author: Mr. Justice Dever

text:
    David Stahl and Jacob Stahl, copartners, trading as Stahl Brothers, Appellants, v. Loeb, Cooney & Loeb, Incorporated, Appellee.
    Gen. No. 23,474. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed December 24, 1917.
    Rehearing denied January 7, 1918.
    Statement of the Case.
    Action by David Stahl and Jacob Stahl, copartners, trading as Stahl Brothers, plaintiffs, against Loeb, Cooney & Loeb, incorporated, defendant, to recover $794.13 as damages for breach of a contract for the sale and delivery by plaintiffs to defendant of a carload of eggs. From a judgment for defendant, on a directed verdict at close of plaintiffs’ evidence, plaintiffs appeal.
    Abstract of the Decision.
    1. Sales, § 19

      —when offer of sale or purchase may be withdrawn. An offer of sale or purchase of merchandise may be withdrawn at any time before the acceptance of the offer has been received by the offerer.
    2. Sales, § 19*—when offer of purchase is timely withdrawn. Where defendant sent to plaintiffs a telegraphic offer for certain goods reading “Offer seven ten your track immediate shipment to New York. Answer,” which plaintiffs accepted by telegraph, but before receipt of plaintiffs’ telegram defendant telegraphed its withdrawal of its offer,, held that the delivery of the withdrawal telegram to the telegraph company was a delivery to the plaintiffs and was in sufficient time to prevent the completion of the contract.
    3. Sales, § 340a*—wfien evidence of sale of refused goods at destination by seller is inadmissible. In an action to recover damages for alleged breach of contract for the purchase by defendant of certain goods, evidence by plaintiffs that upon defendant’s breach of the alleged contract plaintiffs instructed certain commission merchants at the destination of the shipment to sell the goods at once, that the goods were so sold, and that they netted a certain sum less than the offer made by defendant in the contract, held erroneously admitted, over objection, as evidence of plaintiffs’ damage, as it failed to show that the goods were sold at the best obtainable price or that plaintiffs had used reasonable diligence to obtain such price.
    4. Evidence, § 221*—inadmissibility of hearsay. Evidence as to amount of plaintiffs’ damage held inadmissible on its face because based upon matters of pure hearsay.
    Stewart Beed Brown, for appellants.
    Edward H. Morris, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    John P. O’Connor et al., Appellants, v. High School Board of Education of Evanston High School District et al., Appellees.
    Gen. No. 23,469.
    Injunction, § 103

      —when school hoard restrained from using proceeds of tax levy' and from negotiating bonds. Where an injunction was prayed against a high-school board to restrain it and its members from using the proceeds of any tax levy in the purchase of a new site for a school, and from negotiating bonds authorized for the purpose of purchasing such site and building the schoolhouse solely upon the ground of the alleged illegality of certain elections held upon proposals for such purchase and building, to declare which void was the main prayer of the hill, and the Supreme Court held the bill would not 'lie as to its main prayer, held that such in junctional relief was incidental, only, to the main prayer, and there was no jurisdiction to grant same.
    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 and remanded with directions.
    Opinion filed December 24, 1917.
    Howard T. Wilcoxoh and William Shermah Carson, for appellants.
    Wilson, Moore & McIlvaine, for appellees; N. GL Moore, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

The matter involved in this appeal and in a companion canse, No. 23,470, opinion this day filed, post, p. 251, is concerned with the legality of an election touching a new site, a school building, and bonds for purchase in the Evanston High School District. The appeal comes to this court by transfer ordered by the Supreme Court. See O’Connor v. High School Board, 278 Ill. 618.

We follow substantially the language of the Supreme Court in that opinion. An election was held on November 6, 1915, in the Evanston High School District, resulting favorably for a proposition to build a new schoolhouse, and for another to issue bonds to purchase a new site and pay for the new building. Subsequently, on December 11, 1915, another election was held for the purpose of selecting the new site, and the board of education declared the result to be the selection of a site on Eidge avenue. On January 14, 1916, the complainants, taxpayers of the district, filed their bill of complaint in the Circuit Court of Cook county, which bill was afterwards amended, alleging various defects in the calling and conduct of both elections and counting of the ballots; averred that a recount ofxthe votes on the election of December 11th would show that the Eidge avenue site was not properly selected, and that the prior election on November 6th, so far as the building question was concerned, as well as that of December 11th, was absolutely void; that the board of education by resolution directed the preparation and negotiation' of bonds and the acquisition of the Eidge avenue site by purchase or condemnation, and that further steps would be taken resulting iñ damage to complainants. The High School District and the members of the board of education were made defendants, and filed an answer admitting many of the allegations of the bill, denying others, and asserting the legality of the-proceedings at both elections and the correctness of the result declared, and offering to submit to the court- all questions as to ballots, qualifications of the voters and 'the result. Afterwards, on March 3, 1916, complainants filed another bill, making the same allegations as the previous bill and stating further that the complainants on January 14, 1916, had filed their bill in the Circuit Court, asking among other things for a recount of the ballots; that said petition was framed.as a bill in chaneery although it contained all allegations essential to a petition for contesting said election of December 11th; that it was still pending, but lest it was not sufficient to permit all the steps pursued by the board in calling the election and prior and leading up to the same to be fully inquired into, the complainants present their bill in chancery so that all the proceedings of the board pertaining to the abandonment of the old site and the selection of a new one should be examined and adjudged, and all the defects in the election considered and ruled upon with reference to their validity. To this the defendants answered, admitting most of the averments of the bill, and adopted the answer filed to the prior bill as their answer to the latter. The prayers of both bills were identical, and asked that the election of November 6th be declared null and void so far as relates to the proposition of building a new school; that the election of December 11th he declared void, or that the legal effect thereof be determined by the court and, if necessary, that the ballots be recounted ; also that the board and the members thereof be restrained from preparing or negotiating any bonds, and from using the proceeds of any tax levy or other funds of said district in the purchase of a new site for said high school, and from taking any steps for acquiring the property known as the Ridge avenue site. A general replication in chancery was filed in each case, the causes were heard together, and an identical decree was entered in each case finding adversely to the contention of the complainants as to the regularity and legality of the proceedings in connection with the calling and conduct of the elections, the counting of the votes and declaring the result. The ballots were produced in court and counted, and the court found that the Ridge avenue site received a majority over all the votes for other sites. The relief prayed for in each bill was denied and appeals were taken to the Supreme Court and there submitted together.

As appears from the opinion, the Supreme Court held that it had no jurisdiction of -these appeals; that in so far as asking for a recount of the votes, the bills were, in effect, petitions to contest the election in regard to the schoolhouse site; that the statute had made no provision for such a contest, and that a court of chancery had no inherent jurisdiction of the contest of an election. The opinion concludes, therefore, that the courts have no power to interfere with the declaration of the result of such an election.

In regard to the relief sought concerning the negotiation of bonds, it was contended that the public revenue was involved, and, therefore, an appeal lay direct to the Supreme Court. For reasons stated in the opinion, the court was not in accord with this claim and concluded that the appeals properly should have been taken to the Appellate Court and, as heretofore stated, ordered that they be transferred to this court.

It follows from what has been said that the only matter to which this court may give consideration is the prayer of complainants asking that the defendants be enjoined from using the proceeds of any tax levy in the purchase of a new site for the high school, and from negotiating bonds which the defendants have been authorized to issue for the purpose of purchasing the new site and building the new schoolhouse. However,-examination of the briefs of the complainants in this court discloses that this relief is predicated wholly and exclusively upon the alleged illegality of the elections of November 6th and December 11th with reference to the new site and building. The injunctional relief as to the bonds is simply incidental to the essential prayer of the bill. As the Supreme Court held that the Circuit Court had no jurisdiction to consider or determine the election matters, it would follow that it had no power to pass upon the incidental relief sought.

It is not suggested in the briefs that there is any-ground for considering the relief as to the bond issue separate and apart from a consideration of the validity of the elections; indeed, we do not understand that the vote on the proposition to issue bonds is questioned as a distinct and separate matter.

From the above considerations it follows that the Circuit Court should have ordered the bill dismissed for want of jurisdiction. We shall therefore reverse the decree and remand the cause with directions to enter an order dismissing the bill for want of jurisdiction.

Reversed and remanded with directions.


text:
    John P. O’Connor et al., Appellants, v. High School Board of Education of Evanston High School District et al., Appellees.
    Gen. No. 23,470. (Not to be reported in full.)
    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 and remanded with directions.
    Opinion filed December 24, 1917.
    Rehearing denied January 7, 1918.
    Statement of the Case.
    Bill by John P. O’Connor and others, complainants, against High School Board of Education of Evanston High School District and others, defendants, to have certain elections declared void and for in junctional relief as to the issuance of bonds or using of tax levies for carrying out the votes taken on such elections. From a decree in favor of defendants, complainants appeal.

