text:
    Henry S. Rowe, Administrator, etc., Appellant, v. Louis R. Phillips et al., Appellees.
    Gen. No. 6,665.
    1. Abatement and bevival, § 54

      —what is power of court on death of sole plaintiff. After the death of the plaintiff in the action in question and before a proper representative was in court, the court had no power to take any action in the case except such as would bring the representative before the court.
    2. Pleading, § 193*—when surplusage not ground for special demurrer. Surplusage, such as setting out irrelevant, immaterial and argumentative matter in a declaration, based on fraud and deceit, was not a ground for even a special demurrer.
    3. Pleading, § 367*—what questions cannot he raised hy motion to strike. Those matters which can be raised by demurrer, such as insufficiency in substance or form, cannot be raised by a motion to strike a pleading from the files.
    4. Pleading, § 225*—what new pleading, after sustaining of demurrer, cannot he filed. A party cannot be permitted, after a demurrer has been sustained to his pleading, to file another pleading in the same or substantially tlie same language, and which does not obviate the defect in the previous pleading.
    5. Fraud, § 78*—when declaration for fraud and deceit is defective. A count in a declaration in an action for fraud and deceit which failed to aver that the defendants knew the representations to be false was defective, and the defect was not cured by averments that the defendants either knew the representations to be false or that if they had exercised reasonable care they would have found out that they were false; but other counts in the declaration were held sufficient under stated qualifications and modifications of the general rule.
    6. Fraud, § 84*—when count in declaration for fraud and deceit in sale of corporate stock states cause of action. A count in a declaration in an action for fraud and deceit in the sale of corporate stock stated a cause of action, which alleged in substance that plaintiff to the knowledge of defendants was 65 years old, infirm and illiterate and without experience in buying or selling stock; that one defendant was a banker in plaintiff’s small town and had intimate knowledge of plaintiff’s affairs and was her confidential adviser; that such defendant entered into a conspiracy with the other defendant to swindle her; that both individuals represented that the corporate stock of $1,000,000 was fully paid up and that the stock was listed on the stock exchange and paid dividends; that the banker spoke highly of the other individual and the latter made like representations as to the corporation; that the plaintiff believed the banker’s statements because of her confidential relations with him, and believed the other defendant’s statements because of what the banker had said; that the representations were all untrue and known by each to have been untrue and that the stock was worthless; that after discovery of the fraud plaintiff tried to induce defendants to take the stock off her hands and tendered back the certificates.
    7. Fraud, § 22

      —when puffing corporate stock not permitted. The rule that one selling property has a right to puff its value and that the purchaser will rely on such puffing at his own risk has no application to an aged and illiterate farmer woman who alleged that she was defrauded by her banker who was her confidential adviser, and by a ‘person whom such banker highly recommended, and who conspired together to defraud her by inducing her to purchase worthless corporate stock.
    8. Fraud, § 22*—when puffing not permitted. Puffing is permitted, but not where a fiduciary relation exists between the parties.
    9. Fraud, § 70*—lohen count in declaration for fraud and deceit not one in assumpsit. Allegations in one of a number of counts in an action for fraud and deceit in the sale of corporate stock, that two of the defendants had promised plaintiff to reimburse her, did not make the count» one in assumpsit which vitiated the whole declaration, as all that such averment meant was that the alleged promise was one of the inducements held out for the purpose of deceiving plaintiff and inducing her to invest in the worthless stock.
    10. Fraud, § 76*—when declaration must aver that representations were false. Review of authorities as to the modifications or qualifications of the rule that in an action for fraud and deceit the declaration must aver that the representations were false; and various counts in the declaration in question held sufficient.
    Appeal from the Circuit Court of Marshall county; the Hon. T. N. Greek, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded.
    Opinion filed July 18, 1919.
    F. W. Potter and Barnes, Magoon & Black, for appellant.

      Frank J. Quinn, Henry E. Jacobs and Daily, Miller, McCormick & Radley, for appellees Louis R. Phillips and L. Edgar Jerome.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

This is an action for fraud and deceit begun September 19, 1916,- by Mrs. Ellen Rowe against Loúis R. Phillips, L. Edgar Jerome and the Western Bankers Trust Company, hereinafter called the Trust Company, to recover damages for the sale by defendants to plaintiff, for $5,000, of preferred and common stock of said Trust Company alleged to be worthless. Phillips and the Trust Company were served with summons shortly thereafter. J eróme seems never* to have been served, but at some time after the first declaration had been disposed of he appeared and pleaded. On September 20, 1916, the original declaration was filed. It contained four counts. Phillips filed a special demurrer thereto on October 2,1916. The Trust Company filed a substantial duplicate of that demurrer on October 18, 1916. These demurrers were sustained as to the second, third and fourth counts, and overruled as to the first count, and plaintiff elected to abide by said second, third and fourth counts, and obtained leave to amend the first count, and to add three additional counts. On January 16, 1917, plaintiff filed an amended first count, and first, second and third additional counts to the declaration. Thereafter, the defendants (and whether that included Jerome, who had not been served, the record does not disclose) moved to strike said amended first count, and said first, second and third additional counts from the files. The Trust Company filed a like motion, and also a demurrer to the said pleading. On October 26, 1917, the court struck said last-named counts from the files. The plaintiff then took leave to amend the first count and to file additional counts. On November 1, 1917, the plaintiff filed another amended first count, and four additional counts. On November 27, 1917, Phillips and Jerome filed a joint plea of not guilty, and a replication was attached thereto. Thereupon, the Trust Company moved to strike the amended additional counts from the files, and that motion was denied. On December 12, 1917, the Trust Company filed a plea of not guilty. On January 14, 1918, a special plea was filed of accord and satisfaction since the last term of court. The body of the plea purports to be by “the undersigned defendants.” It is signed by Jerome and by Frank J. Quinn, attorney, and Quinn Seems to have been attorney for both Phillips and Jerome, but not for the Trust Company. To this special plea plaintiff filed five special replications on January 18, 1918. Jerome filed a general and special demurrer to each of these replications on January 18, 1918, and the demurrer was sustained to the first, fourth and fifth special replications and was overruled as to the second and third special replications. On October 8, 1918, Phillips and Jerome entered a motion for leave to withdraw the plea to the last amended declaration, and to demur thereto. That motion was granted on October 8, 1918. No demurrer by said defendants seems to have been filed, but the case was treated as if such a demurrer had been filed by Phillips and Jerome, and on October 11,1918, the demurrer was sustained, and plaintiff elected to stand by the declaration. Thereupon, on the same day, the death of plaintiff was suggested, and Henry S. Rowe, administrator of her estate, was substituted as plaintiff, and a judgment in bar was immediately entered against him, the judgment being in favor of “the defendant” and that he recover “his” costs in due course of administration. The administrator prayed and perfected this appeal. Apparently the Trust Company was no party to that final demurrer, and it did not ask to withdraw its plea of the general issue. The plaintiff so understood it, for his appeal bond runs only to Phillips and Jerome. The Trust Company has not appeared in this court, the only briefs filed for defendants being for Phillips and Jerome. Apparently the case is pending against the Trust Company in the court below. We assume that the rights and liabilities of the Trust Company are not involved in this appeal, and therefore they will not be discussed.

The proceedings of the last day were exceedingly informal. The plaintiff was dead, and the demurrer was sustained to the declaration when there was no plaintiff before the court, if the clerk’s record is correctly written, as we assume that it is. After the death of plaintiff, and before a proper representative of plaintiff was in court, the court had no power to take any action in the case except such as would bring such representative before the court. Leave was given to withdraw “the plea” when there were two pleas by at least one of the personal defendants, namely, the general issue and the special plea of accord and satisfaction. To this latter plea there were two replications standing, which had been held good upon demurrer. It was exceedingly informal, to say the least, to permit the withdrawal of that special plea, if such withdrawal was intended, while these replications stood to it. The judgment in form is in favor of one defendant only. If it was meant to be in favor of both Phillips and Jerome, plaintiff was entitled to have that appear, and to have the judgment show positively whose rights were fixed thereby.

Most of the demurrers in this record were exceedingly lengthy and were made so by setting out at great length many quotations from the declaration of matter which was alleged to be irrelevant, immaterial, and argumentative. Matter of that kind does not make a count defective, if enough remains to make a good count. Surplusage is not a ground for even a special demurrer: 1 Chitty’s PI. 229; Freeland v. McCullough, 1 Denio (N. Y.) 414, on p. 427; 31 Cyc. 287. But other proper grounds of demurrer were stated therein.

The motion to strike the second declaration from the files set "out much of the same matter and was based on many of the same grounds. A pleading may not be stricken from the files because of any want of formality which would make it obnoxious to a demurrer. ■ Those matters which can be raised by demurrer cannot be raised by a motion to strike a pleading from the files. “A motion to strike a pleading from the files because insufficient in substance or form is contrary to all rules of pleading and practice, and the only mode of taking advantage of insufficiency is by demurrer.” Firestone Tire & Rubber Co. v. Ginsburg, 285 El. 132, and cases there cited. Such action tends to deprive parties litigant of the right of amendment. Pleadings may be stricken from the files under certain circumstances, as for instance, if they are filed without leave of court where such leave is necessary, or where they are filed in violation of some order of court. We take it also that a pleading may be stricken from the files if it is a duplicate of a pleading which has previously been disposed of by demurrer. A party cannot be permitted, after a demurrer has been sustained to his pleading, to file another pleading in the same or substantially the same language, and which does not obviate the defect in the previous pleading. Howlett v. Mills, 22 Ill. 341; Parks v. Holmes, 22 Ill. 522; McClure v. Williams, 65 Ill. 390; Bemis v. Homer, 145 Ill. 567; Grand Lodge v. Randolph, 186 Ill. 89.

