text:
    The Supreme Court of Independent Order of Foresters, Plaintiff and Appellee, v. Carrie P. Fisher et al., Defendants and Appellants.
    Gen. No. 17,053.
    1. Interpleader — when answer may not be amended. On a bill of interpleader by a fraternal benefit society, against the executrix and sole legatee and heirs at law of a decedent, to determine rights to a death benefit, it is within the discretion of the court to deny a motion for leave to amend an answer by adding certain allegations charging the society with bad faith in filing its bill, the motion being supported by an affidavit that the defendant “believed” the allegations to be true and that they could be sustained by proof, and that knowledge thereof had been gained but “recently” and “within the last month.”
    2. Appeals and errors — when time to present certificate of evidence may not be extended. It was supposed that an order extended the time to present a certificate .of evidence in an equity case to sixty days. The appellant contended that it showed on its face that ninety days had been granted and the court granted a further extension, reserving the right to vacate such order after a determination of the question of how many days were granted. The court vacated the order of further extension by an order to the effect that it had inspected its memorandum of the original order and had heard evidence and that the original order had been changed by some unknown person, without the authority of the court, to ninety days. Held, a further extension at the expiration of the sixty days was properly denied.
    3. Appeals and errors — -when finding by court precludes raising question on appeal. Where, to determine the rights to a death benefit, a fraternal benefit society files a bill of interpleader against the member’s executrix and sole legatee and heirs at law, alleging that it is entitled to file such a bill, on contention by the executrix and sole legatees that the bill is improperly filed, because the society is interested in the result and bound by contract to such party, a finding by the court that the bill is properly filed is sufficient on appeal in the absence of any showing in the record to the contrary.
    4. Insurance — what law governs in determining right to death benefit. Where the death benefit from a foreign fraternal benefit society is made payable to the insured as permitted by the society’s constitution, which, however, subjects its contracts to the laws of the state in which the member resides at the time of his death, and the contract was made in Illinois, the questions whether the sole legatee or the heirs at law are entitled to the benefit is to be determined by the Statute of Illinois relative to the eligibility of beneficiaries, and not by the law under which the society was incorporated.
    Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court, at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    Clark Varnum, for appellant.
    Israel Cowen, for appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On June 15, 1906, the Supreme Court of the Independent Order of Foresters (hereinafter called the society), a fraternal beneficiary society incorporated under the laws of the Dominion of Canada and duly licensed, under the Act of June 22,1893, of the legislature of this state, regulating such societies, to conduct its proper business within this state, filed its bill of interpleader in the Superior Court of Cook county in which Carrie P. Fischer, personally and as executrix of the last will of Frederick Krote, deceased, was made a defendant, and Minna Krote, Gustav Krote, Mary Krote, Ferdinand Krote and Otto Krote, as the heirs-at-law of said Frederick Krote, were also made defendants. The bill alleged, substantially, that the society had a subordinate court, known as ‘ ‘ Court Phil Sheridan No. 3391,” located in the city of Chicago; that on February 17,1897, and while the society was so licensed in Illinois, the subordinate court admitted said Frederick Krote, of Chicago, Illinois, to membership therein and issued to him a certificate by which the society agreed, subject to all the conditions and provisions of the certificate and the by-laws of the society, and upon his death being established, to pay to the widow, or other beneficiary or trustee designated by Mm, or, in default of such designation, to Ms executors or administrators, a mortuary benefit of $500; that said Frederick Krote designated Mmself as the beneficiary to whom said $500 should be paid at his death by writing in the proper place on the back of said certificate the word “myself,” and by signing his name thereto in the presence of the officers of said subordinate court; that on June 9, 1904, he departed this life at Chicago, being then in good standing in said subordinate court and with his said certificate in full force; that during his lifetime he had made no change as to his beneficiary; that oh June 16, 1904, proofs of death were made, as required by the by-laws of the society, by the said defendant Carrie P. Fischer, of Chicago, Illinois, and thereby the society became obligated to pay said $500 to whomsoever was legally entitled thereto; that prior to his death said Frederick Krote executed a last will and testament by which he devised and bequeathed all of his property to the said Carrie P. Fischer, and named her as executrix of said will, which will was duly probated in the Probate Court of Cook county on September 14, 1904, and letters testamentary were issued to her and she is now acting as such executrix; that since the receipt of said proofs of death the society has been ready and willing to pay the said $500 to whomsoever was entitled thereto; that demand has been made upon the society to pay the same to two different classes of parties, to-wit: to said Carrie P. Fischer, as sole legatee and executrix of said will, and to said Minna, Gustav, Mary, Ferdinand and Otto Krote (hereinafter designated as the heirs-at-law), who claim to be the heirs-at-law of said deceased, and that for this reason alone the society has been unable to pay the said sum without subjecting itself to a double liability; that on February 28,1905, said Carrie P. Fischer commenced an action at law in said Superior Court against-the society, claiming the full amount of said certificate by reason of the conditions thereof, the endorsement thereon as to the beneficiary and the provisions of said will; that on August 22, 1905, said heirs-at-law also commenced ah action at law in said Superior Court against the society, claiming the full amount of said certificate by reason of the fact, as set forth by them, that said deceased left no widow, nor children, nor parents, and that they were the only heirs-at-law of said deceased; that neither of said suits at law has been reached for trial, and that the society brings into court said sum of $500 and asks that the same may be paid by order of court to the persons found to be lawfully entitled thereto. The bill denied that the society colluded with any of the defendants, etc., or had been in any manner indemnified by any of them, or had filed its bill at the request of any of them, and contained the usual prayer of such a bill. An injunction was also prayed, restraining the defendants from prosecuting their several suits at law, above mentioned, which on December 22, 1906, was granted, and the said $500 was deposited with the clerk of the court, the question as to whether or not interest on said sum should be paid by the society being reserved to the hearing. It appearing that two of said heirs-at-law were minors, the bill was amended in this particular and a guardian ad litem was appointed for said minors. On July 9, 1907, the said two actions at law were consolidated with this cause. Answers to the bill were filed by Minna Krote, Gustav Krote and Mary Krote, three of said heirs-at-law, and by Carrie P. Fischer, and by the two minors heirs-at-law by their guardian ad litem, and the issues were made up. The case was tried before the chancellor and evidence was heard in open court, but there is no certificate of evidence in the transcript of the record before us for reasons hereinafter stated.

On June 3, 1910, the court entered a final decree finding the facts substantially as above stated and further finding that the court had jurisdiction of the subject matter and of the parties and that the hill was properly filed; that among the provisions of the Act incorporating the society is one authorizing the society to establish a benefit fund from which, on satisfactory evidence of the death of a member who has complied with all its lawful requirements, a sum of money shall be paid to the widow, orphans, dependents, or other beneficiary whom the member has designated, or to the personal representative of the member, or from which, upon the completion of the expectancy of life of the member laid down in the constitution and by-laws of the society, such sum shall be paid to himself; that among the provisions of the constitution of the society is one which states that among the objects of the order it is purposed to establish a benefit fund from which, upon satisfactory evidence of the death, or total and permanent disability of a member who has complied with the requirements contained in said constitution and by-laws, a sum not exceeding $5,000 shall be paid to the member, his wife, or his affianced wife, or his children, or his blood relations, or to persons dependent upon the member whom he may have designated as provided in said constitution and laws, subject, however, in case of the death of a member,-to the laws of the province, state or country in which the member resided at the time of his death; that the contract existing between the society and said deceased member, which is evidenced by said benefit certificate, was entered into in Illinois, was performed in Illinois and was a contract subject to the laws thereof concerning the regulation and control of fraternal benefit associations ; that the application of said Frederick Krote for membership in said society was received by it in Illinois; that he was examined by the society’s medical examiner in Illinois; that he was accepted and initiated as a member in Illinois and his certificate there delivered to him; that all his assessments and dues as a member were paid in Illinois and that he was at all times from the date when he became a member until his death a resident of this state; that the designation by said Frederick Krote of himself as the beneficiary of said contract was in contravention of the laws of Illinois, regulating the beneficiaries who might be designated to take moneys accruing under the contracts of such societies in Illinois; that said designation by him of himself as his beneficiary was illegal and void, and that the sum of money mentioned in said certificate became and was upon his death payable to said heirs-at-law; that said Frederick Krote left him surviving said five heirs-at-law as his only heirs-at-law and next of kin; that said society is liable for interest on said $500, payable under the terms of said certificate, from October 4, 1904, the date of the completion of said proofs of death, to June 15, 1906, the date of the filing of this bill, at the rate of 5 per cent, per annum, which amounts to $42.43; that the society is entitled to have allowed to it, as its costs, the sum of $10, and the sum of $50 for the reasonable charge of its solicitor for preparing and filing the bill, amounting in all to $60, which should be paid out of the $500 heretofore paid by the society to the clerk of the court; and the chancellor decreed that the society pay to the clerk of the court the said sum of $42.43, interest, and that upon payment thereof said clerk shall pay to the society, or its solicitor, the said sum of $60, for its costs and reasonable solicitor’s fees, out of the funds in his hands in this cause, and a guardian’s fee of $30 to said guardian ad litem, and shall pay the remainder of said funds in his hands, being $452.43 to said heirs-at-law, or their solicitor. From this decree appellant prayed an appeal to this court, which was allowed upon her filing her bond, personally and as executrix, within thirty days and a certificate of evidence within sixty days.