      This case is governed by the decision in O’Connor v. Evanston High School Board of Education, Gen. No. 23,469, ante, p. 247.
    Howard T. Wilooxon and William 'Sherman Carson, for appellants.
    Wilson, Moore & McIlvaine, for appellees; N. G. Moore, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Taylor

text:
    Benjamin Wolf, Appellee, v. Ideal Sheet Metal Works, Appellant.
    Gen. No. 23,154.
    Coepobahons, § 256

      —when corporation is hound hy act of controlling stockholder and president in employing agent to procure funds. Where the controlling stockholder of a corporation and its general manager, president and director, in order to develop its business, employed plaintiff to secure certain funds for the corporation and promised on behalf of the corporation to compensate him therefor, and plaintiff procured the funds, which were placed in the treasury of the corporation, and the capital stock of the corporation was increased and stock issued to the party furnishing the funds, the corporation was bound by the conduct of the stockholder.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed December 28, 1917.
    Stedman & Soelke, for appellant.
    George A. McCorkle and Benjamin Wolf, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal from a judgment in assumpsit in the County Court in favor of appellee and against appellant, in the. sum of $377.43. It was conceded by the appellant at the trial that it was indebted to appellee for a balance for legal services rendered it by the appellee in the sum of $152.43. The remainder of the claim, namely, the sum of $225, appellant contended it did not owe. Appellant is a corporation chartered about March 6, 1911, originally with a capital stock of $5,000, fully paid up. It is engaged in the business of manufacturing and repairing automobile radiators. One Isador Weissman (who afterwards changed his name to that of Isador White) was its president at the time the controversy in question arose, and was also one of its directors and held some of the capital stock. Appellee, as an attorney at law, took care of part, if not all, of the legal affairs óf the corporation. Appellee, in his bill of particulars, charges appellant with $152.43 for certain legal services and incidental expenses, such as Revenue stamps and court costs (which amount is admitted by appellee to be due), and then makes a further charge, as follows: “To services procuring party (Sigmund G-reenbaum) to invest $4,500.00 in the capital stock of Ideal Sheet Metal Works, at par, $225.” This latter amount is the gravamen of this cause. The evidence of appellee is to the effect that in the summer or fall of 1915, Weissman (hereinafter called White) told him that appellant was in need of funds to carry on its business; that “they did not have sufficient capital to conduct their business”; that appellee, after consulting one of his clients, one Wingert, had another conference with White; that the latter said they ought to have not less than $2,000 more for a working capital; that he, appellee, then took the matter up with one Greenbaum; that he told White, who asked him what he would charge, that if he procured that amount of money, he would charge $200; that White then said they would have to have $3,700 altogether, being $2,000 in excess of what was due the bank, and $200 for appellee;- that White said he would pay appellee $200 if he could “get some one in here with $3,700”; that he, appellee, then saw one Greenbaum and persuaded him to agree to put in $3,700; that, subsequently, White said that would not be sufficient, that “we will have to have at least $4,500”; that appellee agreed to take it up with Greenbaum and told White if that amount of money was put into the enterprise, he, the appellee, would expect “a little’more money”; that White said, “We will take that up later”; that he and White then talked over how Greenbaum should be secured for his money, and it was decided to increase the capital stock of the corporation to $16,500; that he then did the legal work necessary for the increasing of the capital stpck to $16,500; that Greenbaum then paid in the $4,500 to the appellant, and, subsequently, appellee sent the appellant a statement of account in which was a charge for $225. In increasing the capital stock, which originally was $5,000, to $16,500, the original stock was figured at something over $200 a share; and $4,800 of the $16,500 of stock, which was the final capitalization, was issued directly by appellant to Greenbaum. Appellee testified that that amount was issued directly by the corporation to Greenbaum, and that the promise of White was to pay him $200 if he would procure some one to invest $3,500 in the increased capital stock of the company. The minutes of the meeting of the appellant on November 23, 1915, show that, at that time, White owned in excess of two-thirds of the capital stock, and George Wilkman one-third thereof, and that the directors were White, Wilkman and Jennie B. White.

On November 23, 1915, appellee rendered a bill to “Ideal Sheet Metal Works and S. Greenbaum, * * * to services, $225, in re increased capital stock of Ideal Sheet Metal Works,” and, on December 15, 1915, appellee received a letter from appellant denying lia-, bility for any commission. In answer to the latter appellee wrote, on December 24, 19l5, stating that he was entitled to the $225, bnt that, “If you will pay for that item the sum of $150 on or before the 31st inst. I will accept it.” Sigmund Greenbaum, the only witness called by the appellant, testified that he was introduced to White by appellee, but that he first talked to White about the appellant company subsequently to that time and out of the presence of Wolf; that after talking with White about the business of appellant he went out several times and looked over its plant; and, subsequently, had some conversation with White in appellee’s office as to the amount to which the capital stock of the corporation should be increased; that nothing was ever said in his presence about any arrangement to pay appellee $200 or $225 for his services. On cross-examination, however, Greenbaum admitted that he had been in appellee’s office a number of times and had talked over with him, on one occasion, the advisability of going into the business, and, on another occasion, had discussed with White, in appellee’s presence, increasing the amount he was willing to invest, from $3,700 to $4,500. He denies, however, having had any conversation as to compensation for appellee until after he received a hill from him.

As White was not called as a witness, there was no direct denial of the promise, on account of which appellee brought suit.

■ As there was ample evidence to prove the promise of White and, also, the rendition of services by appellant, and, as the trial judge found in favor of the appellee, which finding, as a matter of fact, was consistent with the evidence, there remains to he considered only the following question: Did White, who was a stockholder, and, according to the minutes of the meeting of February 11, 1915, “general manager of the financial and business end of the business,” and also, at the time in question, director and president, have authority to bind tile appellant corporation? Considering (1) who owned the capital stock at the time the negotiations began; (2) that the money was sought to develop the business; (3) that the capital stock was increased from $5,000 to $16,500 in furtherance of that purpose; (4) that it may be inferred from the evidence that the money that was invested by Greenbaum was put into the treasury of the corporation; (5) that the evidence sufficiently shows that White, on behalf of the appellant, actually promised appellee compensation for his services; and (6) that appellee got Greenbaum to invest, we are of the opinion that the appellant corporation, as a matter of law, was bound by the conduct of White. Hull v. Glover, 126 Ill. 122. The judgment of the trial judge, therefore, must stand.

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

Affirmed.


text:
    Frank Kochanski, Appellee, v. County of Cook, Appellant.
    Gen. No. 23,157. (Not to be reported in full.)
    Abstract of the Decision.
    1. Civil service, § 7

      —when evidence shows legal appointment of assistant engineer. Evidence pertaining to plaintiff’s unquestioned employment as assistant engineer for over 13 years, held to sufficiently show he was legally appointed to that position.
    2. Civil service, § 31*—when unnecessary for assistant engineer to show vacancy or right thereto. Where plaintiff, after legal appointment as assistant engineer in the civil service of defendant Cook County, served in the Dunning Institution until after it was taken over by the State, receiving his pay thereafter from the State until his appointment by the County Board of Cook County to a temporary position as assistant operating engineer at Oak Forest Institution, from which he was subsequently discharged, held that it was not necessary for plaintiff to show that there was any vacancy or that he was entitled to one, if it existed, after the time he left the Dunning Institution, in an action to recover damages because of his discharge, under a rule of the Civil Service Commission that employees in the classified civil service of the county when the State took over the Dunning Institution should be considered as county employees and so treated upon reinstatement lists. ‘

      Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed December 28, 1917.
    Rehearing denied January 10, 1918.
    Statement of the Case.
    Action by Frank Kochanski, plaintiff, against the County of Cook, defendant, to recover salary alleged to have accrued after plaintiff’s illegal removal from a civil service position as assistant engineer. From a judgment for plaintiff for $115, defendant appeals.
    Maclay Hoyne, for appellant; George C. Bliss, of counsel.
    A. D. Gash and A. G. Digits, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

3. Civil service, § 31*—-when tender of services is unnecessary. Tender of services by a civil service employee after his illegal discharge, held superfluous and unnecessary to be shown, in an action to recover damages for such discharge. .


text:
    Elizabeth Ratkowski, by John Ratkowski, Appellee, v. R. J. Kittredge & Company, Appellant.
    Gen. No. 23,160.
    1. Master and servant, § 690