As to the portions of the respective counts which were quoted and set out in detail in the respective demurrers and motions to strike from the files, we ought further to say that most of those matters were properly included in the declaration and were germane to the plaintiff’s cause of action, when considered in connection with other portions of said respective counts. Said portions of said counts so set out in the demurrers and motions to strike from thé files did not justify the rulings of the court thereon.

In an action for fraud and deceit, the general rule is stated to be that it is not enough to allege that the representations by which the fraud and deceit were accomplished were false, but it must also be alleged that the defendants who made them knew them to be false. Cantwell v. Harding, 249 Ill. 354, and cases there cited. Many of the counts in these declarations do not aver that the defendants knew the representations to be false, but aver that they either knew them to be false or that if they had exercised reasonable care they would have found out that they were false. These averments are not sufficient in such an action. Wetzel v. Colson, 162 Ill. App. 86. For lack of a sufficient allegation of scienter, some of the counts in these three declarations are defective. The second original count contains a sufficient averment of scienter’as to Jerome, but Jerome did not appear in the case until long after a demurrer by the other defendants had been sustained to that count, and it seems to have been treated as not in the declaration as to defendant Jerome when he afterwards appeared. The first declaration contains no sufficient averment of scienter as to the defendants then before the court, within the general rule above stated.

The first additional count filed January 16, 1917, which was stricken from the files, in our opinion states a good case against Phillips and Jerome, the only defendants now before the court. It alleges the incorporation of the Trust Company and its employing Jerome as its agent to sell its capital stock. It states that plaintiff was then more than 65 years old; was without education; was barely able to read and write; had no experience in business or buying or selling stock in corporations; had nearly all her life followed the occupation of a farmer’s wife, on a farm in Marshall county, until about 5 years before that time, when she removed to the City of Henry with her husband because of their inability to continue farming on account of their age; and that she was at the time in question afflicted with failing eyesight, and on account of age was unable to hear with distinctness; and that all these facts concerning her disabilities were known to Phillips and Jerome before and at the time of these transactions. It is alleged that Phillips for more than 5 years last had been the cashier of the Henry National Bank doing business in the City of Henry; that Phillips had a large acquaintance with the citizens of Henry and vicinity and large opportunities to know their personal, financial and physical condition and affairs; that plaintiff and her husband had banked with that bank for more than 5 years and had disclosed to Phillips intimately plaintiff’s personal, financial and physical condition and affairs; and that plaintiff during that time had had many business transactions with Phillips wherein she advised with Phillips as her counselor in matters relating to finance, and had had Phillips draw up and pass on many written instruments growing out of her transactions, and that thereby there had grown up between plaintiff and Phillips a relation of trust and confidence, and plaintiff relied upon and trusted Phillips implicitly in her financial affairs; and Phillips transacted for her through said bank a large part of her personal business ; and that Phillips knew during all said time that a confidential relation existed between plaintiff and Phillips and that she relied upon him for advice in business matters. That count alleged that Jerome and Phillips entered into an understanding and conspiracy to swindle the plaintiff and deprive her of $5,000 in the manner thereinafter related. That count alleged that the Trust Company at that time had no business standing or rating or financial recognition, but was only a stock-jobbing and stock-selling concovn, having practically no assets and substantially no business; that on, to wit, June 15, 1914, Phillips and Jerome came to the home of plaintiff at Henry, and Phillips represented to plaintiff that Jerome was a reliable and honest business man; that he, Phillips, had investigated the matter of the Trust Company, and it was incorporated, and duly organized, with a capital stock of $1,000,000, practically all of which was paid up; that it was a growing* concern having* a large and profitable business and branch offices in several of the leading* cities of the United States, and was regularly paying annual or semiannual dividends out of its earnings on its capital stock; that its capital stock was listed and had a recognized market value on the stock exchanges of Chicago, New York, and other places; that its stock was a safe, substantial and conservative investment, and" its stock already issued was invested in high-grade, gilt-edged, interest-bearing investments; that its stock was a safe, substantial and conservative investment and had paid dividends out of its earnings on said capital stock at 6 per cent or better for a number of years before that time and would, in the opinion of Phillips, continue so to do; that Phillips had known Jerome for a long* time and he was a reputable, responsible and well-known business man of financial standing and personal character and probity, and plaintiff could rely upon all statements made to her by Jerome with relation to said Trust Company and its stock; that he, Phillips, had such personal faith in said Trust Company that he himself had already invested $9,000 of his own money in its capital stock. The count further averred that Jerome then and there made similar representations to plaintiff and told plaintiff that the Trust Company was a Banking and Trust Company doing business under the laws of Delaware, with a capital of $1,000^000, nearly all paid up; that it was a growing concern, having a large business; that its capital stock was a safe and conservative investment and would pay dividends out of its earnings on its capital stock in excess of 6 per cent per annum; that said stock had paid dividends for a number of years before at said rate, and that in Jerome’s judgment it would continue to do so. The count repeated the other representations alleged to have been made by Phillips, and said they also were made by Jerome, and that Jerome told plaintiff that Phillips had invested $9,000 of his own money in said capital stock, and that plaintiff could rely on any statement made in relation to said matter by Phillips, and also all those made by Jerome, as being absolutely true. The count then alleged that Phillips then further stated that he had investigated the standing and financial business of said Trust Company and personally knew that the statements he and Jerome had made to plaintiff were true of his own knowledge; that they thereupon solicited her to invest in the stock of said Trust Company such funds as she then had and at future times might have to spare, and that she could rely upon said investment as being safe, conservative and proper. The count then alleged that plaintiff believed these statements because of the relation of trust and confidence existing between herself and her said banker, Phillips, and because of what Phillips and Jerome had said to her concerning the same; and that thereupon she subscribed for certain specified shares of the preferred stock and received certain specified shares of the common stock, and paid the Trust Company $5,000' therefor, and received a certificate for said preferred stock and another certificate for said common stock. The count then alleged that at the time said representations were made by said Phillips and Jerome (except the statement of the organization of, the Trust Company as a corporation under the laws of Delaware with authority to issue $1,000,000 of preferred and common stock) said representations were all untrue and were known by said Phillips and Jerome at said time and by each of them to be untrue, and that they were made for the sole purpose of inducing plaintiff to invest her money in said stock in order that the Trust Company and Phillips and Jerome might profit by a division and partition of the proceeds of said sale between themselves. The count also specifically alleged that said stock was worthless at the time she subscribed and paid for it, and had no value, and that the Trust Company was not an established and going banking Trust Company, or concern; that it did not then have and had not prior to that time maintained offices in the principal cities of the United States; that its stock had never been listed on the stock exchange of either New York or Chicago; that it never had any market value at all; and that it had never paid any dividends out of the earnings of its capital stock; that its capital stock had no market value, and was not a recognized and standard investment, and was without value; that the Trust Company had no assets of any kind in excess of its liabilities; that Phillips had not investigated, it or its business and financial condition thoroughly; and that Phillips had not invested therein $9,000; that its capital stock was not at that time invested in gilt-edged, interest-bearing securities; that the only dividends the Trust Company ever paid were paid in violation of law out of funds received by it on the sale of its capital stock; and that the capital stock so delivered to the plaintiff, both preferred and common, has remained worthless from thence hitherto. The count alleged that said representations by Phillips and Jerome to her were made solely and only for the purpose of unloading on and selling to plaintiff said worthless stock, and that the Trust Company and Phillips and Jerome divided among themselves the proceeds of the sale of said stock; that plaintiff was not advised as to the proportions of said division, but believed that Phillips received 20 per cent in payment for his services and for said false representations made her to induce her to purchase the stock, and to compensate Phillips for using the trust and confidence plaintiff had in him. The count then alleged that when plaintiff discovered the fraud that had been perpetrated upon her, from that time on she had tried to induce Phillips and Jerome to refund her money, and tried to induce Phillips and Jerome to take the stock off her hands; and that she had tendered back to the Trust Company and to Phillips said certificates of stock and demanded that they pay her back her money, and they had each refused; and that she did not know where Jerome was, and was unable to make the tender to him, and that she therefore brought said stock into court to be taken by the Trust Company or Jerome or Phillips upon the payment of said sum to her.

