text:
    F. C. Batchelder, Receiver, Appellant, v. Hecla Transportation Company, Appellee.
    Gen. No. 17,898.
    1. Bridges — rights of navigation. Under the doctrine in admiralty, the right of navigation is paramount, and a bridge spanning a river should be equipped with proper signals, giving warning of its position and its opening and closing, and a vessel having given the proper signal to open the bridge and prudently proceeding under slow speed has, in the absence of proper warning, the right to assume that the bridge will be timely opened for passage, and she is not hound to heave to until the bridge has been swung or raised and locked and to critically examine the situation before proceeding, but may carefully proceed at slow speed upon the assumption that the bridge will open in response to the signal, until such time as it appears by proper warning, or in reasonable view of the situation, that the bridge will not be opened, when it becomes the duty of the vessel, if possible, to stop and, if necessary, to go astern.
    2. Bridges- — failure to signal that bridge cannot be opened. Where a bridge tower man fails to display a proper signal of warning to an approaching vessel that the bridge cannot be opened because of an engine having stopped on the derail, the master of the vessel, after signaling her approach, is justified in considering his conduct as an invitation to proceed, and no liability attaches for injuries caused to such bridge in a collision.
    3. Bridoes — injuries to bridge by vessel. An action to recover damages for injuries caused to a bridge by a vessel is to be viewed as a simple action in tort, and the petitioner must prove by a preponderance of the evidence that defendant’s negligence caused the accident and that the petitioner was free from contributory negligence.
    Appeal from the Circuit Court of Cook county; the Hon. Look-wood Hokoke, Judge, presiding. Heard in the Branch Appellate
    Court, at the October term, 1911.
    Affirmed.
    Opinion filed March 6, 1913.
    Jesse B. Barton and Chaeles E. Keemee, for appellant.
    Church & McMuedy, for appellee.
   Mr. Justice McSurely

delivered tlie opinion of the court.

This is a proceeding under the Watercraft Act of Illinois by the receiver of the Chicago Terminal Transfer Bailroad Company against the Steamer Eber Ward, of which the Hecla Transportation Company was the owner. A petition under the act was filed in the Circuit Court of Coot county, .and the steamer was attached but released upon the filing of a bond by the owner.

The case arises out of a collision occurring December 6, 1908, at about 7:20 o ’clock a. m., between the steamer Eber Ward, south-bound in tbe south branch of the Chicago river, and the lift bridge of the petitioner across the river just south of Taylor street, by which the bridge was damaged to an amount which by agreement and stipulation is fixed at $14,487.85. The bridge was one used by several railroads crossing the south branch of the Chicago river. The general direction of the river at this point is north and south, with the current running south away from the lake, so that a boat moving up the river is really going with the current. Just north of the railroad bridge is the Taylor street bridge, a city bridge, and the distance between the two bridges on the east bank is about 195 feet and on the west bank somewhat more than 400 feet. This difference in measurement is caused by the fact that the railroad bridge crosses the river at an angle approximately running north and south. Both bridges are of bascule type, operated by electricity, which opened by rotating on the shore ends of the leaves vertically. On the shore at each end of the railway bridge is a tower, some 60 feet in height, each occupied by a bridge tender, and the passenger station of the roads using the bridge is about 1,000 feet east or north of the easterly or northerly end of the bridge. Between the station and the bridge are express and freight houses and tracks spreading out from the bridge like a fan. Between the station and the bridge and about 600 feet east of the latter is a tower house, occupied at the time of the accident by a man named Bright, who by means of a system of locks and levers controlled the movements of the trains on that side of the bridge, determining when and on what tracks they should proceed. The two leaves of the bridge are operated by the tower men at either end thereof by' means of a lever turning on the electric power, but when the bridge is closed an iron bar clutches and locks the handles of their levers so that they cannot be moved until released, and this was completely under control of the tower man Bright. Ordinarily the time occupied by the tower man, Bright, in releasing the lock was about five seconds, and the further work of opening the bridge by the bridge tenders to its full width occupied from a minute to a minute and a half. Between this tower and the bridge was a mechanism called a derail, located about 350 feet from the bridge. This was a device for preventing trains from passing it towards the bridge without the permission of the tower man, and was for the purpose of safety by preventing trains going towards the bridge while it was open. This mechanism was so operated and connected with the bridge tenders’ locks that if an engine or car was standing on the derail the bridge could not be opened. It appears from the evidence that every other bridge on the river except this one was equipped with some device for giving warning signals. This bridge was not so equipped and had no method of signaling to approaching boats of its indisposition or inability in any case to open in response to the usual signal. On the morning in question the Eber Ward, without any cargo, was coming up the river for the purpose of laying up for the winter. It seems to be necessary in order to preserve steerageway that the boat should go somewhat faster than the current, and the evidence tends to show that the current was at this time about two miles per hour and that the average speed of the boat was two and one half miles per hour. The steamer was 220 feet long over all and was a wooden propeller of twelve or fifteen hundred tons burden. At Po.lk street the usual signal was given for the opening of Taylor street bridge, and was responded to by her bridge tenders without delay. When the captain of the steamer saw that bridge begin to open and while he was some 800 feet from the railway bridge,1 he gave the signal for that bridge to open. It is admitted that at the7 time the signal was given, and thereafter, there was no train or engine moving on or near the bridge, or in any position as tbong’b it were attempting to cross, and that nothing occurred to indicate that the railroad bridge would not open in time to permit the steamer to pass. It is also admitted that the Ward signal was heard and understood by the bridge tenders and those in control of the bridge, and that the Ward expected the bridge to open, and that there was plenty of time for the bridge to open if the bridge tenders had received the signal from the tower man Brooks. The evidence also tends to show that had the bridge begun to open at the time the bow of the boat reached the Taylor street bridge it could have been opened in time for her safe passage. As the boat approached Taylor street bridge she was going too slow to give her steerageway, so the speed was increased slightly, and then after going 15 or 20 feet the signal was given to stop the engine, to check her down. When half way through the Taylor street bridge, the master of the vessel, observing that the railroad bridge had not started to open, undertook to stop the boat’s headway and gave signals for this purpose. There is some dispute as to whether these signals were answered as promptly as they should have been answered. Before she had passed completely through the Taylor street bridge she was reversing at full speed astern. However, she drifted on with the current until she struck the bridge, inflicting the damage complained of.

Some time before the Ward’s signal was given a train of the Pere Marquette railroad had come in, and after discharging its passengers was drawn by a switch engine west towards and onto the railroad bridge, then back onto the side track, so that the express ear could be cut off, and then the remainder of the train was to cross the bridge to the yards of the railroad on the other side of the river; but when it had proceeded to within 30 to 40 feet of the bridge the coupling of one of the Pullman cars gave way, thus breaking tbe train in two and bringing it to a stop, with the switch engine standing upon the derail, and there it stood for five or ten minutes waiting for the train to he conpled np again so that it conld proceed-, hut in the meantime the collision had occurred.

The evidence tends to show that the tower man, Bright, heard and understood the opening signal given hy the steamer while the train was being hauled out of the station hy the switch engine and before it reached the bridge, hut that the signal was disregarded and the switching operations continued. With the switch engine standing on the derail the lock could not he released and the bridge could not he opened. There seems to have been no urgency requiring the movement of the Pere Marquette train by the switch engine, one of the witnesses stating that there was no occasion at that time to take the train out of the station to make room for others, and that the only purpose of the switching was to make the train ready to go out again that evening, which would be nearly twelve hours thereafter. There is also a statement hy the witness Bright, the tower man, to the effect that at the time the bridge was struck it was unlocked.

The case was tried hy the court without a jury, and the court found against the petitioner and for the defendant upon the ground that the proximate cause of the accident was the negligence of the petitioner, his agents and servants, and from this judgment petitioner has appealed to this court.

Counsel have earnestly and ably argued many points, which in our view of the case it is not necessary to discuss in this opinion. If we were to consider this case as controlled hy the doctrine in admiralty, we should apply the rule stated by Mr. Justice Jenkins in Clement v. Metropolitan West Side El. Ry. Co., 59 C. C. A. 289, 123 Fed. 271 (273), and restated and followed in Munroe v. City of Chicago, 194 Fed. 936:

“A bridge spanning a navigable river is an obstruction to navigation, tolerated because of necessity and convenience to commerce upon land. Such a structure must be so maintained and operated that navigation may not be impeded more than is absolutely necessary; tbe right of navigation being paramount. It is incumbent upon the owner that tlie bridge be so constructed that it may be readily opened to admit the passage of craft, and maintained in suitable condition thereto. It is also his duty to place in charge those who are competent to operate the bridge, to watch for signals, and to open the bridge for the passage of vessels, and for the performance of such delegated duty be is responsible. It is also his duty to equip the bridge with proper lights, giving warning of the position of the bridge and of its opening and closing. If for any reason the bridge cannot be opened, proper signals should be given to that effect, such as will warn the approaching vessel in time to heave to. A vessel, having given proper signal to open the bridge and prudently proceeding under slow speed, has, in the absence of proper warning, the right to assume that the bridge will be timely opened for passage. She is not bound to heave to until the bridge has been swung or raised and locked, and to critically examine the situation before proceeding (City of Chicago v. Mullen, 54 C. C. A. 94, 116 Fed. 292), but may carefully proceed at slow speed upon the assumption that the bridge will open in response to the signal, and may so proceed until such time as it appears by proper warning, or in reasonable view of the situation, that the bridge will not be opened (Manistee Lumber Co. v. City of Chicago [D. C.] 44 Fed. 87; Central Railroad Company of New Jersey v. Pennsylvania Railroad Company, 8 C. C. A. 86, 59 Fed. 192), when it becomes the duty of the vessel, if possible, to stop, and, if necessary, to go astern.”