At the time when Frederick Krote was admitted as a member in the society and said certificate issued to him, said Act of June 22,1893, of the legislature of this state was in force. It is provided in Section 1 of said act (Sec. 258, Chap. 73, Hurd’s Rev. Stat. Ill.) that “payments of death benefits shall only be paid to the families, heirs, blood relations, affianced husband or affianced wife of, or to persons dependent upon the member.” While the chancellor found that said five heirs-at-law were the only heirs-at-law and next of kin of said deceased member, the decree did not specifically find that said Carrie P. Fischer was not a blood relation, or not an affianced wife, or not a person dependent upon, said Frederick Krote. But it does not appear from the transcript of the record before us that she claimed that she was a blood relation or the affianced wife of, or a person dependent upon, said deceased. And counsel for appellant does not raise this point in the brief but therein makes mention of his client as “this poor woman, who, with a helpless husband to support, had been the only benefactor Frederick Eróte ever had.” Counsel urged a reversal upon other grounds, viz: (1) the trial court erred in refusing to allow appellant, after a hearing had been had, to amend her answer by adding thereto certain allegations charging that the society had not filed its bill in good faith; (2) the court erred in refusing to extend the time within which appellant might present a certificate of evidence; (3) the bill of interpleader was improperly filed because the society was interested in the result thereof, and was bound by contract to appellant, one of the claimants to the fund, and (4) the decree is erroneous because, as appears therefrom, by the act incorporating the society in the Dominion of Canada benefits shall be paid “to the widow, orphans, dependents, or other beneficiary whom the member has designated, or to the personal representative of the member, or * * * upon the completion of the expectancy of life of the member * * * such sum shall be paid to himself,” and the law of the country where the insuring corporation is incorporated and has its home office governs, as to the eligibility of a beneficiary, rather than the law of the state or country where the contract of insurance was executed, and where the insured resided at the time he obtained his insurance and at the time of his death, and where the insuring corporation is licensed to do “its proper business” under an act of the legislature of said latter state or country which, as to the eligibility of a beneficiary, is different and more limited.

As to counsel’s first contention it appears from the record that, after the hearing had been had and at the time the court was about to enter the decree, appellant moved the court for leave to amend her answer by adding thereto certain allegations charging the society with bad faith in filing its bill. The motion was supported by an affidavit in which appellant said she “believed” said allegations to be true, and further believed that the same could be sustained by proof, and that knowledge thereof had but “recently” and “within the last month” come to her. The court denied the motion. This was within the discretion of the chancellor, and there is nothing before us even tending to show that that discretion was abused. The decree found that the bill had been properly filed.

As to counsel’s second contention that the court erred in refusing to extend the time within which appellant might present a certificate of evidence, it appears that after the expiration of the sixty days within which time appellant might present a certificate of evidence, as originally limited by the chancellor who entered said decree, appellant’s solicitor appeared before another chancellor of said Superior Court (hearing emergency matters during vacation) and contended that the order of June 3, 1910, showed on its face that appellant had been given ninety days for such presentation, and after argument that chancellor entered an order, September 1, 1910, to the effect that the time to present and file a certificate of evidence be extended twenty days, but in the order it was stated that “the court hereby reserves the right to vacate this order after a hearing and determination of the question whether the time as originally granted for snch presenting and filing was sixty days or ninety days.” On September 22,1910, the solicitor of appellant appeared before the chancellor who entered said decree, and that chancellor denied his motion to extend the time to file and present a certificate of evidence, and entered ah order to the effect that,

“This court having inspected the memorandum of an order written in its handwriting, which is directed to be entered herein on June 3, 1910, and which was filed in this cause at that time, and it appearing, * * * from evidence heard in open court, that the time originally granted and written therein for presenting and filing the certificate of evidence was sixty days, and that the same was changed by some person unknown, without the knowledge, consent or order of the court to ninety days, and * * * that the said memorandum or order has not yet been entered of record, * * * the court doth find that said order of September 1, 1910, was erroneously entered, the court being without jurisdiction to enter the same for the reason that the time to present and file a certificate of evidence had long expired before said September 1, 1910, and it further finds that the time -originally granted by this court * * * was sixty days, not ninety days, and that the memorandum of the order * * * was in the handwriting of the court, and that there was written in such order at the time of entering the same the number ‘60’ days, instead of ‘90’ days now appearing thereon, and that the figure ‘9’ has been inserted in lieu of the figure ‘6’ by some person unknown, without the knowledge or consent of the court and without any order of the court. It is therefore Ordered that the order so entered on September 1,1910, be and the same is hereby set aside and vacated, and that the original order of June 3, 1910, be made and entered mmc pro tunc as of said date upon the records of this court, so as to read that leave was given to present and file a certificate of evidence in said cause within sixty (60) days from said June 3, 1910.”

In view of the foregoing we do not think there is any merit in counsel’s second contention.

Nor do we think that there is merit in the contention of counsel that the bill of interpleader was improperly filed because the society was interested in the result thereof and was bound by contract to appellant. It appears from the allegations of the bill that the society was entitled to file such a bill as was filed, and the court found that the same was properly filed. That finding is sufficient in this court in the absence of any showing in the record to the contrary. In view of the state of the record, the citations of counsel (Pom. Eq. Juris., Sec. 1326, and Newman v. Commercial Bank, 156 Ill. 530, 535) are not applicable to the facts herein.

As to counsel’s last and main contention, above mentioned, that the question whether or not appellant is entitled to the fund in controversy, under the facts of this case, is not to be governed by the provisions of said act of the legislature of this state of June 22, 1893, relative to the eligibility of beneficiaries, it appears from the decree that, by the constitution of the society, upon the death of a member a sum not exceeding a ce'rtain fixed amount shall be paid to certain persons named as eligible beneficiaries, whom the member may designate, subject, however, “to the laws of the province, state or country, in which the member resided at the time of his death. In this case, deceased, at the time of his admission to the society and at the time of his death, resided in the State of Illinois, and at the time of his said admission said act of June 22, 1893, was in force, and, by his will, he designated a person as beneficiary under his certificate in the society who was not eligible as such beneficiary under said act. Therefore, she is not entitled to the fund. In Grand Lodge v. Ehlman, 246 Ill. 555, our Supreme Court said (p. 558):

“The act of 1893 for the organization of fraternal beneficiary societies limits the persons to whom payment of death benefits may be made, to the families, heirs, blood relatives, affianced husband or affianced wife of, or persons dependent upon, the member. The appellant, though named as beneficiary, being outside the classes designated by the statute as eligible to that relation, is not entitled to take the fund, but the appellee, being the only heir, is eligible as a beneficiary and is entitled to the fund. (Murphy v. Nowak, 223 Ill. 301.) The fact that the appellant does not belong to any eligible class is not an objection which the society alone can raise. The rights of the respective parties to the fund are fixed by law, and are not affected by the action of the society in bringing money into court in order to be relieved of litigation because of conflicting claims to it. (Royal Arcanum v. McKnight, 238 Ill. 349.)”

And the fact that the society was organized under the laws of the Dominion of Canada, where, under the facts of this case, appellant might have been eligible as a beneficiary had the contract of insurance been made in that country, cannot in this state change the rule, as above announced, as to the eligibility of beneficiaries. The insurance contract in this case was made in this state and must be governed by the laws of this state. In Coverdale v. Royal Arcanum, 193 Ill. 91, our Supreme Court said (p. 106):

“The doctrine in this state is, that foreign corporations come into this state, not as a matter of legal right, but only by comity, and that such corporations are subject to the same restrictions and duties as corporations formed in this state, and have no other or greater powers. Foreign corporations cannot be permitted to come into this state for the purpose of asserting rights in contravention of our laws. Harding v. American Glucose Co., 182 Ill. 551. The contract of insurance between Wasserman and appellee was made in the state of Illinois. The insurance was solicited by appellee’s agent, the subordinate local council, at Chicago. Wasserman was a resident and citizen of Illinois. * * * The benefit certificate was received and accepted by him in writing in Illinois. The law of the country where the contract is made governs its construction and determines its validity.”

Section 26 of our Corporation Act provides:

“Foreign corporations, and the officers and agents thereof, doing business in this state, shall be subjected to all the liabilities, restrictions and duties that are or may be imposed upon corporations of like character organized under the general laws of this state, and shall have no other or greater powers.”

In speaking of this statute, this court, in North American Ins. Co. v. Yates, 116 Ill. App. 217, (affirmed 214 Ill. 272, 282) said on page 220:

“The Supreme Court in People v. Van Cleave, 187 Ill. 125, and in Coverdale v. Royal Arcanum, 193 Ill. 91, held that this section applies to and includes insurance companies.”

In People v. Van Cleave, supra, it was said (p. 137):

“The general statute, which requires that foreign corporations shall have no other or greater powers than domestic corporations, contains a direct implication that such foreign corporations shall have equal powers with domestic corporations of like character. The purpose of our statute is to produce uniformity in the powers, liabilities, duties and restrictions of foreign and domestic corporations of like character, and to bring them all under the influence of the same law.”