It is said that one selling property has a right to puff its value, and that the purchaser will rely on such puffing at bis own risk and peril, and that the statements set out in this count are merely puffing statements. It may very well be that that would be true if plaintiff was a stock broker or banker in the City of Chicago, accustomed to dealing in such transactions, or otherwise capable of taking proper care of her own interests; but in view of the allegations as to plaintiff’s age, lack of education, secluded life on the farm, defective eyesight and hearing, all alleged to have been known to Phillips and Jerome when they made the statements, and the fact that her financial transactions had generally been conducted for several years through Phillips and that he had been trusted by her to advise her concerning the same, and to draw papers for her, and that a relation of trust and confidence existed between plaintiff and Phillips, and that Phillips knew that fact when he made these statements, we conclude that this rule as to puffing ought not to apply here. All these defects of education, and of sight and hearing are alleged to have been entirely known to Phillips and Jerome when they made these representations to her. To permit such representations by them to her to be treated as mere puffing between parties mentally and physically able to compete with each other, would be to place all ignorant and aged and infirm people at the mercy of unscrupulous and ingenious vendors of worthless property. The case of Van Horn v. Keenan, 28 Ill. 445, relied upon by appellees on this question of puffing, recognizes weakness of mind, inability to guard against imposition or to resist importunity or undue influence, the infirmities of extreme old age, and the like, as circumstances justifying courts in relieving a party from the consequences of his yielding to fraudulent designs; and it holds a party to a losing bargain only when he is “capable of taking care of his own interests.” To the same effect is Miller v. Craig, 36 Ill. 109. In Nolte v. Reichelm, 96 Ill. 425, an action for deceit, the fact that the plaintiff was unable to read English and that defendant was his intimate friend and had so transacted business for plaintiff theretofore as to reasonably justify plaintiff in relying upon him, and that plaintiff did rely upon defendant, was held to relieve plaintiff from the duty of personally examining into the truth of the representations. In Hank v. Brownell, 120 Ill. 161, puffing is permitted, but not where a fiduciary relation exists between the parties. The court therefore erred in striking from the files the first additional count filed January 16, 1917. Said count so stricken, and the other stricken counts, and the rulings of the court thereon, were duly preserved by a bill of exceptions. Witteman Co. v. Coeke, 200 Ill. App. 108. There is at least one count in this declaration which omits all averments of the old age of the plaintiff and her infirmities, and her ignorance, and her reliance upon Phillips, and we assume as to that count the representations were properly treated as mere puffing.

One count in the declaration alleged among the fraudulent statements that Jerome and Phillips stated to plaintiff that they would at any time reimburse her for any loss or damage she would sustain because of purchasing such capital stock through them. It is argued that this pleads a promise by Phillips and Jerome to plaintiff and that that count is in assumpsit, and that as plaintiff had not obtained any leave to change the form of action from case to assumpsit, the whole declaration was vitiated. We are of the opinion that this is an incorrect view of the purpose for which that allegation was inserted in the count referred to. It is not a count whereby plaintiff "seeks to recover from Phillips and Jerome upon that promise. All that averment in that count means is that that promise was one of the representations and inducements held out for the purpose of deceiving plaintiff and inducing her to invest her money in this worthless stock.

But the rule that in an action for fraud and deceit the declaration must aver that the defendant knew that his representations were false, has been frequently qualified or modified or stated with a variation. Thus, in Case v. Ayers, 65 Ill. 142, an action for deceit, the court cited with approval Stone v. Denny, 4 Metc. (Mass.) 151, as holding that fraud will be inferred when a party makes a representation as to which he has no knowledge or information and no grounds for expressing his- belief.- In Borders v. Kattleman, 142 Ill. 96, the court said: “Nor is it important that it should be affirmatively found that the untrue representations should have in fact been known to appellant to be false. It is well settled that it is immaterial whether a party misrepresenting a material fact knows it to be false, or makes the assertion of the fact without knowing it to be true, for the affirmation of what one does not know to be true is unjustifiable, andTIF another act upon the faith of it, he who induced the action must suffer, and not the other. Story’s Eq. Jur. sec. 193; 2 Pomeroy’s Eq. sec. 877; Bigelow on the Law of Fraud, 410 et seq.; Cooley on Torts (2nd Ed.), 582; Thompson v. Lee, 3l Ala. 292; Indianapolis, P. & C. Railroad Co. v. Tyng, 63 N. Y. 653; Allen v. Hart, 72 Ill. 104; Fauntleroy v. Wilcox, 80 Ill. 477; Hicks v. Stevens, 121 Ill. 186. So it has been held, that where the representations relate to facts which must be supposed to be within the defendant’s knowledge, proof of their falsity is a sufficient showing of his knowledge that they were false. (Cooley on Torts, 583; [Morse v. Dearborn] 109 Mass. 593; [Morgan v. Skiddy] 62 N. Y. 319.) And so, a party selling property is presumed to know whether the representations he affirmatively makes in respect to it are true or false. If he knows them to be false it is a positive fraud, and if he makes them without knowing them to be_ true,, for the purpose of inducing another to act upon them, it in equity amounts to fraud.” Miner v. Midbury, 6 Wis. 295; Smith v. Richards, 13 Pet. (U. S.) 26; McFerran v. Taylor, 3 Crunch (U. S.) 270; Glasscock v. Minor, 11 Mo. 655. In Coolidge v. Rhodes, 199 Ill. 24, it is said that it is not always necessary to charge a vendor with fraud that he should know his statement to be false, if he has no good and reasonable ground to believe it to bejtrue. añini^Be™conseqñences are the same to the vendee as if he had such knowledge. True, that was a cause in equity, but the same doctrine has been stated in "actions at law. In Miller v. John, 208 Ill. 173, an action for fraud and deceit, the court held that an instruction was properly given which said that if a person recklessly makes false representations of a matter abouFwhich he has no Ynowledge^for the fraudulent purpose of inducing "another to rely upon his statements and to make a contract or to do an act to the prejudice of such person who does rely and act upon such representations, suffering injury thereby, the party making the representations is legally liable. In Smith, v. Hoffman, 122 Ill. App. 198, this court in a case of fraud and deceit where defendant had made statements that certain facts were true within his own knowledge, whereas he did not know those facts,"altbóugh he may have believed them, the court held that it was a fraud for him to make those representations when he knew nothing about them; and that it was a falsehood for him to say that he knew the facts referred to; and that it was an imposition upon the plaintiff for him to state as a fact within Ms own knowledge, that of which he had no knowledge. In Ames v. Thren, 125 Ill. App. 312, the rule was stated by this court that to sustain an action for fraud and deceit it must be shown that the representations made were false and were known to be false by the party making them, or that they were representations of facts which the party

claimed to know the truth about, when in fact he had no knowledge whatever about the subject. In Herman v. Foster & Reynolds Co., 185 Ill. App. 97, the court held that making a representation to influence the conduct of the person to whom it is made, carries with it an assurance, necessarily implied from the situation, of the belief of the party making it in the truth of the affirmation; and that he takes it upon himself to warrant his own belief of the truth of that which he asserts; and if he makes a representation which he neither knows nor cares whether it is true or not, he can have no real belief in the truth of what he asserts, and is justly guilty of deception, and that the rule that one who makes a representation, not knowing whether it is true or false, or caring what the fact may be, and makes it recklessly, paying no heed to the injury which" may're suit,' commits a fraud for which an action for deceit will lie, is not an exception to but an application of the principle that the false representation must have been knowingly made with intent to deceive. In NationaÍ Bank of Pawnee v. Hamilton, 202 Ill. App. 516, an action for fraud and deceit, it is said that if one asserts a thing to be true of his own knowledge, when he does not in fact know whether it is true or not, his statement that he knows it to be true of his own knowledge is false; that if a person makes a positive statement that a thing susceptible of knowledge is true, it is implied that he knows it to be true of his own knowledge, and if he has no such knowledge, he is guilty of fraud. ' Under these qualifications of the rule some other counts here under consideration appear to be sufficient. The second original count alleged that the representations made by Phillips and Jerome were untrue and were known to be untrue by Phillips and Jerome, or if hot known to be untrue by Phillips, they might have been known to him to be untrue if he had made a reasonable investigation with relation thereto; and that he made such representations recklessly, wantonly, and without knowledge of their truth, for the purpose of inducing plaintiff to invest her money in said worthless stock in order that he might profit by the sale thereof. The third additional count filed January 16, 1917, charged that the representations in that count to have been made to plaintiff by Phillips and by Jerome were recklessly made and were made without knowlege of their truth or of the truth of any ' or either of them by either said Jerome or said Phillips. This seems to comply with the modified rule above stated. The firU'amended additionahcount filed November 1, 1917, which made no allegation of plaintiff’s ignorance, debility and trust in Phillips, and therefore permitted puffing, charged that the statements therein alleged to have been made to plaintiff by Jerome and by Phillips were known by Jerome and by Phillips to be wholly untrue; and that they were wholly untrue; and that neither Jerome nor Phillips had ever made any investigation of said Trust Company sufficient to disclose its true worth or condition, or the value of its capital stock; and that said statements were made fraudulently, purposely and recklessly to plaintiff by said Jerome and Phillips for the purpose that she should rely upon them and believe the same, and should thereby be induced to purchase said capital stock of said Trust Company. This seems to state a case under the qualified rule above stated.

The fourth additional count filed November 1, 1917, which stated plaintiff’s disabilities very slightly, set up some further statements alleged to have been made by Phillips and Jerome to plaintiff not set out in the count we have stated in full. It was therein averred that they told her that Phillips had picked out this investment in said capital stock for her as a special favor and as especially choice, and as an unusual opportunity and advantage for an old lady to place her funds where Phillips knew they would be perfectly and absolutely safe, as the result of his personal investigation into the affairs of the Trust Company and the knowledge of the same acquired by him; and that count alleged that said representations and statements so made to her by Phillips and Jerome were wholly untrue and were made fraudulently, purposely and recklessly to plaintiff by Phillips and Jerome for the purpose of defrauding and cheating her; and that Phillips and Jerome knew that said statements and each and every of them were wholly untrue. This count also states a cause of action.