We might well follow the conclusion reached in Mun-roe v. City of Chicago, for the circumstances and the accident there involved were practically the same as in the case at bar. In that case the Circuit Court of Appeals held that the accident was caused by the failure to signal from the bridge that it could not be opened promptly for the approaching vessel.

However, we discern no reason for considering this case as controlled by any other doctrine- than the nsnal rules in tort cases followed in the common-law courts of this state. This should "be viewed as a simple action in tort, to be determined by the laws of this state, wherein the alleged wrong was committed. Wiggins Ferry Co. v. Reddig, 24 Ill. App. 260. It therefore follows, under familiar rules, that the petitioner to sustain Ms right to recover must prove by a preponderance of the evidence that the defendant was guilty of the negligence charged, which caused the accident in question, and also that the petitioner himself was free from any negligence which contributed to the accident.

It is very doubtful if it can be said that negligence of the defendant causing the accident was proved by the greater weight of the evidence. The trial court found, in effect, that the vessel was managed and navigated with reasonable care and skill under the circumstances, and we can hardly say that this finding was manifestly against the weight of the evidence. However this may be, the question as to whether the negligence of the petitioner caused the accident is reasonably clear from doubt. No sufficient explanation appears as to why the bridge could not have been raised after the signal from the Ward was heard, before any attempt was made to run the train across it for the purpose of distributing the cars on the other side. There was no urgent need for distributing the cars at that time; it was not necessary to move them to make room for other cars or trains, and they would not be needed for use until about twelve hours later. The tower man seemingly took a chance that he could succeed in running the train across the bridge before the vessel was near enough to strike it, but his purpose was defeated by the breaking of the coupling, and proper caution might have suggested that some such mishap might occur. Neither is there any satisfactory explanation offered as to why no signals were displayed or warning given to the oncoming vessel that the bridge would not be opened promptly in response to the Ward’s signal. When the switch engine stopped on the derail, thus preventing the opening of the bridge promptly, an immediate warning should have been given to the approaching vessel. Instead of such warning, however, the conduct of those in charge of the bridge, together with the absence of any train on or about it, might well have been considered by the master of the vessel as an invitation to proceed and as a promise that the bridge would be open in ample time to permit passage.

The trial court made certain findings of fact, which are as follows:

“1. That at the time of the occurrence of the collision between the steamer Eber Ward with petitioner’s bridge, set forth in the amended petition, it was the general custom in the operation of the bridges on the south branch of the Chicago river, except the petitioner’s bridge, to give a warning or stop signal to approaching boats when for any reason the bridge would not be opened in response to an opening signal from such boat and such bridges were generally provided with devices or mechanical signals for that purpose, but at no time while the steamer Ward was approaching petitioner’s bridge after giving its opening signal, was any such warning or stop signal given by those in charge of petitioner’s bridge to said steamer, nor was such bridge provided with any means for giving such warning or stop signals, nor was there anything in the appearances of the bridge or of its approaches at either end to indicate to the master or crew of the boat that it would not be opened in due season for the passage of the steamer, beyond the mere fact that it was closed.

“2. That the steamer Ward, from the time its opening signal to the petitioner’s bridge was given, was managed and navigated with such a degree of care and shill that had a suitable warning or stop signal been given to it with reasonable promptness after the receipt by the petitioner’s bridge tender of said opening signal, said steamer could readily have been stopped before reaching petitioner’s bridge and the collision of tbe steamer therewith have been avoided, and that reasonable care and prudence under the circumstances required that such a warning or stop signal should have been given by those in charge of said bridge.

“3. That the petitioner at the time of and immediately prior to the collision of the steamer Eber "Ward with the petitioner’s bridge, was guilty of negligence in the management and operation of said bridge.

“4. That the failure of petitioner to open said bridge in response to the Ward’s opening signal was due to causes wholly within the control of petitioner, and of which defendant and its servants had no knowledge or control.

“5. That the petitioner was guilty of negligence in not opening said bridge in response to the signal given by the master of said steamer Ward, indicating his desire to pass through said bridge.

“6. That the petitioner was guilty of negligence in not giving a warning signal to the steamer Ward of the inability of the bridge tender to open said bridge in response to the Ward’s opening signal.

“7. That the petitioner, at the time of and immediately prior to the collision of the steamer Ward with the petitioner’s bridge and after receiving the signal indicating the desire of the master of said steamer to pass said bridge, did not exercise proper care for the. safety of said bridge, but was guilty of negligence in that respect.

“8. That the proximate cause of the collision of said steamer Ward with petitioner’s bridge and the resulting injuries to said bridge, was the negligence of petitioner, his agents and servants.”

After careful consideration we are of the opinion that these findings were justified upon the evidence and should not be disturbed. Petitioner having been guilty of the negligence which was the proximate cause of the accident is not entitled to a recovery, and the judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    William E. Quinn, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,922.
    1. Civil service — mandamus. On a petition for mandamus to replace petitioner as superintendent of sewers of a city, alleging that its civil service commission on a hearing of charges against him had found them sustained by the evidence, the justice or injustice of such finding is not subject to review, nor errors in its decisions of fact or rulings of law, and the only question is whether the commission had jurisdiction and whether it followed the form of proceedings legally applicable in such cases.
    2. Civil service — action of board final. The action of a civil service commission of a city, based on the finding of the board after a trial held in the manner pointed out by statute, and upon evidence taken tending to show the guilt of the person charged, is final and not reviewable by the courts.
    3. Pleading — conclusions not admitted on demurrer. Allegations containing merely the conclusions of a petitioner are not admitted by a demurrer and should be construed most strongly against the petitioner.
    Appeal from the Circuit Court of Cook county; the Hon. William B. Scholfield. Judge, presiding. Heard in the Branch Appellate
    Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 6, 1913.
    William H. SextoN, for appellant; S. Crawford Eoss, of counsel.
    A. D. G-ash, for appellee.
   Mr. Justice McSurely

delivered tlie opinion of the court.

William E. Quinn filed his petition in the Circuit Court, alleging certain things touching proceedings of the Civil Service Commission resulting in an order removing him from the position of Superintendent of Sewers and from the service of the City of Chicago. The petition prayed that a writ of mandamus issue, commanding tlie City to place petitioner’s name npon the roster of employes and npon the pay roll as Superintendent of Sewers. To this petition defendant filed a general demurrer. Upon hearing the court overruled the demurrer, and defendant electing to stand by the same, judgment was entered and the writ of mandamus ordered to issue. The defendant has appealed to this court seeking a reversal of the judgment. The allegations of the petition material to the particular point hereinafter considered are that the petitioner was duly appointed to the office of Superintendent of Sewers, and entered upon and continued in the duties of said office and never violated any of the rules touching the same; that certain charges of neglect of duty were preferred against him with the Civil Service Commission; that petitioner was duly notified of said charges, and that a hearing of the same was held, at which witnesses were sworn and their testimony heard by the Commission, the petitioner being present and also there represented by his attorney; that thereafter the Commission made a finding that the charges had been sustained by the evidence. The petition further alleges that there was no evidence introduced on the trial of said cause showing any intentional wrongdoing or neglect, or any guilt whatever in connection with the aforesaid charges; that no evidence whatever was introduced to sustain said charges, and that none of the evidence introduced in said hearing had any bearing whatever upon the charges against the petitioner; that the Commission unjustly discharged petitioner for the sole purpose of making it possible that the office or position of Superintendent of Sewers might be done away with; that the order was illegal and void and of no force and effect whatever, and that the action of the Civil Service Commission was wholly unauthorized.

Several points are presented by appellant as ground for a reversal, but we shall refer to one only. The demurrer should have been sustained, for the reason-that the justice or injustice of the findings of the Civil Commission is not the subject of review.

