text:
    Lottie E. Fish, Defendant in Error, v. William H. Fish, Plaintiff in Error.
    Gen. No. 20,816.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed October 5, 1915.
    Rehearing denied October 14, 1915.
    Statement of the Case.
    Action by Lottie E. Fish against William H. Fish for a rule to show cause why defendant should not be attached for contempt because of his failure to comply with a divorce decree requiring him to pay $12 per month for the support and education of their child. A motion of defendant to dismiss the rule was denied and he then filed his answer. A hearing was had and a decree entered that $384 was due to complainant, that defendant was in contempt of court and that he be arrested and placed in the county jail until the sum was paid, or he was otherwise released by due process of law, but that his imprisonment should not exceed six months. Defendant appealed, but his appeal was not perfected and was afterwards dismissed with an order that procedendo issue. On filing a copy of the order, the sheriff attached the defendant and he sued out this writ of error.
    W. H. Fish, pro se and E. M. Seymour, for plaintiff in error.
    Fred A. Bangs, for defendant in error; Richard H. Colby, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

1, Contempt, § 58 —when rule to show cause is authorized. A rule to show cause is authorized where a petition shows that the defendant .was ordered hy a divorce decree to pay a certain sum of money each month to the complainant for the support and maintenance of their child, and that the order was not complied with.

2. Contempt, § 70 —when order not erroneous. In contempt proceedings, brought because the defendant failed to comply with a decree requiring payment of a certain sum each month to the complainant for the support of their child, an order requiring payment of the amount found due was not erroneous because it failed to state to whom the money was to be paid, it being apparent that it was to he paid to complainant.

3. Contempt, § 61 —what is effect of answer. In a civil contempt proceeding, the sworn answer of the defendant is not sufficient to purge him of contempt.

4. Contempt, § 64 —what is necessary at trial. In a civil contempt proceeding, it is not necessary to file interrogatories.

5. Contempt, § 73 —when findings are presumed supported hy evidence on writ of error. Where the record states that the court having heard the evidence did find it, etc., it will be presumed, in the absence of a certificate of evidence, that the evidence was sufficient to support the findings.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Henry A. Vossler, Appellee, v. George Earle and William Earle, copartners, trading as George & William Earle, Appellants.
    Gen. No. 20,837.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Rehearing denied October 13, 1915.
    Statement of the Case.
    Action "by Henry A. Vossler against George Earle and "William Earle, copartners as George & William Earle, to recover commissions on the sale of four tracts of land situated in Gary, Indiana, which sale was alleged to have been negotiated by Vossler. Plaintiff was a real estate broker doing business in Gary, and the evidence showed that he found a purchaser for the land, told him who the owners were and later took the purchaser to the office of the defendants in Chicago, where a contract in writing for the sale of the land for $120,000 was entered into. Later the contract was modified, and still later the land was conveyed to the purchaser. Plaintiff recovered a judgment for $6,000, and defendants appealed.
    Abstract of the Decision.
    1. Brokers, § 7

      —when contract to pay commissions implied. In an action by a broker for commissions for selling real estate, where the evidence showed that the principals by their conduct approved the agency of the broker, and that such broker was not a volunteer, a contract to pay commissions was implied if the sale was afterwards consummated through the broker’s efforts.
    2. Brokers, § 5

      —when license necessary. The fact that an agent negotiated a sale of land in another State at the home of the owner in Chicago did not make him a broker within the meaning of an ordinance requiring brokers to have licenses, there being no evidence that such agent was carrying on the business of broker in such city.
    3. Conflict of laws, § 20

      —what law applies to broker's contract. Where land in a foreign State was sold in this State, the statutes of such foreign State requiring that a contract to pay commissions for selling real estate must be in writing and signed by the owner, did not apply.
    George C. Otto and Frank P. Leffingwbll, for appellants.
    Knapp & Campbell, for appellee; John E. Cochran and Harvey J. Curtis, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Peter Billow, Appellee, v. Isaac Miller, Appellant.
    Gen. No. 20,869.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. A. D. Webb, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    Pasties, § 16

      —when judgment erroneous. A judgment against two defendants when they are not jointly liable is erroneous.
    Statement of the Case.
    Action by Peter Billow against Isaac Miller and Jacob Zimon to recover the price of work done on a building. Miller contracted in writing with Zimon for the erection of a building to cost $700, and Zimon contracted with Billow for work on such building agreeing to pay for same. Billow contended that Miller also agreed to pay for the work. At the trial Miller defended but Zimon did not nor was he defaulted, and the jury returned a verdict against both, assessing plaintiff’s damages at $315. The record showed that defendants moved for a new trial, that their motion was denied and judgment rendered against defendants, that defendants prayed an appeal, which was allowed on the defendant filing a bond, etc. Miller gave the appeal bond in which Zimon his codefendant did not join.
    Rudolph D. Huszagh, for appellant.
    Max M. Grossman, for appellee; R. S. Cook, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Ernestine Rapp, Appellee, v. William Rapp, Appellant.
    Gen. No. 20,986.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis R Sullivan, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    1. Appeal and error, § 76

      —what record must show. An objection that the trial court erred in denying a motion for a continuance cannot be reviewed where the affidavit for continuance is not made a part of the record by the certificate of the judge who heard the cause, and the fact that such affidavit is copied into the transcript by the clerk does not make it part of the record.
    2. Divorce, § 23

      —when residence shown. In a suit for divorce, where the testimony of the complainant, her children and members of her household shows residence in this State for some time before the filing of the bill, and the defendant introduces no evidence of any tangible fact tending to show that complainant was not an actual and bona fide resident, the jury are properly instructed that complainant was a resident of the State.
    Statement of the Case.
    Suit for divorce by Ernestine Rapp against William Rapp on the ground of adultery. The cause was tried to a jury, and the court instructed the jury to find the issues for the complainant, and on the verdict so directed entered the decree, whereupon the defendant appeals.
    Ben M. Smith and Lee J. Frank, for appellant.
    Stein, Mayer & Stein, for appellee; Elias Mayer, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

3. Divorce, § 46 -—when question of adultery need not be submitted to jury. In a suit for divorce where the evidence of adultery of the defendant is clear and convincing, and uncontroverted, the question need not be submitted to the jury.

4. Divorce, § 42 —what evidence inadmissible to show adultery. In a suit for divorce where the defendant alleged adultery of the complainant, evidence of incontinence with another person occurring twenty years before the adultery charged would not tend to prove such allegation and is properly excluded.

5. Divorce, § 42 —when circumstantial evidence of adultery admissible. Circumstantial evidence of adultery must be sufficiently significant in character and sufficiently near in point of time to lead the guarded discretion of a reasonable man to a belief in a material element and the fact to he proved, and if too remote or insignificant it will be rejected.


text:
    Michael A. Thomas, Appellee, v. City of Chicago, Appellant.
    Gen. No. 21,043.
    1. Civil service, § 14

      —when employee may be suspended. Un-' der section Í2 of the City Civil Service Act (J. & A. 1f 1811), as to the suspension of officers for a reasonable period not exceeding thirty days, there is no restriction on the right of suspension for the limited time prescribed, and when occasion warrants it, and the interests of the city require it, a civil service employee may he temporarily deprived of his employment for the time prescribed.
    2. Civil service, § 14

      —what is effect of statute as to suspension. Section 12 of the City Civil Service Act (J. & A. jf 1811), providing that “nothing in this Act shall limit the power of any officer to suspend a subordinate,” etc., is broad enough to apply where it is necessary to lay off subordinates for a limited period.for the purpose of economy when retrenchment is necessary, and the word “suspend” is not synonymous with “remove,” but with “lay off.”
    3. Civil service, § 14

      —what is effect of statute as to removal of employee. Section 12 of the City Civil Service Act (J. & A. K 1811), prohibiting the removal of an officer except for just cause, does not apply where an employee is laid off for thirty days or less when it is done in good faith to reduce expenses.
    4. Civil service, § 14"—what is effect of rule as to discharging employee. A rule of the civil service that in the reduction of the force of employees the person last certified for employment shall be first laid off, does not apply to a lay off for thirty days or less when it is done in good faith to reduce expenses.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed October 5, 1915.
    John W. Beckwith, for appellant; Leon Hornstein, of counsel.
    Darrow, Baily & Sissman, for appellee.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

This appeal brings before us for review a judgment recovered by appellee Thomas, formerly a sanitary inspector of Chicago, against the City of Chicago, appellant, for $93.55, the amount of wages alleged to be due Thomas for the period from December 3 to 31, 1912, during which time he was laid off and did not render any services to the defendant. His contention is that he was wrongfully laid off and was entitled to the wages or salary of the position although he was not at work. There was an unexpected curtailment of the revenues of the city for the year 1912 amounting to about $3,701,000. It was not known that there would be such curtailment until July, 1912, and after more than one-half of the appropriation for that year had been expended. The heads of departments were requested by the city comptroller to undertake to save from twenty-three to thirty-one per cent, of the amounts appropriated, such varying percentages being adjusted to meet the needs of the different departments and their ability to save. The head of the department of health made an effort to save twenty per cent. Thomas was a sanitary inspector in that department at a salary of $100 per month. The last seven inspectors certified were laid off in October for a full month. About November 3rd, approximately one-third of the remaining inspectors were laid off for twenty-nine days, about the fifteenth of November another third for the same time, and December 3rd, when the one-third of the inspectors first laid off had returned to work, the remaining third were laid off for the same time. The result of such laying off was that two-thirds of the experienced inspectors were at work all the time except from the middle of November to the middle of December, when only one-third were at work. Thomas was among the one-third last laid off. This was not carried out with absolute precision because, as stated by the head of the department, an effort was made to keep a working force in all the different lines, but the inspectors were treated alike with the exception that the seven who came into the department last were laid off thirty-one days and the others twenty-nine days. Such absolute fairness as was shown convinces us that the good faith of all parties cannot be questioned.