For the reasons indicated the decree of the Superior Court of Cook county is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Joseph B. Strauss, Appellant, v. Fred G. Borg, Appellee.
    Gen. No. 17,067.
    1. Contbacts — words and phrases. The word “hereafter” when used in a contract providing that all plans and patents, relating to a certain type of bridge construction and miscellaneous office work conceived of by either party “preceding this contract or hereafter, shall belong exclusively to the party of the first part,” refers only to the time the contract is in existence.
    2. Contracts — construction. The fact that complainant, who drew up the contract sued on, is ignorant of the legal meaning of words, does not aid him in his contention that the word “hereafter” as used therein should be construed to mean "forever.”
    3. Specific performance — when complainant not entitled to. A cómplainant who seeks to have a patent assigned to him on the ground that the defendant is bound by a contract entered into while in the complainant’s employ, does not show that he has performed or offered to, and has always been ready to perform, where the defendant was obliged to sue for his salary due under the contract and to follow successive appeals to the Supreme Court.
    4. Patents — adjudication in interference proceeding. A decision in interference proceedings as to the priority of invention is, it seems, not a bar to an action to determine the ownership of the patent under a contract affecting all future inventions of the inventor.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Kremer & Greenfield, for appellant; James A. Brady, of counsel.
    James W. Taylor, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is a bill in the nature of a hill for specific performance of a written contract, filed August 5, 1908, by Joseph B. Strauss, appellant and hereinafter referred to as complainant, against Fred G. Borg, appellee and hereinafter referred to as defendant. The prayer of the bill was to the effect that upon the hearing a certain letters-patent of the United States, No. 828,873, for improvements in “bridges,” issued to defendant on August 21, 1906, be decreed to belong to complainant and that defendant be ordered to make an assignment of the same to complainant, that an accounting be had to ascertain the amount of royalties received by defendant from the sale of designs under said patent, and, if upon said accounting it be found that any monies be due from complainant to defendant, that defendant be decreed to pay the same to complainant in excess of any sum found due to defendant, complainant offering to pay defendant such sum. The defendant filed an answer to the bill and to an amendment to the bill, and after evidence was heard in open court the bill was dismissed for want of equity and complainant appealed to this court.

Both parties are civil engineers. On September 15, 1903, letters-patent of the United States, No. 738,954, was granted to complainant for improvements in “bridges,” upon application filed December 19, 1902. Sometime in the spring of the year 1903 complainant employed defendant to assist him in preparing designs and making calculations for proposed bridges. On October 15, 1903, the parties entered into a written agreement, for one year, wherein it was stipulated that complainant was ‘ ‘ the inventor and designer of an improved bascule bridge, an improved viaduct and other improvements, and the owner of letters-patent thereon,” and that defendant was to work for complainant as an assistant engineer in cliarge of the office and of such engineering work as complainant would carry on from time to time, but defendant was to receive no compensation for his services until complainant should obtain a satisfactory contract or contracts for the design and erection of one or more of his bridges or elevated structures, and when such contract had been obtained complainant agreed to pay defendant $140 per month, dating from May 1, 1903, to the time when such contract was obtained, and in addition thereto five per cent, of the net earnings on such contract and on any other contracts received for bascule bridges, and also on contracts for general engineering work done in the office. The agreement also contained the following provision: “It is hereby agreed and understood that all designs for said bascule bridge, viaducts, etc., and all improvements thereon, have been made by the party of the first part (complainant), and the second party (defendant) has no claim whatever on said designs and improvements, except as herein set forth, and all plans, designs, patents, etc., relating to said bascule bridge, viaduct and miscellaneous office work conceived or executed by either party, preceding this contract, or hereafter, belong exclusively to the party of the first part.”

Defendant remained in the service of complainant until June 15, 1905, during which time he did considerable work in preparing drawings for bridges and other structures for complainant, who was endeavoring to obtain contracts. No other written agreement was entered into between the parties during said period of service or afterwards. Defendant testified that after October 15, 1904, he had a conversation with complainant as to his future compensation and that the latter verbally agreed to pay him at the rate of $150 per month. Complainant denied this and testified that it was agreed that defendant was to continue to work for complainant on the old basis. About May 16, 1905, defendant asked for a payment of the back salary due him, and, according to defendant’s testimony, complainant at that time wrote and delivered to defendant a memorandum which, as defendant claims, showed that $1,662 was due defendant up to May 1, 1905. Shortly before defendant left complainant’s employ, a conversation was had in which defendant asked for a further increase in salary. Complainant testified as to this conversation: “I told him I conld not do so, and then lie said lie planned to go into business for bimself; * * * I said tliat would be satisfactory to me, and that I would be glad to help him along, * * * and I did that afterwards.” Complainant further testified: “He opened an office on the floor below, and I turned over to him there certain uncompleted jobs and made an arrangement to pay him on the hour basis, and gave him certain other pieces of work, * * * which he executed there. * * * This continued all through that summer and into the fall. ’ ’ In December, 1905, defendant again asked complainant for a settlement of the back salary due him and for work done subsequently to June 15, 1905. Complainant made a payment on account, and subsequently told defendant he did not owe him anything. In February, 1908, defendant brought suit against complainant in the Municipal Court of Chicago, and recovered a judgment of $1,151.90. On appeal this judgment was affirmed by this court. Borg v. Strauss, 153 Ill. App. 450. The Supreme Court granted a writ of certiorari, and subsequently, on December 21, 1910, affirmed the judgment (247 Ill. 462).

About six months after defendant left complainant’s office, complainant, on December 18, 1905, made application for letters-patent of the United States for improvements in bridges, which application was still pending at the time of the filing of this bill. On February 6, 1906, defendant filed an application for letters-patent for improvements in bridges, which was allowed on August 21, 1906, and a letters-patent was issued thereon to defendant. This is the patent which complainant seeks By this bill to have the court decree an assignment of to complainant as being rightfully his property. It is stated by counsel for complainant in their brief and argument filed in this court that,

“The particular type of bridge designed by the complainant and covered by his patent, is what is known as the trunnion type and derives its name from the fact that it moves upon a fixed axis or shaft called a trunnion, and moves upon this trunnion in very much the same manner as a wheel of a vehicle moves on its axle. The structure rests upon a pier or foundation on the bank and the bridge consists of a span called a leaf, which projects out across the channel, and this leaf is movable and can be raised for the passage of vessels, and in this movement swings upon the trunnion referred to. * * * The patent issued to the defendant * * * contains three principal features, viz:—

(a) An overhead counterweight,
(b) Supports entirely outside of the trusses, i. e., the foundation on which the structure rests consists of two pedestals, one on either side of the structure, neither one of which projects underneath the structure, or any part of it; and
(c) The counterweight supported by what is termed a compound lever.”

When complainant discovered that a patent had been issued to defendant, complainant filed an interference in the Patent Office, at Washington, D. C., which was heard and decided adversely to him. On appeal before the Examiners-in-Chief that decision, awarding priority of invention to defendant, was affirmed on November 30, 1908. Prom this decision of affirmance, which was introduced in evidence during the hearing of this case, it appears that said Examiners-in-Chief found:

“Borg’s application, though filed later than Strauss’, went to patent containing the claims that constitute the issue, and Strauss adopted the claims in his application; therefore what the invention is must be ascertained from the patent, and Strauss’ right to claim it depends upon whether the invention disclosed in his application is substantially the same as that particularly pointed out in the three claims taken from the Borg patent.
We do not find a compound lever in the invention disclosed in Strauss’ application prior to September 26, 1906, the latter being the date of filing of an amendment containing Stranss ’ claims constituting the counts.”

It does not appear that any appeal was taken from this decision of said Examiners-in-Chief.

The original bill charged, substantially, that the improvements set forth in the letters-patent issued to defendant had been developed by the complainant in the regular course of his business, while defendant was so employed by him, and as an outgrowth of complainant’s efforts to make further improvements in bridges beyond those covered by his patent, No. 738,954, and that by reason of the provision in the contract of October 15, 1903, above quoted, the said improvements mentioned in defendant’s patent rightfully belonged to complainant; that complainant had himself intended to make application for letters-patent upon the improvements contained in defendant’s patent, and subsequently did file an application for a patent therefor on December 18, 1905; that the specifications in the application filed by comp]ainant “covered all the principal features in the improvements specified in said letters-patent issued to defendant, * * * and each and every one of the improvements * * * were conceived and invented” by complainant while defendant was engaged in the office of complainant. By amendment to the bill the complainant charged, substantially, that the letters-patent issued to defendant represented a plan and design of a bascule bridge relating to the bridge described in the letters-patent No. 738,954 issued to complainant on September 15, 1903, and that under the provision in said contract, above quoted, complainant is the rightful owner of defendant’s patent and entitled .to an assignment thereof, “whether said improvements mentioned therein were conceived and invented by complainant, or whether the same were conceived and invented by defendant.” The defendant denied all of the allegations of the bill and amended bill, material to the present controversy, and set forth the decision of said Examiners-in-Chief as a bar to the relief prayed by complainant.

Upon the hearing, complainant offered in evidence the two patents, the contract, the various general drawings, computations, etc., of proposed bridges which had been executed in complainant’s office and under his direction by defendant, and produced expert witnesses who testified that in their opinion the said patent issued to the defendant related to the bridge covered by complainant’s patent and in what respects. The defendant’s evidence tended to show that during the existence of the written agreement in question none of the principal features so specified in his patent had come to his knowledge; that he first conceived the counterweight, compound lever and the trunnions, as he had them in his patent, shortly after he left the employ of complainant; and that there were material differences between the two patents, and between defendant’s patent and certain drawings for bridges either seen or made by defendant while in complainant’s employ.

The trial court found in the decree that the bill was in the nature of a bill for specific performance; that defendant commenced suit against complainant under said contract of October 15, 1903, which is the basis of the bill herein, and obtained judgment, which judgment was affirmed by the Appellate Court; that the use of the word “hereafter” (found in the clause in said contract on which this bill is based) is to be construed as having reference only, so far as its validity is concerned, to the time that the contract was in existence between the parties; that by the terms of said contract it was to last one year from the date thereof; that from a consideration of all the drawings and plans presented at the trial, and in the light of the expert patent attorney’s evidence, it was not established by a preponderance of the evidence that the patent, which was issued to defendant, was conceived by him while he was working for complainant; that complainant has not made ont such a case as would justify a decree holding that said patent is the property of complainant, and that, therefore, it is decreed that complainant’s bill be dismissed for want of equity.