There are other counts in the three declarations before the court which will be found to state a cause of action under the principles hereinabove stated, but the court, below can make the proper application without our discussing them in detail. Other errors outside of the pleadings are assigned and argued earnestly by counsel for plaintiff, but we deem it unnecessary to discuss them. The judgment is reversed and the cause is remanded for further proceedings in harmony with this opinion.

Reversed and remanded.

Mr. Presiding Justice Niehaus took no part.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    Wesley S. Campbell, Plaintiff in Error, v. The Masonic Chronicler Publishing Company et al., Defendants in Error.
    Gen. No. 24,537.
    1. Libel and slander, § 27

      —when statement charging promotion of clandestine masonry is libelous per se. A published statement was libelous per se, which was headed “Arrest Clandestine Promoters,” and stated that clandestine masonry received a severe shock when detectives arrested six men at a given address, as the result of an advertisement inviting men to become members of the masonic fraternity, and that four of them were released, but plaintiff was being held on a charge of disorderly conduct, and the other was charged with obtaining money under false pretenses, and that according to the police those answering the advertisement were told they could obtain initiation for $15, and that investigations being made were expected to result in the location of witnesses who had been victims of the clandestine promoters.
    2. Libel and slander, § 27*—when statement charging plaintiff with being impostor is libelous per se. A published statement was libelous per se, which was alleged to have been spoken of concerning plaintiff, and was headed “Arrest of Two Imposters,” and stated that as the result of an advertisement requesting honest and upright men who desired to become members of the masonic fraternity to call at a certain number, two men occupying apartments at that number were arrested on a charge of disorderly conduct, and that the brethren should remember that these confidence men were looking for something good for little or no money, and that it remained to be seen whether the public attorneys intended to rid the community of these impostors or to turn them loose to prey upon the unsophisticated and ignorant, and that it was usually a hard matter to convict these scoundrels on account of the mental and moral character of the victims. >
    3. Libel and slander, § 83

      —when action not barred by limitations. An amended declaration as amended, filed in a libel suit after the statute of limitations had run, was not barred on the ground that the original declaration stated no cause of action because plaintiff was not connected with the libelous articles by innuendos, where, although no such connection was made, the statements which were set up in hcec verba in the declaration and in the amendments were libelous per se, and it was alleged that the statements contained therein were false, and that they were spoken of and concerning plaintiff.
    4. Libel and slander, § 96*-—when innuendo not necessary. No innuendo is necessary where the words are libelous per se.

    5. Libel and slander, § 104*—when plea of justification is insuffldent. A plea of justification in a libel suit, attempting to justify in its entirety a libel charging that plaintiff was a clandestine masonry promoter, and which set up facts justifying that charge, and also charged that plaintiff was a crook, a confidence man, a lawbreaker, an impostor and a scoundrel, was insufficient because it failed to state facts with particular circumstances which would show the truth of the latter charges.
    6. Libel and slander, § 104*—rules for framing plea of justification. Rules as to the framing of a plea of justification in libel stated.
    Error to the Circuit Court of Cook county; the Hon. Frank J. Johnston, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed October 10, 1919.
    G-. A. Buresh, for plaintiff in error.

      Beach & Beach, for defendants in error.

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

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

   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The plaintiff in error seeks to reverse a judgment entered by the trial court upon overruling the demurrers of plaintiff in error (who was plaintiff below) to special pleas of the statute of limitations and justification interposed by the defendants to an amended declaration as amended which charged the publication by defendants in error of a libel. Plaintiff elected to stand by his demurrers and refusing to plead further, judgment was entered in bar of the action and for costs.

The original declaration was in four counts, each of which charged the publication by defendants on the 7th of May, 1910, of the following items:

“Arrest Clandestine Promoters.

“Clandestine masonry received a severe shock Sunday, May 1, when detectives from Assistant Chief Schuettler’s office arrested six men at 2001 Michigan Avenue.

“The raid was the result of an advertisement which appeared in an afternoon newspaper, inviting men to become members of the Masonic fraternity.

“Four of the six who were arrested were released,

W. S. Campbell is being held on a charge of disorderly conduct, and John'F. Eichin was charged with obtaining money under false pretenses. The cases against these two men were continued for ten days, when they appeared in court Monday.

“According to the police, the men who answered the advertisements were told that they could obtain initiation into the fraternity for $15.

“Investigations now being made are expected to result in the location of a number of witnesses who have been victims of the clandestine promoters.”

“Arrest of Two Impostors.

“Considerable flurry among Masons was occasioned during the last week on account of an advertisement that appeared in one of the dailies. The advertisement requested ‘honest and upright men who desire to become members of the “Masonic Fraternity” ’ to call at a certain street number. Later, this was accentuated by the arrest of two men occupying apartments at that number on the charge of disorderly conduct.

“As a result of all this, a number of well meaning brethren have written the Masonic Chronicler regarding it.

“The brethren should remember that these confidence men are not victimizing Masons. They are getting their money from men who are looking for something good for little or no money. The Masons of this city are paying taxes to support a police department and other officials whose duty it is to arrest and convict confidence men and crooks. It would seem that the police department is doing its full duty in the premises and it now remains to be seen whether attorneys who are drawing public money to prosecute lawbreakers intend to earn their salaries and rid the community of these imposters, or to turn .them loose to prey upon the unsophisticated and ignorant.

“It is usually a hard matter to convict these scoundrels on account of the mental and moral character of the victims, but a vigorous prosecution of them would materially help matters.”

The pleas of the statute of limitations were based upon the theory, first, that the original declaration did not state a cause of action; second, that the cause of action stated in the amended declaration, as amended, was another and different cause of action than stated in the original declaration. A demurrer interposed to the original declaration was overruled and the defendants filed pleas to it. In both declarations the written articles complained of were set up in hcec verba and were the same.

While it is true, as defendants in error point out, that in the original declaration the plaintiff was not connected with the libelous articles by innuendoes, nevertheless, the published statements were libelous, per se, and in each count of the original declaration it was alleged that the statements contained therein were false, and that they were spoken of and concerning the plaintiff. No innuendo is necessary where the words are libelous per se. Elam v. Badger, 23 Ill. 498.

We are inclined to think that the original declaration stated a cause of action, and that substantially it is the same cause of action as stated in the amended declaration as amended. The demurrer of plaintiff to defendants’ pleas of the statute of limitations should have been sustained.

The sixth plea of the defendants attempted to justify the publication of the alleged libel in its entirety. It specifically alleged the truth of each statement of fact set up in the alleged libelous articles as applied to the plaintiff, and alleged further facts, which, if true, showed that a supposed organization of Masons to which plaintiff claimed to belong was clandestine and fraudulent; that there was no such organization in the United States of America; that plaintiff had falsely advertised and made representations as alleged in the items published; that by reason of said advertisement, representations and pretenses, plaintiff was a “clandestine promoter.”

It further alleged that plaintiff was a crook, a confidence man, a. lawbreaker, an impostor and a scoundrel.

Plaintiff admits that the plea sets up facts justifying the use of the term “clandestine promoter,” but says as it also purports to justify the use of the terms, impostor, confidence man, crook, scoundrel, etc., it should also state facts with particular circumstances, which would show the truth of these charges against him. It may be that it was the intention of the pleader to allege that by reason of the facts set forth, plaintiff was a crook, scoundrel, impostor, etc., as well as “clandestine promoter,” but the plea does not so state.

The plea as framed would, we think, require plaintiff to go to trial without knowledge of the specific facts upon which defendant relies to justify the whole of the alleged libel. In Chitty on Pleading (7th Ed.) p. 645, the rules as to framing a plea of justification are stated:

“In framing a plea of justification of the truth, care must be taken to observe the following rules: first, it is necessary, although the libel contain a general imputation upon the plaintiff’s character, that the plea should state specific facts, showing in what particular instances and in what exact manner he has misconducted himself; secondly, the matters set up by way of justification should he strictly conformable with the slander laid in the declaration, and must be proved as laid, at least, in substance; and thirdly, if the matter of justification can be extended to the whole of the libel or slander, the plea should not be confined to part only, leaving the rest unjustified.”

These- rules seem to have been followed with some degree of strictness by the courts of Illinois, and it has even been stated that the plea of justification ought to state the charge against the plaintiff with the same precision as an indictment. Cooper v. Lawrence, 204 Ill. App. 261; Dowie v. Priddle, 216 Ill. 553.