Section 12 of the City Civil Service Act (J. & A. ¶ 1811) contains the following provision: “Nothing in this Act shall limit the power of any officer to suspend a subordinate for a reasonable period, not exceeding thirty days.” Section 12 of said act also provides that no officer or employee in the classified civil service who has been appointed as provided in the act, “shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense. ’ ’ There is no statutory restriction under the Civil Service Act on the right of suspension for the limited time prescribed in the act, and the statute' must be construed to mean that when occasion warrants it and the interests of the city require it, a civil service employee may be temporarily deprived of His employment for the time prescribed without affecting his status. The wording of the provision in section 12 that, “Nothing in this Act shall limit the power of any officer to suspend a subordinate,” etc., is broad enough to cover a case where it is necessary to lay off subordinates for the limited period named for purposes of economy at a time when retrenchment is necessary. The word “suspend” in the statute is not synonymous with “remove” but with “lay off,” where the purpose of suspending or laying off men is proper and necessary retrenchment. City of Chicago v. People ex rel. Byrne, 114 Ill. App. 145; O’Neill v. Fitzsimmons, 144 Ill. App. 168; Fitzsimmons v. O’Neill, 214 Ill. 494; Shane v. City of New York, 135 App. Div. (N. Y.) 218.

Section 7 of the Civil Service Rules provides that: “Whenever it becomes necessary in any business through lack of work or funds, or for any other cause, to reduce the force in any employment, the person working in said business who was last certified for such employment shall be the first laid off.” Section 12 of the Civil Service Act prohibits the removal of an-officer appointed under the rules of the Civil Service Commission except for just cause and with an opportunity to be heard; We do not think that either the rule or the statute is intended to apply to a lay off for thirty days or less, when it is done in good faith to reduce expenses.

We think the court erred in rendering judgment for the plaintiff and refusing to enter judgment for the defendant, and the judgment of the Circuit Court is reversed.

Reversed with finding of facts.

Finding of facts. The court finds as facts from the evidence-in the record in this case that the action of the defendant, the city of Chicago, and of the head of the department of health of said city, in laying off the plaintiff Thomas, a sanitary inspector in the department of health, December 3, 1912, for the period of twenty-nine days, was taken in good faith in the interest of economy and necessary retrenchment, and in an honest effort to bring the expenses of the city of Chicago for the year 1912 within the revenue of the city for that year, and not for the purpose or with the intent to circumvent or evade any provision of the act to regulate the civil service of cities, or of any rule of the civil service commissioners appointed pursuant to the provisions of that act.


author: Mr. Justice Holdom

text:
    Kennedy Furniture Company, Defendant in Error, v. Mrs. William Griffin, Plaintiff in Error.
    Gen. No. 19,450.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by the Kennedy Furniture Company, a corporation, against Mrs. William Griffin, in the Municipal Court of Chicago. The action was replevin, to recover possession of part of goods covered by a chattel mortgage given to plaintiff by one George Fabian, and acknowledged on the behalf of Fabian by one D. W. Fishell, as attorney in fact. The note secured by the mortgage was overdue, and unpaid in part. The defendant was a bona fide purchaser from the mortgagor, for value, of the goods in question, which were taken from her by the plaintiff, and was not a party to either note or mortgage.

      Abstract of the Decision.
    1. Chattel mortgages, § 48

      —when invalid against third persons. While a chattel mortgage not acknowledged as required by the statute may be good as between the parties, it is invalid as against a bona fide purchaser, for value, of the mortgaged property, who may set up its invalidity in defense.
    2. Chattel mortgages, § 55

      —who must acknowledge. The Chattel Mortgage Act (Rev. St., ch. 95, sec. 3, J. & A. (Hf 7576 et seq.), requiring a chattel mortgage to be acknowledged by the mortgagor, is not complied with where such mortgage is acknowledged by the attorney in fact of the mortgagor.
    3. Chattel mortgages, § 85

      —what is effect of defective execution. A chattel mortgage, not executed as provided by the statute, confers no right on the mortgagee to take the mortgaged property from the possession of a bona fide purchaser for value, claiming under a transfer from the mortgagor.
    4. Chattel mortgages, § 85

      —when invalid against third persons. A chattel mortgage, not executed, acknowledged and recorded as required by the statute, is invalid against those not parties or privies.
    5. Chattel mortgages, § 195

      —when inadmissible in evidence. In an action of replevin to recover part of the goods covered by a chattel mortgage from a bona fide purchaser from the mortgagor, for value, held error to admit the mortgage in evidence, where it appeared that the mortgage had been acknowledged by the attorney in fact of the mortgagor.

      At the trial in the Municipal Court, the court admitted the mortgage in evidence against the objection of the defendant, and at the close of the evidence denied a motion by her to strike it from the record as not legally executed. On motion of the plaintiff, the court directed a verdict in its favor for one cent damages, and after overruling motions in arrest of judgment, and for a new trial, entered judgment on the verdict. Defendant brings error.
    John J. Griffin and Edward J. Kelley, for plaintiff in error.
    Sonnenschein, Berkson & Fishell, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

6. Chattel mortgages, § 125 —how construed. A chattel mortgage must be strictly construed against those seeking to enforce it, for the reason that it is a creature of statute, and contrary to the common law.

7. Chattel mortgages, § 193 —when verdict improperly directed. In an action of replevin to recover part of the goods covered by a chattel mortgage from the possession of one not a party or privy to the mortgage, held error to direct a verdict for the plaintiff where the mortgage itself was incompetent.


text:
    Foley Manufacturing Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 19,824.
    1. Railroads, § 205

      —when city may require track elevation. In the exercise of the police power, a city had a right, within reasonable limits, to require a railroad company to elevate its tracks so as to avoid grade crossings, and to protect the lives and property of citizens.
    2. Railroads, § 220

      —what are elements of damages for railroad elevation. In an action to recover for damages to land, caused by the elevation of the tracks of a railroad company in compliance with a city ordinance, among the proper elements of damage are, the change in the grade of adjoining streets, through which the plaintiff had ingress and egress, and the closing of an alley, which cut off travel through it, in so far as such damage may have exceeded any benefits which may accrue to the land as a- result of the improvement.
    3. Railroads, § 220

      —when instruction on damages for track elevation erroneous. In an action to recover for damage to land due to the elevation of railroad tracks, an instruction that the loss of the use of the switch track, removed incidentally in compliance with a city ordinance requiring such elevation, was an element of damage to be taken into consideration by the jury in assessing damages, held to be reversible error, for the reason that it introduced an element of damage not sanctioned by the law.

      4. Appeal and error, § 1782

      —when verdict including improper element of damages reversed. Where a verdict is for a lump sum and includes several elements of damage, one of which is for injury to legal rights which do not exist, the judgment must be reversed, where the amounts assessed for the proper elements of damage cannot be ascertained, either from the verdict or from the evidence.
    5. Railroads, § 220

      —what is measure of damages for track elevation. The measure of consequential damages to land, due to track elevation operations, is the difference between the value of the property as a whole at the time immediately preceding the track elevation, and its value thereafter, as affected' by the changed conditions, which are regarded as elements of damage.
    6. Railroads, § 220

      —what are consequential damages from track elevation. Where no land of the plaintiff is taken as the result of the track elevation operations complained of, the damages recoverable are consequential.
    7. Railroads, § 220

      —when ordinance confers no additional rights. A city ordinance containing an agreement to pay damages incident to track elevation operations which was required by the ordinance gives no right to any person injured thereby which such person did not have aside from the ordinance.
    8. Railroads, § 220

      —when track elevation ordinance confers no right of action. A city ordinance requiring a railroad company to elevate its tracks, and incidentally necessitating the removal of a switch track abutting the plaintiff’s property at grade, in order to comply with the ordinance, gives no right of action against the railroad company, either under the Constitution of 1870 or at common law, for the damages caused by such elevation and removal.
    9. Railroads, § 220

      —when purchaser of land in view of existing conditions bound to take notice of possible danger. Persons who buy land and make improvements thereon, with reference to the convenience of an existing switch track, abutting their land at grade, for shipping their product, do so with the implied knowledge that a city ordinance may be passed, compelling the railroad company to elevate its tracks, and thereby abolish such grade switch tracks.
    10. Railroads, § 220

      —when oumer of land not entitled to damages for removal of switch due to track elevation. The fact that the plaintiff purchased his property and made improvements thereon, with reference to an existing switch track connection at grade with the tracks of a railroad company, and the convenience of the same for shipping his product, does not operate to give a right against the city to have the railroad company maintain the tracks at the existing grade, or to create a right of action against the city for damages caused by. the removal of the track, when made necessary by the compliance of the railroad company with a city ordinance requiring it to elevate its tracks.