In Heaney v. City of Chicago, 117 Ill. App. 405, the court said, speaking through Mr. Justice Brown (p. 409):

“We have nothing to do in this case with the justice of the finding which the Civil Service Commission made against the plaintiff in error, nor whether it erred in its decision on the facts, or even whether it erred in its rulings of law, if it made any, during the progress of the hearing which it gave him, or in its application of the law to the facts; nor had the Superior Court. As the Supreme Court said in The People v. Lindblom, 182 Ill. 241, the only questions open in the Superior Court were whether the Civil Service Commission had jurisdiction, and whether it followed the form of proceedings legally applicable in such cases.”

In City of Chicago v. People, 210 Ill. 84, the court said (p. 92):

“After a trial is held in the manner pointed out by the statute before the proper board and evidence is taken tending to show the guilt of the person charged, we are of the opinion that the action of the civil service commission, based on the finding of the board, is final and not reviewable by the courts.”

This has been held so repeatedly as to require no further discussion. See Feldman v. City of Chicago, 126 Ill. App. 186; People v. City of Chicago, 142 Ill. App. 103; Joyce v. City of Chicago, 216 Ill. 466; People v. Powell, 127 Ill. App. 614; City of Aurora v. Schoeberlein, 230 Ill. 496; People v. City of Chicago, 234 Ill. 416; Sullivan v. Lower, 234 Ill. 21.

We do not understand that counsel for appellee claims the rule to be otherwise, but it is argued that the general demurrer admits the allegations of the petition — namely, that there was no evidence introduced on the trial of said cause showing any intentional wrongdoing or neglect, or any guilt whatever in connection with the charges, and that none of the evidence introduced in said hearing had any bearing whatever upon the charges against appellee; and admits generally that the Commission without right unjustly discharged appellee for the sole purpose of making it possible that the office of Superintendent of Sewers might he done away with, and that the duties of said office might be combined with the duties of some other office. These allegations contained merely the conclusions of petitioner, which conclusions are not admitted by filing a demurrer. Construing the allegations most strongly against the petitioner, as we must do, it is apparent that these allegations merely go to the weight of the evidence before the Commission, and to the correctness of the conclusion drawn from the evidence by the Commission. The petition alleges the hearing of testimony by the Commission, and the conclusion of the Commission as to its sufficiency to sustain the charges cannot be reviewed. It is equally clear that an allegation that the conclusion of the Commission as to the sufficiency of the evidence before it was influenced by some ulterior motive cannot be considered in this court, for the reason that this would involve an inquiry into the probative effect of the evidence adduced, of which effect the Commission must be the sole judge.

For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Charles Hopper et al., v. Caroline Connelly et al. On Appeal of Caroline Connelly and George B. Quigg, Appellants, v. George G. Barrows, Appellee.
    Gen. No. 17,942.
    1. Appeals and errors — joinder in appeal bond. Where an appeal is granted to three parties jointly and two are principals on the appeal bond and the other a surety, the appeal is properly dismissed, since not prosecuted in conformity with the order.
    2. Appeals and errors — conformity to order, alloioing. A court of review is without jurisdiction to hear an appeal when it is not prosecuted in conformity with the order of the court allowing it.
    3. Appeals and errors — former ruling. A court of review in considering a motion to dismiss for want of jurisdiction is not hound by a prior order denying the motion.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Ttjthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Dismissed.
    Opinion filed March 6, 1913.
    Rehearing denied March 20, 1913.
    Edward H. Kubitz, for appellants; George B. Quigg, pro se; L. J. Haigler, of counsel.
    Kruse & Peder and R. C. Merrick, for appellee.
   Mr. Justice McSurely

delivered tbe opinion of the court.

A bill in chancery was filed in the Circuit Court to foreclose a trust deed conveying certain real estate to secure a promissory note. After various and complicated experiences in the cause, a report by Master in Chancery Rogers, to whom the cause had been referred, was made, finding that the material allegations of the complainants’ bill had been proved. To this report no objections or exceptions were filed. A decree was entered in accordance with the recommendations of the report, from which decree this appeal is taken.

The appellee has moved in this court that the appeal be dismissed, upon the ground that where an appeal is granted to two or more parties jointly all appellants must join as principals in the execution of the appeal bond. Inspection of the record discloses that Caroline Connelly, Hattie Sattler and George .B. Quigg prayed and were granted an appeal upon filing a bond with the clerk of the Circuit Court. The appeal bond filed runs from “Carolina” Connelly and George B. Quigg, as principals, and Hattie Sattler and Henry Peters as sureties, and contains the recital that from the decree of the Circuit Court “the said Carolina Connelly and George B. Quigg have prayed for and obtained an appeal to the Appellate Court, within and for the First District in said state; Now, therefore, if the said Carolina Connelly and George B. Quigg shall duly prosecute their said Appeal with effect, and moreover pay the amount of the decree, costs, interests, and damages rendered and to' be rendered, against them,” etc.

We therefore have before us almost the same situation considered by the court in Lingle v. City of Chicago, 210 Ill. 600, in which it was held that there was no jurisdiction to entertain the appeal, the court saying (p. 602): “The right to prosecute an appeal from a judgment or decree is purely statutory, and can only be taken when allowed by an order of the court and in conformity with the order of the court. Tedrick v. Wells, 152 Ill. 214; Vickers v. Tyndall, 168 Ill. 616.” To the same effect is Fortune v. Gilbert, 207 Ill. 235, and numerous other decisions. We have no discretion in the matter, but must dismiss the appeal.

As this motion goes to the jurisdiction of the court, we are not bound by the prior order of this court denying the motion to dismiss, but that order, which was entered on February 8, 1912, will be vacated and set aside, and the appeal will be dismissed.

We might add, however, that from our inspection and consideration of the record we are of the opinion that in any event the appeal is without merit.

!'Appeal dismissed.


author: Me. Justice McSurely

text:
    The People of the State of Illinois, Defendant in Error, v. Edward Jackson, Plaintiff in Error.
    Gen. No. 18,647.

      Contempt — where contempt is direct. Where one induces a witness who is in the hallway adjoining the court room waiting to he called to testify, to go to a saloon and stay away from the courthouse, he is guilty of a direct contempt committed in tne presence of the court.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Pbt, Judge, presiding. Heard in the Branch Appellate Court at the
    October term, 1912.
    Affirmed.
    Opinion filed March 6, 1913.
    Day & Guenther, for plaintiff in error.
    Maclay HoyNe, for defendant in error; Zach Hob-heimer, of counsel.
   Me. Justice McSurely

delivered the opinion of the court.

We are asked to reverse an order entered by a judge of the Municipal Court, holding Edward Jackson, plaintiff in error, to he in contempt of court and imposing punishment therefor.

The material facts giving rise to the order of court are substantially as follows: On June 14, 1912, one Leon Stoll was the complaining witness in a case upon the trial calendar of the judge sitting in the criminal branch of the' Municipal Court of Chicago, and was in attendance in the court room for the purpose of testifying therein. After a while he left his seat in the court room and went into the corridor adjoining the court room, and from there into the main corridor; that while he was in the main corridor Edward Jackson, the plaintiff in error, approached him and asked him to go down stairs and have a drink; that he entered the elevator with Jackson, and that they went into a saloon in the neighborhood of the Criminal Conrt bnilding and had some drinks. Jackson then procured an automobile and invited the witness to take a ride with him. They rode for an hour or two, and Jackson told Stoll that the case in which he (Stoll) had been subpoenaed had been continued. Jackson at the same time gave Stoll $50 in currency. Jackson left the witness about two o’clock p. mv and the witness then went to his home and was not present in court at two o’clock p. m., at which time the case had been set for trial.

The points urged as grounds for reversal are all comprehended in the conclusion of this court as to whether such conduct on the part of Jackson was a direct or a constructive contempt. If it is a direct contempt no complaint was necessary and the proceedings were regular. We are of the opinion that the conduct of the plaintiff in error, as above described, was a direct contempt committed in the presence of the court.

It is said in Cyc., volume 9, page 19: “The court is present in every part of the place set apart for its use and for the use of its officers, jurors, and witnesses, and therefore misbehavior in such places is misconduct in the presence of the court. ’ ’

Ex parte Savin, 131 U. S. 267, is a case directly in point, where the facts are practically the same as here, Savin having attempted in the jury room and the hallway of the court house, but some distance from the court room, to intimidate a witness. The Supreme Court said in its opinion “The jury room and the hallway, where the misbehavior occurred, were parts of_ the place in which the court was required by law to hold its sessions. ’ ’ And the opinion again proceeds: “If, while Flores was in the court room waiting to be called as a witness, the appellant had attempted to deter him from testifying on behalf of the government, or had there offered him money not to testify against Goujon, it could not be doubted that he would have been guilty of misbehavior in the presence of the court, although the judge might not have been personally cognizant at the time of what occurred. But if such attempt and offer occurred in the hallway, just outside of the court room, or in the witness room, where Flores was waiting, in obedience to the subpoena upon him, or pursuant to the order of the court, to be called into the court room as a witness, must it be said that such misbehavior was not in the presence of the court? Clearly not.”