One of the contentions of counsel for complainant is that the decision in the interference proceeding in the Patent Office does not in any way affect the right of complainant to sustain his bill. To this counsel for defendant replies that «“where the question decided in the Patent Office is one between contesting parties as to the priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Morgan v. Daniels, 153 U. S. 120, 125; Hillard v. Remington Co., 108 C. C. A. 534; Greenwood v. Dover, 194 Fed. 91, 92. The chancellor in the decree in this case made no reference to the decision of said Examiners-in-Chief in the interference proceeding, but found that “it was not established by a preponderance of the evidence that the patent, which' was issued to the defendant, Borg, was conceived by him while he was working for said complainant” and that “complainant has not made out such a case as would justify a decree * * * holding that said patent is the property of the complainant.” In view of all of the evidence in this case we are of the opinion that said findings were fully warranted.

Counsel for complainant also urge as a ground of reversal that the chancellor erred in his construction of the word “hereafter,” used in the above quoted paragraph of said agreement of October 15, 1903, between the parties, and argue that such word should be so construed as to entitle the complainant to claim the ownership of all plans, designs, patents, etc., relating to the bascule bridge, conceived or executed by defendant at any time after the expiration of the one year period mentioned in the agreement, as well as during that period. We cannot agree with counsel.

In Dobbins v. Cragin & Co., 50 N. J. Eq. 640, Dobbins was engaged in the manufacture of soap and boot-polish. By written agreements he sold the use of his name and all interest in his plant to Cragin & Co., for a term of twenty years. Dobbins gave a receipt for part of the purchase price in which, above his signature thereto, were the words, “As a part of the foregoing agreement, the said Dobbins also hereby covenants and agrees with the said Cragin & Co. that they may use his name upon and as descriptive of any soap or blacking they may hereafter make, * * Dobbins, after the expiration of the twenty years, filed a bill to enjoin the further use of his name. The defendants contended that a perpetual right to the use of Dobbins’ name had been conveyed, but the court said (p. 648):

“The defendants rely upon the word ‘hereafter’ in it (the receipt) as indicating a grant in perpetuity to defendants to use complainant’s name upon any and all soaps and blackings the defendants may thereafter manufacture. Now, I think the word ‘hereafter’ used as an adverb does not necessarily refer to unlimited time. * * * It is not a synonym for ‘forever.’ It rather indicates the direction in time merely to which the context refers, and is limited by it. The duration of the word ‘hereafter’ is usually expressed by some other word, or is inferred from the context. In fact, the mind does not rest satisfied with the use of the word ‘hereafter’ in such case, but naturally inquires, and expects to hear in addition, how long the hereafter is to last.”

In Hildreth v. Thibodeau, 117 Fed. 146, a bill was filed in the U. S. Circuit Court for the district of Massachusetts, by Hildreth for specific performance of a written agreement wherein it was stated that Hildreth, a candy manufacturer, was desirous of having perfected and manufactured a certain machine or machines for nse in the manufacture of candy; that Thibodeau was a skilled mechanic and desirous of entering Hildreth’s employ for the purpose of perfecting such machinery; that Thibodeau, in consideration of such employment and the payment of certain therein specified daily wages, agreed to give Hildreth his best services and “the full benefit and enjoyment of any and all inventions or improvements which I have made or may hereafter make relating to machines or devices pertaining to said Hildreth’s business.” It appeared from the bill and the evidence in the case that complainant was notified by the Patent Office that another asked to have assigned to him under said contract; that while defendant was in complainant’s employ he worked upon a machine owned by complainant, upon which machine complainant applied for letters-patent of the United States, which application was subsequently allowed, and was about to issue, when complainant was notified by the patent office that another application for the same subject matter had been filed and an interference declared, which interference question had not been decided at the time of the filing of the bill, and that said other application for letters-patent had been filed by defendant. Defendant filed a cross-bill asking that the agreement be adjudged invalid and that it be delivered into court and can-celled, because it belonged to that class of unconscionable contracts which a court of equity will not enforce. The Circuit Court dismissed both bill and cross-bill because the bill had been prematurely brought, and for the reasons that the bill sought to have the court determine the question of priority of invention, that that question was now properly before the patent office for adjudication, that if it should be there determined that complainant was the prior inventor, this bill would fall because there would be nothing to assign under said contract, and that if it should be determined that defendant was the prior inventor it would then he time for complainant to ask for specific performance under the contract. The case was appealed to the Circuit Court of Appeals, first circuit (124 Fed. 892), where the decree was affirmed, the court saying (p. 893):

“Reasonably interpreted, the contract provided that Hildreth should take the benefit and enjoyment of all those inventions and improvements relating to machines used in Hildreth’s business which Thibodeau might make while employed by Hildreth. The employment might be ended at any time, either by Hildreth or by Thibodeau, and inventions thereafter made by Thibodeau would belong to him, and would not be covered by the contract. * *' * This contract is neither unconscionable nor against public policy.”

We have examined the cases cited by counsel for complainant which they say support their contention as to the construction to be given to. the word “hereafter” in the contract before us in this case, Joliet Co. v. Dice, 105 Ill. 649; Bates Co. v. Bates, 192 Ill. 138; Hulse v. Bonsack Co., 13 C. C. A. 180; Mississippi Glass Co. v. Franzen, 74 C. C. A. 135, and other cases, and are of the opinion that they are not applicable to the facts in this case.

Counsel for complainant also urge in their reply brief that complainant wrote out the agreement in question and submitted it to defendant for his signature, that he was unskilled in the preparation of legal documents and was a layman ignorant of the legal meaning of words, etc., and, therefore, these facts should be considered in determining the construction to be given to the word “hereafter.” This argument does not assist complainant, because, “if a contract contains ambiguous words, or words of doubtful meaning, such are to be construed most strongly against the party who executed the contract.’’ Massie v. Belford, 68 Ill. 290; McClenathan v. Davis, 243 Ill. 87.

Furthermore, in view of the action taken by complainant, as above shown, in refusing to pay defendant money due him on said contract for salary, etc., for which defendant was obliged to bring suit and, after judgment obtained, to follow successive appeals to this and the Supreme Court, we do not think that complainant has brought himself within the rule that, before he can obtain a decree for specific performance of the contract, he must show that he has performed, or offered to perform, and has “always been ready, willing and eager to perform” his part of the contract. Wood v. Sheffer, 248 Ill. 617, 631.

The decree of the Circuit Court of Cook- county is affirmed.

Affirmed.


text:
    Frank Sertaut, Appellee, v. Crane Company, Appellant.
    Gen. No. 17,082.
    . 1. Master and servant — defective elevator shoes. Testimony of an. elevator operator does not show that elevator guide shoes were worn where it appears from his testimony that he did not examine the shoes after the accident and that his knowledge of their condition was gained “through the jerking of the elevator.”
    2. Master and servant — when testimony does not show reason for breaking of sheave on elevator car. Where an elevator descended rapidly, when a sheave at the top of the car broke, testimony by the elevator operator that the sheave ran as close to a beam in the shaft as it could get, that there was a permanent place on the ear for the sheave, and that it could not be put on in any other way, does not show that the sheave broke because it came in contact with the beam.
    3. Appeals and errors — when counsel bases presumption on a presumption. Counsel indulges in a series of presumptions where he alleges that guide shoes on an elevator were worn, which condition gave the car a lateral motion bringing a sheave in contact with a beam, whereby the sheave was broken, when the testimony does not show that the shoes were worn or that the sheave was broken by contact with the beam.

      4. Appeals and errors — a presumption cannot be based on a presumption. It would seem that a presumption as to the cause of an accident cannot be based on another presumption concerning the cause.
    5. Master and servant — what servant must prove to recover for negligence. On action for injuries caused when the sheave at the top of an elevator car broke, allowing the- car to descend rapidly, the servant must prove, among other things, that the appliances were defective, that the injuries were caused thereby and that the master had notice of the defect, or that he might have had by exercising ordinary care.
    6. Master and servant — evidence. Allegations that an elevator was negligently allowed to remain in a dangerous condition, especially the parts connecting the ropes with the top of the car, and that the safety devices were defective, and that by reason thereof the elevator fell and injured the plaintiff, are not established where the evidence of the elevator operator, chiefly relied on, does not show such defective condition; an engineer who examined the car after the accident testified that no such defects as alleged existed and the testimony tends to show that the car descended too slowly to cause the safety devices to work.
    Appeal from the Circuit Court of Cook county; the Hon. Duane J. Carnes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed with finding of fact.
    Opinion filed October 3, 1912.
    Alden, Latham & Young, for appellant.
    Johnson & Belasco, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of $1,000 entered in the Circuit Court of Cook county April 30, 1910, in favor of appellee, hereinafter called plaintiff, in an action on the case brought to recover damages for personal injuries received February 1, 1904, occasioned by the falling of an elevator, while appellee was in the employ of appellant, hereinafter called defendant, as a laborer. The verdict and judgment were rendered on a second trial, — the first trial resulting in a verdict for $2,500, upon which the court entered judgment June 8, 1907. An appeal was taken to this court and that judgment was reversed and the cause remanded. Sertaut v. Crane Co., 142 Ill. App. 49. In its opinion the main court of this district, after elaborately setting forth the facts as they appeared from the transcript of the record of the first trial, said (p. 58): “We regard the evidence referred to as showing that the case is, to say the least, very close for the plaintiff, both on the question of the defendant’s liability, and the question as to the extent of the plaintiff’s injuries; and, therefore, the rulings of the court on evidence should have been substantially correct.” This court then referred to certain rulings made by the trial court, (viz: in refusing to allow the witnesses Noakes, the elevator operator, and Hayes to answer certain questions, and in refusing to permit defendant’s counsel to ask plaintiff, in any form, if he would consent to an examination of his person by a physician employed by defendant, particularly after plaintiff’s principal expert medical witness, Dr. Larson, had testified in respect to an examination made by him of plaintiff on the morning of the day he testified), which it considered were erroneous, and concluded: “Counsel for defendant have argued that the plaintiff suffered no substantial injury, and that the verdict is contrary to the evidence. A verdict for $2,500 in this cause cannot be sustained, except on proof of some permanent injury. The only permanent injury claimed is displacement of the plaintiff’s left kidney, and we think it manifest that such displacement has not been proved by the greater weight of the evidence. Upon inspection of the entire record and after careful consideration of the evidence and the arguments of counsel, our conclusion is that the court erred in overrule ing defendant’s motion for a new trial.”