      Appeal from the Circuit Court of Cook county; the Hon. H. Steeling Pomeroy, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    William H. Sexton, for appellant; Lee D. Mathias, P. W. Sullivan and William Dillon, of counsel.
    Howard W. Hayes and Vail & Vette, for appellee.

      Bee 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 mid section number.

   Mr. Justice Holdom

delivered the opinion of the court.

In this suit appellee seeks to recover damages to its factory property from the appellant municipality, arising, as it contends, from the raising of the tracks of the Chicago, Burlington & Quincy Railroad Company under a city ordinance so requiring, whereby appellee was deprived of the use of a certain surface switch or team track of the railroad adjoining and abutting its property, and because of the depressing of the roadbeds of Twenty-fifth and Twenty-sixth streets and the closing of a certain alley, through which streets and alley it had the right of ingress and egress to and from its property. Appellee claims to have bought its property in view of the shipping facilities afforded by such switch or team track, which were, by the elevation of the tracks of the railroad, abolished, thereby lessening the value of its real estate and factory plant and lumber storage yards, to which several uses the land was put. A trial before court and jury resulted in a verdict and judgment against the city and in favor of appellee for $22,500, and the city appeals.

• We are not concerned with the amount of the damages, as counsel for the city concede that if appellee is entitled to recover damages upon the theories presented by the evidence and the instructions to the jury, the amount assessed is not too much, and say in their brief: “But we are not here attacking the amount of the verdict as being against the weight of the evidence. If it be assumed that the plaintiff was entitled to recover the kinds of damage which it sought to recover in this case, we admit that the amount of the verdict was so far within the scope of the evidence as to justify this court in refusing to set it aside on the ground that it is excessive or against the weight of the evidence.”

The objections and exceptions made, preserved in the trial court, and the errors here assigned upon the record, present for our determination two questions:

FIBST. By the elimination of the switch or team track through the elevation of the railroad tracks, under the city ordinance, and depriving appellee of the use of the same in its business, is the city liable under the law for the resulting damage to appellee in the decrease in value of its property thus occasioned! And—

SECOND. Is the city liable to appellee for the decrease in value of its property resulting from the closing of the south end of the alley between Western and Artesian avenues, and the depression of that portion of Twenty-fifth and Twenty-sixth streets contiguous to appellee’s property!

By the instructions given by the court at the request of appellee, both these elements were submitted to the jury for their consideration as constituting measures of damages recoverable, in this action, from the city.

The proof shows that the switch or team track was not on the property of appellee and that its use of the track as a shipping facility was in common with others; that it had no contractual right with the railroad company entitling it to its continued use, so that when the railroad company eliminated it in the elevation of its tracks in the vicinity of appellee’s property, it violated no agreement that it had with appellee nor any duty which it owed appellee by implication of law. No part of the property of appellee was actually taken in the track elevation operation, so that the damages recoverable are consequential and the measure of such damages is the difference between the value of the property as a whole at the time immediately preceding* the track elevation and its value thereafter, as such value may be affected by the ehang*ed conditions, which are, under the law, regarded as elements of damage recoverable against the city.

The first element of damage, resulting from the elevating* of the tracks and the consequent abolishing of the switch or team track, under the conditions here prevailing, is not recoverable in this action.

We think it clear, under the evidence in this record, that appellee had no right of action against the Burlington road because of the elevation of its tracks under the ordinance and the necessary doing away with the switch or team track abutting appellee’s property, and that the agreement in the ordinance by the city to pay the damages incident to the track elevation by the railroad, under the ordinance, gave no right of action to appellee against the city which it did not possess aside from the ordinance. Chicago Flour Co. v. City of Chicago, 243 Ill. 268.

On the question now under discussion, Otis Elevator Co. v. City of Chicago, 263 Ill. 419, would seem to be controlling. It is held in the Otis case, supra, in which the condition was similar to that in the case at bar, that neither under the Constitution of 1870 nor by the course of the common law would the railroad company be liable in an action for damages for the elevation of its railroad tracks under a city ordinance, and the removal of a switch track abutting the Otis property. This reasoning in the Otis case is conclusive against the contention of appellee as the city in the exercise of its police power had a right, within reasonable limits, to require the Burlington road to elevate its tracks so as to avoid grade crossings upon streets, thus protecting the lives and property of its citizens. Chicago & N. W. Ry. Co. v. City of Chicago, 140 Ill. 309.

It is urged by appellee that its property was purchased and its factory and lumber yard installed because of the advantage arising from the proximity of the railroad and the existence of the team track in affording facilities for shipping its wares and product; but in the Otis case, supra, it was held that the mere fact that a property owner constructs improvements on his property with reference to a switch track connection at grade with the tracks of a railroad company, does not operate to give a right against the city to have the railroad tracks maintained at the existing grade. In other words, when appellee bought its land and made its improvements thereon it did so with the implied knowledge that' a city ordinance might be passed compelling the railroad to elevate its tracks and thereby abolish all grade switches, and that no damages would be recoverable by reason thereof. Kotz v. Illinois Cent. R. Co., 188 Ill. 578.

The change in the grade of the streets adjoining the property of appellee, through which it had the right of ingress and egress, and the closing of the adjacent alley cutting off its right of travel through it, are proper elements of damage for which a recovery may be had in this suit, so far as the same caused a depreciation in the value of the property of appellee, if such damage exceeded any benefits to such property attributable to improvements, if any, which might flow from the track elevation.

In City of Chicago v. Lonergan, 196 Ill. 518, it is held that the city is liable for damage to priyate property arising from a change in the grade of the street on which it abuts, made necessary by the building of a subway under railroad tracks in obedience to a track elevation ordinance.

City of Chicago v. Jachson, 196 Ill. 496, follows the Lonergan case, supra, and also holds that any change in the grade of a street by which ingress to or egress from private property is obstructed is a damage to private property for public use within the .meaning of section 13 of article II of the State Constitution of 1870.

The court, at the request of appellee, instructed the jury by the third instruction that an element of damage to be taken into consideration in assessing the damages of appellee, was the effect upon the value of appellee’s property resulting from the loss of the use of the switch or team track eliminated by the elevation of the tracks of the Burlington road under the city ordinance requiring them to be elevated. This was reversible error as introducing an element of damage not sanctioned by the law. As the judgment includes damages for injuries to supposed legal rights which had no existence, and neither by the verdict of the jury nor the evidence in- the record can the amounts assessed for the loss of the use of the switch or team track and the depression of the streets and the closing of the alley be separately ascertained, the case must be sent back to the trial court, so that on a new trial the assessment of damages may be limited to the injury sustained by appellee to its property, as indicated in this opinion.

For the error in assessing damages, the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remcmded.


text:
    John McKechney and John McKechney, Jr., surviving partners of Weir, McKechney & Company, Appellants, v. City of Chicago, Appellee.
    Gen. No. 19,879.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by John McKechney and John McKechney, Jr., as surviving partners of the firm of ;Weir, McKechney & Company, plaintiffs, against the City of Chicago, defendant, in the Circuit Court of Cook county.
    The action was a bill to vacate a judgment in favor of plaintiffs for one dollar and costs, and for a new trial, on the ground that the judgment was procured by fraud, and by the perjured testimony of defendant’s witnesses. The cause of action on which the judgment complained of was entered was the construction, by plaintiffs’ firm, of a tunnel in the city of Chicago, known as the “Northwest Land Tunnel,” under contracts with defendant. Previous litigation in the case is found in the cases of City of Chicago v. McKechney, 91 Ill. App. 442, rev’d 205 Ill. 372; McKechney v. City of Chicago, 160 Ill App. 544.
    The main issue at the trial resulting in the judgment complained of was the character and kind of earth excavated in constructing the tunnel. The bill alleged want of knowledge at the time of trial of the fraud and perjured testimony, and that no access could be had by plaintiffs to the tunnel to procure evidence for use at the trial. It also appeared on the face of the bill that plaintiffs had full knowledge of the fraud and perjured testimony complained of, more than two and one-half years before the bill was filed, and further, that the time allowed for suing out a writ of error had expired before such filing.
    Abstract of the Decision.
    1. Equity, § 78

      —when laches shown. Plaintiffs who fail to use reasonable diligence to bring their bill after knowledge of the facts on which they base their claim to relief are guilty of laches.
    2. Judgment, § 339

      —when hill to impeach judgment hatred hy laches. In a bill to impeach a judgment for fraud and perjured testimony, where plaintiffs did not file their bill until more than two and one-half years after knowledge of the facts, held that plaintiffs were guilty of laches.
    3. Equity, § 95

      —hoio laches may he taken advantage of. Laches appearing on the face of the bill may be taken advantage of by either general or special demurrer, and a demurrer to such a bill is properly sustained.
    4. Judgment, § 339

      —what excuse for laches in impeaching judgment required. Want of diligence in bringing a bill to impeach a judgment for fraud and perjured testimony will not be excused except for the most cogent and imperative reasons, which must he clearly averred in the bill.