      —when evidence shows machine to be defective. Evidence held to warrant the finding that the machine upon which plaintiff was employed in defendant’s machine shop at the time she was injured was defective, and to establish almost a case of res ipsa loquitur, where her testimony that she had complained of it to the foreman the same morning was undenied, notwithstanding other witnesses who saw the machine immediately after the accident testified it was in good condition.
    2. Master and servant,, § 361*—when servant does not assume risk of injury from machinery. Where plaintiff, an employee in defendant’s machine shop, was between 15 and 16 years of age, young and inexperienced, and not sufficiently familiar with the complicated and swiftly-moving apparatus upon which she was working when she received her injury complained of to appreciate and realize the danger to which she was exposed in so working, held that she did not assume the risk in continuing work after discovering the machine did not do its work properly and reporting it to the foreman of the shop, her complaint not appearing to arise from the thought that she was in personal danger.
    3. Witnesses, § 239*—what evidence is admissible on redirect examination. Where defendant’s adjuster testified on cross-examination, in an action by a servant for personal injuries, that nothing was said about an adjustment of plaintiff’s case at the time plaintiff signed a certain statement purporting to set forth a history of her accident, held that other parts of the conversation were admissible on redirect examination with a view to showing plaintiff’s reason for signing the statement.
    Appeal from the Circuit Court of Cook county; the Hon. Oscab M. Tobbisok, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed December 28, 1917.
    Rehearing denied January 10, 1918.
    Johe A. Bloomiegstoe, for appellant.
    Thermae, Heme & Keeeedy, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal from a judgment for $1,000, in a personal injury case in the Circuit Court, in favor of the appellee. The declaration, which consisted of one count, charged that the defendant (appellant) conducted a certain machine shop, in which it used a certain power-driven machine, known as a press machine; that “it then and there became and was the duty of the defendant to use reasonable care and diligence to have and keep said machine in good repair so as not to be dangerous to employees working thereon”; that in violation of its duty it “carelessly and negligently permitted said machine to become unsafe * * * to become broken, loose and out of order, and dangerous to employees worldng thereon, all of which was known to the defendant and unknown to the plaintiff,” in consequence of which defective condition of said machine, “and while she' was exercising due care, and at the command and direction of said defendant, working upon said machine, her left hand was caught by and pulled into said machine” and seriously injured. The defendant pleaded the general issue.

On February 23, 1912, appellee, a girl between 15 and 16 years of age, was working for appellant on a Rotary Bag Printing Press, which was being used to print paper bags. She had been doing that kind of work off and on for about 3 months. One John Kreider (assistant foreman, according to the testimony of Kittredge, secretary of the appellant) had charge of the presses at the shop and put appellee to work on the press in question. In the record there is a blue print which represents the press, with the exception of certain guides. The machine is a rotary bag printing press to print bags of flat sheets with words or figures, or anything that type will make. The machine is so arranged that one stands at the side of the table, which is part of the machine, and, ordinarily, takes a bag, with the left hand, from a pile, and, with the right hand, presses it towards certain guides and holds it there until certain grippers, which work automatically and are set in a depression in the large cylinder, which is parallel to the table, grip the 'end of the bag against the cylinder, which latter, revolving upwards and away from the table, takes the bag on its surface until it reaches the printing roll and is printed and then dropped below. The gripper is a small piece of brass which turns back on the cylinder and is so arranged that when the cylinder gets to a certain position the gripper is made to go forward and then grip the paper onto the cylinder. The gripper is fastened on a rod that runs through the cylinder. The rod or shaft is attached to the cylinder and is driven on the end by a small gear and rack, which makes the shaft rotate automatically. The gripper squeezes the end of the bag onto the cylinder and the latter takes it away with it around the cylinder and on beneath the face of the cylinder which makes the impression. The bags being printed by appellee were about 31/2" by 9". Certain guides moved up and down automatically on extensions of the table, which projected within about 2 inches of the cylinder. At high speed the main cylinder made about 50 revolutions a minute and would print 50 bags in that time. The bag is slipped, or pressed, towards the guides and then taken by the grippers with a rapid motion. The guides are about 2y2 inches apart. In feeding the bag, the hand is laid flat on the bag, the bag being on the table, and it is held flat as it is pushed forward, as there is a tendency to raise it up. The bag being held flat, the gripper takes it and the hand is supposed then to be coincidentally raised.

On the day in question, when the appellee was working on the machine and feeding bags into the press, it is claimed by her that “the press kept jerking and the nippers would pinch my fingers * * * was jerking, so it would not take the bags”; that she had to hold them down with her hands " so that the nippers would come around and take the bags”; that she was feeding a bag into the press and the press was jerking, and that particular bag wouldn’t go into the press; that she held it down with her hand and “the nippers came and snatched my fingers right with the bag into the press, and my entire hand was in the press, so that it smashed the three joints in my fingers, and the index finger was smashed and the second joint” of her left hand. On the morning in question, February 23, 1912, she was directed to work, on the press in question, by John Kreider, a pressman, or, as he was entitled by secretary of appellant, “Assistant Foreman.” Part of his duty was to repair presses in case anything went wrong with them. On that morning, before the accident, appellee told Kreider that the press was out of order; and twice she asked him to fix it. He looked at the press but, apparently, did nothing except tell her to do the best she could with it.

It would seem, from the evidence, that, at the time of the injury, appellee was feeding the last bag into the press, and there is some question whether, at that time, she was getting ready, with her right hand, to use the lever, which was at her right, under the table, to stop the machine, inasmuch as it was the left hand that was injured, she was, unquestionably, feeding the bag into the press with that hand, although, commonly, the bags were picked off from the pile with the left hand and introduced into the press with the right hand.' She testified that when the machine was working properly, the bags were taken smoothly; but that, on the morning in question, she had to stop the press quite frequently, because it was not working well. Of •course, no one saw the accident but appellee herself. Several witnesses for appellant stated that they examined the machine shortly after the accident and that it was in good condition.

Some evidence was offered in regard to a written statement, presented by an adjuster, signed by appellee, which, however, appellee testified that she did not read before signing.

It is claimed by the appellant (1) that the preponderance of the evidence was in favor of the defendant as a matter of law; (2) that the plaintiff assumed the risk; (3) that the court erred in the admission of evidence; (4) that the court erred in regard to certain instructions. ' The declaration makes the charge that the defendant furnished a defective machine and, in violation of its duty, “negligently permitted said machine to become unsafe * * * to work upon * * * and dangerous to employees working thereon, all of which was known to the defendant and unknown to the plaintiff, in consequence of which defective condition * * • * and while the plaintiff’ ’ when .exercising due care “and at the command and direction of said defendant, was working upon said machine, her left hand was caught by and pulled into said machine,” etc.

' Three questions arise: (1) Was the machine defective? (2) Was the plaintiff ignorant of it? (3) Did the defendant know of it? There seems to be ample evidence to justify the conclusion that the machine was defective. It is almost a case oí res ipsa loquitur. The fact that three witnesses, who examined the machine almost immediately after the accident, say it was in good condition, does not necessarily prove in the face of appellee’s testimony and her injury that the machine did not unexpectedly jerk and act in a defective way so as to cause the injury without negligence on the part of the appellee. Then, too, the fact that appellee complained several times that morning to the pressman, which is not denied, is some evidence that the press was defective. And it is not denied that he, in answer to her complaint, told her to do the best she could. As to knowledge of the condition of the machine, the evidence sufficiently shows that appellant knew, the morning in question, that it was not operating properly and was, therefore, defective. As to the plaintiff’s knowledge, it is obvious, from the evidence, that she knew it was not taking in the bags smoothly, and, therefore, was not running well; but it is just as obvious that she, a young and inexperienced girl, was not sufficiently familiar with the mechanism and motions of the grippers and guides, and the operation of the cylinder—the whole constituting a complicated and swiftly-moving apparatus—to appreciate and realize the danger to which she was exposed.

When she complained that the machine jerked, being, as her evidence shows, ignorant of the mechanism of the press, it cannot reasonably be inferred that, at that time, she had any knowledge that there was imminent danger of injury to herself. Her complaint to the assistant foreman seems to have had its origin in her experience that morning, that the machine, from time to time, failed to do the necessary work in the expected way, that is, take the bags smoothly, and not in the thought that she was in danger of personal injury. So the claim that appellee assumed the risk, we are of the opinion, is untenable, as it is obvious that, as far as the knowledge of the appellee is concerned, the danger was not so imminent that she “should have quit the service rather than incur the risk. ’ ’ The case, then, is one of a defective machine, where, in our opinion, there is ample evidence which is consistent with the charge in the declaration and with the verdict. The declaration charged that the machine was defective, and evidence was offered to that effect, and the jury have found that that was established. In Norton Brothers v. Sczpurak, 70 Ill. App. 686, the court said: “It is very strenuously urged by counsel for appellant that the expert evidence showed conclusively that the machine could not have been operated as indicated by the evidence for appellee. It is enough to say that the jury from the evidence believed the theory of appellee as to what was, rather than the theory of the experts as to what could not have been.” Mallen v. Waldowski, 101 Ill. App. 367.