In Fisher v. McDaniel, 9 Wyo. 457, the attempt to influence a witness occurred in the hall of the courthouse, and this was held to be a contempt committed in the presence of the court. Our own Supreme Court in Dahhke v. People, 168 Ill. 106, held contempts to be direct which are committed “so near to the court as to interrupt its proceedings.” To the same effect are other reported cases, which it is unnecessary to cite. The cases cited by counsel for plaintiff in error have to do with facts so different from those before us as to render such citations of little assistance to the court. It is urged that Kyle v. People, 72 Ill. App. 171, is similar on the facts. In the Kyle case the facts said to constitute the contempt were that an attorney engaged in the trial of a case was asked by Kyle “if they wished to win the case;” and after-wards in the hallway Kyle said “that he knew two jurors in the front row.” The opinion rendered indicates considerable doubt as to whether any contempt had been committed, and holds that a direct contempt proceeding is reviewable, and reverses the judgment on the ground that the order of judgment was improper in that Kyle’s guilt had not been shown. We cannot consider the decision in that case as affecting our conclusion upon the facts before us.

The judgment will be affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Anderson Tea Company, Plaintiff in Error.
    Gen. No. 18,760.
    1. Cbiminal law — 'substitutes for butter. Section 4 of the Act of 1907, entitled “An Act to Prevent Fraud in the Sale of Dairy Products,” etc., relating to the securing of evidence of illegal sales, cannot he construed as a part of the Act of 1897, entitled “An Act to Regulate the Manufacture and Sale of Substitutes for Butter.”
    2. Criminal law — reading law to jury. In a criminal prosecution it is not error for counsel to read law to the jury.
    3. Criminal law — penalty. The judge may impose a penalty on one convicted of violating the Act of 1897, entitled “An Act to Regulate the Manufacture and Sale of Substitutes for Butter.”
    4. Criminal law — sale of imitation butter. A conviction for violation of Act June 14, 1897, § 4, for the sale of imitation butter, is proper where the clerk in charge of defendant’s store, on being asked for butter, sold oleomargarine without marking the package or stating that it was not genuine butter.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 6, 1913.
    T. F. MoNahaN, for plaintiff in error.
    Maclay HoyNE, for defendant in error; Zach Hoe-heimer and Charles F. McKihley, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a case commenced by information in the Municipal Court of Chicago, charging that the Anderson Tea Company, hereinafter called defendant, on or about March 1, 1912, in Chicago, “did unlawfully offer for sale and sell a certain quantity of imitation butter without then and there informing the purchaser thereof that the substance offered for sale and sold was imitation butter, contrary to the form of the stat-lite,” etc. The case was tried by a jury, resulting in a verdict of guilty, and defendant was fined $100 and costs. It is urged by the defendant that this judgment should he reversed.

The statute above referred to is section 4 of “An Act to Regulate the Manufacture and Sale of Substitutes for Butter,” approved June 14, 1897, in force July 1, 1897, chapter 38 Hurd’s Revised Statutes, sections 39d to 39n. In 1907 the legislature passed an act entitled “An Act to prevent Fraud in the Sale of Dairy Products,” etc. Defendant contends that the act of 1897 and the act of 1907 must be construed together. The pertinency of this contention lies in the fact that by section 4 of the act of 1907 it is provided, concerning persons securing evidence, that “The person taking such sample as provided for in section 2 of this act, shall * * * divide the same into two equal parts * * * he shall in the presence of the person from whom the same is taken, mark or seal each half or part of such sample with a paper seal or otherwise, and shall write his name thereon and number each part of said sample with the same number, and also write thereon the name of the said dealer in whose place of business the sample is found, and the person from whom said sample is taken shall also write his own name thereon.” It is conceded by counsel for the People that the provisions of this section were not followed by the inspectors who secured the evidence against the defendant.

We cannot yield assent to the claim that the Dairy Act of 1907 must be construed together with and as a part of the act of 1897. The act of 1897 is complete both in its terms of regulation and in its provisions for enforcing the act. It has been held to be a valid enactment. People v. Freeman, 242 Ill. 373. The law of 1907 specifically exempts from repeal the act of 1897. Section 43, chapter 127b, Hurd’s Revised Statutes. Regardless, however, of this proviso in the law of 1907, a consideration of the act indicates no legisla-live intent to alter the prior act, either by adding anything thereto or in any other way.- Section 11 of the act of 1897 makes it the dnty of the State’s Attorney to prosecute all violations of the act “upon the complaint of any person.” To hold that there could he no prosecution upon the complaint of “any person” who might be able to produce proof of the violation of the act, unless such person should go through the process prescribed by section 4 of the act of 1907, would substantially change the act of 1897. "We understand that counsel does not contend that the subsequent act changes the former act, but in our opinion his contention necessarily involves such a change. The doctrine of construction in pari materia has no place here, as there is no inconsistency in the two acts and the terms and provisions of each are clear and unambiguous.

It is well settled that a subsequent statute, which is general, does not abrogate a former statute which is special (Holton v. Daly, 106 Ill. 131), and, as we have said, to inject section 4 of the act of 1907 into the act of 1897 is to alter materially the earlier act.

Other errors are suggested, but we deem them not to be of sufficient importance to justify a reversal. The case was a criminal prosecution, and the proceedings seem to have been properly conducted. It was not error for counsel to read law to the jury if he desire to do so. It was also proper for the judge to impose the penalty. Division XIV of Criminal Code, section 10.

There seems to be no dispute as to the facts. The defendant company conducted a tea, coffee and butter store on Milwaukee avenue. Witnesses went into the store and asked for a pound of thirty cent butter. There was a tub in the ice-box exposed to view, with a sign over it marked “30 cents.” The clerk in charge of the store took a quantity of what looked like butter from this tub, weighed and wrapped it, and handed it to the witness, who paid him thirty cents for the same. Nothing was said by the clerk to indicate that it was not genuine bntter, nor was there any mark on the package. It is not denied that upon analysis the contents of the package were found to be oleomargarine. This conduct of the defendant was strictly within the provisions of the act making it un-' lawful to sell or offer for sale any imitation butter without informing the purchaser thereof that the substance sold or offered for sale was an imitation.

We are of the opinion that the verdict and judgment were fully justified by the evidence, and there being no reversible error the judgment will be affirmed.

Affirmed.


author: Mr. Presiding Justice Duncan Mr. Prisiding Justice Duncan

text:
    Charles T. Trego, Appellee, v. Tobias Rubovits, Appellant.
    Gen. No. 16,494.
    1. Landlord and tenant — duty to heep elevator in repair. In the absence of a covenant by the lessee of part of a building to keep a passenger elevator in good condition and repair, the duty to repair rests on the lessor.
    2. Covenants — construction. Where the lessee of part of a building covenants to keep the passenger elevator “in good condition and repair,” the covenant amounts to a covenant to keep the elevator in a reasonably safe condition.
    3. Landlord and tenant — liability of lessee on covenant to repair elevator. A lessee who covenants to keep the elevator in good condition and repair is liable to his employe for injuries caused by the elevator being out of repair.
    4. Landlord and tenant — liability of owner though lessee covenanted to repair. The owner of a building is liable to an employe of a lessee of part of the building for injuries caused by the elevator being out of repair, though such lessee covenanted to keep the elevator in good condition and repair.