After a careful examination of the transcript of the record of the second trial, now before us, and considering the “additional medical expert testimony,” which counsel for appellee in his brief says was introduced at the second trial, as well as all the other evidence in the case, we feel constrained to repeat the language of this court, viz: “The only permanent injury claimed is displacement of the plaintiff’s left kidney, and we think it manifest that such displacement has not been proved by the greater weight of the evidence.”

The plaintiff is a Lithuanian, was about twenty-seven years of age and had been in the employ of defendant as a laborer for about nine months, receiving as wages $1.75 per day. About six months after the accident plaintiff worked for the Lehigh Yalley Transportation Company, loading and unloading freight, and later was employed in a scrap yard, moving scrap iron from one side of the yard to another, and has since been employed at hard manual labor. The elevator on which plaintiff and others were riding was ■ operated by steam, and ran in a shaft which was enclosed on the north and south sides with wire netting. On the east and west sides there were bars at each floor which could be raised to allow passengers and freight to enter and be discharged from the elevator. At each floor there was a beam or header which formed the side of the elevator shaft, and which sustained the joists. The shaft was constructed of wooden columns. Attached. to the center uprights on the north and south sides of the shaft were wooden guide strips, which ran from the basement to the top of the shaft. There were cast iron guide shoes attached to the elevator cage, which ran along these wooden guides for the purpose of keeping the elevator in place. The elevator was controlled by a lever in the car by which the change valve on the steam chest of the engine was operated, so that by certain movements of this lever the car could be made to ascend or descend as desired. The cable by which the elevator was operated ran around two cast iron sheaves, or grooved wheels or pulleys, which were attached to the top of the car. By moving the lever in the car the operator conld tilt the sheaves one way or the other, and accordingly lengthen or shorten the cable, and thereby operate the change valve on the engine. About nine o’clock on the morning of the accident, plaintiff and another laborer entered the car on the basement floor with two wheelbarrows filled with sand to take to the foundry on ihe fifth floor. Noakes, the elevator operator, ran the car up to the first floor, where two other employes of defendant got on the car, — Sherlock, foreman of the milling room, and Hauser, a carpenter. When the fourth floor was reached, Sherlock stepped off. Just after this and after the elevator had started upwards toward the fifth floor, one of the sheaves on top of the car broke off. The operator lost control- of the car and the elevator ran down to the basement.

Plaintiff claimed he was injured when the car struck the basement. He testified, through an interpreter, on direct examination:

“When the car came to the basement I don’t know what happened then. It struck hard in the basement. * * * I was hurt all over the back and sides. * * * ijv^y -took me home. First they brought me to the company’s doctor. There they fixed me up; * * * two men brought me home and put me to bed * * * I don’t know who they were. * * * One man got on one side and took my arm, the other man on the other side took another arm. * * * I was laid up altogether six months.”

On cross-examination he testified:

“I lost consciousness when it fell on the ground. * * * I didn’t know anything from the time the elevator struck the bottom until I found myself in the doctor’s office. * - * * There were more than three or four places on my back where the skin was off. * * * There was a big hole in the small of my back and there were smaller ones on the sides. * * * When the elevator fell from the top to the bottom, I fell with it. * * * When I got to the bottom and the elevator stopped I was lying on my back. * * * I fell just across the middle of the wheelbarrow. There was sand in it. I fell in the sand. * * * The other men in the elevator fell down at the same time I fell. # # # They fell on top of one another. I don’t know if they got úp and went out of the elevator before I did. I didn’t see them.”

At the time of the second trial Noakes, the elevator operator, who testified at the first trial, was physically unable to appear in court, and by agreement of counsel portions of his testimony given on the first trial were admitted in evidence. In such admitted testimony, brought out on direct examination at the first trial, was the following:

“The elevator was between the fourth and fifth floors when the sheave broke. * * * The elevator dropped fast; * * * faster than its ordinary speed in descending. * * * It struck the bottom pretty hard. * * * After the elevator struck, the cage was bent to one side, the ropes were loose, that is, the cable that hauls the elevator was loose after the rope came off the drum, the hoisting cables came off the drum. There was two loads of sand on the elevator.. One of them didn’t weigh over 150 pounds. The other was quite heavy — the wheelbarrow alone weighed over 300 pounds, and it was loaded with sand to the top.”

In such admitted testimony, brought out on cross-examination at the first trial, was the following:

“The elevator simply rah down on its own steam and the weight there was on the elevator. The engine had to work going down just the same as going up.” (Papers shown witness) “I signed that statement and swore to it. * * * I have read it. I guess it is true.”

The statement referred to is a statement signed and sworn to by Noakes on February 10, 1904, descriptive of the accident, portions of which are:

“When I got about half way between the fourth and fifth floors I heard a crack of a casting and I was hit on the head with a piece of the sheave; * * * the elevator began to descend; * * * we went down at about the ordinary speed. The dogs did not catch and stop the elevator for the reason the elevator did not descend fast enough to make the dogs catch * * * As we struck the bottom of the elevator shaft we all got off the elevator.. It did not knock any of us down or over and no one seemed to be injured. * * * The cag’e was not broken and neither was the floor. * * * About an hour after the accident * * * the elevator was running. * * * The jolt of the elevator as it struck the pit did not bring any of us to our knees.”

Szaulis, another witness for plaintiff 'testified through an interpreter:

“At the time this elevator fell I was working not far from the elevator. * * * When the elevator struck the bottom there was a noise jnst like a cannon. * * * I did not get near enough to see what happened.”

Keidis, another witness for plaintiff, testified through an interpreter:

“I was digging sand, * * * and I heard a noise, ‘boom,’ then I went to see near the elevator. I saw three men in the elevator. I saw Sertaut there. I saw him on the wheelbarrow over on his back. * * * He was on a load of sand. * * * I saw three men lying in the elevator, and Sertaut on the wheelbarrow. * * * I was only there a minute, or two. * * * I didn’t pay any attention to what anybody did. All I saw * * * was Sertaut lying across one wheelbarrow and two other men sitting on the other side of the wheelbarrow. Just as soon as I saw these three men I made a swift turn upstairs and got away as fast as I could. I didn’t hear anything about anybody being hurt. * * * I was scared and I hurried.”

Hauser, the carpenter and a witness for defendant, testified:

“I was on the elevator at the time. * * *' Mr. Sherlock was also on the elevator. He got off on the fourth floor and the elevator went down. * * * As the elevator started to go down I took hold of the barrow, put my bands on it, and put my weight on my toes, so as to take the weight off if it struck. After the elevator got down I walked out. All the other men in the elevator walked out also. I did not get any shock at the bottom. * * * I did not see anybody on the elevator fall down or get knocked down. * * * Before I went out of the elevator there was no man or men lying on the floor of the elevator or across any of the wheelbarrows. The elevator never goes slow as a rule, always goes fast. It went to the bottom but did not strike it hard nor make any noise. * * * No man on that elevator appeared to me to be hurt in any way. ’ ’

Hayes, the foreman of the labor gang and a witness for defendant, testified:

“I remember there was some question regarding this man being hurt. This first came to my attention when Sertaut came to me. It was about a half hour after this elevator had made this trip. He said he was hurt. He looked normal at the time. I could not see anything the matter with him. I sent him to Dr. Harvey’s office and he walked there. I saw him about an hour afterwards * * * about six hundred feet from Dr. Harvey’s office. .He * * * looked normal. * * * He simply asked me to go home. * * * I told him if he was not feeling well to go home. * * * When he went home he walked, * * * nobody carried him on each side. ”

Sherlock, a witness for defendant, who stepped off of the elevator when in ascending it had reached the fourth floor, testified:

“After I got off I swung around to throw an arm that was there to keep the passengers from getting near the elevator. I saw the elevator had gone down in place of going up. When I saw it go at quite a little speed, not very fast, and stop after that, I thought something was wrong. * * * I went down to the basement and when I got there I saw Mr. Hauser. He was standing to one side. * * * I saw three men down there when I got there. I saw no one lying op the floor of the elevator, nor anyone lying across a wheelbarrow. I saw a man sitting on a wheelbarrow. I did not see anybody that was hurt, nor * * * anybody who looked as though he was hurt.”