      It was nowhere alleged that any attempts were made to procure evidence from those engaged in constructing the tunnel, or that city officials were summoned as witnesses, or that process was asked to compel the production of city documents. It was not alleged that any examination of the earth was made by competent persons, after it was hoisted to the surface, nor did any matter appear in the bill in excuse of the delay in filing the bill. The defendant demurred generally, and the demurrer was sustained. From a decree dismissing the bill for want of equity, plaintiffs appeal.
    Adams, Crews, Bobb & Westcott, for appellants; Madge Hartman, of counsel.
    William H. Sexton, for appellee; Bryan T. Craig, of counsel.

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

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

5. Judgment, § 339 —when bill to impeach barred by lapse of time. A court of equity will not entertain a bill to impeach a judgment for fraud after the expiration of the time allowed by statute for suing out a writ of error.

6. Judgment, § 343 —what bill to impeach must show to rebut claim of laches. In a bill to impeach a judgment for fraud and perjured testimony, mere disclaimer of knowledge of the fraud and perjured testimony is not enough to show diligence for the reason that the bill must allege reasonable efforts to procure knowledge, which efforts were abortive.

7. Judgment, § 343 —when bill to impeach for perjured testimony insufficient. In a bill to impeach a judgment on the ground that it was obtained by perjured testimony, where the main question at the trial on which the judgment was rendered was the character and kind of soil excavated in constructing a tunnel, an allegation that before the time of the trial parties complaining of the judgment could not obtain access to the tunnel to obtain evidence with which to overcome the perjured testimony complained of is a mere conclusion, founded on no particular averment of facts supporting it, and has no tendency to excuse an apparent want of diligence to secure such evidence, as it is clear that in construction of a tunnel many persons must have been engaged, from whom evidence could have been obtained by the use of due diligence, and because the earth excavated must have been raised to the surface where an examination of its character could have been made by competent persons.

8. Judgment, § 312 —when diligence not shown to sustain bill to impeach. In a bill to impeach a judgment on the ground that it was obtained by perjured testimony, failure of parties complaining of the judgment to take advantage, in time for use at the trial, of means readily available to secure evidence with which to overcome the perjured testimony complained of, and which means would probably have procured the necessary testimony, is such a want of due diligence as will prevent a court of equity from entertaining a bill to set aside the judgment, and grant a new trial.

9. Judgment, § 328 —vjhen perjured testimony not ground for equitable interference. The fact that a judgment is obtained by means of perjured testimony is not sufficient ground either for vacating the judgment or for restraining its enforcement.

10. Judgment, § 321 —what necessary to warrant equitable interference with. A court of equity will entertain a bill to impeach, for fraud, a judgment between the same parties only where the fraud complained of is extrinsic or collateral.

11. Judgment, § 321 —what constitutes collateral fraud on Mil to impeach. Extrinsic or collateral fraud, as applied to a bill to impeach a judgment for fraud, consists in fraudulent acts which, in fact, prevent the unsuccessful party from having a trial.

12. Judgment, § 328 —when duty of party to guard against perjured testimony. A party must be prepared to meet and expose perjured testimony which is offered at the trial.

13. Judgment, § 321 —what is intrinsic fraud on Mil to impeach. Intrinsic fraud, as applied to a bill to impeach a judgment for fraud, is fraud which is confined to matters in evidence at the trial resulting in the judgment complained of.

14. Judgment, § 321 —when judgment not impeached in equity for intrinsic fraud. A court of equity will not entertain a bill to impeach, for fraud, a judgment between the same parties where the fraud complained of is intrinsic.


text:
    Acme-Evans Company, Defendant in Error, v. Oscar L. Hunter and John Doe, trading as O. L. Hunter & Company, Plaintiff in Error.
    Gen. No. 20,170.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding.
    Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Rehearing denied October 14, 1915.
    Statement of the Case.
    Action by Acme-Evans Company, a corporation, plaintiff, against Oscar L. Hunter and John Doe, trading as O. L. Hunter & Company, defendants, to recover on a contract for the sale of grain. The contract was for prompt shipment on shipping orders to be given by defendants. The contract contained an option, which was reserved to the plaintiff, that “at the end of the contract time * * * the seller shall have the right * * * (3) to continue the contract, without notice, for thirty days with a carrying charge.” A resale was made more than thirty days after a reasonable time had expired wherein defendants might have given shipping instructions, of which resale no notice was given to defendants. Plaintiff constantly pressed defendants by letters and telegrams, for shipping instructions, to which defendants paid no attention. The judgment was for the difference between the contract price and the amount realized on the resale, with carrying charges and commissions added. To reverse a judgment for plaintiff, defendants prosecute this writ of error.
    Abstract of the Decision.
    1. Sales, § 114

      —when breach of contract shown. Where a contract for the sale of grain provided for prompt shipment on shipping instructions to be given by defendants, and containing an option to plaintiff which had the effect of. extending the time of delivery, but where it appeared that plaintiff, during the whole time, constantly pressed defendants for shipping instructions, which were never given, held that the evidence showed a breach by defendants.
    2. Sales, § 124

      —what essential to “prompt delivery." By legal intendment, “prompt delivery” means within a few days at most.
    3. Sales, § 341

      —when time for compliance by purchaser not extended. Where a contract for the sale of grain provided for prompt shipment on shipping orders to be given by defendants, which also contained an option to plaintiff which had the effect of extending the time of delivery for thirty days, evidence held to show no ground for defendants to believe that the time of performance had been extended by the exercise of plaintiff’s option, although it appeared that a resale was not made until more than thirty days after the expiration of a reasonable time for giving shipping instructions, it appearing that during the whole time plaintiff constantly pressed defendants, by letters and telegrams, for such instructions.

      Auden, Latham & Young, for plaintiffs in error; T. A. Sheehan, of counsel.
    Frank F. Reed and Charles A. Williams, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

4. Sat.es, § 60 —when contract executory. Where a contract for the sale of grain provided for prompt shipment on shipping instructions to be given by the vendee, held that the contract was in its essence executory.

5. Sales, § 306 —when notice of resale not required on breach by purchaser. In a contract for the sale of grain which is essentially executory, notice of a resale is not required.

6. Evidence, § 280 —when marlcet reports admissible to show values. Trade journals and market reports are primary evidence tending to show market values, for the reason that they are based on a survey of the whole market and are a source of information on which the business world relies, for which reasons they are more satisfactory than individual entries of sales and inquiries.

7. Evidence, § 51 —who has burden of disproving marlcet reports. Where market reports admitted as tending to show market value do not state the correct market price, the burden is on the adverse party to show that fact.


text:
    John F. O’Malley, Appellee, v. Illinois Publishing and Printing Company, Appellant.
    Gen. No. 20,264.
    1. Libel and slander, § 142

      —what evidence inadmissible on plea of justification. Where a libel charged plaintiff with being the head of an organization for the colonization of illegal voters, and a plea of justification in the resulting action for libel charged plaintiff with procuring illegal votes to be cast at a named election, evidence of plaintiff’s acts at an election other than that named in the plea is incompetent, as having no tendency either to prove the truth of the charge or to sustain the plea, for the reason that, since the law requires the plea to be as broad as the charge, the evidence offered under the plea, to be competent, must suffice to prove the truth of the charge.
    2. Libel and slander, § 104

      —when plea of justification had. A plea which attempts to justify a libel without alleging facts sufficient to establish the truth of the charge will he held bad on demurrer.
    3. Libel and slander, § 140*—when hearsay inadmissible. Where a libel charged plaintiff with being the “head of an organization for colonizing illegal voters,” and “one of the most notorious gambling bosses Chicago ever had,” hearsay testimony not tending to connect plaintiff with the incidents testified to, which were far remote from the date when the libel charged plaintiff with being guilty of the acts named, is incompetent as having no tendency either to sustain a plea of justification or in mitigation of damages, and held not error to strike from the record a deposition containing such testimony.
    4. Evidence, § 223*—when hearsay. Testimony offered as tending to prove an event which occurred in the absence of the witness, and of which he admittedly had no knowledge, held properly excluded, for the reason that such testimony is pure hearsay, and therefore incompetent.
    5. Libel and slander, § 163*—when instruction to find defendant guilty, proper. In an action for libel, where defendant failed in two important respects to sustain its plea of justification, held not error to instruct the jury to find defendant guilty, for the reason that such failure entitles plaintiff to such a verdict, provided proper instructions were also given leaving to the jury the questions of mitigation of damages and the good faith and justifiable ends of defendant in publishing the libel, as well as defining the measure of damages, and limiting recovery to such parts of the libel as were unproved, if any.
    6. Libel and slander, § 140*—when evidence showing suspicion of guilt inadmissible in mitigation. In an action for libel, evidence tending to cast suspicion of guilt on plaintiff is incompetent in mitigation of damages, where such evidence is offered to justify the truth of the libel, and failed to accomplish its purpose.
    7. Libel and slander, § 63*—when publication upon information from others no defense. It is no defense in an action of libel that the publication of the libel was predicated upon information from others, where nothing is known as to the truth or falsity of the charge, except as indicated by such information, for the reason that conversations with third parties which bear on such truth or falsity, had in the absence of plaintiff, are incompetent.