There were other formal defects in the plea. Technically a plea of this kind is in the nature of confession and avoidance. It should be pleaded with precision and certainty. It should admit the publication of the alleged libel. It should specifically set forth the facts relied on by the pleader, and state that the alleged libel is thereby justified. Encyc. PI. & Prac. vol. 13, pages 80-83.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Yellow Cab Company, Appellant, v. Charles Ensler, Appellee.
    Gen. No. 24,560.
    1. Trade-masks and trade names, § 2

      —when taxicab device is not valid trade-mark. Under Hurd’s Rev. St. ch. 140, p. 2935 (J. & A. H 11391), defining trade-marks, a device used by a taxicab service corporation did not relate to trade in articles of commerce or their containers, and was therefore not a valid trade-mark.
    2. Trade-marks and trade names, § 26*—when taxicab company cannot enjoin use of similar cab device. A taxicab service corporation which had adopted and for many years used a Y-shaped figure in a circle as its monogram, and which although registered with the Secretary of State of Illinois, was not a valid trade-mark, was not entitled to an injunction restraining a competitor from using the same device, under the theory of unfair competition, where such monogram had prior to its adoption by complainant been adopted, substantially, as the insignia of the City of Chicago, for its use, or the use of any individual or company caring to use it; and the question whether or not the ordinance adopting such device by the city was valid or not was immaterial.
    3. Trade-marks and trade names, § 26*—what evidence necessary to entitle taxicab company to enjoin use of similar cab device. Although the principle underlying the law of unfair competition that one may not pass off his goods as the goods of another and that if he does so it is a fraud not alone upon his competitor but upon the public as well applied as between competing taxicab service merchants, complainant was held not entitled to an injunction to restrain the intentional copying of its cab device, in the absence of evidence that any person had been actually deceived by the acts complained of.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Poell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 10, 1919.
    D’Ancona & Pflaum, for appellant; Frank F. Reed and Edward S. Rogers, of counsel.
    Musgrave, Oppbnheim & Lee, for appellee.

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

   Mr. Presiding Justice Matchett

delivered the • opinion of the court.

This is an appeal from a decree which dismissed complainant’s hill for want of equity.

The bill charged that defendant infringed complainant’s registered trade-mark, and further set up facts tending to show that defendant was guilty of unfair competition. The evidence was taken in the form of affidavits submitted by the parties, with exhibits attached thereto, and a stipulation as to certain undisputed facts. Indeed there is little dispute as to any material fact in the case.

The complainant owns and for many years has operated in the City of Chicago a public taxicab service. It is incorporated under the name of the Yellow Cab Company. It has adopted a peculiar dress for its cabs, consisting of a yellow body and black tops, etc. It has also adopted an alleged trade-mark device which is placed npon the doors of its cabs. This device is described in the bill of complaint as, “consisting of the representation of a strap "and buckle in circular form, about six inches in diameter, appearing in gold leaf upon the side doors upon each of the taxicabs of said Yellow Cab Company of Illinois, with the telephone number of the company thereon, and in the centre of the circle a Y-like formation in white, with the words ‘Yellow Cab Co.’ appearing in three segments of the circle formed by the letter ‘Y’ in white, upon a black background * * * . ” It is alleged and admitted that this device was registered by the complainant with the Secretary of the State of Illinois and that this alleged trade-mark device through long years of use has come to be one of the marks or devices by which complainant’s taxicabs are identified.

The defendant is a member of an association known as the “Independent Taxi Owners Association.” Its members are likewise engaged in the business of furnishing public taxicab service in 'the City of Chicago. He began this business subsequently to the complainant, and with the full knowledge of the aforesaid facts in regard to complainant’s alleged trademark and its use. In December, 1917, he began operating a line of taxicabs known as the “Red Cab Service.” Instead of the yellow color which distinguishes complainant’s cabs, defendant adopted a bright red color. He adopted and used upon the doors of his cabs, again using the language of complainant, “a. device, consisting of the representation of a circle about six inches in diameter, in gold leaf background, ■with the words, ‘Red Cab Service’ appearing on the outer ring of the circle, and in the center of the circle a Y-like formation in red, with the letters ‘I T A ’ appearing in three segments of the circle formed by the letter ‘Y,’ and the letter ‘O’ appearing on the tail or lower end of the ‘Y.’ ” A facsimile production of each device in colors appears on the record.

We think appellant fairly states the situation when it says, it is evident that while difference in detail exists, the salient and noticeable features of complainant’s trade-mark device, the circle disc and “Y” are reproduced in the trade-mark device of defendant. Indeed, in every other detail it would seem the defendant endeavored to distinguish rather than imitate the device of complainant.

If complainant’s device is a valid trade-mark and the complainant obtained an exclusive property right in it by the registration thereof, we think it would be entitled to a decree. However, we think it is apparent from the statute, Hurd’s Rev. St. ch. 140, p. 2935 (J. & A. ft 11391), as well as decisions of the courts, that complainant’s device cannot be considered a trade-mark as applied to its business.

“Service is not trade in articles of commerce, and * * * trade-marks * * * must actually be upon articles of commerce or their containers.” Searchlight Gas Co. v. Prest-o-Lite Co., 215 Fed. 695.

See also Candee, Swan & Co. v. Deere & Co., 54 Ill. 439; Bolander v. Peterson, 136 Ill. 215; Diederich v. W. Schneider Wholesale Wine & Liquor Co., 195 Fed. 35. The bill, therefore, cannot be sustained on the theory that defendant was guilty of technical imitation of complainant’s trade-mark.

But although defendant’s monogram is not a technical trade-mark, nevertheless, upon sufficient proof, the good-will of its business would be entitled to protection from unfair competition such as is alleged in the bill. The fundamental principle, underlying the law of unfair competition, is that one may not pass off his goods as the goods of another. If he does so, it is a fraud, not alone upon his competitor but upon the public as well. The principle is broad enough to cover service of the kind which complainant gives, as well as goods. Each case must be decided upon the particular facts which the record shows. Coca-Cola Co. v. Koke Co. of America, 235 Fed. 408.

The bill in this case alleges that the defendant has “fraudulently and intentionally copied, imitated and simulated the said trade insignia and trade-mark device of your orator, and each' and all thereof so closely as to be calculated to and to actually deceive ordinary users and patrons of. your orator and the public generally.”

We do not think the proofs sustain these allegations. As the parties are competitors, operating in the same territory, it would seem proof of the deception of the public and patrons, as alleged, could have been easily proved, if true. The proofs do not show that any person has been actually deceived, as alleged. Each of the affiants, testifying for the complainant on this point says: “When I saw those red cabs bearing this device as I have described it, I thought and believed said device was the trade-mark device of the Yellow Cab Company,” but no one of them says he was deceived thereby so as to unwittingly become a patron of defendant. It is not said that any one of the affiants ever received or paid for service by the Bed Cab Company, thinking the service was that of complainant. Actual intentional fraud as alleged by the bill is not sustained by proofs.

Conceding complainant’s contention that proof of actual fraud is not necessary to establish unfair competition (Forster Mfg. Co. v. Cutter-Tower Co., 211 Mass. 219), that resemblance is presumed to be intentional and for the purpose of deception (Enoch Morgan’s Sons Co. v. Ward, 152 Fed. 690), that the law imposes upon competitors a duty not to imitate a rival’s goods or trade insignia (Moxie Co. v. Daaust, 206 Fed. 434), conceding these propositions as sustained by these authorities and others cited by complainant, we, nevertheless, think the complainant was not entitled to a decree for another and controlling reason.

It is alleged in the answer of the defendant, and is established by the proofs, that prior to the adoption of the Y-shaped figure in a circle by complainant as its monogram, the City of Chicago (in 1893) adopted it, substantially, as the insignia, of the city, for the use of the city and of any other individual or company caring to use the same; that its adoption was advertised and generally known to the citizens of Chicago and the people of the United States; that the city passed an ordinance adopting the device as “the municipal device for use by the varied unofficial interests of Chicago and its people”; that it was adopted and ever since has been used on the stationery of the 'city, and by its various departments and officials, including the mayor. That in conformity with that ordinance, various business associations, corporations and individuals adopted and used it, including the Chicago Association of Commerce,

Complainant says that the city had no authority under its charter to adopt such a device or enact such an ordinance; we do not think it necessary to discuss that question. Whether the ordinance is valid or invalid, the fact of its enactment lopg prior to the time when complainant began the use of and adopted this particular device, with the further fact that it became generally known and was quite generally acted upon by the city and various individuals and corporations, made it impossible, irrespective of whether the ordinance was valid or invalid, for complainant to get an exclusive property right in the device. It would have no more right to the exclusive use of this device and to protection from infringement of it than it would to the exclusive use of the name of the city itself. In the absence of proof of actual fraud by defendant, to permit complainant to appropriate to its exclusive use this monogram which has been so long used by the public generally would be to protect and not prevent unfair competition. 38 Cyc. 857.

The decree will be affirmed.

Affirmed.


author: Mr. Presiding Justice Matghett

text:
    Matthew Margolis, Appellant, v. United Dairy Company, Appellee.
    Gen. No. 24,621.
    1. Corporations, § 477

      —when corporation liable for slander. A corporation is apparently liable for an oral slander by its agent, when uttered within the scope of his employment and in the performance of his duties in the course of transacting the business of the corporation.
    2. Principal and agent, § 221*—When allegation in action against principal for act of servant is sufficient. Where a principal or master is liable for the conduct of one acting for him, it is sufficient for the pleader to allege that the act of the servant or agent of the principal is the act of the person himself.
    3. Libel and slander, § 90*—when declaration in action against corporation for slander is sufficient. In a declaration in slander against a corporation, the allegation that the slanderous words were spoken by the corporation necessarily implied that they were spoken by an agent or servant of the corporation, and that he spoke them while acting within the scope of his employment.
    Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed October 10, 1919.
    Rehearing denied October 21, 1919.
    McMahon, Gtraber & Edward, for appellant; Joseph F. Edward, of counsel.
    SoNNENSCHEIN, BeRKSON, LaUTMANN & LeYINSON, for appellee.

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

   Mr. Presiding Justice Matghett

delivered the opinion of the court.