Doctor Harvey, a physician in the employ of defendant at the time of the 'accident testified that plaintiff walked into his office during the forenoon of February 1, 1904, and stated that he had been hurt; that at the witness’ request plaintiff removed his clothing and the witness examined him carefully; and that Rudolph Hora, an assistant, was present at the time. Both Harvey and Hora testified that they found no marks of injury on plaintiff, no signs of any bleeding or contusions, no evidences of nervous shock, that plaintiff appeared normal in all respects, and that after the examination plaintiff put on Ms clothes, walked out of the office and went back as they supposed, to his foreman.

In addition to contending that the verdict is manifestly against the weight of the evidence, counsel for defendant contend that the evidence does not show that the defendant was guilty of any negligence. The negligence charged in the declaration is fully set forth in the former opinion of this court and need not be repeated. To sustain the allegations of negligence in the declaration counsel for plaintiff rely cMefly, if not entirely, upon the testimony of the elevator operator, Noakes, and particularly upon his statement that the “guide shoes were worn a little bit.” Counsel for plaintiff state in their brief:

“Appellee’s contention is that appellant carelessly and negligently permitted the guide shoes to be worn to such an extent as to cause the elevator, while being operated to have a lateral motion, which brought the sheave in contact with the' beam near the shaft under the fifth floor, thereby breaking the sheave, which; caused the elevator to descend rapidly and thereby injured appellee who was riding on the elevator.”

The only facts in the above statement admitted by the defendant are that a sheave in the elevator broke, that the elevator descended rapidly and that plaintiff was riding on the elevator at the time. Noakes testified:

“The elevator was between the fourth and fifth floors when the sheave broke. * * * I didn’t make an examination of the elevator immediately after the accident. I helped fix her up again, get her ready. * * * It was shown that the guide shoes were worn a little bit. I couldn’t say how much. I am no machinist.- * * * The guide shoes keep the elevator from having too much play in the shaft. * * * I know that they were worn, through the jerking of the elevator. * * * I didn’t examine the shoes after the accident. * * * I don’t know how long these shoes were worn before that time. * * * I observed the lateral motion of the elevator very often; they are bound to shake some. I don’t remember how often I observed this.”

Counsel for plaintiff argues that this testimony shows that the guide shoes were in fact worn. This does not follow, for the reason that the testimony of the witness shows that he did not examine the shoes after the accident and that such knowledge as he claimed to have as to their, being worn was because of or “through the jerking of the elevator.” Noakes further testified that:

“The sheave ran close up to the beam, as close up as it could get. This beam * * * is a part of the fifth floor, and was in the elevator shaft on the right side. * * * There was a permanent place on the top of the elevator for a sheave. The elevator was made to have that sheave just so. It couldn’t be put on any other way except at that one place. The second sheave could not have been put on any different than the first one. The sheave there now is just in the same place it was then. * * * I never knew the sheave that is there now and the beam to strike. ’ ’

This testimony does not show that at the time of the accident the sheave was broken because the same was brought in contact with the beam, or that there was any unusual lateral motion of the elevator because of worn guide shoes. And there is no other testimony in the record showing what caused the sheave to break, or that the sheave and the beam came in contact, or that there was any unusual lateral motion of the elevator at the time of the accident, or that the guide shoes were worn, or that the sheave was defective. It seems to us that counsel for plaintiff in his above contention indulges in a series of presumptions. “It is the law that a presumption cannot he based on a presumption.” Globe Insurance Co. v. Gerisch, 163 Ill. 625; Condon v. Schoenfeld, 214 Ill. 226. Thomas W. Smith, chief engineer for defendant for nineteen years and at the time of the accident, and who, at the time of the second trial was chief engineer of the Corn Products Company, testified that he “was at the elevator about fifteen minutes after the accident before anything had been done with it,” and that he “saw the sheave off * * * examined the piece of metal that was broken, it was a clean break, there was no defect in it before;” that he had measured the space between the edge of the sheave and beam and that it was one inch; that he inspected the elevator every day, including the day before the accident; that there must be “lateral motion in there to make the elevator pass up and down between the guides,” and that his last examination before the accident showed “not over five-eighths or three-fourths of an inch lateral motion;” that “this sheave could not have struck the beam in the elevator shaft;” that he examined the beam after the accident and that there was “no scratch or mark * * * to indicate that the sheave had struck the beam;” that the city elevator inspector made a thorough examination of the elevator every six months; that after the accident Smith put on another sheave that morning, and after putting it on he found that the sheave “could not have gotten closer to the beam on the fifth floor than one inch,” and that it was put in the same position as the first sheave. By the testimony of said Smith and two elevator experts it was shown that there were three safety devices on the car, (a) an arrangement which would automatically stop the engine when the hoisting cable became slack, (b) safety appliances called “dogs” which would automatically stop the car when it had attained a certain speed, and (c) an automatic stop at the bottom of the shaft set to start stopping the car within twenty-two inches from the floor of the basement; and that, if a sheave breaks, the elevator cannot descend faster than the speed for which the engine is set, which at the time of the accident was 375 to 380 feet per minute, or about four miles per hour.

Before a recovery can be sustained in such a case as this it is necessary for the plaintiff to prove, amon^ other things, not only the existence of a defect in the appliances and that the injury was occasioned thereby, but also that the master had notice of the defect or might have had by the exercise of ordinary care. Armour v. Brazeau, 191 Ill. 117; Sack v. Dolese, 137 Ill. 129; Goldie v. Werner, 151 Ill. 551.

In view of the evidence in this case, we are of the opinion that the defendant was not guilty of negligence as charged in the declaration, and so find. The judgment of the Circuit Court of Cook county is reversed.

Reversed with finding of fact.


text:
    The People of the State of Illinois, Defendant in Error, v. Ralph Armond, Plaintiff in Error.
    Gen. No. 17,142.
    1. Pandering — when information sufficient. If an information state the offense of pandering substantially in the terms and language of Hurd’s Statutes pf 1909, ch. 38, sec. 57z, defining the offense, or so plainly that the nature of the offense may be easily understood and the defendant be apprised with reasonable certainty of the offense he is called upon to meet, it is sufficient.
    2. Pandering — use of masculine pronoun erroneously. An information, and the affidavit thereto under Hurd’s Statutes, 1909, ch. 38, sec. 57g. cl. 4, for pandering, erroneously using a masculine pronoun referring to the informant and charging that the informant was unlawfully induced to remain in a house of prostitution, is not insufficient, particularly where the record shows that the court, before directing the filing of the information, saw the informant.
    3. Pandering — objection to an information cannot be first made on review. Where a masculine pronoun is erroneously used in an affidavit to an information for pandering, apparently by the inadvertence of the cleric who administered *the oath, it is too late on writ of error to complain if the defect is not called to the attention of the trial court.
    4. Pandering — when information sufficiently complies with Municipal Court Act. An information for pandering signed by the informant, verified by an affidavit, that the informant is a resident of the city and has read the information by the informant subscribed and that the same is true, sufficiently complies in such respects with the Municipal Court Act for Chicago, sec. 27.
    Appeal from the Municipal Court of Chicago; the Hon. Judson IT. Going, Judge, presiding. Heard in the Branch Appellate Court, at the October term, 1911.
    Affirmed.
    Opinion filed October 3, 1912.
    J. Gray Lucas, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Ealph Armond, plaintiff in error, was found guilty upon the information of Goldie Norton, verified by affidavit, charging him with the offense of pandering, and, on April 8, 1910, in the Municipal Court of Chicago, he was sentenced on the finding to confinement in the house of correction for a term of six months and to pay a fine of $300, and costs. This writ of error is prosecuted to reverse the judgment. No bill of exceptions is found in the transcript of the record.

It appears from an order of the court, entered March 3,1910, that said Goldie Norton presented the information and asked leave to file the same; that the judge, “having examined the information and the person presenting the same and having heard evidence thereon and being satisfied that there was probable cause for filing the same, and having so endorsed the same,” ordered that the same be filed'instanter, that a capias against said Armond be issued forthwith and that he be held to bail. It further appears that Armond was arrested, and, failing to give bail, was committed to jail; that, upon being arraigned, he pleaded not guilty; that he filed a waiver in writing of a trial by jury; that his trial was several times postponed with his consent, and that the sufficiency of the information was not at any time or in any manner challenged by him in the trial court.

The sole ground for reversal, relied upon by counsel for plaintiff in error, is the alleged insufficiency of the information to sustain the judgment. The information filed is as follows:

“Goldie Norton, a resident of the City of Chicago, in the State aforesaid, in Ms own proper person, comes now here into court, and in the name and by the authority of The People of the State of Illinois, gives the Court to be further informed and understand that Ralph Armond, late of the said City of Chicago, heretofore, to-wit: on the Twenty-eighth day of February, A. D. 1910, at the City of Chicago, aforesaid, did then and there unlawfully and wrongfully by promises, threats and violence induce, persuade and encourage this informant, Goldie Norton, then and there an inmate of a honse of prostitution to remain therein as an inmate of said house of prostitution in said City of Chicago in Cook County, Illinois, contrary to the form of the Statute in such case made and provided, and against the Peace and Dignity of The People of the State of Illinois.
Goldie .Norton.
State op Illinois, County op Cook, City op Chicago. ss.
Goldie Norton, being first duly sworn, on-oath, deposes and says that he is a resident of the City of Chicago; that-has read the foregoing information by him subscribed and that the same is true.
Goldie -Norton.
Subscribed and sworn to before me this 3rd day of March, A. D. 1910.
Homer K. Galpin,
Clerk of The Municipal Court of Chicago.”