      5. LaNDloed and tenant — liability of tenant on covenant to repair. Where the lessee of part of a building covenants to keep the elevator in good condition and repair, and his employe who is injured because such elevator is not in good condition recovers from the owner for such injuries, the owner has a right of action against the lessee for the damages recovered by such employe.
    6. Landlord and tenant — duty of landlord to heep elevator in repair. Though the lessee .of part of a building covenants to keep the elevator in good condition and repair, the owner’s legal duty to keep such elevator in a reasonably safe condition is not abrogated as to other tenants and other parties rightfully using it.
    7. Landlord and tenant — liability of tenant on covenant to repair elevator. The liability of a lessee of part of a building on his covenant to keep the elevator in good condition and repair is primary and the right of the owner to recover against such lessee for damages recovered against him by an employe of the lessee injured because of the lack of repair of the elevator is not affected by the doctrine that neither contribution nor indemnity will be given one of several tort feasors against others, since the owner and lessee are not equally liable.
    8. Landlord and tenant — amount landlord may recover on covenant of tenant to repair. Where a lessee covenants to keep the elevator in repair and to pay all reasonable expenses incurred by the owner in enforcing the covenants, and his employe recovers a judgment against the owner for injuries caused by defects in the elevator, and the owner compromises with the employe by paying part of the judgment, such owner can recover from the lessee only the amount paid by compromise and the fees and costs expended in defense of the action.
    9. Practice — when party cannot object to ruling in his favor. Plaintiff cannot complain that judgment was entered without a remittitur for a sum less than the verdict returned on direction of the court, where the ruling was in his favor and was urged on the court by him.
    10. Covenants — to repair construed. Where a lessee of part of a building covenants to keep the elevator in good condition and repair, the lease does not by implication or otherwise indemnify against damages except those arising specifically by reason of failure to keep such elevator in good condition and repair.
    11. Interest — when damages not liquidated. Where a lessee covenanted to keep the elevator in good condition and repair and one injured by defects therein recovered a judgment against the owner, though such owner may recover against the lessee for the amount paid under the judgment, yet under the covenant the owner is not entitled to interest against the lessee on the amount paid, since the damages were not liquidated nor so certain and definite that interest might he allowed thereon.
    12. Pbactice — what is part of elevator, question for jury. Where a lessee of part of a building covenants to keep the elevator in good condition and repair, it is a question of fact for the jury whether the water meter used to measure the water used by such elevator is a part of it within the covenant, where the use of such meter is retained by the owner for the benefit of other tenants.
    13. Practice — power of court to enter judgment where verdict is directed. Judgment may be entered for a sum other than that awarded in the verdict without the formality of a remittitur, where the verdict was directed.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed October 16, 1912.
    Rehearing allowed October 30, 1912, and opinion refiled March 12, 1913.
    RoseNthal, Kuez & Hirschl, for appellant.
    Judah, Willard, Wolf & BeichmaNN, for appellee.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

November 4, 1891, Charles T. Trego, appellee, leased for the term of five years beginning January 1, 1892, to Edward and Tobias Rubovits the first floor, basement and third floor of the building, 163-165 Fifth avenue, Chicago, to be occupied for general stationery business. The lease contained the following provisos:

“It being understood and agreed that the elevator halls and stairways in said building shall be used jointly by all the tenants in said building.”

The lessees “to pay the proportionate part of all water rents used for elevator or otherwise.”

“It is expressly understood that during said term said parties of the second part (the lessees) shall make all repairs needed in or about the premises, and will also at their own expense, keep the elevator in good condition and repair.”

The lessees “have examined and know the condition of the said premises, and have received the same in good order and repair.”

Lessees “agree to pay and discharge all reasonable costs, attorneys’ fees and expenses, that shall be made and incurred by the party of the first part in enforcing the covenants and agreements of the lease.”

February 26, 1894, while the said lease was in- full force, one Peter McDonald, an employe of the lessees, was injured while riding on the elevator, because of the falling of a water meter that had been attached to the sheave wheel of the elevator at the top of the shaft. The meter was attached between the spokes of the sheave wheel for the purpose of measuring the amount of water consumed in the operation of the elevator, and fell because its fastenings were permitted to get loose, thus allowing the meter to slide backward and forward as the wheel revolved.

McDonald sued and recovered a $4,000 judgment against appellee on the ground that appellee, the owner of the elevator, negligently permitted the meter to become insecurely fastened to the sheave wheel, in consequence of which it fell and injured him. After being sued by McDonald appellee gave the lessees notice of the pendency of the suit and to defend the same or he would hold them responsible to him under their lease for any judgment, costs and expenses that he might have to pay by reason of the prosecution and his defense of said suit. September 9, 1899, ap-pellee settled said judgment and obtained a satisfaction and cancellation thereof for $2,000 paid by him to McDonald, and also paid a further sum of $511.28 for attorneys’ fees charged Trego for defending the suit, and for costs and expenses connected with said suit, which were admitted to be usual and reasonable fees, and on same day gave notice to said lessees that he had paid same and that unless he was reimbursed by them within ten days therefrom he would begin suit against them on said lease to recover said amounts.

This action of covenant was afterwards brought by appellee as owner and lessor of said premises against said lessees to recover the damages by him sustained as aforesaid by reason of their alleged breach of their said covenant to keep said elevator in good condition and repair at their own expense. The damages averred and claimed by appellee were the amount paid by him in satisfaction of the McDonald judgment against him, together with interest thereon, and costs, attorneys’ fees, etc. Before trial, the death of Edward Bubovits was suggested, and the cause proceeded against the appellant, Tobias Bubovits. The judgment in favor of McDonald, with the pleadings in that case, and the proofs of the facts heretofore recited, showing that McDonald was injured in consequence of the failure to keep the meter securely fastened, etc., were introduced in evidence by appellee. Appellant then offered evidence tending to show that he was a partner in said lease with Edward Bubovits, and that they went into possession of said premises, January 1, 1892, and that appellant stepped out of the firm in March, 1893, before McDonald was injured, and was not after March, 1893, personally in said premises, the business thereafter being conducted by Edward Bubovits and others, successors to lessees; that the elevator in question is a hydraulic elevator run by city pressure, and that the register or meter had nothing at all to do with the running of the elevator, but was used for the sole purpose of measuring the water used in the running of the elevator.

At the close of the evidence the court directed a verdict for the plaintiff in the sum of $2,511.28 and five per cent, interest thereon from September 9, 1899, and a verdict for $3,777 was accordingly returned. Subsequently, the court disregarded this verdict, and on motion for a new trial the court without a formal remittitur found that the plaintiff was not entitled to interest and entered judgment against appellant for $2,511.28.

Ill this appeal appellant attacks the judgment on the ground that the damages awarded are remote, consequential and not within the contemplation of the parties; and that, therefore, they are not such damages as can legally he recovered for the breach of the covenant to “keep the elevator in good condition and repair.” The law is well settled that when a landlord rents the whole of the premises to a tenant, in the absence of special agreement there is no duty on the landlord to make repairs. It is also well settled that where a portion of the premises, as a stairway, hall, porch, or a passenger elevator, is retained under the control of the landlord by contract or by implication of law, and other specified parts of the premises are rented to different tenants, and the landlord neglects to repair the portions so retained by him for the common use of his tenants, and injury results to a tenant or any one else rightfully on the premises and using reasonable' care, the landlord is liable for the damages thus caused, because in such case it is the duty of the landlord to make repairs, and keep such places reasonably safe. It may also be stated as a general rule that when either the landlord or the tenant covenants to repair in a case where the relation of landlord and tenant would cast the duty on the other to make such repair in the absence of such a covenant, he is not liable to the other party to the contract for personal injuries resulting from a failure to repair, as such injuries are too remote to be recovered as damages for breach of contract. If, however, the covenant amounts to a covenant to keep the premises reasonably safe, or if the contract is such as to plainly indicate that such damages were contemplated by the parties at the making of the contract, then damages for personal injuries by reason of the breach of such <& contract may be recovered. Cromwell v. Allen, 151 Ill. App. 404; Dustin v. Curtis, (N. H.) 11 L. R. A. (N. S.) 504; Miles v. Janvrin, (Mass.) 13 L. R. A. (N. S.) 378-380; Sutherland on Damages, vol. 3, sec. 874.

Except for the covenant in this case to “keep the elevator in good condition and repair” by appellant, the dnty and responsibility would have rested on ap-pellee to keep the elevator in good condition and repair. This dnty being cast by the contract upon appellant, we think that the wording of the covenant, in view of the fact that the elevator was a passenger elevator, and that dangerous consequences and heavy damages naturally and usually come as a result of not keeping such carriages, in good condition and repair, that the covenant amounted to a covenant to keep the elevator in safe or reasonably safe condition, and that the parties had in mind the fixing of such a responsibility upon appellant.

Appellant as tenant having made the express agreement to keep the elevator in good condition and repair in order to avoid circuity of action would be liable to McDonald for his injuries in case the injuries were caused by reason of the elevator being out of repair. So also was appellee liable to McDonald by reason of his being owner of the building, as the elevator was to be used by all the tenants in the building. Gridley v. City of Bloomington, 68 Ill. 47; Schwandt v. Metzger Linseed Oil Co., 93 Ill. App. 365.