      8. Libel and slander, § 105

      —what is effect of plea of justification. In an action for libel, a plea of justification is in law a republication of the libel.
    9. Libel and slander, § 107

      —what is effect of plea of not guilty. In an action for libel, a plea of not guilty admits the falsity of the charge.'
    10. Libel and slander, § 77

      —what competent in aggravation of damages. In an action for libel, evidence of a second publication of the libel by defendant, emphasizing the first and ridiculing plaintiff, is competent in aggravation of damages, for the reason that the second publication tended to show malice in the publication of the original libel.
    11. Libel and slander, § 156

      —when verdict not excessive. Where defendant, the publisher of a newspaper of wide circulation and large admitted wealth, failed in two important particulars to sustain its plea of justification of a libel published in its newspaper, which charged plaintiff with serious crimes, as well as with being a saloon and dive keeper, and one of the most notorious gambling bosses Chicago ever had, and where there was a second publication by the newspaper of the libel, emphasizing the first and ridiculing plaintiff, without making a retraction, or expressing regret, or seeking to exonerate plaintiff from the aspersions cast on him by the libel, held that a verdict of $7,500 for plaintiff was not excessive, though plaintiff was admittedly a saloon keeper and a gambler.
    12. Libel and slander, § 148

      —when loss of sleep is an element of damages. In an action for libel, where the words of the libel are actionable per se, plaintiff’s loss of sleep, due to the publication of the libel, is a proper element oí damages.
    13. Libel and slander, § 148—when plaintiff’s family relations may he considered. In an action for libel, plaintiff’s family relations may be considered.
    14. Libel and slander, § 152

      —when punitive damages may he awarded. In an action for libel, where the words of the libel are actionable per se, and where malice is proved, plaintiff is entitled to punitive damages without proof of actual damages, where such damages are inconsequential, for the reason that under such circumstances a proper foundation for punitive damages is laid without such proof.
    15. Libel and slander, § 148

      —when circulation and wealth of defendant may he considered. In an action for libel, where the libel is published by a newspaper, the facts that the newspaper had a large circulation and was admittedly wealthy are properly considered.
    16. Appeal and error, § 1782

      —what essential to reversal for excessive damages. A judgment will be set aside on the ground of excessive damages only where it appears that the excess was due to the prejudice and passion of the jury.
    17. New trial, § 77

      —what essential on application on ground of newly-discovered evidence. On a motion for a new trial on the ground of newly-discovered evidence, the material point is whether the evidence in the affidavits filed in support of the motion could have been procured for use at the trial by the exercise of due diligence, and not merely whether such evidence in fact came to the knowledge of the party making the motion, after the trial.
    18. New trial, § 79

      —when due diligence in procuring evidence not shown. On a motion for a new trial on the ground of newly-discovered evidence, where the sources from which such newly-discovered evidence were available to defendant equally before as after the trial, of which defendant makes no use until after the trial, defendant is guilty of such a want of due diligence as will prevent the court from granting the motion.
    19. New trial, § 79

      —when court may consider facts alleged in application for continuance. On a motion for a new trial on the ground of newly-discovered evidence, where one of the principal affidavits is by the attorney for defendant, the trial judge, in weighing the probative force of the affidavits, is warranted in considering, the fact that before the trial a continuance was granted on the faith of an affidavit by the same attorney, alleging that certain named persons were necessary witnesses at the trial, and the further fact that none of the persons were in fact called as witnesses at the trial, and in concluding from the coincidence of the two facts that the affiant was oversanguine, and that at a new trial, if granted, the new evidence alleged might not have appeared.
    20. New trial, § 71

      —when evidence in mitigation of damages not ground for. Where a trial resulting in a judgment is fairly had, a motion for a new trial will be granted only where the affidavits make a strong case, showing evidence not merely cumulative but controlling, and practically conclusive, as well as material to the issues, or where such evidence is practically, conclusive that nominal instead of substantial damages should have been recovered, as it is not enough to support such a motion that the newly-discovered evidence merely tends to mitigate damages.
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in this court at the March term, 1914;
    Affirmed.
    Opinion filed October 5, 1915.
    Rehearing denied October 18, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Roy D. Keehn, for appellant; Edward G. Woods, of counsel.

      Joseph B.. David, 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, game topic and section number, vol, CXCIV 85.

      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 Holdom

delivered the opinion of the court.

Defendant is the owner and. publisher of a newspaper in Chicago called the “Chicago Examiner,” in which it published, on November 24, 1911, an article of and concerning the plaintiff, and he, regarding it as libelous; commenced this suit for damages.

The article complained about was published under the headlines in large bold type: “Sullivan Bipartisan Gang in Vice Net. Police Graft Under Busse "and Dunne to be Bared,” and the offending words declared upon in the declaration are encompassed in the following: “John F. O’Malley, Saloon and Divekeeper, One of the Most Notorious Gambling Bosses Chicago Ever Had, Accused of Being Head of an Organization for Colonizing Illegal Voters, and Known as the North Side Representative of the Graft Ring of the Busse and Former Administrations.” The declaration consisted of three counts originally filed and two additional counts afterwards filed by leave of court, in which, in varying forms, the article was alleged to be libelous in four particulars: (1) That it charged that plaintiff was a saloon and divekeeper; (2) that he was one of the most notorious gambling bosses Chicago ever had; (3) that he was accused of being head of an organization for colonizing illegal voters; (4) that he was known as the North Side representative of the graft ring of the Busse and former administrations. To this declaration defendant interposed two pleas, the general issue and a 'plea of justification, and plaintiff to these pleas filed the similiter ahd the replication de injuria. On the issue thus formed the "cause went to trial before court and jury, resulting in a verdict and judgment for $7,500, and defendant prosecutes this appeal, assigning numerous errors, which will be here disposed of under the designation of: (1) Errors of the trial court in its rulings upon the admissibility of evidence; (2) error in the giving and refusing to give certain instructions; (3) that the damages awarded are excessive; (4) that a new trial should have been granted for newly-discovered evidence.

The plea of justification justified as to the whole of the libel charged in the declaration, concluding with the averment that the defendant did, on the day in plaintiff’s declaration and each and every count thereof mentioned, publish the said words of and concerning the plaintiff in the said declaration and each and every count therein contained, as it lawfully might do, for the cause aforesaid, with good motives and for justifiable ends, etc.

The evidence developed much of the underworld life in Chicago. Plaintiff was the keeper of a well-known if not a notorious, saloon at Kinzie and Clark streets, where persons of all kinds and characters resorted. .A keeper of a house of prostitution was a witness for defendant, several penitentiary convictions of persons testifying were put in evidence, and a witness named Eobinson, who, defendant claimed, was in possession of valuable and material testimony, was said to be in the penitentiary at Stillwater, Minnesota. A witness named Sims was said to be an ex-convict. Policemen, detectives and ex-policemen also figured as witnesses.

The direct evidence on the part of plaintiff consisted of two stipulations, in which the defendant admitted its ownership of the " Chicago Examiner” and that its circulation on the date of the publication of the alleged libelous article was not less than 175,000 copies daily, and that the defendant corporation was worth not less than a half a million dollars over and above all its liabilities.

Two witnesses testified to purchasing the paper containing the article, which was read in evidence, and also a copy of the “Examiner” of December 12, 1911, containing the article, “O’Malley Awfully Hurt,” which was likewise read in evidence.