Inasmuch, therefore, (1) as the evidence was sufficient to sustain the declaration, and to justify the jury in finding that the appellant had knowledge that the machine was defective, in that it worked improperly; (2) that appellant, notwithstanding such knowledge, and, without warning to appellee, had appellee work upon the machine; and (3) that appellee, without fault upon her part, and without having knowingly and voluntarily assumed, as an ordinary hazard of her employment, the danger to which she was thus exposed, and theréby injured, the finding of the jury should stand.

It is further contended by appellant that the court erred in admitting in evidence certain statements of appellee—when asked by an adjuster to sign a paper purporting to set forth the history of the accident— that the appellant wished to settle with her. If the adjuster stated to her, at the time, that the company was “willing to settle” with her, and “willing to give” her some monéy, in order to persuade her to sign the paper, the testimony was competent. However, upon the examination of the adjuster, by the appellant, for whom he was called, he was asked, elaborately, as to what appellee said to him concerning the accident, and then, on cross-examination, lie stated, without objection being made, “Nothing was said about the adjustment of the case,” so that it could not thereafter reasonably be urged that it was error for appellee to put in other parts of that conversation with a view to showing, if possible, a reason for signing the paper. As to the evidence that the guides were subsequently changed, it was brought out on the cross-examination of appellant’s witness, and was not objected to. We do not find any material error in the instructions. They were elaborate and all save one presented by the appellant, and were, on the whole, much more favorable to appellant than appellee.

Finding no error in the record the judgment is affirmed.

Affirmed.


text:
    Charles E. Schick and Robert H. Beard, copartners, trading as Schick & Beard, Appellees, v. W. W. Durham, Appellant.
    Gen. No. 23,185.
    1. Municipal Court oe Chicago, § 19

      —when no abuse of discretion in refusing to vacate judgment. Where, on the return day of a summons, to which defendant had prior thereto filed his appearance and demand for a jury trial, the case was transferred by another judge of the Municipal Court than the one then holding court in the branch' room to which the summons was made returnable, and was again the next day transferred to a third judge, who on the same day transferred it to a fourth judge, who thereupon tried the case before a jury, and judgment was entered against the defendant and execution issued, and three days later defendant served plaintiff with notice of motion to vacate and set aside the judgment, supported by affidavit, claiming to have been misled into not appearing at the trial by a publication in the Daily Municipal Court Record on the evening of the return day of the summons of a purported order, which was not in fact made, of the judge then holding court' in the branch room to which the summons was made returnable that the case was on the next jury calendar, held that there was no abuse of discretion in overruling the motion.
    2. Trial—necessity of diligence in conduct of legal proceedings. Great diligence by one party to litigation can never he said to he a justification for or a condonation of negligence on the part of another party thereto, since in the prosecutidn and conduct of all legal proceedings the law requires reasonable diligence.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed December 28, 1917.
    Loesch, Scofield, Loesch & Richards, for appellant; Guernsey Oroutt, of counsel.
    Marcus J. Golden, for appellees; John J. White-side, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal from an order of the Municipal Court overruling a motion of the- appellant to set aside a judgment. On January 3, 1917, appellees filed a statement of claim alleging that there was due them the sum of $46.25 for a breach of a contract concerning certain commissions. On January 3, 1917, a summons was issued, returnable January 10, 1917, at 9:30 a. m. at Branch No. 6, Boom 913 of the Municipal Court. On January 8, 1917, appellant filed his appearance and demanded a trial by jury. On the return day, January 10, 1917, the casé was called before Judge Doyle, and, on the evening of that day, the Daily Municipal Court Becord published (as an order entered on that date, by Judge Doyle, who was, on that date, presiding in Boom 913, Municipal Court of Chicago) the following: “591392, Schick v. Durham. Next Jury Calr.” The actual record of the case shows, however, that on the day the case was called before Judge Doyle, that is, January 10, 1917, it was transferred by Judge Olson to Judge Goodnow; that on the next day, January 11, 1917, it was transferred by Judge Goodnow to Judge Olson; that on the same day it was transferred by Judge Olson to Judge Gem-mill, and, before him, tried by a jury and, after verdict, judgment entered thereon in favor of appellee for $46.25 and costs. An execution was duly issued on January 13, 1911 f and a demand made upon the appellant.

On January 16, 1917, appellant notified appellees, in writing, that on the following day it would move the court to vacate and set aside said judgment. In support of its motion it filed an affidavit and also served a copy on appellees. On January 17, 1917, the motion was duly made, heard and overruled. This appeal was instituted to reverse the action of the trial judge in refusing to vacate and set aside the judgment of January 11, 1917. It is claimed by the appellant that he was misled by the publication in the Daily Municipal Court Record- of the following words and figures: “591392, Schick v. Durham. Next Jury Calr.” As a matter of fact no such order was made and the published statement was wrong. It was entirely erroneous, and, to any one relying upon it, misleading. We are of the opinion, however, that appellant was not justified in relying entirely upon the above-mentioned publication. The claim of appellant that the action of the trial judge, in overruling the motion to vacate, in view of all the circumstances of the case, was arbitrary and an abuse of the discretionary powers of the court. In Hartford Life & Annuity Ins. Co. v. Rossiter, 196 Ill. 277, Mr. Justice Hand said: ‘ ‘ The rule is that diligence and merit must both be shown, and when it appears that the party defaulted has failed to exercise due diligence to protect Ms rights, it has never been held an abuse of discretion to refuse to vacate a default judgment.” Diligence must be shown. Barrett v. Queen City Cycle Co., 179 Ill. 68; Schultz v. Meiselbar, 144 Ill. 26.

In their briefs, counsel for appellant urge that the judgment resulted from “the undue diligence on the part of counsel for the appellees.” Great diligence by one party, however, can never be said to be a justification for, or a condonation of, negligence on the part of another. In the prosecution and conduct of all legal proceedings, at the peril of .every participant, and even though sometimes a manifest hardship results, the law reqMres reasonable diligence.

Bearing in mind, therefore, the regularity of the orders (that were actually made in the instant case) and the opportunity the appellant had, by proper diligence, to protect his rights and be present in court when his case was considered, notwithstanding the publication to which reference is made, we are unable to conclude that the trial judge, in the” exercise of that discretion with which the law empowers him, erred in refusing to vacate the judgment.

Finding no error in the record the judgment is affirmed.

Affirmed.


text:
    E. C. Kadow & Company, Appellant, v. C. E. Dobbins, Appellee.
    Gen. No. 23,252. (Not to be reported in full.)
    Abstract of the Decision.
    Replevin, § 164

      —when finding not against manifest weight of evidence. In an action of replevin, a finding that the materials which went into the construction of the wagon in question were not the materials covered by plaintiff’s chattel mortgage under which he claimed right of possession of the wagon, held not manifestly against the weight of the evidence.
    Appeal from the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed December 28, 1917.
    Statement of the Case.
    Action by E. C. Kadow and Company, a corporation, plaintiff, against C. E. Dobbins, defendant, in replevin for a “one 3-spring pedler-top wagon.” From a judgment for defendant, with writ of retorno habendo, plaintiff appeals.
    Israel Cower, for appellant.
    Theodore A. Sperce, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    Irving H. Eddy, Appellee, v. E. J. Healy, Appellant.
    Gen. No. 23,328. (Not to be reported in full.)
    Abstract of the Decision.
    Physicians and surgeons, § 25

      —when judgment for medical and surgical services not excessive. A judgment for $100 held not excessive for medical and surgical services rendered by plaintiff, with assistance of another physician and surgeon and two internes, in performing an operation upon defendant’s wife, whose throat had been cut practically straight through, severing the trachea, hyoid muscle, external jugular vein, and fascia and trachea between the larynx and hyoid bone, the operation consisting in cleansing the wound and sewing together the various structures severed, and requiring a degree of skill not possessed by the regular physician or surgeon.
    Appeal from the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed December 28, 1917.
    Rehearing denied January 10, 1918.
    Statement of the Case.
    Action by Irving H. Eddy, plaintiff, against E. J. Healy, defendant, to recover for medical and surgical services rendered defendant’s wife. From a judgment for plaintiff for $100, defendant appeals.
    Charles J. Monahan, for appellant.
    Herbert R. Lloyd and P. R. Boylan, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Joseph Pavlak, Appellant, v. Aermotor Company, Appellee.
    Gen. No. 23,168. (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 402

      —when servant assumes rish of injury by flying particles of iron. Where plaintiff was injured while employed as a laborer in defendant’s manufacturing shop engaged in chipping rough and uneven particles of iron and sand from iron castings laid on a table, where plaintiff did his work with an ordinary chisel and hammer, and was injured while continuing work without goggles, which a rule of defendant required its employees to wear and which defendant was accustomed to furnish but had none on hand that day, and where the table was so defective that plaintiff had refused to continue work until it was repaired, but did so on the promise of defendant’s foreman to repair it at once, which he did not do, and plaintiff was thereupon injured, held, that plaintiff assumed the risk, as the table and tools with which he. worked were of the most simple construction, easily understood, and entirely familiar to him.

      Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed December 28, 1917.
    Statement of the Case.
    Action by Joseph Pavlak, plaintiff, against Aermotor Company, a corporation, defendant, to recover damages for the loss of plaintiff’s right eye as a result of an injury received while in defendant’s employ. From a judgment for defendant- on a directed verdict at close of plaintiff’s evidence, plaintiff appeals.
    Knapp & Campbell, for appellant; John E. Cochran, of counsel.
    Judah, Willard, Wolf & Deichmann, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Master and servant, § 537*—when declaration does not allege violation of act relating to guarding dangerous tables. Where the allegations of the declaration, in an action to recover damages for injuries sustained while plaintiff was employed in defendant’s manufacturing shop, were limited .to the charge that the table on which plaintiff worked was defective, held that the allegations did not allege a violation of section 1 of the Health, Safety and Comfort Act of July 1, 1915 [Callaghan’s 1916 St. Supp. 5417(1)], providing that all tables in any factory, mercantile establishment, mill or workshop shall be so located wherever possible as not to be dangerous to employees, or shall be properly inclosed, fenced or otherwise protected.


text:
    The Standard Brewery, Appellee, v. John W. Healy, Appellant.
    Gen. No. 23,174.
    1. Evidence, § 67

      —when evidence that parties other than defendant rented premises is admissible. Where defendant was sued upon an alleged oral agreement with plaintiff to rent a certain building from plaintiff and conduct therein a saloon and to purchase beer from plaintiff for the business, evidence offered by defendant that other parties, and not he, rented the building and conducted the business was competent, and defendant was not limited to a denial of the alleged agreement.
    2. Evidence, § 67*—when of collateral facts is admissible. Whenever there is a conflict in the evidence relevant to the issue, evidence of collateral facts which have a direct tendency to show that the evidence of the one side is more reasonable and therefore more credible than that of the opposite side is admissible.
    3. Frauds, Statute of, § 41*—when oral lease is void. An oral lease for two and one-half years is void, even though possession of the premises is taken for a part of the time.

      4. Assumpsit, Action op, § 59

      —when tenant liable for use and occupation. A tenant occupying premises under a void oral lease for two and one-half years is liable for use and occupation and not for rent under the lease.
    5. Municipal Court op Chicago, § 13*—when statement of claim amendable. A statement of claim based upon a void oral lease for two and one-half years, held subject to amendment for recovery for use and occupation.
    Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed December 28, 1917.
    Mullen & L’Amoreaux, Ivar N. Nelson and H. W. Beaton, for appellant.
    Baker & Holder, for appellee.

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

      See Illinois Notes Digest, Yds. XI to XT, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

The Standard Brewery brought suit against John W. Healy to recover $916.69. The case was tried before the court without a jury, a judgment was entered in favor of the plaintiff for the amount of its claim, to reverse which defendant prosecutes this appeal.

Plaintiff’s theory was that the defendant entered into an oral agreement with it, whereby he leased a building for approximately two and one-half years, in which he desired to conduct a saloon; that the agreement further provided that the defendant was to purchase beer from the plaintiff; that in accordance with the agreement defendant took possession of the building and proceeded to conduct the saloon and purchased beer from plaintiff; that defendant conducted such saloon for abont six months when he vacated the premises; that there was then due plaintiff $316.69 on an account stated, being the balance for moneys advanced and beer furnished, and that there was also due rent for four months at $150 per month, or $600.

Defendant’s theory was that he entered into no agreement with the plaintiff; that he never conducted the saloon or purchased any beer from plaintiff but that the agreement was between plaintiff and Edward-J. Healy and John W. G-avagan, who conducted the saloon and purchased the beer.

Plaintiff contends that the assignments of error are insufficient to raise any question. In the view we take of the ease we think they are sufficient to pass on the rulings of the trial court in the admission of evidence. This question may be raised without submitting propositions of law.

Since there must be a new trial of this case on the ground that the court excluded proper evidence offered by the defendant, we express no opinion on the weight of the evidence, and will not discuss it more-than is necessary.

Witnesses on behalf óf the plaintiff testified that the defendant- called at plaintiff’s brewery and stated he desired to rent the building (which was under lease by the plaintiff) for the purpose of conducting a saloon, and that he also desired to purchase the necessary beer from the brewery; that an agreement was accordingly entered into and the defendant then paid $150 on account of rent; that immediately afterwards plaintiff delivered beer at the premises; that a beer book was kept at the saloon in which drivers wrote down the amount and price of the beer furnished;' that this book was left at the saloon, except at the end of each month when it was taken by the driver to the brewery where' the items were, footed up and the book then returned to the saloon; that the book showed a balance of $316.69, which was made up of $20.50 for beer, $252 license and assignment fee, $35 bond fee, and $9.19 water tax. The testimony further tended to show that defendant had agreed to lease the premises at $150 per month for about two and one-half years, being the same period of time that the premises were held by the plaintiff under a lease from the owner.

The testimony on behalf of the defendant was that he did not- rent the premises of the plaintiff; that he advanced certain moneys to Edward J. Healy and John W. G-avagan, who rented the premises from plaintiff and who conducted a saloon there; that he had nothing to do "with the running of the saloon at any time, but that the same was operated solely by the two parties last mentioned; that the defendant had seen a written lease from plaintiff to Healy and Gavagan covering the premises. The evidence further tended to show that the brewery had a license from the city to operate a saloon in the premises and that it executed an assignment of the license to Healy and Gavagan; that two representatives of the plaintiff also signed a written application addressed to the chief of police, stating that Healy and G-avagan were known to them for a number of years and were proper persons to conduct a saloon. There was also a written assignment of the right to renew the license executed by Healy and Gavagan to plaintiff, and two of plaintiff’s officers were sureties on the bond of Healy and Gavagan given by them to the city. Witnesses were also offered who would testify that Healy and Gavagan actually conducted the saloon and that defendant did not; that the telephone and electric light were in the name of Healy and Gavagan, and that various supplies were purchased and employees were hired by them to run the place. Some of the evidence offered by the defendant that tended to show that he had no connection with the saloon, but that the building was rented and the saloon operated by Healy and Gavagan, was admitted and some was afterwards stricken out, but the greater part of it was ruled out as inadmissible, the court apparently taking the position that as plaintiff had testified it rented the place to defendant, the only competent evidence on behalf of the defendant was a denial. In this the court erred. Any evidence that would tend to show that the building was rented and the saloon operated by Healy and Gavagan and not by the defendant was competent. The law is that whenever there is a conflict in the evidence relevant to the issue, evidence of collateral facts which have a direct tendency to show that the evidence of the one side is more reasonable and therefore more credible than that of the opposite side is admissible. Glassberg v. Olson, 89 Minn. 195; Barney v. Fuller, 133 N. Y. 605; Cochrane v. West Duluth Industrial Const. & Imp. Co., 64 Minn. 369; Dodge v. Weill, 158 N. Y. 346; Home Ins. Co. v. Weide, 78 U. S. 438; Chicago Gen. St. Ry. Co. v. Capek, 68 Ill. App. 500. It would be a narrow rule that would limit the evidence to an affirmation of the agreement on the one hand and a denial of it on the other. All of the evidence offered by the defendant that tended to show that he had nothing to do with the operation of the saloon but that it was under the control of other parties was clearly admissible.

The evidence tended to show that some of the transactions were conducted by one Blair on behalf of the plaintiff. Objection was made that this was inadmissible for the reason that Blair was not the agent of the plaintiff. We think the evidence of his agency was sufficient to permit the introduction of the evidence offered in this regard.

The defendant also contends that the evidence failed to show that there was an account stated in the sum of $316.69. This contention depends entirely upon whether the defendant rented the building and operated the saloon, and as we have held that the court erred in ruling on the admission of evidence, that question will be determined on a retrial.