Inasmuch as appellant contracted to assume the duty of keeping the elevator in good condition and repair at his own expense, and failed to perform that duty, which duty the law would otherwise have cast upon appellee, and as appellee was thus made liable to McDonald for his said injuries as owner of the elevator, appellee had his right of action over against appellant for the damages so recovered against, and paid by, him. This result necessarily follows if we are correct in our interpretation of the contract that appellant thereby assumed the responsibility of keeping the elevator in reasonably safe condition, provided the evidence shows that he neglected or failed to keep the elevator in such condition. Appellee, as owner, owed the legal duty to all other tenants and to all other parties rightfully using the elevator, except the lessees, to keep the same in a reasonably safe condition at his expense. This duty could not be, as to such tenants and parties, and was not, abrogated by the contract with said lessees. B. Shoninger Co. v. Mann, 219 Ill. 242. In all that class of cases where one party owes a legal duty to the public and to third persons to keep a place or an instrumentality reasonably safe, whenever another, by contract, agrees to perform that duty for him upon sufficient consideration, such contract by implication of law becomes one of indemnity and renders the party assuming such duty by contract liable for all damages that may legally be recovered by third persons against such party upon whom the law had in the first instance cast such duty, as a result of the failure to comply with such contract. City of Brooklyn v. Brooklyn City R. Co., 47 N. Y. 475-484; Mayor of Troy v. Troy & L. R. R. Co., 49 N. Y. 657; Washington Cas Light Co. v. District of Columbia, 161 U. S. 316; Gridley v. City of Bloomington, 68 Ill. 47; Pfau v. Williamson, 63 Ill. 16; Minneapolis Mill Co. v. Wheeler, 31 Minn. 121; 22 Cyc. 95.

The right of appellee to recover is not affected by the general doctrine that neither contribution nor indemnity will be given to one of several tort-feasors against the others. The liability of appellant is primary, because of his contract to assume the duty of appellee. They are not equally guilty, or, to express it in the language of some of the authorities, they are not in pari delicto. City of Brooklyn v. Brooklyn City R. Co. and Washington Gas Light Co. v. District of Columbia, supra.

We think also that the court applied the correct rule of measuring the damages recoverable. “Where a person is responsible over to another, either by operation of law or by express contract, for whatever may be justly recovered in a suit against such other, and lie is duly notified of the pendency of the suit and requested to take upon himself the defense of it, and is given an opportunity to do so, the judgment therein, if obtained without fraud or collusion, will be conclusive in a subsequent suit against him for indemnity, whether he appeared in the former suit or not. 24 Am. & Eng. Ency. of Law (2nd Ed.) 740; and also Drennan v. Bunn, 124 Ill. 175. As indemnity for actual loss sustained is all that can be recovered, the rule, of course, must be modified to the extent that if a legal compromise is made, whereby the party indemnified pays.less than the judgment recovered, he can only recover over the amount of the judgment so by him paid by compromise.

The appellee was entitled to recover, if at all, for his legal attorneys’ fees and costs expended in the defense of the suit against him. Westfield v. Mayo, 122 Mass. 100; Mayor of Troy v. Troy & L. R. R. Co., 49 N. Y. 657. This right was also given appellee by the express terms of the lease.

There is no grounds for complaint on appellant’s part that the court finally gave judgment for appellee in a sum less than the verdict directed by the court without the formality of a remittitur. The verdict and judgment were both the legal directions of the court, and the jury were in no wise responsible for either, and the court had the legal right to enter the judgment had the jury refused to return the verdict directed, if there were no valid reasons why the court should not have directed a verdict in the first instance. Besides, the entering of a less judgment was in appellant’s favor, and he should not be heard to complain of a ruling in his favor and which he urged upon the court by his argument against the allowing of interest. Parker v. Fisher, Fuller & Co., 39 Ill. 164; Kinser v. Calumet Fire-Clay Co., 165 Ill. 505.

The evidence in this record tends to show that the meter in question was not a part of the elevator. Its only purpose was to measure the water used by the elevator. Everything hanging about or over the elevator that might endanger persons on it is not necessarily a part of the elevator. Neither is everything necessarily a part of the elevator within the meaning of the said lease that has to do with the running of it. If so, the pipes, engines, etc., that furnished the water pressure would be a part thereof. The lease does not covenant by implication or otherwise to indemnify against any damages except such as arise specifically by reason of appellant’s failure to keep the elevator in good condition and repair. We think it was a very considerable question of fact whether or not the meter, within the terms of the lease, was a part of the elevator, and was required to be kept in “good condition and repair” by appellant.

“Where fair minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury.” McCarthy v. Metropolitan Life Ins. Co., 75 N. J. Law, 887; Rack v. Chicago City Ry. Co., 173 Ill. 289.

The contention of appellee, who has assigned cross-errors, that the court erred in refusing to allow interest at five per cent, from the day appellant was notified of the amount of the damages paid McDonald by appellee, should not be sustained. The statute authorizing interest at that rate “for all moneys after they became due” on any instrument in writing does not apply to the covenant in question. Appellant did not by said covenant agree to pay money to the plaintiff, and no money is due by the terms thereof. The damages were not liquidated damages, nor so certain and definite that interest might be allowed thereon. Dady v. Condit, 104 Ill. App. 507; Brownell Improvement Co. v. Critchfield, 197 Ill. 61; Harvey v. Hamilton, 155 Ill. 377.

For the error in refusing to submit the case to the jury, the judgment of the court is reversed and the cause remanded.

Judgment reversed and remanded.

On rehearing the following additional opinion was filed March 12,1913.

Mr. Prisiding Justice Duncan

delivered the opinion on rehearing.

A rehearing was granted in the foregoing canse that we might further consider the question of whether or not the lower court should have submitted the case to the jury. By the express terms of the lease appellant was obligated to make all repairs needed in or about the premises by him leased, and in addition thereto to keep the elevator in “good condition and repair.” These covenants did not extend to any portion of the building to be jointly used by all the tenants, except the elevator. The halls and stairways by express covenant were to be used jointly by all the tenants, and all the tenants were to pay their proportionate part of all water rents for the building, including water rents for the elevator. These covenants suggest a common use of the water meters on the premises among the tenants, and in the absence of an express covenant appellee would be obligated by law to see that the meters were in reasonable repair, as between himself and the tenants. The declaration charged a breach of the covenant of appellant to keep the elevator in “good condition and repair,” and it is evident that that is the only theory upon which ap-pellee could recover for damages claimed in his declaration. Appellee .could only recover over against appellant upon the theory that the law made it ap-pellee’s duty as to third parties to keep the meter in question in repair, and that by express covenant appellant had agreed with appellee to keep it in good condition and repair. It is clear that the law does obligate appellee as to third parties to keep the meter in repair, because the use of it was retained by him in the lease for the benefit of his other tenants.

"We necessarily are forced to conclude, therefore, that there is no liability against appellant in this case, unless the water meter in. question is a part of the elevator within the meaning of the lease. We are still of the opinion that this question is one of fact to he settled by a jury, after it has heard all the evidence bearing on that question. With the meager evidence in the record bearing on that question, although it is not contradictory, we are unable to say that reasonable minds would not reach different conclusions therefrom. We, at least, are unable to say, upon the evidence in the record, that the meter in question is a part and parcel of the elevator within the meaning of the said covenant to keep the elevator “in good condition and repair.” We, therefore, are unable to recede from our former conclusions, as announced in the foregoing opinion, which is refiled as our opinion in this case.


author: Mr. Presiding Justice Duncan

text:
    Hibernian Banking Association, Appellant, v. City of Chicago, Appellee.
    Gen. No. 16,943.
    1. Assignments — set-off and counterclaims. Under Practice Act, § 18, providing for tbe allowance of set-offs against tbe assignor of a claim before notice is given of tbe assignment, tbe debtor cannot set off any demand wbicb be may bave against tbe assignor wbicb was not due at tbe time of sucb notice of assignment.
    2. Contracts — liquidated damages. Where a contract for tbe construction of a pumping station is canceled by a city before tbe time limit expires, no liquidated damages for failure to finish tbe work within sucb time limit become due.
    3. Contracts — receipts cannot change liability. No words in a receipt by a city of a notice of assignment of a claim against it can change tbe law or limit its liability under tbe law, unless assented to by tbe assignee.
    Appeal from tbe Municipal Court of Chicago; tbe Hon. John H. Hume, Judge, presiding. Heard in tbe Branch Appellate Court at tbe October term, 1910.
    Reversed.
    Opinion filed March 12, 1913.
    Rehearing denied April 3, 1913.

      MacChesNEY, Becker & Bradley, for appellant.
    Edward J. BritNdage and John J. Beilman, for ap-pellee; James F. BurNs, of connsel.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

October 1, 1909, Hibernian Banting. Association, as assignee of John P. Agnew, sued the City of Chicago for money due it from the city on a certain contract between said city and said Agnew for the construction of the Lawrence avenue pumping station in Chicago. The cause was submitted to the court upon an agreed statement of facts, and the court rendered judgment in favor of appellee and against' appellant, the said bank, after refusing to hold as the law of the case certain propositions of appellant.