Plaintiff himself testified to his residence in Chicago ; that he was married and had a wife and a daughter eight years of age; that he was in the railway supply business and had been for five years, and that for thirteen years previous to that time he was in the saloon business at the northeast corner of Clark and Kinzie streets, which he abandoned in June, 1912; that he was a native born Chicagoan, educated here, was elected supervisor twice, state senator once, and a member of the General Assembly for one term, and had been a clerk in the city attorney’s office; that he was a Democrat; that he had read the article in the “Chicago Examiner” set out in the declaration on the morning it was published; that the effect of the article caused him loss of sleep, that he was worried, and that the sleeplessness continued for aboht a week; that he also read the article, “O’Malley Awfully Hurt.” This article is as follows:

“O’MALLEY AWFULLY HURT; NORTH SIDE VICE BOSS FINDS IT’S A HARD, CRUEL WORLD. This is a cold, cruel, wicked world. If you don’t believe it ask John F. O’Malley. He will also tell you that the Examiner is a cold, cruel newspaper. Incidentally he may mention that he has brought suit for $100,000 damages against the Examiner, alleging libel. Yes, indeed, his feelings have been hurt. Hurt? Why, they’ve been lacerated. Some time ago the Examiner described him as a ‘ saloon and divekeeper, one of the most notorious gambling bosses Chicagu ever had; accused him of being head of an organization for colonizing illegal voters, and known as the North Side representative of the graft ring of the Busse and former administrations.’ And just for that he says he has been libeled. Who’d have thought it?”

This was all the evidence in chief. Defendant, under its plea of justification, tendered as a witness the reporter who wrote the article complained about. His testimony was almost entirely of a hearsay character, including what other people had told him, of the articles he had read in newspapers in Chicago involving O ’Malley, and that he believed the offending article to be true.

The clippings referred to by this witness were offered and received in evidence on the part of defendant, they being the clippings so received as tending to show good faith and want of malice on the part of defendant in making the publication, and in mitigation of damages.

To support the plea of justification there were numerous witnesses, consisting of bartenders, policemen, retired policemen, detectives and a lawyer; they testified to, among other things, matters occurring at dates remote from the date of publication of the libelous article in question. They also testified as to the many kinds of persons who visited O’Malley’s saloon, and as to O’Malley’s playing poker in,the Richmond House.

The deposition of Gerard Fuller tended to show that O’Malley gambled in the Richmond House; that at an election held in the fall of 1908, one Nelson gave him a dollar to cast an illegal vote, and that prior thereto plaintiff had given Nelson $50 in money. The whole of the Fuller deposition was excluded on the motion of plaintiff’s attorney.

One .William B. McCormick, a newspaper man, testified that at an aldermanie election in April, 1910, he had a conversation with one William Gloor with reference to voting, and after objection to some of his testimony, counsel for defendant offered to prove that at the spring election of 1910, McCormick, while at a polling place, was approached by a man named Gloor, who requested him to vote; that after stating to the man that he had no right to vote, the man said if didn’t make any difference, or words to that effect; that thereupon the witness went with Gloor to the plaintiff, John F. O’Malley, who was standing near the polling-place, and that 0 ’Malley handed to the witness a card on which was the picture of the aldermanic candidate, one Clettenburg, with the words, “Vote for Clettenburg” and two ruled lines, and that on the ruled lines was written, “John Delaney, 414 West Indiana Street;” that when the card was handed to the witness he was told that was the name under which-he was to vote; that witness went to the polling place and there showed the card to one Bauler, with whom he had gone to the polling place; that door saw what had occurred and tried to get the card away from the witness, who went away carrying the card with him.

On objection of counsel for plaintiff, the testimony of McCormick was stricken out and the offer of further proof by him refused.

One Lizzie Femeke testified for defendant that she kept a disreputable hotel in 1908 and 1909 at 172 North Clark street; that Lieutenant Ambrose called on her and after a conversation with him she went to see O ’Malley, and that upon four occasions after that, once in each month, she gave O’Malley an envelope containing $50, during which time neither she nor her disreputable establishment was disturbed. The testimony of this witness was categorically denied by plaintiff in his rebuttal.

The husband of Mrs. Ferneke testified in contradiction to many matters to which she testified.

First: We have read with care the evidence admitted and refused and, in the light of the pleadings, we are unable to say that any reversible error was committed by the court, either in its admission or refusal to admit evidence. The testimony of McCormick was clearly inadmissible. It in no way tended to prove the charge that 0 ’Malley was, at or about the time of the publication of the libelous article, the head of an organization for colonizing- illegal voters, nor did it sustain the plea of justification in any other particular. McCormick’s testimony related to an aldermanic election in April, 1910, but the plea of justification charged that it was at the April election of 1911 that plaintiff procured illegal votes to be cast. The law required the plea to be as broad as the charge, and the evidence, to be competent, must be sufficient to establish the truth of the charge.

If such evidence had been set up by plea, it would have been held bad on demurrer. Brown v. Burnett, 10 Ill. App. 279; Bingham v. Gaynor, 203 N. Y. 27.

It cannot be said that McCormick’s evidence and what was proposed to be further proved by him tended to justify the libel; neither would it maintain the plea of justification. In the following cases proving less than was charged was held to be insufficient:

In Clarkson v. Lawson, 6 Bing. 266, it was charged that a proctor had been suspended from his office three times, twice by Sir J. Nlcholl and once by Lord Stow-ell, but in the plea of justification one suspension only was averred.

Bishop v. Latimer, 4 L. T. N. S. 775, was a libel impugning the plaintiff’s character as an attorney. The libel was in general terms, “How Lawyer Bishop Treats His Clients.” A plea justifying the aspersion by citing one instance of ill treatment in a particular case was held insufficient to sustain the implied charge in the libel that he so treats his clients generally.

Wakley v. Cooke, 4 Ex. Ct. 511, was a libel charging the plaintiff with being a “libelous journalist.” Proof offered under a plea of justification that the plaintiff had libeled one man, who had sued him and recovered, did not justify the general charge.

Dowie v. Priddle, 216 Ill. 553, adheres to the doctrine announced in cases cited.

McCormick’s testimony given and proffered did not tend to prove the truth of the charge that the plaintiff was the “head of an organization for colonizing illegal voters.” As McCormick’s testimony was not proffered in mitigation of damages, it is not necessary to decide as to its admissibility for such purpose.

It was not error to strike out the deposition of Fuller, as his testimony was clearly hearsay and in no view ¡which can be taken of it did it connect 0 ’Halley with any of the incidents about which he testified. Nor can it be said that Fuller’s deposition tended to support the charge that plaintiff was the “head of an organization for colonizing illegal voters” or the charge that plaintiff was “one of the most notorious gambling bosses Chicago ever had.” And further, the incidents testified about were all far remote from the date when the words published inferably charged plaintiff with being guilty of the acts constituting the libel. Neither was his testimony admissible in mitigation of damages, nor was it so proffered.

The testimony of Schubert was properly excluded, as he was not present at the time of the occurrence about which he testified, and the fact that Mike Crow called plaintiff on the telephone was purely hearsay, as the witness admittedly had no knowledge as to who answered Crow’s telephone call.

Second : The instructions as a whole presented the case more favorably for defendant than the law warrants. The court instructed the jury to find a verdict against the defendant, but the question of damages was left to the jury under suitable instructions defining the measure of damages plaintiff was entitled to recover and limiting such recovery to so much, if any, of the words published which had not been justified by proof.

The instruction to find defendant guilty was without error, as defendant had failed in two essential particulars to sustain its plea of justification, namely, that plaintiff was the “head of an organization for colonizing illegal voters” and that he was known as “the North Side representative of the graft ring of the Busse and former administrations.” The evidence of defendant both given and proffered completely failed to sustain either of these charges. Neither can we find in this record any evidence establishing that there was any so-called graft ring in the Busse or former administrations—referring to Busse as one-time Mayor of Chicago and to municipal executives who preceded him. Defendant’s failure in these particulars to prove its plea of justification entitled plaintiff to a verdict in his favor, leaving to the jury for their determination, as was done by appropriate instructions, the questions of circumstances which might tend to mitigate the damages to be awarded and whether the libel was published in good faith and for justifiable ends.

The evidence claimed to be proper to be considered in mitigation of damages violated the rule that evidence tending to cast suspicion of guilt upon the party libeled cannot be considered by the jury in mitigation of damages. Such evidence was all aimed at an attempt to justify the truth of the libel, and consequently failed of its intended purpose. Spolek Denni Hlasatel v. Hoffman, 204 Ill. 532.

And it was said in Stephens v. Commercial-News Co., 164 Ill. App. 6:

“It is no defense to an action of libel to show that the publication was predicated upon information obtained from the chief of police and others at the police station and that at the time of the publication and afterwards nothing was known with respect to the truth or falsity of the publication, except as indicated from the information thus obtained, and conversations had with third parties out of the presence of the plaintiff which bear upon the truth or falsity of the publication made, are incompetent.”

Third : The damages are not excessive in our judgment for a libel of so serious a nature. Its republication was malicious and vindictive. Not only were the libelous words repeated, but emphasized, and. plaintiff ridiculed. The plea of justification was in law a further republication of the libel and the plea of not guilty admitted the falsity of the charge. While plaintiff was a saloon keeper and admittedly a gambler, it was not proved that he kept what is known as a “dive,” nor was there any evidence that he was guilty of the other two charges. The repetition of the libel tended to show malice in the publication of the original libel, and these republications were proper for the jury to take into consideration in aggravation of damages. Ransom v. McCurley, 140 Ill. 626.

