Phelan v. Hyland, 197 Ill. 395; Delaney v. McNeil & Higgins Co., 195 Ill. App. 524.) This we are unable to say.

Finding no substantial error in the decree of the Superior Court, it will be affirmed.

Affirmed.


text:
    Adam Lossechewich, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 20,883.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed January 27, 1916.
    Statement of the Case.
    Action by Adam Lossechewich, plaintiff, against the Chicago City Railway Company, defendant, in the Superior Court of Cook county, to recover for personal injuries. From a judgment for plaintiff for $2,500, defendant appeals.
    It appeared that the plaintiff was employed by the defendant as a laborer in cleaning and sweeping cars at the defendant’s barns between 69th and 70th streets in the City of Chicago for a long time prior to the time of his injury. He also swept around the barn and offices, and, when ordered, would take a car out on some part of the line where a car had been disabled, turning it over to the regular men. In this work he acted as motorman. The barn extended from 69th to 70th streets, and from Ashland boulevard, and was' about one block in width. It was divided into seven bays by partitions extending north and south from 69th to 70th streets. In each bay there were three tracks extending its entire length, which were connected with the tracks in the streets. There were doors in the partitions connecting the different bays. About halfway between 69th and 70th streets there was a long pit about four feet in depth under each track. These pits were to enable the repair man to inspect and repair the cars. As the cars came in they were •cleaned and inspected, put in condition and moved to the north end of the barn near 69th street, from which place they would be taken out when needed. The bam was in constant use. There were day and night shifts. Twenty-eight men were in the night shift, including the plaintiff. The evidence tended to show that about eight o’clock on the night of April 26, 1911, the car in question was inspected and put in repair by an employee named Little. After the car had been put in condition, Little ordered his helper, G-edraitis, to move the car to the north end of the barn at 69th street, which he did. The car was left just outside of the bam, where it remained for about two and one-half hours, when the night foreman told the plaintiff to take a car out “right away” to 59th street, where some trouble had occurred, and, as was the custom, told plaintiff to take a helper. These helpers were known as trolley boys, and part of their duty was to stand on the back platform during the trip. Plaintiff called a helper and both started towards the car, plaintiff reaching it first. The helper went to take a sign off the car, and plaintiff stepped in behind the car and adjusted the trolley. As soon as the trolley came in contact with the wire, the car backed up and plaintiff was caught between the car and another one standing on the same track. One of his legs was crushed above the knee. As he fell, he pulled the trolley pole from the wire and the car stopped. The mechanism of the car was in such position that the car would back up when the trolley was placed on the wire. There was no direct evidence as to how the mechanism came to be in this position. It was the custom, when cars were standing on the tracks, to leave the car “dead.” There were two kinds of cars, known as small and big cars. The car in question was a small car, and the spring on the trolley pole was stiffer than on the larger cars, so that it was difficult to place the trolley pole against the wire without standing behind the car. The evidence also tended to show that it was the custom for either the helper or the motorman to adjust the trolley pole when a car was to be talien out, and to stand behind the cars, especially the small ones, in so doing. There was no evidence that any one was near the car in question from the time it was placed at the entrance of the barn until the time of the accident, about eleven o’clock, except that given by the witness Daukintis who testified that fifteen minutes before the accident he saw the night foreman come out of the back end of the car in question. The foreman denied this, and testified that he had not been near the car for an hour or two.
    The declaration was filed October 27, 1911, and consisted of but one count. It averred, in substance, that the defendant was operating street cars and a barn in connection therewith; that a foreman was in charge of the work in the bam and of the employees, including the plaintiff, which foreman was not plaintiff’s fellow-servant, but was a direct representative of the defendant; that the defendant caused the trolley pole on one of its cars to be removed from the trolley wire, and permitted and allowed the mechanism of the car to be and remain in such condition and position that if the trolley were placed in contact with the wire the car would move backwards and against another car standing on the same track; that the defendant knew this, or by the exercise of ordinary care would have known it; that the plaintiff did not know it, and by the exercise of ordinary care would not have known it; that, although the defendant knew of these facts, the foreman “ordered, directed, commanded, allowed and permitted the plaintiff to go between” the cars to place the trolley pole in contact with the wire, and negligently and carelessly failed to warn or advise the plaintiff of the condition in which the car was standing and the plaintiff, while in the exercise of ordinary care for his own safety, in the performance of such order, direction or command, was injured etc. The defendant pleaded the general issue. During the trial plaintiff, by leave of court, filed an additional count. It averred, in substance, that the defendant operated certain street cars and bam in connection therewith; that it negligently and carelessly caused the trolley pole of one of its cars to be removed from the wire, and permitted and allowed the mechanism of the car to be and remain in such condition and position that in the event that the trolley pole should be placed in contact with the wire, the car would move backwards and against another car standing on the same track so that the first mentioned car was not reasonably safe, but dangerous and unsafe; that the defendant knew, or by the exercise of ordinary care would have known, of the condition in which the car was .standing; that the plaintiff did not know and by the exercise of ordinary care would not have known of -such condition; that the plaintiff in the discharge of his duties went between the cars to place the trolley pole in contact with the wire, and, as he did this, the car, by reason of the carelessness and negligence of the defendant, moved backwards and injured the plaintiff. To this count the defendant filed pleas of the general issue and statute of limitations. A demurrer was sustained to the latter plea. Defendant elected to stand by said plea.
    The action was twice tried, the jury disagreeing at the first trial. At a second trial the jury found for plaintiff.
    The court gave the following instmction for plaintiff, over objection of defendant:
    “The court instructs the jury that where a master confers authority upon one of its employees to take charge and control of a certain class of workmen in carrying on some particular branch of its business, such employee in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master and is not a mere fellow-servant and if he is guilty of a negligent and unskilled exercise of his power and authority in directing and controlling the work under his charge, it is in law the same as though the master itself was guilty of such conduct.”
    Abstract of the Decision.
    1. Limitation of actions, § 76