From the written stipulation of facts it appears that on August 25, 1905, John P. Agnew entered into a contract with the City of Chicago for the construction of a pumping station on Lawrence avenue in said city, the contract price being $173,186. The roof was to be completed on or before December 31, 1905, and the entire building by or before July 31, 1906. If the roof was not completed by December 31, 1905, there was by the terms of the contract to be deducted from the contract price one hundred dollars per day, as ascertained and liquidated damages, for every day after December 31, 1905, that the roof was not fully completed; and if the roof was completed before said date one hundred dollars per day was to be added to the contract price for every day the time for the completion of the roof was shortened. Neither the roof nor the building was completed within the times fixed by the contract. October 1, 1906, the city council of said city passed an order directing the city comptroller to waive the enforcement of any claim for penalties against Agnew for failure to construct tie pumping station within the contract time, and to pay Agnew any and all estimates made for him by the commissioner of public works under said contract. October 8, 1906, the city council passed an order extending the time for the completion of said roof to December 31, 1906, and for the completion of the building to April 1, 1907, in consideration of Agnew’s agreement that he would waive all right to any bonus he might have under the original contract, and that in case the entire structure was not completed before April 1, 1907, he would pay the city as liquidated damages one hundred dollars for each and every day the structure remained uncompleted after April 1, 1907, and enter into a new bond of $35,000. March 14, 1907, by authority from the express terms of the contract, the city notified Agnew that it had elected to annual and cancel his contract, because at the rate Agnew was then working he would not complete the station within the contract time, and that he would not be permitted to do any more work on the structure. Under the terms of the contract that monthly estimates should be made by the city and eighty-five per cent, of the value thereof be paid Agnew, and fifteen per cent, retained by the city as a reserve fund to secure it against liens, etc., it is stipulated that up to March 12, 1907, Agnew had been paid upon estimates $136,448.85, and that there was then in the reserve fund $24,079.20; that on October 1, 1906, there was in the reserve fund $22,760.31, and on September 26, 1906, the date of the assignment, about $22,000. The pumping station was completed by James W. Redmond for the contract price of $13,000. The reserve fund of Agnew was then reduced by the payment of the $13,000 to Redmond and by the payment of all other liens until there remained at the beginning of this suit in said reserve fund $1,103.31, which is the sum appellant claims in this suit.

On October 3, 1905, said John P. Agnew entered into another contract with the City of Chicago to construct an intake tunnel for the Lawrence avenue conduit, being part of section N intercepting sewers in said city, the contract price being $138.33 per lineal foot, the contract to he completed by July 31, 1906. This contract provided that the city should be entitled to one hundred dollars per day, as liquidated damages, for every day after July 31, 1906, that the work remained uncompleted. This contract was not completed within the time limit, and October 1, 1906, by order of the city council the date of completing the contract was changed to May 31, 1907, provided a new bond be filed by the contractor in the sum of $380,000, with sureties to be approved by the Commissioners of Public Works, and that Agnew waive all claim to any bonus under the contract, and provided that Agnew stipulate to pay one hundred dollars per day as liquidated damages for delay after May 31, 1907. Agnew entered into such contract with the city October 2, 1906, changing the date of completion of the intake tunnel to May 31,1907, etc. March 12,1907, this contract and the original contract of October 3, 1905, were also annuled by the city before the supplemental contract of October 2, 1906, was completed. The section N contract was relet by the city March 12, 1907, and was completed and accepted by the city before the beginning of this suit, and the city was compelled to pay for its completion approximately $100,000 more than the contract price with Agnew of October 3, 1905. The section N contract contained practically the same provisions for a reserve fund as were contained in the pumping station contract, and on September 26, 1906, when the reserve fund of section N contract was assigned to the appellant, it amounted to about $3,900. No claim is made for this fund by appellant, because the city was compelled to pay it all out and more to complete the work.

On September 18, 1906, said John P. Agnew for a valuable consideration assigned to appellant any and all claims or demands of himself against the City of Chicago to said sums of money then held by said city as the reserve funds mentioned in both of said contracts, and all other sums- which the said city might in the future be owing to said Agnew on said contracts, the appellant assuming no liability for the proper fulfillment of the contracts or either of them. The City of Chicago acknowledged receipt of a copy of said assignment, September 26, 1906, stating in the receipt that its acceptance was not to be construed in any way to prejudice the city’s rights.

It was also stipulated that, in case the court found under the law and the stipulated facts that appellant was entitled to recover against appellee, the amount of recovery should be the said sum of $1,103.31.

Appellee insists that the court was right in allowing it to set off its claim for damages against Agnew on the intake tunnel contract against appellant’s claim for the balance due it on the pumping station contract. Section 18 of the Practice Act, approved June 3, 1907, provides as follows:

“The assignee and equitable and bona fide owner of any chose in action not negotiable heretofore or hereafter assigned, may sue thereon in his own name, and he shall in his pleading on oath, or by his affidavit, where pleading is not required, allege that he is the actual bona fide owner thereof, and set forth how and when he acquired title; but in such suit there shall be allowed all just set offs, discounts and defenses, not only against the plaintiff, but also against the assignor or assignors, before notice of such assignment shall be given to the defendant.” Chap. 110, sec. 18, Hurd’s R. S., 1909; Wabash, C. & W. Ry. Co. v. Oetting, 147 Ill. App. 179.

Appellant complied with this statute and was entitled to its provisions. The statute simply declares the principles of the common law that are applicable to suits by assignees oh non-negotiable instruments, and it changes the common law in no particular, except that at common law the suit on such an instrument by an assignee could not he brought in his name as now permitted by the statute. At common law, as declared by the late cases, the assignee of a non-negotiable instrument could sue the debtor on the instrument in the name of the assignor, and the debtor could not set off any demand he had against the assignor on any other instrument, which was not due at the time of notice of the assignment, although it became due before the suit was commenced. Hicks v. McGrorty, 2 Duer (N. Y.) 295; Wells v. Stewart, 3 Barb. (N. Y.) 40; Beckwith v. Union Bank, 4 Sandf. (N. Y.) 604; Martin v. Kunzmuller, 37 N. Y. 396; Myers v. Davis, 22 N. Y. 489; Spaulding v. Backus, 122 Mass. 553; Waterman on Setoff (2nd Ed.) sec. 107; Chicago Title & Trust Co. v. Smith, 158 Ill. 417; Barker v. Barth, 192 Ill. 460.

It is clear, therefore, under the law that appellee was not entitled to set off its approximately $100,000 claim for damages or additional cost to it for the completion of the intake tunnel contract after Agnew had ceased to work on it, as it was an entirely distinct contract from the one sued on, and no such claim or set-off existed at the date that the city received notice of the assignment of the contracts to the bank. No words by the city in its receipt of the notice of the assignment could change the law or limit its liability under the law, unless assented to by appellant.

Appellee also insists that the city officers could not surrender any right or debt it had against appellant, and that it was entitled to a set-off of one hundred dollars per day for every day between December 31, 1905, and October 1, 1906, as liquidated damages for failure of appellant to complete the roof of the pumping station within the time stipulated, notwithstanding the order of the city council of October 1, 1906, directing the comptroller to waive the claim to damages. We think there can he no question that the city had the right to make either one of' the contracts in question, or to make any desired changes therein. We think also that the city had the right to make the changes in the said original contracts, and that the second contracts are based upon sufficient considerations to bind the city. It required the giving of new bonds, and made other changes in the contracts binding on Agnew, not contained in the original contracts, in consideration for the waiver of the provisions for liquidated damages in the original contracts. It was not merely the surrender for nothing of past due debts or obligations by the city to Agnew, and as the second contracts changing the original contracts were binding, there was nothing due to the city on either contract as liquidated damages by Agnew, when the assignments thereof were called to appellee’s attention, and as the second contracts were cancelled before the time limits expired nothing in the way of liquidated damages ever became due on them or either of them.

Appellee also insists that it is entitled to an off-set of $1,225.42 for salaries paid by it to its engineers engaged in the supervision of the construction of the pumping station. Those engineers were city officers working for the city under stated salaries. They were simply doing their official duties, and we know of no principle by which such a set-off could be allowed, even as against Agnew in the absence of an agreement to that effect. The claim seems to be made for the additional time the engineers worked over the stipulated time for the contracts. As no such claim existed at the date of notice of the assignment of the contracts by Agnew, that is an additional reason why such claim of set-off can not be allowed against appellant as to the intake tunnel contract. As to the contract sued on, all actual damages were allowed apparently that were occasioned by Agnew’s failure to complete the contract as per stipulations. At least, there is no damage stipulated, other than those damages that have been paid, and we can not presume that there is any other damage that is the subject of re-coupment in this case. We would recognize the right of recoupment on the contract sued on, if the proof showed any other damages that are the subject of recoupment. Salt Fork Coal Co. v. Eldridge Coal Co., 170 Ill. App. 268.

The judgment of the lower court should have been in favor of appellant and against appellee for the balance due on the pumping station contract. The judgment of the court is, therefore, reversed and judgment will be entered in this court in favor of appellant and against appellee for the sum of $1,103.31 and for costs.