The appellant, who was plaintiff below, filed an amended declaration, in which he set up, by way of inducement, that he had enjoyed the confidence, etc., of good and worthy citizens; that certain goods and chattels of the defendant had been feloniously stolen; that the plaintiff, at the time, etc., was about to engage in business, etc.; that on November 1, 1916, at the county of Cook, in a certain discourse which the defendant then and there had of and concerning the plaintiff, the defendant falsely and maliciously spoke certain defamatory words, “that is to say: ‘He (meaning plaintiff Margolis) robbed every customer’ (meaning customers of the United Dairy Company). * * * ‘He (meaning plaintiff Margolis) robbed the company’ (meaning the United Dairy Company). * * * ‘He (meaning the plaintiff Margolis) stole a large sum, etc.’” To this amended declaration, the defendant filed a general demurrer, which the court sustained, and plaintiff electing to stand by his declaration, judgment was entered against him for costs.

The question to be decided is whether this declaration was defective in substance. It has been suggested that it was defective in two respects: First, that a corporation is not liable to an action for oral slander ; and, secondly, assuming such liability, it failed to state material elements necessary to constitute a cause of action. While, so far as we are aware, the Supreme Court of Illinois has never passed on the question, much discussed in some other States, as to whether a corporation may be liable for uttering an oral slander, the Appellate Court for this district has indicated that it may be so held liable, although the particular declaration in that case was held insufficient. Rosenberg v. Underwriters Salvage Co., 190 Ill. App. 64. The opinion in that case was based upon and quotes at length from Cvc., vol. 31, p. 1581.

The more recent decisions in other States indicate two divergent views. Some cases drawing the distinction between oral and written defamation have held that only in cases where the corporation had previously authorized the utterance of the slander, or subsequently ratified it, when spoken by one within the scope of his employment, can it be held liable. Perhaps the weight of authority sustains the rule laid down in Buckeye Cotton Oil Co. v. Sloan, 250 Fed. 719. “The sound rule established by the greater weight of the more recent cases is that a corporation is liable for a slander by its agent, when uttered within the scope of his employment and in the performance of his duties in the course of transacting the business of the corporation.” The divergent views of the courts are set forth in Roemer v. Jacob Schmidt Brewing Co., 132 Minn. 399, 157 N. W. 640, L. R. A. 1916 E 771.

The real question, however, in the instant case appears to be one of proper pleading. The defendant insists and the plaintiff does not deny that it would be necessary upon trial for plaintiff to prove that the alleged slanderous words were spoken by some agent of the defendant corporation, acting within the scope of his employment and while performing the duties of his principal, but the defendant says that the declaration must state these facts expressly, while the plaintiff contends that the allegation that the slanderous words were spoken by the corporation necessarily implies that they were spoken by an agent or servant of the corporation, and that he spoke them while acting within the scope of his employment, etc. The position of the plaintiff seems to be that good pleading only requires that the facts should be pleaded according to their legal effect; that it is not necessary, and, indeed, would be contrary to the rules of good pleading, for plaintiff to state in his declaration the evidence upon which he relies.

We have examined the authorities cited by the defendant, but these authorities seem to discuss the matter as one of substantive rather than adjective law. The quotation from Cyc. in Rosenberg v. Under writers Salvage Co., supra, shows that it was so considered by the court in that case. This is also true of each of the other cases upon which appellee relies. International Text-Book Co. v. Heartt, 136 Fed. 133; Behre v. National Cash Register Co., 100 Ga. 213; Kane v. Boston Mut. Life Ins. Co., 200 Mass. 265; Southern Ice Co. v. Black, 136 Tenn. 391, 189 8. W. 861. On the other hand, plaintiff has cited many cases from different jurisdictions, and several from Illinois, which seem to hold that where a principal or master is liable for the conduct of one acting for him, it is sufficient for the pleader, as here, to allege that the act of the servant or agent of the principal is the act of the person himself. We think there can be no doubt that this is the general rule in actions of assumpsit, where a writing is declared upon. The Bank of the Metropolis v. Guttschlick, 14 Pet. (U. S.) 19. It has also been held proper in actions against the principal, on account of the fraud of his agent. Bennett v. Judson, 21 N. Y. 238. The same rule has been stated in Massachusetts, Livermore v. Herschell, 3 Pick. 33, where the court said: “So, generally, if A does an act at the command or request of B, it is the act of B, and may be so alleged in the pleading, according to the well-established rule that every act may and should be alleged according to its legal effect.” It was also held to be the rule in an action on the case for personal injuries in Chesapeake & O. Ry. Co. v. Thieman, 96 Ky. 507, where the court said, objection having been made that the petition did not state that an engine had been moved by the authorized agent of the defendant: “But that was rendered unnecessary by the comprehensive one, distinctly made, that defendant started and moved the engine upon and over plaintiff; in virtue of which it was competent to prove the act was done by its agent or servant.” In Libby, McNeill & Libby v. Scherman, 146 Ill. 540, the Supreme Court of Illinois in discussing a similar question, said:

“The allegations of the declaration, so far as this point is concerned, are in the form which has been universally recognized by the rules of common-law pleading as sufficient to charge a corporation with negligence. They are that the defendant, that is, the corporation itself, negligently-did "the acts, complained of, allegations which exclude, ex vi termini, the theory that they were performed by parties for whose conduct the defendant was not responsible.”

The same point is discussed in Mott v. Chicago & M. Elec. Ry. Co., 102 Ill. App. 412, where the court said: “A corporation, in a case like the present, can act only by its servants, and therefore an averment that the corporation performed an act is, as it seems to us, necessarily equivalent to saying that it performed the act by its servants.” And in Klugman v. Sanitary Laundry Co., 141 Ill. App. 422, which was a case against a corporation for- an assault committed by its servant, the opinion of the court states that the ultimate fact, necessary to be alleged, was that the wrongful act was committed by the defendant. “This may be alleged either by alleging that the defendant, by his servant, committed the act, or, without noticing the servant, by alleging that the defendant committed the act.” (2 Chitty on Pleading, 708 note N.)

We are not cited to any case, nor have we been able to find one, in which the question is discussed as applied to a declaration in slander against a corporation. We are unable to see why the principle is not applicable to a declaration alleging slander by a corpora^ tion, as well as to a declaration charging assault by it. See Coke upon Littleton, vol. 2, p. 303b, where it is stated: “All necessary circumstances implied by law in the pleading need not be expressed, * *

We think the court erred in sustaining the general demurrer to this declaration, and the judgment will therefore be reversed and the cause remanded.

Beversed and remanded.


author: Mr. Justice Barnes

text:
    Harry S. Mecartney, Appellee, v. James D. Wallace, Appellant.
    Gen. No. 24,181.
    1. Attorney and client, § 123

      —what fee recoverable by one attorney from another for services rendered. Where one attorney performed services at the request of another attorney, to obtain by some means a portion of an estate for the client of the latter attorney, without an agreement as to the amount of the fee, and it was to be contingent upon a result that followed, then a reasonable fee was recoverable under an indebitatus assumpsit count, or the quantum meruit.

    2. Attorney and client, § 135*—when evidence sufficient to sustain claim by one attorney against another for fee for services rendered. Where, in an action by one attorney against another to recover for services performed at the latter’s request to obtain by some means a portion of an estate for defendant’s client, defendant testified that there was no legal basis for the litigation or claims of his client and that the compromise in question was dictated by sentimental reasons, but where the terms of the compromise required the client to release all claims and dismiss all pending claims against the estate, and both were done, and defendant attorney received his compensation out of the sum paid in compromise, the jury might well have found that there was a happening of all the contingencies upon which plaintiff’s claim to a fee depended.
    3. Attorney and client, § 137*—when error to refuse instruction in action by one attorney against another for fee for services rendered. In an action by one attorney against another to recover for services performed at the latter’s request to recover by some means a portion of an estate for defendant’s client, it was error to refuse an instruction setting up defendant’s theory that -if there was an express contract as to what services plaintiff was to perform and what his compensation was to be, then the evidence as to the usual, reasonable and customary value of the same should be disregarded, there having been some evidence tending to support the contention.
    4. Attorney and client, § 137*—when instruction in action by one attorney against another for fee for services rendered is erroneous. In an action by one attorney against another to recover for services performed at the latter’s request to recover by some means a portion of an estate for defendant’s client, an instruction given for plaintiff was erroneous, which after properly presenting the theory of plaintiff’s right to recover for his services upon the happening of stated contingencies, improperly presented also the theory of his right to a reasonable fee without any contingency, a theory not only inconsistent with the evidence of both parties but with that on which plaintiff finally submitted his case.
    5. Attobney and client, § 81

      —when attorney not guilty of negligence. Attorneys do not guarantee that their judgment is infallible, and are not necessarily negligent because they do not discover all decisions on a subject, or may question their finality.
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded.
    Opinion filed October 10, 1919.
    Rehearing denied October 21, 1919.
    Morse Ives, for appellant.
    Francis W. Walker and John S. Brown, for appellee.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

Appellant seeks reversal of a judgment of $25,000 against him for services rendered by appellee as attorney in certain litigation of Florence' L. Brandt against the estate of William Ziegler, deceased.