The words of the libel were actionable per se, and the fact that the publishing* of the libel so disturbed plaintiff that he could not sleep at night was a proper element to be taken into consideration by the jury in awarding actual damages. Rea v. Harrington, 58 Vt. 181; Cahill v. Murphy, 94 Cal. 29.

In assessing damag*es, it was proper for the jury to consider the plaintiff’s family relationship, and as said in Adams v. Smith, 58 Ill. 417: “We have no doubt, where words spoken are actionable per se, that the mental suffering produced by the utterance of the slanderous words is a proper element to be considered in fixing the amount of damages.” As the words were libelous per se, a sufficient foundation for the recovery of punitive damages was laid. Hintz v. Graupner, 138 Ill. 158.

While we regard the actual damage suffered by plaintiff as inconsequential, the words being actionable per se and malice being abundantly proven, it was not necessary to prove any actual damage to entitle plaintiff to recover punitive damages. We are satisfied, in view of the vindictiveness of defendant’s actions, as evidenced by its malicious repetition of the libel, that the damages assessed were quite within bounds. Moreover, we fail to find any circumstances in defendant’s evidence warranting the jury in minimizing the damages, for we fail to find in this record any apology or expression of regret on the part of defendant at the publication of the libel. From first to last defendant maintained the truth of the publication and that it was published in good faith and for justifiable ends. Nowhere has defendant sought to exonerate in any degree the plaintiff from the aspersions cast upon him by the publication of the libelous article. The wide circulation of defendant’s newspaper, the “Examiner,” in which the libel was published, and the admitted wealth of defendant, were elements proper to be taken into consideration by the jury in awarding plaintiff damages, and these elements justify the amount of the verdict.

In no case will a judgment be disturbed on review on the ground of excessive damages, unless it clearly appears that the damages awarded are the result of prejudice and passion on the part of the jury. We are unable to say from this record that any taint of prejudice or passion on the part of the jury is discernible.

Fourth: As to the refusal of the trial court to grant a new trial on the grounds of newly-discovered evidence.

We find nothing in the affidavits presented regarding newly-discovered evidence which shows that defendant used due diligence to procure the witnesses named, or their testimony by way of deposition, for use upon the trial of the cause. Robinson was said to be a convict in the penitentiary at Stillwater, Minnesota, and his deposition presumably could have been taken. The material point is not that the testimony discovered came to the knowledge of defendant after the trial, but, could such evidence have been procured for use upon the trial by the exercise of due diligence. It is evident that the same agencies which discovered such evidence after the trial were just as available to defendant befpre the trial.'

It is a strong case that will warrant a court of review in reversing the judgment of a trial fairly had on the ground of newly-discovered evidence. The evidence said to be newly-discovered does not appeal to ns as being at all of a conclusive character, but merely of a cumulative nature.

In weighing the probative force of the affidavits presented concerning the newly-discovered evidence, the court was justified in taking into consideration, if it did, the facts that the principal affidavit was made by the attorney for defendant here and in the trial court, and that in an affidavit made by the same attorney in the trial court for a continuance, in the faith of the verity of which a continuance was granted, the names of several persons (among which was that of United 'States Senator Sherman of Illinois) were set forth as necessary witnesses on the part of defendant in the trial of the cause, and that on the trial not one of them was called upon to testify. The trial judge might well have concluded, from these coincidences, that defendant’s attorney was oversanguine in his statements and that a new trial might not have brought forth the new witnesses named.

It is said in Schlauder v. Chicago & S. Traction Co., 160 Ill. App. 309: “To entitle a party to a new trial because of newly-discovered evidence, it must be material to the issues and controlling and practically conclusive. * * * It is not sufficient that it tends to mitigate damages * * * unless, indeed, it is practically conclusive that merely nominal or slight damages should have been recovered instead of the heavy damages awarded.”

Asiwe find no reversible error affecting either the merits or procedure, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Anna Dickson, Plaintiff in Error, v. Travelers Insurance Company of Hartford, Connecticut, Defendant in Error.
    Gen. No. 20,706.
    1. Insurance, § 667

      —when evidence is insufficient to show cause of death. In an action on an insurance policy, by which a doctor was insured against septic poisoning, where it appeared that such doctor died from inoculation of the crypts of the tonsils, causing staphylococcic and systematic septicemia, held that the plaintiff’s case failed for lack of evidence as to how the insured became infected with the germ which caused his death.
    2. Insurance, § 651

      —what evidence is inadmissible to show cause of death. In an action on an insurance policy, by which a doctor was insured against septic poisoning, evidence as to what the insured stated as to how he came in ■ contact with the septic matter which caused his fatal illness was incompetent, did not form part of the res gestee, and was also without probative force, as the evidence showed that the insured had no actual knowledge as to the source of the fatal germ, or how it was acquired.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Rehearing denied October 13, 1915.
    Edwin F. Masterson, for plaintiff in error.
    Frank M. Cox and R. J. Fellingham, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

By agreement of the parties the trial of this cause was submitted to the trial judge, without a jury, who, after hearing the evidence tendered on the part of plaintiff, on the motion of defendant entered a finding in its favor and a judgment of nil capiat and for costs. From that judgment, plaintiff prosecutes this writ of error.

Plaintiff seeks to recover $10,000, the amount of an accident insurance policy in defendant company upon the insured, Herbert Dickson. This policy insured, against loss resulting from bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means as specified in certain schedules. Attached to this policy was a certain addenda referred to as a “rider,” which provided that “subject to all its conditions and provisions, this policy covers septic poisoning, the result of external inoculation through accidental contact with septic matter.”

The insured, Dickson, who was styled in the policy a “surgeon eye specialist,” died May 15, 1913. The cause of death was inoculation of the crypts of the" tonsils of the throat, causing staphylococcic infection and septicemia, or blood poisoning. The death of Dickson, plaintiff contends, was occasioned by and referable to “septic poisoning, the result of external inoculation through accidental contact with septic matter” within the meaning of the policy, and that defendant is consequently thereunder liable, to plaintiff for the amount of insurance covered by the" policy.

It is contended that the insured became so infected from one of three patients, viz., a Dr. Bourke, or a Mrs. Nelson, or an old German, all of whom he treated on May 7th preceding his death. It is also claimed that the old German had a sore throat in a pus condition, that Mrs. Nelson had a bad tear duct that was mattering some and that Dr. Bourke had a cloth around his neck, indicating a carbuncle, and that each and all of them had the staphylococcic germ, with which germ the. insured became infected by inhalation through his throat, in which the germ lodged, and from which infection he eight days thereafter died. Neither of these three persons was called as a witness, nor had their particular ailments, whatever ailments they may have suffered from, been examined by any medical man produced as a witness upon the trial. Neither had there been any laboratory culture test from the throat of the old German or from the tear duct of Mrs. Nelson or the carbuncle > of Dr. Bourlce, if he had a carbuncle, about which there is no evidence.

No evidence was proffered either of treatment by the insured of any one of these three persons or that any charge for treatment had been made, nor was the address of any of these persons disclosed by plaintiff. The testimony of the medical men was all hypothetical and not based on any fixed or ascertainable fact, but rested in the surmise of these medical men that the insured must have been infected by inhaling the breath of the old German or by inoculation from Mrs. Nelson’s malignant tear duct or the carbuncle which it is assumed Dr. Bourke had. We think plaintiff’s case utterly fails for lack of any legal evidence establishing how the insured became infected with the staphylococcic germ which caused his death. All of the evidence rests in surmise and conjecture and presumptions founded upon presumptions. All of this falls far short of meeting the legal requirement which rested upon plaintiff to maintain her cause by a preponderance of the evidence:

It is assigned for error and argued that the court erred in not permitting Dr. Wilson to testify as to what the insured told him as to how he came in contact with the septic matter which caused his fatal illness. Such statement was incompetent. In no sense did it form part of the res gestee. This identical question was decided in David v. Commercial Mut. Acc. Co., 166 Ill. App. 490, and Globe Acc. Ins. Co. v. Gerisch, 163 Ill. 625. Even, had such statement been allowed, it was without probative force, because all the evidence demonstrates that the insured had no actual knowledge from whom or from what source the fatal germ got into his throat, or as to how long such germ had been in his system.