Defendant further contends that the lease is within 'the Statute of Frauds, and therefore void, in that the evidence shows that it was for a period of more than one year and was not in writing. Plaintiff’s vice president and manager testified that the lease was for approximately two and one-half years, and that it was not in writing. It is clear, therefore, if his version is true, the lease is void under the Statute of Frauds, even though defendant took possession for a part of the time. Tet if the premises were occupied by defendant, he would be liable for use and occupation. Marr v. Ray, 151 Ill. 340. Plaintiff’s statement of claim is based upon the lease and is not for use and occupation, but, as there must be a new trial, the court will probably permit the statement of claim to be corrected if plaintiff desires to do so.

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

Reversed and remanded.


text:
    Franklin P. Smith, trading as F. P. Smith Wire & Iron Works, Appellant, v. Bessie B. Adcock et al., Appellees.
    Gen. No. 23,199.
    1. Equity, § 218

      —what objections to bill may be urged under general demurrer. Where a general and a special demurrer are filed, no question as to the form of the hill demurred to can he raised other than the special grounds mentioned, but any objection that goes to the substance may be urged , under the general demurrer.
    2. Mechanics’ liens, § 184*—when bill is sufficient. Where a bill was filed under the Mechanics’ Lien Law against the owner in fee of certain lands and his lessee and sublessee, seeking to enforce a lien for materials furnished by complainant to the sub-lessee for the erection of a building'and improvements on the lands, to which was attached and made a part thereof, the lien filed by complainant in the office of the clerk of court setting up that the sublessee was then erecting the buildings and improvements on the lands with the knowledge of the owner, held that this was sufficient to show "that the materials were furnished with the knowledge of the owner, notwithstanding the bill itself may have been insufficient to ‘show the fact.
    3. Mechanics’ liens, § 184

      —when Mil to enforce is sufficient. Bill to enforce a mechanic’s lien, with statement of lien attached thereto filed with the clerk of the court, giving the several dates at which it was agreed the materials claimed for should be furnished, when they were furnished, and stating that the work was to be finished within'a reasonable time and the amount agreed to be paid, held to comply with "section 11 of the law (J. & A. V 7149), providing that a hill or petition should contain a brief statement of the contract on which it was founded, the date, when made, and when completed, if not completed why, the amount due and unpaid, a description of the premises subject to the lien, and such other facts "as may be necessary to a full understanding of the rights of the parties.
    4. Mechanics’ .liens, § 102*—when affidavit to statement of claim is indefinite. Affidavit- to a statement of claim for a mechanic’s lien setting up that the statement is true, that all material and labor mentioned were furnished to the defendant at the times and for the prices stated, and that the above and foregoing is a just and true statement of the material, labor and services furnished and performed as set forth, held to be ambiguous and indefinite in itself but sufficient as part of a bill seeking to enforce the lien, to which no special demurrer setting up deficiency of the affidavit was filed.
    5. Mechanics’ liens, § 103*—when special demurrer to Mil necessary. Any deficiency in an affidavit to a statement of claim for a mechanic’s lien as part of the bill must be reached by a special demurrer setting up such fact.
    6. Equity, § 345*—when error to dismiss Mil for want of equity. Even where the court may not be able to fully comprehend the case as set forth in a bill and pronounce upon it with confidence, still if the court can see from what is stated that- there is equity in the hill, it is error to sustain a demurrer to the whole of the bill and dismiss it for want of equity.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded with directions.
    Opinion filed December 28, 1917.

      J. Francis Mahan and Harry H. Krinsky, for appellant.
    Butz, von Ammon & Johnston, for appellees.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Franklin P. Smith filed the bill in this case to foreclose a mechanic’s lien. Demurrers of certain defendants were sustained to the amended bill, and it was dismissed for want of equity.

The amended bill alleged that the complainant was engaged in the business of furnishing building supplies, ornamental iron, etc.; that about January 27, 1913, the owners of certain real estate leased it for a period of 99 years to Edward C. Waller, Jr., one of the defendants; that afterwards Waller assigned and conveyed an undivided' one-half of the leasehold interest to Oscar J. Friedman; that on or about May 1, 1914, Waller and Friedman leased a portion of the real estate for a period of 97 years to the Midway Gardens Company, a corporation, subject to the terms of the original lease to Waller; that the original lease provided that Waller should erect on the premises on or before October 1, 1917, new and additional buildings to cost not less than $150,000; that the lease to the Midway Gardens Company provided it should within a certain specified time erect upon the premises certain buildings and improvements; that Waller caused to be organized the Midway Gardens Company, of which he was president and director, for the purpose of having the Midway Gardens Company comply with the terms of the original lease in the erection of the improvements as therein specified; that thereafter it proceeded to make the improvements under its lease, and on or about May 29, 1914, entered into a contract with the complainant whereby he was to furnish certain ornamental iron, iron gates,.iron fences and fence posts to be erected and installed in the buildings and improvements then being erected by the Midway Gardens Company on the premises; that in pursuance of the contract complainant furnished and delivered upon the premises and installed in the buildings'the materials which he had agreed to, setting forth in detail the dates when the matérial was furnished, the kind of material and the price of each item, the total aggregating $2,706.40, the first material being-furnished May 29, 1914, and the last September 27, 1914; that no part of the claim had been paid; that on October 30, 1914, he served a notice for a mechanic’s lien on the owners of the fee, Waller, Friedman and the Midway Gardens Company, and on the same day filed a claim for lien in the office of the clerk of the Circuit Court of Cook county. Attached to and made a part of the bill is the notice and statement of claim.

One of the defendants filed a general and special demurrer, and certain other defendants filed a general demurrer, both of which were sustained, and the bill dismissed for want of equity.

Appellant contends that as there were but two special grounds of demurrer set up, only these two grounds can be urged in this court. This is not the law. Where a general and special demurrer is filed, no questioh as to the form of the bill can be raised other than the special grounds mentioned; but any objection that goes to the substance may be urged under the general demurrer. Story’s Equity Pleading (9th Ed.), sec. 443; Puterbaugh’s Chancery (6th Ed.), p. 108. In the instant case, therefore, the defendants can urge the two special grounds set up and "any other grounds that go to the substance.

The defendants first contend that the demurrers were properly sustained for the reason that there is no allegation that the owners of the fee authorized or knowingly permitted Midway Gardens Company to contract for the improvement of or to improve the premises in question within the meaning of section 1 of the Mechanics’ Liens Law (J. & A. ¶ 7139), and that while it is true that the original lease required Waller to construct certain new and additional buildings on the premises to cost not" less than $150,000, there is no allegation that the owners or Waller or Friedman authorized the Midway Gardens Company to erect any buildings or improvements on the property, and that as there was no contractual relations between the owner and the complainant, the only way the fee can be subjected to the lien is by averring and proving that the owner of the fee authorized or knowingly permitted the particular improvement.

It is true that the bill is rather loosely drawn, and might be subject to the complaint urged, but we think that the deficiency, if any, is cured by the claim for lien filed by the complainant in the office of the clerk of the Circuit Court, which was attached to and made a part of the bill. It is there set up that the Midway Gardens Company, through its authorized agents, entered into an agreement with complainant to furnish the materials in question; that the Midway Gardens Company was then, with the knowledge of the owners of the fee, erecting buildings and improvements on the real estate, and that the complainant furnished the materials which were used in the construction of the buildings. We think this is sufficient to show that the material was furnished by complainant with the knowledge of the owners of the fee.

The defendants next contend that the amended bill is defective in that it contains no “brief statement of the contract or contracts on which it is founded,” as required by section 11 of the Mechanics’ Liens Act (J. & A. ¶ 7149). In support of this it is argued that it must appear from the bill that there was a specific time fixed by the contract for furnishing the labor and materials, and that the same were furnished within such time; or, that no time was fixed, and that the labor and materials were furnished within a reasonr able time; that it must also set up the time of payment.

Section 11 provides: “The bill or petition shall contain a brief statement of the contract or contracts on which it is founded, the date, when made, and when completed, if not completed, why, and it shall also set forth the amount due and unpaid, a description of the premises which are subject to the lien, and such other facts as may be necessary to a full understanding of the rights of the parties.” The bill, and the statement of claim filed with the clerk of the Circuit Court, which is made a part of the bill, give the several dates at which it was agreed that the materials should be furnished, also when they were furnished, and the statement of claim sets up that, the work was to be completed within a reasonable time; that the Midway Gardens Company agreed to pay $2,706.40 for the work which was done. We think the allegations are a sufficient compliance with the provisions of the statute. It shows the several dates when deliveries were made, when the work was completed and the amount; the agreement to pay and that the work was to be done within a reasonable time. Therefore, while the exact date of payment is not specified, we think it is clear from the allegations that the payments were due when the work was completed.