Judgment reversed.


text:
    Jacob Silverstein, Appellee, v. Bessie Silverstein, Appellant.
    Gen. No. 17,089.
    1. Divobce- — desertion. Where a wife, within two years after leaving her husband, makes bona fide offers to return to him and live with him as his wife and he refuses her, he cannot afterwards maintain an action for divorce on the charge of wilful desertion, unless some other legal ground appears that will excuse him for refusing to live with her.
    2. Divobce — desertion. Where a wife, within two years after leaving her husband, makes an offer in good faith to return, the desertion terminates, and if she is barred the legal attitude of the parties may be reversed, constituting the husband offended against from that time forth the offender.
    3. Divobce — desertion. Finding of desertion for two years held ■ manifestly against the weight of the evidence.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at tlie October term, 1910.
    Reversed and remanded with directions.
    Opinion filed March 12, 1913.
    Rehearing denied April 3, 1913.
    PattisoN & Shaw, for appellant; Douglas 0. Gregg, of counsel.
    WhitmaN & Horner, for appellee; Lloyd C. Whitman and Louis Salinger, of counsel.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

Jacob Silverstein obtained a decree of divorce from bis wife, Bessie Silverstein, upon a bearing before the court without a jury, on bis bill filed September 30, 1909, charging wilful desertion for two years and more prior to the filing of the bill.

On this appeal Mrs. Silverstein urges one ground for a reversal of the decree, that it is not supported by the weight of the evidence. It is virtually admitted that appellant left her husband June 7, 1907, without any sufficient legal grounds therefor, and that they have never lived together as husband and wife since that date. She filed a bill for separate maintenance against appellee on the day she left him, but after the evidence was heard in that case her bill was dismissed on her motion. Appellant insists that after she left her husband, and long before she had been away from him two full years, she repeatedly offered in good faith to return to appellee’s home and to live with him as his wife, if he would receive her back and live with her, and that she sent a number of persons to him to entreat him to forgive her and to live with her again, and that she went to his home to live with him, but that he at all times refused to live with her and kept his house locked so that she could not enter it. The following is the substance of the evidence bearing upon that question, as it appears in the record, to wit:

Mrs. Silverstein: “Six months after I left him, I felt like going back and living with him. I tried to go borne every week, but found tbe bouse locked with a big lock, so that I could not enter tbe bouse at all. I did not go to see him at bis store or place of business, because I felt that be wouldn’t talk to me and wouldn’t receive me, and I felt in my heart that be was angry and would not give me an answer. I sent Mrs. Tietelbaum, Dr. Eouf, Mrs. Brown, Mrs. Aaron, and my son, Adolph, to see my husband and to get bim to live with me, and I was informed by them that be refused to take me back, because I left bis home. After Mrs. Tietelbaum saw my husband, she reported to me that be told her that in six weeks be would try to give her an answer, but I never beard from bim.” Appellant also testified that she was still willing to return at any time to bim and live with bim as bis wife.

Dr. Eouf: “I knew appellee and bis wife for thirteen years. Mrs. Silverstein came to me crying and said that she was very badly treated by her husband, and begged me to go to bim and ask bim to let her go back to bim, and live with bim; that she bad bad a misunderstanding with bim and left tbe bouse for a week, and that when she went back she found a big lock on tbe door and could not get in. I then went to Mr. Sil-verstein’s store and said to bim: ‘Mrs. Silverstein is a very honest, respectable woman, she treated you very nice, she is a good housekeeper, and I don’t see any reason why you should not let her into tbe bouse, and I would advise you to let her come home.’ I insisted and be said, ‘I won’t do it under any circumstances.’ ” He also testified that be went back and told appellant tbe conversation be bad with appel-lee, including appellee’s answer.

Mrs. Aaron: “At appellant’s request I went to see appellee in September, 1908, and told bim that Mrs. Silverstein sent me to bim and that she wanted to come back to bim. He replied that be was poor, business was not going good, and that be could not let her come back. I then said to bim, ‘You bad better take your wife home, it is now before the Jewish Holiday, and God will forgive yon and so will she.’ At first he didn’t want to listen, hut later on said he would see, he was going to wait. About that time his daughter came in and he went away with her. I told Mrs. Silverstein the conversation between appellee and me, just as it occurred. I never went back to see him again.”

Mrs. Brown: “Mrs. Silverstein asked me to go and see Mr. Silverstein early in the fall of 1909. I told him Mrs. Silverstein sent me, and I asked him if he wouldn’t' consider taking her back again, that she would be willing to come back, that she was willing to forgive everything and do anything to have a pleasant home. He said he didn’t know, he thought it was too late, that he was poor, and he promised to come to my house and meet Mrs. Silverstein, and said he would phone me, but he never came.”

Adolph Weinstein: “I am a son of Mrs. Silver-stein. In May, 1908, I talked with Mr. Silverstein and told him mother had suffered enough, and asked him if he didn’t think it right and proper to make up with mother, and told him she would rather go back to him and have a home of her own, and for him to think it over. His only answer was, ‘Well, business is bad, I can’t afford to do it.’ I went over again in a few days and talked to him on the same line, and I said, ‘Please see what you can do, it is only right you people should make up.’ He promised he would do the best he could and I waited and never got any other answer. I saw him again in March, 1909, and told him I didn’t see any excuse for not making up with mother, and he said, ‘I can’t do it; I am busy just now.’ I made another appointment with bim and urged him again to live with her in about June, 1909, and he replied, ‘There is no use talking to me, I can’t do it.’ I told my mother what he said and she said she still had hopes.”

Mr. Silverstein in rebuttal’: “After my wife left me Adolpb Weinstein and I talked together. He came to the store and said, ‘How do yon do’ I didn’t want to answer bim. Then be said, £I would like to speak to yon.’ I said, ‘I haven’t got any time to speak,’ and then he said something, but I didn’t pay any attention to him, and he walked away. That was all. He just asked me about business, and I answered him cold, and he walked away. He came to the store a second time and said, £I would like to see you; come up to Ma’s house.’ I said, £No, I will never go down there.’ That is all that was said on that line. Later I saw him again at Mr. Toff’s wholesale shoe place. I didn’t speak to him there.” He also testified that he had no such conversation with Dr. Eouf and Mrs. Brown and Mrs. Aaron in regard to again living with his wife, as they related, although he testified he met them and talked with them about the times they mentioned. His daughter, Bena, also denied in her testimony meeting Mrs. Aaron in company with her father, as related by Mrs. Aaron in her testimony.

Mrs. Tietelbaum: “Mrs. Silverstein asked me to tell her husband that she wanted to go back to him. I told him and he said, £Yes, come.’ I told her what he said. Mrs. Silverstein used to come up about once every week. I told Mrs. Silverstein that Mr. Silver-stein said, £Come back’. She said she would like to see him first and talk with him. This conversation took place before the two years expired. Mrs. Silver-stein told me two years she couldn’t come home. I saw a padlock on the front door of their flat for a week or ten days after Mrs. Silverstein left her husband. I never told her that Mr. Silverstein would give an answer as to whether he would take her back in about six weeks. He said he would give an answer, but he never mentioned dates.”

The only ground appearing in the record or claimed by appellee for divorce is the wilful desertion of bim by appellant for two years prior to the filing of Ms bill. Where the wife without a legal cause therefor wilfully deserts her husband, if the wilful desertion continues for the full time of two years or more without the wife returning, or in good faith offering to return and live with him as Ms wife, the husband is entitled to a divorce; and offers by her to return after the two years have expired, although made in good faith, would not be a bar to his right to a divorce, even if the offers by her were positively refused by the husband. Where, however, the wife within two years after leaving her husband makes bona fide offers to return to him and live with him as his wife, and he refuses her, he cannot afterwards maintain an action for divorce on the charge of wilful desertion, unless some other legal ground appears that will excuse Mm for refusing to live with her. “For two years the doors for repentance and return must be kept open, and if it is closed and barred when an offer to return is made in good faith, not only is the desertion terminated, but the circumstances may be such as to reverse the legal attitude of the parties, and constitute the party originally offended against, from that time forth, the offender.” Albee v. Albee, 141 Ill. 550, affirming 43 Ill. App. 370.

The evidence in this record convinces us that appellant made in good faith the offers to her husband to live with Mm as his wife, and before she had been away from Mm two full years, as related by herself and her witnesses, and that he refused her overtures. He testified on the trial that he told Mrs. Tietelbaum he would live with his wife when she told bim Ms wife wanted to live with him agam. His other testimony, however, clearly shows that he did not want to live with his wife, when considered with the other evidence in the record, and that at the time of the trial he was, as to the charge of wilful desertion, the real offender himself. For the reason that the finding of the court that appellant was guilty of wilful desertion for the full space of two years is manifestly against the weight of the evidence, and that appellee is not entitled to a decree of divorce in this case, the decree of the Circuit Court is reversed and the cause remanded with directions to dismiss appellee’s bill at his costs.

Decree reversed and cause remanded with directions to dismiss the bill.