The declaration contains the common counts and counts in indebitatus assumpsit. The affidavit of claim sets forth that the legal services were in certain litigation for Florence L. Brandt against the said estate, for which defendant agreed to pay plaintiff $50,000 “for and when said defendant should realize upon or receive his compensation for his own legal services performed in said litigation,” and that defendant has received his said compensation.

Defendant pleaded the general issue. His affidavit denies such an agreement and claims the agreement was if plaintiff rendered legal services for Florence L. Brandt to establish her right to one-half of said estate (approximating $10,000,000), he would pay plaintiff $50,000 when her right thereto was established and she came into possession of the property and defendant obtained his compensation therefrom, and that if the amount recovered was less than that claimed plaintiff’s fee was to be proportionately less, and if no part of the claim was recovered plaintiff would receive nothing for his services.

It was also stated in the affidavit that after such litigation was had and terminated adversely plaintiff declined to proceed further on a contingent basis and made a request, not acceded to, for a different contract, and that afterwards, through another attorney in New York, Florence L. Brandt was induced to dismiss all suits with reference to her claim and accept a sum from her brother, William Ziegler, jr. (principal heir of the estate), in fulfillment of a promise made by said William Ziegler, sr., in his lifetime, conditioned upon her graduating with honor from a school she was then ■ attending. While the record shows that towards the last Mecartney sought a new arrangement, we think it shows his performance of all services contemplated by the arrangement acted on and that he did not definitely withdraw from it.

The basis of the claim of Florence L. Brandt lay in these facts: Under the laws of the State of New York she and her brother William had been adopted by said William Zeigler, sr., and her adoption was subsequently abrogated. Later Zeigler died and by his will made her brother William, then a minor, the principal beneficiary of his estate valued at several millions of dollars, and left legacies to other relatives of the girl but made no provision for her. Proceeding' at first upon the theory that the abrogation was illegal, litigation was had, mainly under the direction and advice of Mecartney, to annul the order of abrogation. It was unsuccessful. A claim to a portion of the estate was based on two other theories that became the subject of consideration, one, that when Ziegler arranged to adopt Florence he entered into an oral agreement with her father to make her and William his heirs, which formed the basis of a bill for specific performance prepared by Mecartney and subsequently filed; the other, that Ziegler had promised to give her $250,000 if she graduated with honor from a certain school, which was supported by her father’s affidavit. In the meantime the father died, thus embarrassing a legal prosecution of the latter claim. Mecartney had confidence in the equity suit but his associates apparently did not except as it might influence a compromise. Afterwards a settlement was negotiated with the estate by a New York lawyer named Marshall, who was called into the case about the time the estate was pressing the suit for specific performance to a hearing, whereby Florence received $375,000, about what would be due with interest on said claim of $250,000. Out of the settlement Wallace was paid $117,189.50, and after paying the New York attorneys and certain expenses he realized as his compensation $62,312.50. After he refused to pay Mecartney more than about $1,800, the latter brought this suit.

That defendant Wallace requested the services and advice of Mecartney to obtain by some means a portion of the estate for Florence L. Brandt, and that Mecartney gave services and advice in that connection are not questioned. But the parties differ as to what were the terms of the arrangement for appellee’s services, the testimony of each conforming closely to the affidavit supporting his pleading. The verdict for $25,000 is not reconcilable with either party’s theory of the contract as set forth in his affidavit, for under plaintiff’s, he would be entitled to $50,000 and interest, and under defendant’s to less than $2,000 if entitled to share in the settlement, otherwise to nothing. At the dose of the evidence, however, plaintiff waived his claim of a special contract on an agreed contingent fee of $50,000 and stated that he would rely on the theory that plaintiff and defendant had agreed that whatever compensation plaintiff should receive for his services should be upon the contingencies that Florence L. Brandt should recover in her asserted claim in whole or in part against said estate either by compromise or enforced judgments or decrees, and that Wallace should receive his compensation out of the results; and that the amount of contingent fee was not agreed upon, but should be a reasonable one, in. view of such contingencies.

The jury may well have found that the minds of the par-ties never met except that plaintiff’s services were to be rendered on a contingent basis (People’s Casualty Claim Adjustment Co. v. Darrow, 172 Ill. 62). And their verdict was presumably based upon the theory on which plaintiff finally submitted his case, and which there was sufficient evidence to sustain, the theory that his fee was contingent upon any settlement that disposed of the litigation and Florence’s claims. If, therefore, plaintiff performed services at defendant’s request without an agreement as to the amount of his fee and it was to be contingent upon a result that followed, then a reasonable fee was recoverable under an indebitatus count (Michael’s Bay Lumber Co. v. Jenks, 20 Ill. App. 369) or the quantum meruit. (People’s Casualty Claim Adjustment Co. v. Darrow, 172 Ill. 62.) While Marshall testified that there was no legal basis for the litigation or cláims and that the compromise was dictated by sentimental considerations, yet the terms of the compromise required Florence L. Brandt to release all claims against the Ziegler estate and to dismiss all pending litigation. She did both, and as defendant received his compensation out of the sum paid under the compromise the jury may well have found that there was a happening of all the contingencies upon which plaintiff’s claim to a fee depended.

But we think there was a reversible error both in giving instruction 1 at plaintiff’s request, and refusing instruction 26 tendered by defendant. The former was inconsistent both with the evidence and plaintiff’s own theory of his case, and by refusal of the latter the court ignored the theory of the defense. The case went to the jury on these respective theories: plaintiff’s, that the minds of the parties never met as to the amount of his fee and that he was entitled to a reasonable fee based' upon contingencies that happened; and defendant’s that there was an express contract for a certain sum in case of a full recovery and proportionately less in case of a partial recovery through or as a result of the litigation, and that plaintiff did not perform his contract.

The given instruction properly presented the theory of plaintiff’s right to a reasonable fee for his services upon the happening of such contingencies, but improperly presented also the theory of his right to a reasonable fee without any contingency, a theory not only inconsistent with the evidence of both parties but with that on which plaintiff finally submitted his case. Under that instruction the jury were authorized to determine his fee in disregard of any contingency as well as of defendant’s theory of an express contract.

The refused instruction 26 was to the effect that if there was an express contract as to what services plaintiff was to perform and what his compensation was to be, then the evidence as to the usual, reasonable and customary value of the same should be disregarded. It was defendant’s contention that there was an express contract as to the amount of plaintiff’s compensation under which he was in no event entitled to more than $1,875, and also that he refused to complete his contract. There being some evidence tending to support these contentions, the refusal of the instruction denied defendant’s right to present his theory. It is elementary that he had that right. No other instruction covered the ground. The instruction should have been given. It is no answer to the ignoring of said defense that it was absurd or improbable. That was for the jury and not the court to decide. Nor do we find sufficient basis in the evidence for plaintiff’s contention that there was a breach of contract by defendant, and that therefore the tendered instruction was faulty for assuming the contrary.

It is hardly necessary to allude to appellant’s other contentions. Generally speaking, the other refused instructions either presented immaterial issues or were not based upon evidence. The contention that appellee did not act in good faith, or that his services were of no value because the litigation was without legal foundation, we think untenable upon this record. In determining the value of plaintiff’s services, we think the primary consideration was whether the litigation figured in bringing about a settlement. The jury evidently so found, and we do not think there was error in excluding certain decisions of the New York courts offered for the purpose of showing the improbability of a successful termination of such litigation. Attorneys do not guarantee that their judgment is infallible, and are not necessarily negligent because they do not discover all decisions on a subject or may question their finality. Peculiar circumstances sometimes warrant efforts to induce a different or modified ruling of the courts, and they are sometimes successful. Both parties looked upon the treatment of Florence L. Brandt under the circumstances as so inequitable as to impress the estate or its principal beneficiary with the propriety of a settlement regardless of the soundness of the legal theories on which the litigation was based, and whose legal merits do not in our opinion constitute an issuable fact in this case.

What we have already said indicates our view as to the admissibility of evidence of the reasonable value of appellee’s services rendered on a contingent basis, and the propriety of instructing the jury on that theory.

In view of the necessity of reversing the judgment and remanding the cause for errors stated, it is unnecessary to consider other points urged that may not arise on another trial.