' It is apparent from the foregoing that plaintiff having failed to sustain her action by any competent evidence, it is of no importance to the decision of this case what the court’s rulings were upon the propositions of law and fact tendered by plaintiff’s counsel to the trial judge.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Joe E. Christensen et al., trading as Christensen Brothers, Defendants in Error, v. Chicago, Milwaukee & St. Paul Railway Company, Plaintiff in Error.
    Gen. No. 20,769.
    1. Cashiers, § 242

      —what limitation of liability as to stock transported may be entered into. A shipper may fix the value of his stock less than the actual value thereof, in order to obtain the lower of two or more tariff rates, and in the event of loss in the value of stock in transit, through the negligence of the carrier, the shipper may recover from the carrier whatever loss he has sustained up to the limit of value first placed upon such stock at the time of shipment.
    2. Carriers, § 45

      —what is effect of bill of lading. The parties to a contract in a bill of lading by which the carrier is to pay for any loss or damage, not exceeding $30, for each animal shipped are bound by it.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    J. N. Davis and C. S. Jefferson, for plaintiff in error; H. H. Field, of counsel.
    Eugene L. Garey and Archie J. Deutschman, for defendants in error; Frank D. Fulton, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is a common carrier case and involves the construction of the bill of lading for the carriage by defendant of two cows belonging to plaintiff, which, for the purposes of carriage and fixing the carrier’s charges, were valued at $30 each. There is no contention of fact, as the facts are all agreed upon in a stipulation upon which the cause proceeded to trial before the court without a jury, resulting in a finding and judgment against defendant in the sum of $60, to reverse which defendant sued out this writ of error. The provision of the bill of lading calling for our interpretation reads as follows:

“It is agreed, and this contract is upon the condition, that the value of the live stock so to be transported is as herein below named, and the liability of the company for any loss, injury or damage for which it may be responsible, shall be to the extent only of such agreed valuation, upon which the rate of compensation for the transportation of said property is based:
Cows or heifers $30.00 each.”

Defendant admitted that through its negligence both cows were injured in excess of $30 each, the limitation of their value fixed in the bill of lading . The shipment was interstate, but the laws of the United States regulating interstate transportation are in no way involved.

The learned trial judge held as a matter of law that: “A shipper may fix a value on his stock less than the actual value thereof, in order to obtain the lower of two or more tariff rates and in the event of loss in the value of such stock while in transit, through the negligence of the carrier, the shipper may recover from the carrier whatever loss he has sustained up to the limit of value first placed upon such- stock at the time of shipment.” Defendant, however, requested the court to hold as the law of the case, “that under the written contract between the plaintiff and defendant, and the tariffs of which it is a part, the plaintiff -is not entitled to fix" a valuation on the cows, for the purpose of securing the lower of two lawful transportation rates, and another value on the cows for the purpose of adjusting a claim with the defendant for damage to said cows occurring during the course of transportation,” which the court refused to do.

While the precise question here involved has not as yet received an interpretation by the Supreme Court of this State, yet we are not without precedent, as the Federal Supreme Court and some of the State Supreme Courts, as will hereafter appear from the decisions which we cite, have been confronted with this same character of controversy for decision. While these decisions are not in entire harmony and some of the cases cited by defendant would seem to hold contrary to the Nelson, Hart, Croninger and Brown cases, post, cited, still we are of the opinion that the holding of the trial judge is supported by the undoubted weight of authority and is the law of the case. The Federal decisions are in complete accord" on this subject and are controlling of the conclusions to which we have arrived. This being an interstate commerce transaction, the Federal decisions are the measure of the law to be followed in the interpretation.

The contract in the bill of lading is to pay for any loss or damage not exceeding $30 for each animal,—not for a total loss or damage, but for any loss or damage. Such are the terms of the contract, and by it the parties are bound.

This proposition is well stated in Nelson v. Great Northern Ry. Co., 28 Mont. 297, and is as apt to the decision of this case as to that. The court say: “No question is made as to the liability of the carrier for the full value of the property so fixed in case of total loss, but it is claimed that in case of injury the carrier is liable for only a proportion of the amount, taking the stipulated value as the basis of calculation. To say that the phrases ‘loss of property’ and ‘injury to property’ have the same signification is to declare them synonymous, when in fact they are not. The one means a total destruction or loss of property, the other means a partial loss or destruction; and in case of injury a value may yet remain in the property, equal to or exceeding the stipulated value.” Neither in this case are “loss” and “damage” synonymous any more than “loss” and “injury” were in the Nelson case, supra, and by interpretation we hold they have the same meaning when used in a contract of the same nature, as is the contract in the case at bar.

The initial case in the Federal Court on this subject is Hart v. Pennsylvania R. Co., 112 U. S. 331. In that case the shipper shipped five horses in one car, on which the carrier, by the terms of the bill of lading, assumed the liability of $200 for each horse or $1,200 for the carload. One horse was killed and four injured through the negligence of the carrier. The horses were valuable race horses and the shipper sought to recover their real value from the carrier, but the trial court held that the shipper was limited in his recovery by the terms of the bill of lading, and charged, inter alia: “It is competent for a shipper, by entering into a written contract, to stipulate the value of his property, and to limit the amount of his recovery in case it is lost. This is the plain agreement, that the recovery shall not exceed the sum of $200 each for the horses, or $1,200 for a carload. It is admitted here, by counsel for the defendant, under this charge, that the plaintiff is entitled to recover a verdict for $1,200, and also, under the charge of the court, the plaintiff agrees that that is all. It is simply your duty to find a verdict for that amount,” to which charge the plaintiff excepted.

The Supreme Court held that it was just to hold the shipper to his agreement, that''compensation for carriage was based on the value fixed in the bill of lading, and that the carrier was responsible for negligence up to that value, and said: “ It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practiced on the shipper, should he upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss.”

The court further held that damages, in case of a breach, may be liquidated in advance, and the court concludes its opinion with the following observations: “The distinct ground of our decision in the case at bar is, that where a contract of the kind," signed by the shipper, is fairly made, agreeing on the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations.”

Adams Exp. Co. v. Croninger, 226 U. S. 491, adopts the doctrine of the Hart case, supra, and quotes therefrom the following: “The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the contract of transportation, between the parties to that contract. The carrier must respond for negligence up to that value.”

These two Federal cases aré so analogous on fact and principle to the case at har that they must be held to be conclusive of our decision.

Brown v. Cunard Steamship Co., 147 Mass. 58, was a case of limitation of liability in a bill of lading where the limit was $100, and the court said: “As we read the contract, the damages are to be ascertained in the usual way, by finding the difference in value between each package as damaged and the same undamaged, and these damages are to he paid by the defendants up to but not exceeding $100, when the value is not declared, or, in this case, up to but not exceeding the invoice value.”

The ruling of the trial court as to the measure of damages assessable under the limitation of liability in the contract between the parties in the case at bar is supported by the weight of authority and in our opinion is without error, and the judgment of the Municipal Court is therefore affirmed.

Affirmed.


text:
    Massachusetts Bonding & Insurance Company, Appellant, v. Joseph R. Burres, Appellee.
    Gen. No. 20,773.
    1. Indemnity, § 8

      —what is extent of liability under contract of indemnity. Idl an action on an indemnity bond, where under the contract of indemnity defendant undertook, among other things to pay the expenses of seizing and caring for the property levied upon or seized under a writ of execution and the costs of the services of the bailiff, “including custodian fees,” this was the measure of the defendant’s liability, and such defendant was liable for reasonable custodian fees.
    2. Indemnity, § 24

      —what evidence may not be considered in action on bond. In an action on an indemnity bond, given as a condition precedent to trying a writ of execution, the question of taxation of custodian fees as costs in the suit in which the judgment on which the writ of execution was issued, was obtained was not germane to the issues involved.

      Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Aaron Soble, for appellant.
    Elijah N. Zoline, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Mary A. Conley recovered a judgment in the Municipal Court of Chicag’o against Elizabeth B. Portugal and thereon issued an execution and requested the bailiff of the Municipal Court to levy the writ upon certain property of the judgment debtor. Before acceding to this request the bailiff exacted, as he lawfully might, a bond of indemnity as a condition precedent to his levying the writ as requested. The defendant Burres and one M. L. McKinley procured the plaintiff to indemnify the bailiff and, on their part, executed and delivered their bond of indemnity to the plaintiff, and this suit is on that bond.

A trial was had before the court and a jury, the latter rendering a verdict upon the direction of the court in favor of the defendant, upon which a judgment of nil capiat and for costs was entered and plaintiff appeals.

Plaintiff’s claim is for one hundred and thirty-six dollars for custodian fees paid by it to the bailiff in the Conley suit, in accord with the condition of its undertaking, for the services of two custodians put in charge of the property levied upon, which was situate in two different places. The charge was at the rate of four dollars per day.

Plaintiff claims under its contract of indemnity, and defendant insists there can be no recovery because the custodian fees paid were not taxed as costs by the Municipal Court.

This suit is not between the parties to the Conley judgment against Portugal. Consequently, the question of taxation of custodian fees as costs in that suit is not germane to the issue presented in this action. By the express terms of defendant’s indemnity to plaintiff he undertook, among other things, to pay the expenses of seizing and caring for the property levied upon or seized under the writ of execution “and the costs of the services of the bailiff including custodian fees.” This is the measure of the liability of defendant, and the only question is, are the custodian fees, charged by the bailiff and paid by plaintiff to him, reasonable? The uncontradicted evidence is that the charge of one hundred and thirty-six dollars was reasonable. This evidence, upon the motion of defendant, was stricken out on the ground that the one hundred and thirty-six dollars had not been taxed as costs in the Conley suit, and on motion of defendant the jury were instructed to find a verdict in his favor. This was error, for which the judgment of the County Court is reversed and the cause remanded for a new trial.

Reversed and remanded.