Complaint is also made that the statement of claim for lien filed is insufficient, in that it contains no “brief statement of the contract,” required by section 7 of the Act (J. & A. ¶ 7145), and that the affidavit to the claim does not show the materials were furnished by complainant; that the claim should show “either the time within which the material or labor were to be furnished, and that they were furnished within such time, or that no time was fixed for the furnishing thereof, and that they were furnished within a reasonable time ’ ’; that it is also defective in failing to show the time within which payment was to be made under the contract. We think what we have already said disposes of these objections.

The verification to the claim, to which objection is made, sets up that the statement of claim is true; that all material and labor mentioned in the claim was furnished “to said Midway Gardens Co. * * * by and through its architect and agents * * * at the times and for the prices herein stated, and that the above and foregoing is a just and true statement of the material, labor' and services furnished and performed as herein set forth.” This is sworn to by complainant, and while it is ambiguous and indefinite in itself, the statement of claim attached sets up that complainant delivered the materials to the Midway G-ardens Company. We think it is sufficient, and, in any event, the defendants to be in a position to urge this point should have set it up as a special ground for demurrer. The same is true with reference to the objection urged to the allegations of the bill which attempts to set up that certain parties claim to have some interest in the premises which is subject to the complainant’s lien; and also to the allegations concerning the provisions of the lease to the Midway G-ardens Company. It is apparent that something is .omitted from each of these allegations; and, although the case made by the amended bill is defectively stated, yet it is the law that even where the court may not be able to fully comprehend the case as made and pronounce upon it with confidence, still if the court can see from what is stated that there is equity in the bill, it is error to sustain a demurrer to the whole of the bill and dismiss it for want of equity. Wescott v. Wicks, 72 Ill. 524; Langlois v. McCullom, 181 Ill. 195; Wormley v. Wormley, 207 Ill. 411; Seymour v. Woodstock & Sycamore Traction Co., 281 Ill. 84; Gibbs v. Davies, 168 Ill. 205. In the instant case, while the amended bill is very loosely and inartificially drawn, yet we think there is equity in it, and the demurrers should not have been sustained.

The decree of the Circuit Court of Cook county is reversed and the cause remanded with directions to overrule the demurrers.

Reversed and remanded with directions.


text:
    Sigismund F. Waterman, Appellee, v. Fidelity & Casualty Company of New York, Appellant.
    Gen. No. 23,206.
    1. Indemnity, § 24

      —when evidence as to malpractice is immaterial in action on indemnity policy. Evidence that if there was any malpractice in plaintiff’s treatment of a certain patient for a certain injury it would occur within two or three days after the first treatment, held to be immaterial in view of defendant’s admission that it did not claim there was any malpractice in such treatment, in an action to recover under a policy of indemnity insurance of plaintiff against loss from liability for damages on account of bodily injuries or death suffered by any person or persons in consequence of any malpractice, error or mistake of plaintiff as a physician, or from any suit against plaintiff to enforce any such claim, whether it was groundless or not.
    2. Indemnity, § 11*—when insurer liable for amount paid to settle claim for malpractice. Where plaintiff’s treatment as a physician of a certain patient was commenced some time before and continued for several weeks after defendant issued to him a policy of indemnity insurance against loss from liability for damages on account of bodily injuries or death suffered by any person or persons in consequence of any malpractice, error or mistake of plaintiff and from any suit against him to enforce any such claim, whether groundless or not, defendant agreeing in such policy to defend any such suit, and as a consequence of defendant’s refusal to defend a suit brought by such patient charging plaintiff with malpractice in such treatment both prior to and after the issuance of the policy, plaintiff defended and settled the claim sued on, held that defendant should be required to reimburse plaintiff for the amount paid by him on account of the suit, in an action on the policy.
    3. Indemnity, § 11

      —when instruction on continued liability under indemnity policy is erroneous. An instruction that where a physician has an undischarged case at the time of the issuance of a policy of indemnity insurance against loss from liability for damages due to his malpractice, error or mistake, and the patient continues under the physician’s care after the policy is issued, this will constitute continued liability, held to be erroneous, as there would be no liability under the policy except for malpractice, error or mistake committed after the date it was issued, and it would make no difference how long the patient continued under the physician’s care unless it was claimed the malpractice, error or mistake occurred after the policy issued.
    4. Appeal and ebbob, § 1779*—when judgment not reversed because of erroneous instructions. Where a policy of indemnity insurance was issued to plaintiff agreeing to indemnify him against loss from liability for damages due to his malpractice, error or mistake as a practicing physician and to defend any suit brought against him on any such claim, whether it was groundless or not, and defendant refused to defend a certain suit brought' against plaintiff on the ground that plaintiff’s alleged malpractice involved in the suit was prior to the issuance of the policy, although it was alleged in the suit that the malpractice continued subsequently thereto, held, in an action on the policy, wherein defendant admitted plaintiff was guilty of no malpractice and that the amount paid by him in settlement of the suit was reasonable, that judgment should not be reversed because of erroneous instructions, as it appeared there was no defense.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed December 28, 1917.
    Rehearing denied January 10, 1918.
    H. L. Howard, for appellant.
    William A. Montgomery, for appellee.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Sigismund F. Waterman brought an action of assumpsit against the Fidelity & Casualty Company of New York to recover $225. There was a judgment in plaintiff’s favor for the amount of his claim, to reverse which defendant prosecutes this appeal.

Plaintiff seeks to recover damages against the defendant claiming the breach of a policy of indemnity issued- by the defendant to him, whereby defendant agreed to indemnify plaintiff, who was a practicing physician, against suits for malpractice. The record discloses that on February 20, 1908, a Mrs. Warner, who had a fractured wrist, went to plaintiff to have the fracture reduced; that plaintiff treated Mrs. Warner, and on' March 18, 1908, defendant issued to plaintiff its policy whereby it agreed to indemnify plaintiff against loss from liability, imposed by law upon Mm for damages on account of bodily injuries or death suffered by any person" or persons in consequence of any malpractice, error or mistake. "A further agreement was that the defendant should defend in the name of plaintiff and in Ms behalf any suit brought against Mm to enforcé a claim “whether groundless or not, for damages on account of bodily injuries or death suffered, or alleged to have been suffered, by any person or persons, in consequence of any malpractice, error or mistake.” In February, 1910, Mrs. Warner brought suit against plaintiff for alleged malpractice. Thereupon plaintiff, in accordance with the condition of the policy, notified defendant to defend the suit. Defendant investigated the case and refused to defend, claiming that the subject-matter of Mrs. Warner’s claim was not covered by the policy, for the reason that the malpractice, if any, occurred prior to issuance of the policy. Plaintiff then employed Ms own counsel and denied that he was guilty of any malpractice. Afterwards when the case was called for trial, plaintiff’s counsel conferred with the other side and advised and recommended that plaintiff pay Mrs. Warner $150, which was done, and her case was disposed of. He was also required to pay his counsel in that case $75, making $225, the amount of the verdict and judgment in the instant case.

Mrs. Warner testified on behalf of the defendant that she was' first treated by plaintiff February 20, 1908, and that he continued to treat her for not more than three weeks thereafter. Her evidence, however, as to the length of time plaintiff treated her is not entirely clear. Plaintiff testified that he began his treatment of Mrs. Warner February 20,1908, and that the last time he saw her professionally was June 12, 1908. In the instant case there is no claim that the plaintiff was guilty of any malpractice in his treatment of Mrs. Warner. In fact, defendant’s counsel expressly stated that it did not claim there was any malpractice. A Dr. Wheeler testified as an expert on behalf of the defendant, and in answer to hypothetical questions describing a fracture such as Mrs. Warner was suffering from, stated that if there was any malpractice in the treatment of such an injury it would occur within two or three days after the first treatment. This testimony, in view of defendant’s admission, was immaterial.

The defendant contends that the verdict is contrary to the manifest weight of the evidence. The only conflict in the evidence is the testimony given by Mrs. Warner and plaintiff above set forth. All of the other evidence is undisputed. And even if we should adopt Mrs. Warner’s version of the matter, it would be entirely immaterial under the facts of this case, and would constitute no defense, for the reason that the defendant by the terms of the policy agreed to defend him against all claims on account of malpractice, whether they were groundless or not. In Mrs. Warner’s suit, in both counts of her declaration, it was expressly alleged that plaintiff began to treat her professionally February 20, 1908, and continued such treatment for five or six weeks thereafter, and during such time plaintiff treated her so unskilfully and negligently that the injury to her wrist was greatly aggravated and rendered incapable of being cured. The policy was. issued March 18, 1908, and according to Mrs. Warner’s allegations plaintiff continued to treat her for about three weeks after the policy was issued, during all of which time he was guilty of malpractice. It is clear, therefore, that it was the duty of the defendant under the express terms of the policy to defend plaintiff in the suit brought against him by Mrs. Warner, and, as it failed and refused to do so, it is liable to him in this case. It could not free itself from its obligation by so simple a device as investigating the facts in Mrs. Warner’s case, which it says it did, and upon such investigation claim that it learned that the malpractice, if any, took place prior to the issuance of the policy, since it was expressly charged in that ease that plaintiff had been guilty of malpractice after the issuance of the policy. Therefore it was defendant’s duty to defend, and as there is no claim made now that plaintiff was guilty of any malpractice, if such defense had been made plaintiff would have escaped liability. As a consequence of defendant’s refusal to defend, plaintiff was required to pay $225, and defendant under its policy should be required to reimburse him for this amount.