Section 57g, of chapter 38, Hurd’s Statutes, 1909, defining the offense of pandering, reads in part as follows :

“Any person who shall procure a female inmate for a house of prostitution, or * * * or * * *, or any person who shall, by promises, threats, violence or by any device or scheme, cause, induce, persuade or encourage an inmate of a house of prostitution to remain therein as such inmáte, or * * *, shall be guilty of pandering,” etc.

It will be noticed that the language of the charging part of said information is practically the same as the language of the fourth, clause, or subdivision, of said statute. If the information states the offense substantially in the terms and language of the statute, or so plainly that the nature of the offense may be easily understood and the defendant be apprised with reasonable certainty of the offense he is called upon to meet, it is sufficient. (See People v. Greenburg, ante, p. 360.)

But it is claimed by counsel that it does not appear from the information that Goldie Norton is a female person, that the language in the information, “in Ms own proper person,” and of the affidavit, in the use of the words “he” and “him”, suggests that plaintiff in error induced, persuaded, etc., a male person, an inmate of a house of prostitution, to remain there, and that, therefore, the information is fatally defective. We cannot agree with counsel. In the fourth clause, or subdivision, of said statute the word “female” does not appear, but the offense- there defined is inducing, persuading an “inmate” of such a house to remain there, and the information sufficiently charges that Goldie Norton was such an inmate. And the record shows that the court, before directing the filing of the information, saw Goldie Norton. Furthermore, the defect or-mistake in the affidavit, which seems to be a mere inadvertence of the clerk who administered the oath, was not called to the attention of the trial court by motion to quash or in any manner. If it had been, the affidavit could have been amended. Truitt v. People, 88 Ill. 518. And it is too late on writ of error to complain of such a defect or mistake. People v. Green-bur g, supra. It sufficiently appears that the information was signed by the person presenting the same, and that the information was verified by the affidavit of such person, as required by section 27 of the Municipal Court Act.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Nathan Blum, Plaintiff in Error.
    Gen. No. 17,675.
    Municipal Couets — information must be signed and verified by informant. By virtue of the Municipal Court Act, section 27, where an information for wife abandonment, filed in the Municipal Court of Chicago, does not show on its face that it was signed or verified by the affidavit of the informant, the wife, presenting the same, the court has no jurisdiction to enter a judgment of conviction.
    Error to Municipal Court of Chicago, the Hon. Charles N. Good-now, Judge, presiding. Heard in the Branch Appellate Court at the- October term, 1911.
    Reversed and remanded.
    Opinion filed October 3, 1912.
    Herman Frank, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Nathan Blum, plaintiff in error, was tried before one of the judges of the Municipal Court of Chicago (he having waived a trial by jury), was found guilty “in manner and form as charged in the information,” and was adjudged by the court to be guilty of the criminal offense of “abandoning, without good cause, his wife and neglecting and refusing to maintain and provide for her on said finding of guilty,” and he was ordered to pay said Bertha Blum the sum of seven dollars weekly on Monday of each week for and during the period of one year. The case was commenced by the filing, on May 25, 1911, of the following information, after the court had granted leave to file the same:

“Bertha Blum, a resident of the City of Chicago, in the county and state aforesaid, in her own proper person, comes now here into court and, gives the court to be informed * * * that Nathan Blnm, late of the City of Chicago, heretofore, to-wit, on the 4th day of May, A. D. 1911, at the City of Chicago, in said County of Cook, * * * being then and there the lawful husband of Bertha Blum and she the said Bertha Blum then and there being the lawful wife of him, the said Nathan Blum, and they the said Bertha Blum and said Nathan Blum having before and up to sard time lived and cohabited together, as husband and wife, he the said Nathan Blum did then and there wrongfully and unlawfully, and without good cause, abandon and neglect and refuse to maintain and provide for his said wife, the said Bertha Blum, contrary to the statute, «M. Jt, *7? -ÉÍ
Nathan Blum.
State op Illinois, h County op Cook, > City op Chicago. ss.
Bertha Blum, being first duly sworn, on oath, deposes and says that she has read the foregoing information by her subscribed and knows the contents thereof, and that said information and the matters and things therein stated are true.
Nathan Blum.
Subscribed and sworn to before me this 25th day of May, A. D. 1911.
(Seal)
Charles N. Good now,
Judge of the Municipal Court of Chicago.”

This writ of error is prosecuted to reverse the judgment, and counsel for plaintiff in error contends (1) that the judgment of the court, based upon an information which is neither signed nor verified by the affidavit of the person presenting the same, is void and of no effect, and (2) that the judgment as to the amount of support money to be paid is clearly excessive.

The information does not appear on its face to have been signed or verified by the affidavit of the person presenting the same, and, by virtue of the provisions of section 27 of the Municipal Court Act and under the decisions of People v. Nelson, 150 Ill. App. 595, Klawanski v. People, 218 Ill. 481, People v. Zlotnicki, 246 Ill. 185, the conrt had no jurisdiction to enter a judgment based upon such an information. It is unnecessary to discuss the second point made by counsel.

The judgment of the Municipal Conrt of Chicago is 'reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Lawrence Manganio, Plaintiff in Error.
    Gen. No. 17,702.
    1. Pandering — sentence. Notwithstanding the phrase “fine or imprisonment, otherwise than in the penitentiary,” in the Bill of Rights, section 8, and the Municipal Court Act, sections 2 and 27, on an information in the Municipal Court of Chicago for pandering, under Hurd’s Statute of 1909, ch. 38, sec. 57g, providing for a punishment, by a fine and imprisonment, the court has jurisdiction to impose a sentence of both a fine and imprisonment in the House of Correction.
    2. Pandering — when error in procedure is waived. The record in a prosecution for pandering showing an information and sentence against the defendant alone, it was contended there was error in that the bill of exceptions disclosed that separate and distinct cases, against two persons, were tried together. Both persons were represented by the same attorney, who made various motions at the trial, and at the conclusion of the People’s case one was discharged for lack of evidence. Held, the alleged error in procedure was waived by failure to object thereto in the trial court.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 3, 1912.
    George Remus, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Louis Pinderski, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On June 14,1911, in the Municipal Court of Chicago, Lawrence Manganio, plaintiff in error, was found guilty of the. offense of pandering, he having waived a trial by, jury. He was sentenced on the finding to confinement in the house of correction for the term of six months and to pay a fine of $300 and costs of suit. This writ of error is prosecuted to reverse the judgment.

The case was tried on the information of Julia Hickman, which was signed by her and verified by her affidavit and presented to the court on June 5, 1911, and in which it was charged that “Lawrence Manganio did unlawfully persuade, encourage, induce, cause or procure one Julia Hickman then and there being a female person to become an inmate of a house of prostitution, then and there situate at 9156 and 9158 Harbor Avenue, in the City of Chicago, County of Cook, State of Illinois.”

Section 57g of chapter 38, (Hurd’s Ill. Stat. 1909) reads, in part, as follows:

“Any person who shall procure a female inmate for a house of prostitution or who, by promises, threats, violence or by any device or scheme, shall cause, induce, persuade or encourage a female person to become an inmate of a house of prostitution, or * * *, or * * *, shall be guilty of pandering, and upon a first conviction for an offense under this act shall be punished by imprisonment in the county jail or house of correction for a period of not less than six months nor more than one year and by. a fine of not less than three hundred dollars and not to exceed one thousand dollars,” etc.

Section 8 of the bill of rights of the constitution of this state provides:

“No person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary,” etc.

Section 2 of the Municipal Court act, in defining the jurisdiction of that court, provides in paragraph third that the court shall have jurisdiction in:

‘ ‘ Cases to be designated and hereinafter referred to as cases of the third class, which shall include all criminal cases in which the punishment is by fine or imprisonment otherwise than in the penitentiary, and all other criminal cases which the laws in force from time to time may permit to be prosecuted otherwise than on indictment by a grand jury.”

Section 27 of the Municipal Court Act provides in part:

“That all criminal cases in the Municipal Court in which the punishment is by fine or imprisonment otherwise than in the penitentiary, may be prosecuted by information of the Attorney General or State’s Attorney, or some other person, and when an information is presented by any person other than the Attorney General or the State’s Attorney, it shall be verified by the affidavit of such person that the same is true, ’ ’ etc.

It is first contended by counsel for plaintiff in error that the judgment should be reversed because the Municipal Court had no jurisdiction to enter the judgment and the same is therefore void; that said court has no jurisdiction (because of the provision of the constitution and the provisions of the Municipal Court Act above quoted) to both fine and imprison otherwise than in the penitentiary a person found guilty of a crime, and that by the judgment in this ease plaintiff in error was sentenced to pay a fine and to be confined in the house of correction. In support of his contention counsel cites the case of People v. Dada, 141 Ill. App. 557, decided by the main Appellate Court of tliig district in June, 1908.