Reversed and remcmded.


author: Mr. Presiding Justice Dever

text:
    First District.
    E. F. Drew & Company, Inc., appellant, v. Walter R. Kirk, appellee.
    Gen. No. 24,593.
    Action to recover damages for nondelivery of goods purchased. Judgment in favor of defendant. Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed April 7, 1919.
    Lyman, Adams & Bishop, for appellant; Howard F. Bishop, of counsel. Aaron R. Eppstein and Joseph J. Sullivan, for appellee; Aaron R. Eppstein, of counsel.
   Mr. Presiding Justice Dever

delivered the opinion of the court.


text:
    Lillian B. Johnson, appellant, v. Walden W. Shaw Livery Company, appellee.
    Gen. No. 24,613.
    Action to recover damages for personal injuries while riding in a taxicab. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed April 7, 1919.
    Winston, Strawn & Shaw, for appellant; Edward W. Everett, of counsel. D ’Ancona & Pflaum, for appellee.
   Mr. Presiding Justice Dever

delivered the opinion of the court.


text:
    William Downs, appellant, v. Chicago Master Steamfitters Association et al., appellees.
    Gen. No. 24,679.
    Action by complainant to enjoin defendant steamfitters association from interfering with plaintiff’s business, carrying out its illegal acts, rules, laws and conspiracies, and to dissolve the association. Bill dismissed for want of equity. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 7, 1919.
    Jacob J. Kern, John F. Clare and John A. Brown, for appellant. Charles S. Deneen, John Peter Barnes and Stein, Mayer & Stein, for appellees; Elias Mayer and Sigmund W. David, of counsel.
   Mr. Presiding Justice Dever

delivered the opinion of the court.


text:
    Mae E. Carroll, appellee, v. Patrick C. Faherty, appellant.
    Gen. No. 24,703.
    Action by principal to recover of agent money falsely reported to have been paid by agent. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 7, 1919.
    Alfred F. Tompkins, for appellant. Richard J. Cooney and John A. Verhoeven, for appellee.
   Mr. Presiding Justice Dever

delivered the opinion of the court.


text:
    Walter S. Britton, by Stephen A. Britton, appellee, v. Consumers Company, appellant.
    Gen. No. 24,763.
    Action to recover damages for personal injuries from barrel negligently placed on roof of defendant’s ice house, and blown off and upon plaintiff. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Reversed with finding of fact.
    Opinion filed April 7, 1919.
    Wilkerson, Cassels & Potter and John M. McKinley, for appellant; Ralph F. Potter and Kenneth B. Hawkins, of counsel. Crafts & Stevens and Winters, Price & Stevens, for appellee; Clayton E. Crafts, George M. Stevens and J. C. Risk, of counsel.
   Mr. Presiding Justice Dever

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    Edward Navratel, by Edward Navratel, his father, appellee, v. Curtis Door & Sash Company, appellant.
    Gen. No. 24,641.
    Action to recover for personal injuries sustained on being struck by motor truck. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed with finding of fact.
    Opinion filed April 7, 1919.
    Rehearing denied April 21, 1919.
    King, Brower & Hurlbut, for appellant. Daniel L. Madden, James V. Cunningham and Roy C. Merrick, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    James S. O’Brien et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). Ash-Madden-Rae Company et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). In the matter of the contempt of Bessie Bermbaum, appellant.
    Gen. No. 23,703.
    Contempt proceeding for violation of injunction. Judgment of guilty. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed April 7, 1919.
    Holdom, J., dissenting.
    Darrow & Sissman, for appellant; Victor S. Yarros, of counsel. Rosenthal, Hamill & Wormser, for appellees.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    James S. O’Brien et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). Ash-Madden-Rae Company et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). In the matter of the contempt of Lizzie Dorfman, appellant.
    Gen. No. 23,707.
    Contempt proceeding for violation of injunction. Judgment of guilty. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed April 7, 1919.
    Holdom, J., dis sen ting.
    Harrow & Sissman, for appellant; Victor S. Tarros, of counsel. Rosenthal, Hamill & Wormser, for appellees.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    James S. O’Brien et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). Ash-Madden-Rae Company et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). In the matter of the contempt of Edna Kunin, appellant.
    Gen. No. 23,708.
    Contempt proceeding for violation of injunction. Judgment of guilty. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed April 7, 1919.
    Holdom, J., dissenting.
    Barrow & Sissman, for appellant; Victor S. Tarros, of counsel. Rosenthal, Hamill & Wormser, for appellees.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    James S. O’Brien et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). Ash-Madden-Rae Company et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). In the matter of the contempt of Lizzie Wexler, appellant.
    Gen. No. 23,709.
    Contempt proceeding for violation of injunction. Judgment of guilty. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed April 7, 1919.
    Holdom, J., dissenting.
    Barrow & Sissman, for appellant; Victor S. Tarros, of counsel. Rosenthal, Hamill & Wormser, for appellees.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    James S. O’Brien et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). Ash-Madden-Rae Company et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). In the matter of the contempt of Sam Handleman, appellant.
    Gen. No. 23,711.
    Contempt proceeding for violation of injunction. Judgment of guilty. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 7, 1919.
    Barrow & Sissman, for appellant; Victor S. Tarros, of counsel. Rosenthal, Hamill & Wormser, for appellees.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    James S. O’Brien et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). Ash-Madden-Rae Company et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). In the matter of the contempt of Lizzie Zielke, appellant.
    Gen. No. 23,712.
    Contempt proceeding for violation of injunction. Judgment of guilty.' Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed.
    Opinion filed April 7, 1919.
    Holdom, J., dissenting.
    Harrow & Sissman, for appellant; Victor S. Tarros, of counsel. Lewis T. Jacobson, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    James S. O’Brien et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). Ash-Madden-Rae Company et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). In the matter of the contempt of Frances Schmidt, appellant.
    Gen. No. 23,713.
    Contempt proceeding for violation of injunction. Judgment of guilty. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed April 7, 1919.
    Holdom, J., dissenting.
    Harrow & Sissman, for appellant; Victor S. Tarros, of counsel. Lewis T. Jacobson, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    James S. O’Brien et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). Ash-Madden-Rae Company et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). In the matter of the contempt of Mary Levin, appellant.
    Gen. No. 23,714.
    Contempt proceeding for violation of injunction. Judgment of guilty. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed April 7, 1919.
    Holdom, J., dissenting.
    Harrow & Sissman, for appellant; Victor S. Tarros, of counsel. Lewis T. Jacobson, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    James S. O’Brien et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). Ash-Madden-Rae Company et al., appellees, v. International Ladies’ Garment Workers’ Union et al. (defendants). In the matter of the contempt of Rose Blank, appellant.
    Gen. No. 23,715.
    Contempt proceeding for violation of injunction. Judgment of guilty. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed April 7, 1919.
    Holdom, J., dissenting.
    Barrow & Sissman, for appellant; Victor S. Tarros, of counsel. Lewis T. Jacobson, for appellees.'
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Elizabeth J. Mollan, appellee, v. Chicago City Railway Company and Calumet & South Chicago Railway Company, appellants.
    Gen. No. 24,714.
    Action to recover for personal injuries in collision of automobile, in which plaintiff was riding, with street car. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed upon remittitur; otherwise reversed and remanded.
    Opinion filed April 7, 1919.
    Charles LeRoy Brown, for appellants; John B. Guilliams and Joseph D. Byan, of counsel. James C. MeShane, for appellee.
   Mr. Justice MeSurely

delivered-the opinion of the court.


text:
    Julius Dushkin, appellant, v. Chicago Railways Company et al., appellees.
    Gen. No. 24,790.
    Action to recover for personal injuries to passenger by being thrown from street ear. Judgment for defendants. Appeal from the Superior-Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 7, 1919.
    H. A. Barnhardt and Clinton A. Stafford, for appellant. Frank L. Kriete and William H. Symmes, for appellees; John B. Guilliams and Philip Rosenthal, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Presiding Justice McDonald

text:
    Eugene Quinn, by Lottie Quinn, appellee, v. City of Chicago et al. City of Chicago, appellant.
    Gen. No. 23,737.
    Action to recover for personal injuries resulting from falling into open stairway in sidewalk. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 29, 1919.
    Samuel A. Ettelson and William H. Devenish, for appellant; Robert H. Farrell, of counsel. Vincent G. Gallagher and Ernest Messner, for appellee.
   Mr. Presiding Justice McDonald

delivered the opinion of the court.


text:
    Sam Feldman and Ignatz Engel, defendants in error, v. George J. Dreiske, plaintiff in error.
    Gen. No. 24,067.
    Action to recover earnest money deposited by purchaser with vend- or. Judgment for plaintiffs. Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed.
    Opinion filed April 29, 1919.
    George J. Dreiske, pro se. No appearance for defendants in error.
   Mr. Presiding Justice McDonald

delivered the opinion of the court.


text:
    Abner C. Loomis, appellee, v. Philip J. Sharkey et al. Philip J. Sharkey and Charles A. Peck, appellants.
    Gen. No. 24,223.
    Action to recover on promissory notes. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 29, 1919.
    George E. Brannan, for appellants. Gann & Peaks, for appellee; Frederick Seeord, of counsel.
   Mr. Presiding Justice McDonald

delivered the opinion of the court.


text:
    Annie Pearson, by George Kelly, appellee, v. Ward & Company, appellant.
    Gen. No. 24,280.
    Action to recover damages for injury to plaintiff’s health for failure to comply with the Occupational Disease Act. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Oscar Hebei, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.
    Hoyne, O’Connor & Irwin, for appellant. Oscar C. Miller, for appellee; Munson T. Case, pf counsel.
   Mr. Presiding Justice McDonald

delivered the opinion of the court.


text:
    John H. Gallagher, appellee, v. City of Chicago et al., appellants.
    Gen. No. 24,306.
    Action for writ of mandamus to compel reinstatement of petitioner as detective sergeant in ¡police department. Order directing issuance of writ. Appeal from the Superior Court of Cook county; the Hon. Joseph B. llavid, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 29, 1919.
    liehearing denied May 12, 1919.
    Samuel A. Ettelson, for appellants; Boy S. Gaskill, of counsel. Hugh 0 'Neill, for appellee.
   Mr. Presiding Justice McDonald

delivered the opinion of the court.


text:
    Helena Oswald, appellee, v. Jacob Probst, appellant.
    Gen. No. 24,315.
    Action on account stated. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded.
    Opinion filed April 29, 1919.
    Albert N. Charles, for appellant. Thomas E. Swanson, for appellee.
   Mr. Presiding Justice McDonald

delivered the opinion of the court.