      —when statute may he pleaded to amended declaration. Where an amendment to a declaration, filed after the period of limitation has run, sets up a new cause of action, differing from that stated in the original declaration, the statute of limitations may he pleaded in bar.
    2. Limitation of actions, § 61

      —what constitutes commencement of new action. An amendment to a declaration stating a new and different cause of action is to be treated as the commencement of a new action.
    3. Limitation of actions, § 58

      —when amendment to declaration relates hack to commencement of action. Where an amendment to a declaration states no new matter or claim but merely restates in a different form the cause of action set up in the original declaration, such amendment relates back to the commencement of the action.
    4. Limitation of actions, § 49

      —when statute arrested by bringing action. The running of the statute of limitations to a cause of action is arrested by bringing an action on such cause.
    5. Pleading, § 50

      —how question whether cause of action in declaration and that in amendment are the same determined. The question whether the cause of action stated in the original declaration and that stated in an amendment or additional count are the same or different causes of action is to be determined as matter of law from an inspection of the pleadings alone.
    6. Negligence, § 132

      —when no recovery for negligent acts not pleaded. In an action involving negligence, plaintiff must recover on the case made by his declaration and cannot allege a' specific act of negligence and recover on proof of negligence of another character.
    Franklin B. Hussey and Charles LeRoy Brown, for appellant; John R. Guilliams, of counsel.
    Elmer, Cohen & Belasco, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, samo topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

7. Pleading, § 56 —how determined whether different counts constitute same or different cause of action. One of the tests by which it is to be determined whether different counts constitute the same or different causes of- action is whether the same evidence will support both counts.

8. Pleading, § 45 —when declaration containing one supported count sufficient. Where a declaration states in different counts two or more causes of action, it is sufficient if one cause is established by evidence.

9. Pleading, § 50 —when additional count does not set up new cause of action. A demurrer to a plea of the statute of limitations interposed to an additional count, on the ground that it stated a different cause of action than the original declaration, is rightly sustained where the gist of the additional count is the failure of defendant to furnish plaintiff with a car in a reasonably safe condition with which to work, and where the original declaration also covers such cause of action, although alleging in connection therewith specific acts of negligence on the part of defendant’s foreman.

10. Master and servant, § 154 —what is duty of street railroad to provide safe cars. Street railroads are charged by the law with the positive obligation of furnishing to its employees cars in a reasonably safe condition with which to work.

11. Master and servant, § 689 —when evidence sufficient to sustain verdict for personal injuries due to unsafe condition of street car. In an action to recover for personal injuries sustained by a motorman as a result of the alleged unsafe condition of the car defendant’s foreman ordered him to operate, where the jury were correctly instructed, a verdict for plaintiff held not clearly and manifestly against the weight of the evidence.

12. Master and servant, § 779 —when instruction on liability of master for negligence of foreman not inapplicable to facts. In an action to recover for personal injuries sustained by a motorman as a result of the alleged defective condition of a car which defendant’s foreman ordered him to operate, an instruction requested by plaintiff that where a master confers authority upon one of its employees to take charge of a certain class of work, such employee in governing and directing the men under his charge is the direct representative of the master and not a mere fellow-servant, and that if he negligently exercises his authority in directing the work the master is liable, held not erroneous as being inapplicable to the facts.


text:
    William Kontos, Plaintiff in Error, v. William Clemens et al., Defendants in Error.
    Gen. No. 21,197.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court of Chicago, § 31

      —when judgment affirmed on appeal. On writ of error to reverse a judgment of the Municipal Court of Chicago in a fourth-class contract action, where a stenographic report containing all the errors assigned has been stricken because not seasonably filed, there is nothing to be passed on by the Appellate Court, and the judgment will be affirmed.
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed January 27, 1916.
    Statement of the Case.
    Action by William Kontos, plaintiff, against William Clemens, Robert McLaughlin, Mathew Kersting, Charles F. Healy and others, defendants, in the Municipal Court of Chicago, to recover on a contract. The action was of the fourth class. The court found in favor of all the defendants except Robert McLaughlin. To reverse a judgment for such defendants, plaintiff prosecutes this writ of error.
    Beauregard F. Moseley, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendants in error, Kersting and Healy.
    Charles V. Barrett, for defendant in error, William Clemens.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.