In view of the following later decisions of our Supreme Court we cannot agree with counsel’s contention. In People v. Glowacki, 236 Ill. 612, an information was filed in the Municipal Court of Chicago charging the defendant with unlawfully living and cohabiting in a state of adultery with a woman. The defendant was found guilty and sentenced to pay a fine. By statute of this state it was provided that a person guilty of living in an open state of adultery “shall be fined not exceeding $500, or confined in the county jail not exceeding one year.” It was contended in the Supreme Court, under the provisions of the constitution and the Municipal Court Act above quoted, that only such offenses as may be punished by fine only or by imprisonment (otherwise than in the penitentiary) only can be prosecuted upon information, and that an offense which may be punished in the alternative, either fine or imprisonment (otherwise than in the penitentiary) cannot be prosecuted upon information. In affirming the judgment of the Municipal Court, our Supreme Court said (pp. 616, 619):

“Under the provisions of the Municipal.Court act (either , as originally passed or as amended in 1907) the legislature intended to give to that court full power to try upon information all criminal offenses that under said section 8 of article 2 of the constitution could be tried without an indictment by the grand jury, the wording of both paragraph 3 of section 2 and paragraph 27 as above quoted, giving jurisdiction to that court to try on information without indictment, being in the identical language of said constitutional provision authorizing trial on information. The words of the constitution granting this power * * * were intended, we think, to base the distinction between cases that could be tried on information and those which could only be tried on indictment of a grand jury, upon the fact as to whether they were punishable by imprisonment in the penitentiary or whether the punishment was by imprisonment otherwise than in the penitentiary, or by fine, or both. The words ‘fine or imprisonment otherwise than in the penitentiary’ include every class of offenses where the punishment is either by fine or jail sentence, or both. Manifestly, punishment by fine or imprisonment exists where it is either or both. * * *. We conclude, therefore, that under the Constitution and the Municipal Court Act the Municipal Court of Chicago has jurisdiction to try, on information, all violations of criminal laws punishable by fine or by imprisonment otherwise than in the penitentiary, or by both fine and such imprisonment.”

In People v. Krueger, 237 Ill. 357, an information was brought in the Municipal Court of Chicago, charging Krueger with a violation of certain provisions of the Lottery Policy act. He was found guilty and was sentenced to pay a fine of $500 and costs and to be confined in the house of correction for three months. It was contended in the Supreme Court that the Municipal Court was without constitutional authority and jurisdiction to try him on an information. In affirming the judgment our Supreme Court said (p. 358): “This question has been decided adversely to plaintiff in error’s contention in People v. Glowacki, 236 Ill. 612.”

The offense of petit larceny is by statute (Sec. 168, Chap. 38) punishable by confinement in the county jail or to labor in the workhouse of the county, etc., not exceeding one year and by a fine not exceeding one hundred dollars. In People v. Russell, 245 Ill. 268, a woman was convicted of. petit larceny on an information filed in the Municipal Court of Chicago and she was sentenced to four months’ imprisonment in the house of correction and to pay a fine of one dollar. In the Supreme Court she asked that the judgment be reversed on the ground that petit larceny could be prosecuted only by indictment and that, therefore, the Municipal Court was without jurisdiction to try her. The Supreme Court in the majority opinion reversed the judgment on the grounds that where the punishment for an offense consists of fine and imprisonment (otherwise than in the penitentiary), and some additional penalty, the offender can be prosecuted only by indictment; that the smallest part of the punishment provided for petit larceny is the fine and imprisonment imposed by the court, and that there is an additional penalty in a case of larceny in that, under section 7 of division 2 of chapter 38 of onr statutes, the person convicted thereof “shall be deemed infamous” and suffers a loss of certain civil rights. The court in referring to the Glowacki case, supra, said (p. 273):

“It was held there that all violations of law could be prosecuted by information where the punishment was by fine alone, by imprisonment otherwise than in the penitentiary alone, or by either fine or such imprisonment or by both fine and • such imprisonment. This enumeration includes all the cases in which prosecutions may be carried on by information. ’ ’

The offense of pandering is not one as, under said section 7 of division 2 of chapter 38 of our statutes (as amended May 29, 1911), is declared to be an infamous offense, and the punishment prescribed by the respective statutes for the offenses of petit larceny and pandering is similar in that in both cases the punishment is both a fine and imprisonment otherwise than in the penitentiary.

In People v. Paul, 167 Ill. App. 557, a pandering case, one of the branch Appellate Courts of this district said:

“The jurisdiction of the Municipal Court in criminal prosecutions under the statute here involved was expressly recognized and upheld in People v. Braun, 246 Ill. 428, and People v. Jacobson, 247 Ill. 394.”

It is next contended by counsel that, while the record shows an information against plaintiff in error alone and that he alone was sentenced, the bill of exceptions incorporated in the record discloses the fact that two separate and distinct cases — the one against plaintiff in error and one against Ernest Pegano, also charged with the offense of pandering — were tried together and in this particular there was error. The bill of exceptions discloses that plaintiff in error and said Pegano were arraigned together; that counsel for plaintiff in error, at the time of such arraignment, appeared for both, and, in reply to an inquiry of the court, said: “The defendant, Lawrence Manganio,pleads not guilty. The other defendant, Ernest Pegano, also enters a plea of not guilty;” that immediately-prior to the examination of witnesses counsel moved to dismiss “these cases” on the sole ground of the lack of jurisdiction of the court to try the same on information; that at the conclusion of the People’s case, counsel moved the court to discharge Pegano on the ground that the evidence failed to show that he was in any way connected with “the case,” and that at the conclusion of all the evidence the court said: “With reference to Ernest Pegano, * * * I think * * * that there is not sufficient testimony to hold him, * * * and he will be discharged.” But it nowhere appears in the transcript that at any time or in any manner in the trial court counsel made any objection to the procedure, which he here for the first time contends constituted error. The present contention was therefore waived.

It is further contended by counsel that the finding and judgment are manifestly against the weight of the evidence. Suffice it to say that, after a review of the evidence, we are of the opinion that the contention is without merit.

The judgment of the Municipal Court of Chicago is affirmed. . ' r

Affirmed.


author: Mr. Justice Fitch

text:
    Anton Tadrowski, Defendant in Error, v. Thomas Burke, Plaintiff in Error.
    Gen. No. 16,646.

      Evidence — weight. Where there are but two witnesses on one side and four on the other as to material points in a case, it cannot be said that the verdict of a Jury in favor of the former is against the manifest weight of the evidence where the statements of thé two witnesses seem more probable than the statements of the opposing witnesses.
    Error to the Municipal Court of Chicago; the Hon. Fbederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Snite & McNeil, for plaintiff in error.
    Pease, Smietanka & Polkey, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

The defendant in error, hereinafter called the plaintiff, recovered judgment in the Municipal Court for $399 from the plaintiff in error, hereinafter called the defendant, for damages suffered by reason of a breach of contract involving the excavation of trenches for the construction of sewers in Exchange avenue and other streets in South Chicago. Several errors were assigned upon the record, but only one has been discussed, namely,- that the verdict is against the weight of the evidence. It appears from the evidence that the defendant, Burke, had a contract with the City of' Chicago for the laying of sewers in a system of streets, including Exchange avenue from Seventy-Ninth to Eighty-First street and three other side streets between Exchange avenue and Railroad avenue, a distance of a short block. Burke hired plaintiff to excavate the trenches for the sewers and to do the back-filling at the price of thirty cents per lineal foot. The evidence is conflicting as to whether this contract included the whole system or only that part which was to he built on Exchange avenue. According to the story of the plaintiff, in which he is corroborated by one of his workmen, plaintiff excavated first the block between Seventy-Ninth and Eightieth streets on Exchange avenue, which took him four or five days, and two or thr.ee weeks later excavated the block between Eightieth and Eighty-First streets on Exchange avenue; that he was then told by defendant’s foreman that the work was not ready for the back-filling and that the plaintiff would be notified when defendant was ready for that work to be done; that he received no such notification and, after finishing another contract, he returned to Exchange avenue and found others doing the work which he had contracted to do. According to the defendant’s story, the plaintiff was not employed to excavate for the whole system of sewers, but only that part which was to be built on Exchange avenue, about two blocks in length, and that even this work was not done according to the contract, but on the contrary, after working four or five days and excavating but one block and running a plow through the other block he, for some unexplained reason, quit work and never returned. As to the amount and character of the work done the defendant is corroborated by three witnesses, one of them his foreman, and the other two his nephews and employes. It further appears from the evidence that the work on Exchange avenue was more difficult than on the side streets, by reason of the fact that an old car track and a slag pavement had to be taken up on that street. None of the back-filling was done- by the plaintiff. The defendant claims that he sent word to the plaintiff when to come and finish his job, but that the plaintiff did not return, and did not finish the work. It was further shown that the reasonable cost of back-filling on Exchange avenue was ninety-six dollars, and that the reasonable cost of excavating and back-filling on the side streets was $135. These two stuns subtracted from $630, the contract price, is the amount of the verdict, $399.

Counsel for plaintiff in error insists that this court should reverse the judgment upon the theory that, as there were two witnesses on one side and four on the other as to the material points, (there being, as he claims, no elements of probability to turn the scale) the verdict is manifestly against the preponderance of the evidence. We cannot agree with this contention. In our opinion there are elements of probability in the story of the plaintiff and of improbability in the story of the defendant. Defendant and his witnesses give no reason whatever for the alleged action .of the plaintiff in quitting the work. Plaintiff’s story in this respect is reasonable and probable. The plaintiff testified to dates from memoranda made at the time. The defendant’s witnesses testified merely from general recollection. The story that the defendant sent word to the plaintiff to proceed is denied by the plaintiff, and is, in itself, indefinite, uncertain and rather improbable. The jury in the court below and the trial judge saw the witnesses and heard their testimony. In view of what has been stated above regarding the character of the several stories told by the witnesses, the element of personal observation of the witnesses upon the stand is important. Prom the fact that a motion for new trial was overruled by the trial judge we must assume that he agreed with the jury, that the two witnesses for the plaintiff were of greater credibility, and the story told by them more reasonable and probable than that of the defendant and his witnesses. Having these views, after a careful study of the evidence, we cannot say that the verdict is manifestly against the weight of the evidence.

The judgment of the Municipal Court will therefore be affirmed.

Affirmed!.