Defendant also complains of certain of the instructions given by the court, and the refusal to give other instructions requested. It is argued that while the amount involved in this suit is small, yet the principle is important. We have examined all of the instructions offered, given and refused. They are all wrong.j The first instruction given told the jury that where a physician has an undischarged case at the time of the issuance of a policy of insurance, such as the one in the instant case, and the patient should continue under the physician’s care after the policy was issued, this would constitute a continued liability. There certainly would be no liability under the policy, except for malpractice committed after the date it was issued, and it would make no difference how long the patient continued under the doctor’s care, unless it was claimed that malpractice had occurred after the policy was issued.

The second instruction was to the effect that even if plaintiff had paid $150 to Mrs. Warner in settlement of her claim, yet if the jury believe from the evidence that the acts of malpractice on which that suit was based took place prior to the date of the policy, then plaintiff could not recover, and the court added the qualification, unless the treatment of Mrs. Warner continued after the policy was issued. What has just been said will dispose of the qualification. The rest of the instruction was wrong, because it was the duty of the defendant to defend that suit, since it was there specifically claimed that plaintiff was guilty of malpractice after the issuance of the policy as well as before. What we have said disposes of the other instructions, and,, although they are wrong, yet the judgment should not be reversed, as it was expressly stated by defendant that plaintiff was guilty of no malpractice, and further that the amount paid by him was reasonable. It therefore appears that there is no defense to plaintiff’s claim for $225.

The judgment of the Circuit Court of Cook county is affirmed.

Affirmed.


text:
    George J. Kappes, Appellee, v. E. R. Bacon, Appellant.
    Gen. No. 23,212. (Not to be reported in full.)
    Abstract of the Decision.
    1. Brokers, § 93

      —what are questions for jury in action for commissions. Evidence held sufficient to warrant submission to the jury of the questions whether defendant employed plaintiff as a broker for the sale of defendant’s real estate, whether plaintiff was the procuring cause of the sale involved, and whether plaintiff had abandoned the negotiations commenced by him and defendant had thereafter made the sale, in an action to recover a commission on the sale.
    2. Brokers, § 92*—what is sufficient proof of value of services. The uncontradicted evidence of plaintiff that he was a real estate broker and had been engaged in that business for eleven or twelve years, and that the usual, reasonable and customary broker’s fee in that place for similar transactions was 5 per cent, of the purchase price, was sufficient proof of the value of plaintiff’s services for which he claimed commissions, in an action to recover commissions.

      . Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed December 28, 1917.
    Rehearing denied January 10, 1918.
    Statement of the Case.
    Action by George J. Kappes, plaintiff, against E. R. Bacon, defendant, to recover $216.60 claimed as compiissions on a sale of real estate. Prom a judgment for plaintiff, defendant appeals.
    Moses, • Rosenthal & Kennedy, for appellant; Hirsoh E. Soble, of counsel.
    Rathje, Lawlor & Connor, for appellee; Gerard A. Connor, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

3. Municipal Court of Chicago, § 13*—when statement of claim is sufficient. A statement of claim in an action of the fourth class in the Municipal Court of Chicago, is sufficient if it merely states the account or nature of plaintiff’s demand and gives such information as will reasonably inform the defendant of the nature of the case.

4. Brokers, § 4*-—non-necessity of cleric "being licensed. It is not necessary under the ordinances of the City of Chicago that the hired clerk of a regularly licensed real estate broker who represents his employer in securing the listing of property for sale should be licensed.

5. Brokers, § 84*—when admission in evidence of listirig card is not reversible error. The admission in evidence, in an action to recover a commission on a sale of real estate, of a listing card made by plaintiff as to defendant’s property, giving information as to its sale, held not reversible error.


text:
    Lewis Ceasy Umlauf, Appellee, v. Chacamas Tropical Products Company and Arista B. Williams, on appeal of Arista B. Williams, Appellant.
    Gen. No. 23,246.
    1. Appeal and error, § 578

      —when exception to judgment is unnecessary. NTo exception is necessary to a judgment as to an error appearing on its face, in a case tried by the court without a jury, to secure a review of such error, especially since the amendment of section 81 of the.Practice Act (J. & A. f 8618).
    2. Judgment, § 200*—when against one of defendants sued jointly is erroneous. Where a declaration or statement of claim charges a joint liability, and one of the defendants shows that he was never liable, a recovery cannot be had against the other without dismissing the defendant not liable and amending the declaration or statement of claim by omitting the charge of joint liability, unless one of the defendants makes a personal defense, therefore a judgment, in such a case, in favor of the nonliable defendant and against the other is erroneous, nor does the fact that the former was improperly joined constitute an exception to the rule.

      Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed December 28, 1917.
    Castle, Williams, Long & Castle, for appellant.
    Edmund W. Froehlich, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Lewis Ceasy Umlauf brought suit against the Chacamas Tropical Products Company, a corporation, and Arista B. Williams to recover $76.65. The case was tried before the court without a jury; there was a finding and judgment in favor of the defendant Chacamas Tropical Products Company. The court further found in favor of the plaintiff and against the defendant Williams for the amount of plaintiff’s claim and entered judgment on the finding, to reverse which Williams prosecutes this appeal.

The evidence is not preserved in the record, and no question is urged except that the defendant Williams contends that in an action on a contract against several defendants, when they are all served, the judgment must he against all or none of them, unless one of the defendants interposes the defense of infancy, lunacy, bankruptcy or the like, and that it was error for the court to enter judgment in favor of one defendant and against the other.

Plaintiff contends that as the case was tried before the court without a jury, and as no exception was preserved to the finding or the judgment, no error can be assigned thereon. With this contention we cannot concur. Where error appears on the face of the judgment itself, no exception to the judgment is necessary. Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61. Furthermore since the amendment to section 81 of the Practice Act (J. & A. ¶ 8618), it is not necessary to save an exception of this character. Miller v. Anderson, 269 Ill. 608.

"Where a declaration or statement of claim charges a joint liability, and one of the defendants shows that he was never liable, a recovery cannot be had against the other without dismissing the defendant not liable and amending the declaration or statement of claim by omitting the charge of joint liability, unless some of the defendants make, a personal defense—as infancy, lunacy, bankruptcy or the like. Fuller v. Robb, 26 Ill. 246; Felsenthal v. Durand, 86 Ill. 230; Hem v. Allen, 179 Ill. App. 223; Grand Pacific Hotel Co. v. Pinkerton, supra. Plaintiff admits this to be the general rule, but claims there is an exception where one of the defendants has been improperly joined, as where he is not a party to the contract in suit, and in support of this contention, the cases of Carnegie v. Dawney, 178 Ill. App. 413; Grand Pacific Hotel Co. v. Pinkerton, supra; Mayer v. Brensinger, 180 Ill. 110, are cited. We have examined all of the authorities cited, and, in addition, numerous cases decided by this and the Supreme Court of this State, and other authorities, and we have been unable to find a case where a finding and judgment was made in favor of one defendant and against the other. In the Dawney, Pinkerton and Brensinger cases, supra, the defendant against whom no liability was proven was dismissed out of the case. We are therefore constrained to hold that the judgment in the instant case is erroneous and must be reversed.

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

Reversed and remanded.


author: Mr. Presiding Justice Barnes

text:
    Union Ribbon & Carbon Company, Appellee, v. Sidney Morris & Company, Appellant.
    Gen. No. 23,701. (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court oe Chicago, § 31

      —when judgment affirmed. A judgment of the Municipal Court of Chicago will be affirmed on allowing motion of appellee to strike the stenographic report of the trial from the record because filed within an extension of time the court had no jurisdiction to allow, where all the assignments of error and-argument of appellant are predicated upon the stricken part.
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed January 15, 1918.
    Statement of the Case.
    Action by Union Eibbon & Carbon Company, a corporation, plaintiff, against Sidney Morris & Company, a corporation, defendant. From a judgment for plaintiff, defendant appeals.
    Max M. Grossman, for appellant.
    Huee & Cook, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.